Transcripts For CSPAN2 Book Discussion On Dissent And The Supreme Court 20151224

We have cspan with us this afternoon, when you ask your questions please line up at our audience mike and form a line. Lastly, this is not the last event for the today. While we would usually ask you to fold up your chairs, today we ask that you leave your chairs for the next event. I welcome you to politics and prose, on behalf of our wonderful staff. We do over 500 events events per year, in addition to events in the space and other locations and venues across the city. We we also hold book groups, classes, and literary trips. I would like to begin by saying i am pleased to welcome Public Policy and law professor of history at virginia university, as he presents his new book dissent and the Supreme Court, its role in Court History and the nations constitutional dialogue. He has written and edited 52 books, his previous books include biography Supreme Court justice which is deemed monumental at the New York Times review, in in addition to the vision and discord, and supreme decisions. He reviews comments in the Supreme Court his lifetime of scholarship and ellicott pen combine for an outstanding read. And his latest offering he reviews 226 years of high Court Decisions. A major concept out in his work is that he may be the opinion today over time it is often the wisdom of the dissenting view that prevails. He frames history is an ongoing debate on the meaning of the constitution and shows how the dissent reinvigorates democracy itself. Thank you [applause]. Thank you, its always a pleasure to be a politics and prose. How shall i dissent, let me come the ways. How many of you saw the movie mary poppins . Either children, parents, gradual, okay. Do you remember that scene where uncle albert and birds and the children are having a tea party on the ceiling and she starts singing a song about different kinds of laughs and making fun of them and how bad they are trying to get them down. Well, i thought that would be a great way to start so i called the disney people and i asked them if they could write a song for me about dissents. The answer was, what is a dissent . So lacking a song and giving my voice, my family will tell you that is a blessing by itself that i do not sing. Let me read to you see if you can guess who wrote this first quote. I am unable to agree with the judgment of the majority of the court, although i think it useless and undesirable as a rule to express dissent i feel bound to do so in this case. Anyone want to get to that is . Oliver wendell holmes. The next one is from a lawyer who says dissent like homicide fall into three categories, excusable, justifiable, and reprehensible. Law school dean kathleen sullivan. Great Supreme Court dissents lie like buried ammunition for future generations to on earth when the time has come. Pierce butler. I shall in silence acquiesce, the scent seldom aided the right development or statement of the law, they often do harm for myself i say, lead us not into temptation. And finally, willy mo mo douglas, the right to dissent is the only thing that makes life tolerable for a judge on court. So so you can see theres a range of opinions mike by the way i have two or 300 of these quotes that i gathered in the course of writing this book. Even today you find there not many people who disagree with the whole idea of dissenting. Last year there were dissents or separate opinions and two out of every three opinions that the u. S. Supreme court handed down. This year, the dissent is likely to be higher given some really high profile, high tension cases. We are use to that. This has been the pattern ever since the early 1940s. Before that, believe it or not, they were very few dissents at all. Up until the 1940s the Supreme Court was unanimous in 95 or better of all of their cases. We started out with an English Heritage of opinions, that was every judge would write an opinion on the case. The problem here was that while you could tell who one by counting up the votes, you cannot always tell what the reason was that the person had one. John marshall believed that it would be better for the court if it spoken one voice, now remember this is the beginning of the republican what he is trying to do is establish the court as a coequal branch of government. By the force of his personality and his logic, this is what happens. This is still the belief of some jurors that a court should speak in one voice because it carries more weight that way. In europe, some countries have up until recently for bed and the publication of dissents. There were dissents from the beginning, but few and far between. In the 19th century the only important ones where the two dissents by the clean and curtis and scott decision and they did not have a great impact in some ways beyond a few years because the civil war settled the issue. Stephen field in the slaughterhouse case had an enormous impact and got us corporations as if they were persons. Then there was John Marshall the first in the civil rights cases. Which continues to have an impact to this day. Moreover, even if the justice did not agree with the majority of the opinion, well into the 1920s he, and they were all men at this time, might often just note the disagreement without a separate opinion. One reason was up until the mid19 20s the court heard almost every kind of case. Cases that today would be decided in a magistrates case in a local township. Maybe a low state court. There. There were bankruptcy cases, the types, remember the thing in fiddler on the roof, he saw me a horse, it was a a mule, those cases actually came before the Supreme Court. They were of importance only to the people who are litigating it. As who says its more important to decide a case then to decide right, just get it out of here. Then in the 1920s we begin to get the sense, especially those of Oliver Wendell holmes, we grand eyes, but in terms of the courts total caseload these are really only a few. If you take a look at the total number of dissents that say brandeis and holmes wrote, they are less than 10 , less than 5 of the total number of opinions the men wrote in their tenure at the high court. Things began to change with the judges bill of 1925. William howard taft had lobbied for. He gave the court for the first time in its history, almost complete control over its it became what they wanted it to become, namely a constitutional court, with few exceptions since then, its annual load consent of two types of cases. Challenges to laws, either state or federal on constitutional grounds, once the Court Decides the only remedy is a constitutional amendment. This happened with the income tax cases in the 1890s. Then theres questions of statutory interpretation. What do congressman . Congressman . One would think that with all of the money that congress has, the thousands of aids servicing the congress they would be able to write a law that is understandable to everybody. But they do not. Many times what the court has essentially said is, this is what we think you mean and if it is not, rewrite it. You can do that. That. Here you do not need a constitutional amendment. Now in a constitutional coward justices began to develop philosophies and they try to be true to them. Im not saying justices before them did not have consist of use nor that there were not any constitutional cases before then. But the majority of the cases that they heard did not require consistency. Better decide a case then decide it right. Now with the majority of the cases being constitutional questions the cases had to be decided right and if the justice disagreed, he felt it necessary to did explain why. While there are many reasons that dissents multiplied during the 1940s, one was named felix frankfurt. If any of you had ever tried to read a Supreme Court case and thought it was dense, loaded with footnotes and everything that is felixs fault. Hero Supreme Court opinions as if they were law review articles, incomprehensible to most everyone, he thought that was the way it should be, only the elite should understand. He wrote more dissents than he wrote majority opinions and the fact is that non pays any attention today either to his majority opinions or to his dissents. But he he made a lot of noise. Because he wrote, his appointments known on the court as prima donnas, douglas and black that they had the right to answer. So you began to get cases with the majority of opinion, a concurrence a dissent, another dissent, you actually had cases where there were nine separate opinions. I have not found any that have had 10. But but so far there have been once with nine. Another recent the dissents started to multiply were clerks. Grand brandeis and the others had one clerk and it was a large investment of that clerks time to get a dissent written. Now the justices have four clerks each, i think the chief has five. It is not hard. Okay you cant take this dissent, you take that one and we will keep grinding them out as much as we want. Now, my theme in the book is that of constitutional dialogue. This is a dialogue that takes place between the court and other branches of government. First of all, it is a dialogue that takes place between the justices and the members of the Supreme Court. Let me quote the fear some Ruth Bader Ginsburg, my experience teaches that there is Nothing Better than an impressive dissent to lead the author of the majority opinion to refine and clarify her initial circulation. An illustration, the Virginia Military Institute Case decided by the court 1996 held the denials of admission to women violated the 14th amendment equal protection clause. I was assigned to write the courts opinion. The final draft release to the public was ever so much better okay and makes it hard to read that way but will do the best we can. I have to stand like this. The final draft release to the public was ever so much better than my first second and at least a dozen more drafts thanks to Justice Scalias dissent. Now we go to justice scalia. Who is ginsburgs good friend and occasional nemesis. Scalia wrote in a similar vein, so the fact never comes to public light , the first draft of a dissent often causes the majority to refine its opinion, eliminated the more vulnerable assertions and narrowing the announced legal rule. When i have been assigned the opinion for the court, and a divided case, nothing gives me so much assurance that i have written written it well is the fact that i am able to respond satisfactorily, in my judgment, to all of the onslaughts of the dissents were separate concurrences. Ironic as it may seem, i, i think higher percentage of the worst opinion of the court not in result, but in reasoning are unanimous once. So, this is part of the dialogue judges talking to one another. Sometime this changes mind, here again i may go to Justice Ginsburg. Since her words are much better than mine, i had the heavy experience once she told the harvard club of washington, of writing a dissent for myself and just one other justice. In time, it became the opinion of the court for which only three of my colleagues dissented. So, there is there is a dialogue going on here. Sometimes after the vote at the conference it may appear that the majority is here in the minority is here, the when people start writing you begin to see not just the strengths of different argument but weaknesses as well. So this i think is one of the most important of the dialogue that are taking place. It happens every term, on almost every case. There is also the dialogue between the court and of other branches of the government, such as congress. Congress. For example, in an opinion that most academic think is stilted with stupid, the court held that women who suffer discrimination in pay had to report it within six months of when they discovered it. Now, if you had the case of Willie Ledbetter whod did not know it then 20 more years because how was she to know that shes not not getting paid right. So Justice Ginsburg writes an opinion here, a dissent that says this a statutory interpretation, congress if this is not what you meant by this stupid interpretation, rewrite it. That same day, senator named Hillary Clinton introduced a law to just that effect. But the president at that time, george w. Bush, threatened to veto the bill if it got passed congress. You might remember one of the first things obama did when he went and was to buy to re pass the law, which they did. He had a big signing ceremony calling it the Lilly Ledbetter law. There is also, and is also is the dialogue between the president and the court, a example here are the cases that came out of wonton guantanamo and the court saying that they are entitled to due process. George bush kept saying they are entitled to due process. Finally, this is the hardest one to track, there is a dialogue between the court and the people. You may remember the federalist paper called the court but least Dangerous Branch because it had neither the power of the purse, the congress, nor, nor the sword. The president. The only power that the court has is the goodwill that the people hold. And it screwed up a couple of times, as dred scott in the 19th century. There was and continues to be a hullabaloo over the way. Roe versus wade. Finally, there is what i was most concerned about, was the conversation between the dissenter and the future courts. Here we come to what some people have called prophetic dissents. Chief Justice Hughes set a dissent is an appeal to the brooding spirit of the law, to the intelligence of a future date when a later decision may possibly correct the era in which the dissenting judge leaves the court to have been betrayed. Two examples may suffice and then i would say a few words about the Current Court. One example is hugo black in bets v brady, 1942 case. Smith abets was poor, charged with armed robbery, asked for a lawyer and was told that a lawyer could be appointed and paid for by the state was only available in capital cases. The Supreme Court upheld the state Court Decision and heres what black said. The sixth amendment stands as a constant admonition that of the constitutional safeguards that provide the loss, justice will not still be done. It embodies a realistic recognition of the obvious truth of the average defendant does not have the professional legal skill to protect himself one property for a tribunal with power to take his life or liberty. Where the prosecution is presented by experience i learned counsel. That which is simple, orderly, and necessary to the lawyer, the on trade lehman may appeared intricate, complex, complex, and mysterious. That was 1942. Over the next 20 years, every time a six the memo in case on representation by lord can be for the court, this is there, they kept having to do it. Eventually what happened, every single case was overturned on a technicality because in a succeeding case they said you have to have a lawyer if it was a complex case or if the person lacked the mental capacity to be able to understand what was going on. The court cap finding lack of mental capacity, technical cases to keep overturning it but they kept shying away from overturning. Let me tell you story here which tells you why the ascent is important but how the court works. When, by the early 1960s the court was ready to over rule Betts V Brady, the court lauren tells his cord to start looking for cases involving the sixth amendment three cases, the first one involved a man who sexually sexually molested his son and daughter and there is witnesses both, this guy was guilty, the court was not in favor of overturning betts versus brady for a sexual assault. The second one about two guys who had committed an armed robbery, one of them as my son, the former former prosecutor used to say, did the right thing. He ratted out his colleague. However, the court had appointed a lawyer but now the lawyer had a heart problem because he had one client who is still pleading innocent and another who said guilty and he did most of it. The court refused to appoint a second lawyer and so that case comes up in here again the court did not want to overturn a case in favor of someone who is clearly guilty. Enter Clarence Earl gideon as everyone knows as henry fonda. He allegedly, allegedly i say, had robbed a pool hall in florida was convicted on the basis of testimony of someone who think is the guy who really did it. He gets to prison where he spent a lot of his life and he writes a hand written petition to the Supreme Court to review. The court takes it as a petition, he did not have to pay the fee and all of that that comes up. The Court Appoints a lawyer to represent him in the Court Unanimously overturns bets on the basis of what hugo black had written 20 years before. In a gesture of gesture of extreme make the amenity, award assigns the case to black who writes the opinion. He later said when Betts V Brady was decided i never thought i would live to see it over rule, but he did. Most authors of great dissents do not live to see their ideas vindicated. John Marshall Harlan in plessy, all were window homes in other cases and brandeis is in the minds of many scholars, including myself, obviously, the author of two of the greatest dissents that were ever written. One is in whitney versus california which is technically a concurrence but is really a dissent which which he laid down what is the basis of modern First Amendment speech. It wasnt wasnt finally accepted by the court for 40 years. But in the end, when the Court Finally did adopt it it was along the lines of what brandeis has laid out in whitney. The other is a case known as homestead versus the United States which i tell my students, ought to be adopted as a case study by the Harvard Business school. Roy olmsted was a policeman during prohibition and he realize he can make more money as a bootlegger than he could as a policeman. So he raises raises some money, we would not call it crowdsourcing from among his friends and he starts his bootleg operation. Now, they had they did they ran in the goods done from canada in speedboats, he had a a farm along one of the inlets in oregon with a hidden basement where they stored the stuff until he needed it. He had had a fleet of cars to deliver it, he had a bank of telephones, he will call up and say i would need a case of prior whatever and you would have it within one hour. He either had a credit line with him or not, he was rarely rated because his brother was on the police force and was also part of the ring, but they knew when rates were coming. Moreover, the state of washington didnt really care. There were not quite as bad as new york which absolutely refused to enforce prohibition. But they did do not really care so the feds come in. Because olmsted was using modern technology known as a telephone, this is one that had a dial in a wire that connected it, you have have to pick it up and talk to it, they used modern technology if you want to call it technology, two alligator clips on the phone lines leading into his office. They sat there and took notes that it was quite clear what he is doing periods on the basis of and they do not have warm for this, so he is arrested, convicted, he appeals to the Supreme Court and the majority opinion a chief justice is so wooden, you feel like take the knife to it and just carving something. There is no entry into the building there for the Fourth Amendment is not violated. Brandeis writes a dissent in that case which does two things, one of which is completely revamped what the Fourth Amendment thats the memo that forbids search or seizure without a warrant. What that means, and what it means is typically stated by Justice Potter stewart 40 years later, the Fourth Amendment protects people, not places. But the more important thing he did was he introduced, for the first time, the notion of privacy is a constitutional right. Now, if you want to know what a great dissent does, other than say i disagree with the majority, first of all it has to date cast the facts of a case in such a way as to support the reasoning that is going to come afterwards. So even though the majority and minority may agree on what the basic facts are, they are are looking at it in different ways. Now most justices today assign the factual part which is usually the first couple of paragraphs in the opinion to the clerks. Brandeis didnt, he said if i get my facts right it will be harder for them to argue with my logic later on. The second part of an opinion that is a great opinion has to be the logic, that if you read it you say of course it has to be that way. The third thing, it has to grab you. It has to be written well. Unfortunately in the 200 years that we have had a Supreme Court, the number of good stylus can be counted on the fingers of one hand with change. Oliver wendell holmes, brandeis, occasionally, Robert H Jackson and scalia. Which even if you do not like what he writes, he, he writes it so damn well. I like to read his opinion as entertainment rather than anything else. Listen to brandeis though and olmsted. The makers of our constitution undertook to secure conditions favorable to the pursuit of happiness. They recognize the significance of mans spiritual nature, of his feelings and have his intellect. They know that only the part of the pain, pleasure, satisfaction pain, pleasure, satisfaction of life are to be found in material things. They sought to protect americans in their beliefs, their thoughts, their motions and their sensations. They conferred as against the government the right to be let alone. The most comprehensive of rights and the rights misfiled by civilized men. To protect that right every unjustifiable bowl upon the privacy of the individual, whatever means employed, must, must be deemed a violation of the fourth minute. It took 40 years for the court to catch up, there still some people say theres no right to privacy because the word is not mentioned in the constitution. Brandeis did not live to see this but as he put it, my faith in time is great. Now, let us go to the Current Court, also known as the nasty court. Now, Anthony Scully like to see himself as a great dissenter on this court. He has had some influence, one cannot deny that. He has almost singlehandedly rewritten the constant tuition clause was. There were two cases in which a fourth in many cases in which you overturn can fictions that have been secured without a warrant but by using, and one case of marijuana sniffing dog outside of the premises, and in the other people were driving around with this device to grow marijuana you need a lot of light which generates heat and electricity, so if youre in california you cannot see the houses. They have they have these big walls. So they are driving up and down the street with a heatseeking device and all of a sudden it spikes and they say hot, sure enough there is marijuana there. He follows the exact same logic that brandeis did regarding wiretaps in the olmsted case but refuses to cite the olmsted case because of privacy. Now, let me read you a couple of quotes from his honor. In his dissent in the case that upheld the tax structure of the Affordable Care act, scalia dismissed the majority opinion as pure applesauce and sniff that the law should be better be named scotus care. When Stephen Breyer used the dissent regarding the protocol for lethal injection and announced that he had perhaps come to believe that the eighth amendment that the Death Penalty may violate the eighth amendment, scalia scott Scott Justice breyer injects the enlightenment. Last term in the blockbuster case regarding samesex marriage, scalia characterize the majority opinion as containing the mystical aprons of a fortune cookie. The conclusion conclusion was that if he ever joined an opinion whose opening lines were written as kennedys where i would hide my head in the bag. Now, actually scully has written one of the great prophetic decisions of modern times. I dont think he meant it that way. A few years ago in the windsor case, remember that was when a woman had her partner had died, left her many, many, the irs refused to give her the spouse deduction and so she paid it and then sued, the court upheld her, sixthree and kennedy wrote the majority opinion. Now kennedy tried really hard, he really did. He tried to cabin the decision in terms of the marriage is always up to the states and so then the federal government would have to bow to the great tradition. But scattered among other things were allusions of equal protection, scalia jumped on this and he wrote a really nasty opinion. And it he said you know what this opinion is going to do, the next thing is samesex marriages and this is how theyre going to do it. He. He protected, the next day the aclu filed the suit against the virginia another pennsylvania, following exactly what scalia said they were going to do. Sure enough, last time his prophetic but not as he imagined. Anyway, theres a lot more stuff in the book, some of it is amusing, some of it is not. It is not a history of every dissent and lawyers among us who have favored dissent may or may not find what theyre looking for in this. What i have tried to do is get the sense that illustrate this point of a constitutional dialogue, we shall soon find out if readers and reviewers agree. Thank you. [applause]. If you want to ask a question we have a microphone here, go ahead mark you have been waiting. Sometimes justices will actually read their dissents in open court, i wonder if you have any cop months on that practice. Is a rare practice. Usually done for punctuation when they really feel strongly about it. One of the things that i feel they did was his was so long that noah could sit through them. So ever since i think the 50s and 60s the chief justice will announce the case, the writer of the majority opinion will then say we find in favor of, and give give a short, very short summary of why, then they may note that their dissents on the dissenters may if they want the short summary. But sometimes when people are really angry at what the majority has said they wont read their dissent from the bench. It does not happen often but when it does you pay attention. I would like you to comment on two crucial decisions in the 20th first century, gore gore versus bush and Citizens United. In both cases dissent was impotent. Giving us a disaster with bush and Citizens United has totally desecrated the whole concept of democracy in regard to politicians being paid by tremendous let me do wish igor firstbush versus gore. Its its that no precedents. In fact, the following year in new jersey the democratic candidate for senator was convicted and sent to jail, it was past for filing deadlines of the Democratic Party called out of retirement and he became and the Republican Party went to court trying to use bush versus gore as a reason why they should not allow that in the court just said that has nothing to do with this case. There is not been a single case since then that has been decided. You will find scholars, im sort of neutral on this point, but some of my colleagues believe the court had to step in to avoid an even worse result, that would have been the Republican Legislature of florida deciding for bush. This would have been, in terms of public perception, remember jeb was governor at that time. He pulled strings so that the legislature would put his brother into the white house. So, it is true that the dissent there does not carry much weight but neither does the majority opinion. It was a one off case, it would hopefully in our lifetime will not see another one. The american public, such as the iraqi war . Well you know, there are a lot but you cannot tell that gore would have been different. We do not know what gore would have done after 911. The second part, im not sure yet that the dissents in that case. Even though that is a constitutional decision it was not decided well. The majority opinion in those cases are not strong. Let me go back a bit, several years ago i wrote a book on mcconnell versus federal election commission. This was the Mccain Feingold that can be for the Supreme Court. It was upheld, almost all the provisions were upheld. The problem was, this was a spatial challenge of the law what the court does not really like to deal with but it had to because the law said it had to. A a facial challenge is when someone says this law might affect me somehow and the court says we do not know if its going to or not. For example Mitch Mcconnell says i will have trouble raising money for my reelection, he had just been reelected two months earlier. So the court was not too impressed by that argument. But, what i did right, now historians look backwards, including me, whenever someone says what is going to happen . I always was say im a historian not a profit, cant tell. This time, i said im im going to be a profit. What i argued was a soon as the court began to get, as applied challenges, thats thats when the law actually did something for somebody, they were not going to uphold the case. They are not going to uphold it on First Amendment grounds, which is exactly what happened. Now i think susans united is a terrible decision. I think the court overreached itself. But what its lasting implications are, i dont know yet. Its really its really does not look good in this election. Do you question the intelligence of these Supreme Court justices . Couldnt they realize what would happen with all that money for people to spend . It does not say very much will let me say two words to you. Donald trump. Thats another example. What happens if you have someone whos very rich, can you restrict how much they can spend on their campaign . The court says no. Perhaps in a world governed by Bernie Sanders it would be, but for the most part we do not respect trick people spending their own money. Let me give you another example. Let us assume for the moment that i am inarticulate, i cannot stop laughing thats my son making faces back there. Lets assume that im inarticulate, i cant get up before crowds, i dont really like crowds but i have very strong opinions. Mark here however, is running for office and it turns out every one of the ideas i hold mark supports. Now, i want to help him. Anything wrong with that . If i give mark a lot of money, thats my speech. I am using my money to essentially get my ideas out. First amendment protects that. Now the question you raise and one which i do not have a good answer for is when we get into these mega quantities. And what to do about that. But, in terms of the book i wrote was money and speech. In politics its the same thing, without without money there is no speech. Just a quick question, you mentioned the Current Court is what did you say . A nasty court, can you elaborate on that and what effect that could have . Up until fairly recently the court, at least publicly, was civil. It had people, James Mcreynolds who is an antisemite who used to leave the room, the leave the room, the Conference Room when brandeis spoke. Frankfurt who hated anyone who disagreed with him, and he had other people who were less than nice. But if you read u. S. Reports, which are the official reports of the court you would never know this. There is a civility about it, moreover you do not accuse who was it scalia had a series of dissents back in the 90s, there were called slug sandra. Every time she wrote a majority opinion he wrote that they were being called. You do not get there earlier. One reason was because if i dissent from you today, i may need your vote tomorrow and a case in which i feel very strongly about. So im not going to go out of my way to offend you. Now, scalia, i wrote an oped piece for the Philadelphia Newspapers in which i said that scalia has essentially been a failure. When he was appointed in the 1980s, conservatives cheered, theyre finally going to get someone really bright, which he is, really articulate, which is, to fight William Brennan who they saw as the eminent who even after the court had a majority appointees by republicans, was still pulling majority opinions out of the hat. Didnt work out that way. It turns out scalia was much more like william o douglas, the most liberal member of the 20th century. Douglas said, the only soul i have to save his mind. So he never tried to hit people to join his opinions, he never tried to build coalitions. He didnt care if someone signed onto his opinion or not, scalia has been the same way. So instead of forming a conservative block for which he was an intellectual spokesman, take a look at what happened lecture. Conservatives were all over the place. Linda greenhouse who is the former New York Times Court Reporter has said that this nastiness is seeping down into lower courts. She cited some more court cases where the dissents have essentially set of scalia can be nasty, so can i. I dont know if that answers your thing completely. Your next man. Go. Okay, i am not a lawyer but im very angry about some of the Court Decisions but particularly the Voting Rights act which i believe is the one were Ruth Bader Ginsburg read her dissent and fall. So it is relevant to your book, it seems to me that it ignored, gave no difference to congress. Eight gave difference to congress the first time it came up. But Roberts Roberts made it quite clear in that opinion that the case relied on situations that had existed in the 1960s in which congress had never revisited. So for example, did a certain district still discriminate against blacks or not . What he essentially told congresses, you have the power to pass this law under the 15th amendment but you cant pass a law based on data that is 50 years old. So bring the data up to date and you are good. He made this quite clear, he said said to congress, you have the power but it has to be current data. Not 50yearold data, which made perfectly good sense. Of course, this congress cannot get anything done. So i would say the blame lies as much, if not not more so on congress because roberts opinion is not without merit in terms of , do you want to be judged on what you were 30, 40, 50 years ago, or ago, or what your now . Well if they knew that a number of states that were covered by the Voting Rights act were just waiting as indeed was the case. Thats not the courts business. Well, but the other thing, well first there were extensive hearings in 2006 when the act was renewed, huge huge amount of material. Second, isnt it the executive branch that determines will congress and the civil rights Voting Rights act of 65 specifically identified the states and districts, not the president. The attorney general have the responsibility to enforce the law. But the case that came up, i think it can involved a small Water District in texas was nowhere like it was, in fact it hadnt existed back then. So i do not like the results of it but the reasoning is perfectly sound. That is what the court has to do. Now this is part of the dialogue. They told congress, you want to have this law, you have to have an up to date law. Perfectly reasonable. How does the constitution cover that . Well, the constitution the only part involved here would be the 15th amendment which is the post civil war amendment giving the former slaves the right to vote. And how does the constitution provides that you have to keep laws uptodate . Oh, the court does that. But if that is the ground i mean another thing that bothers me is that scalia is an original except he can find an original reason promised anything. Okay. Yes or. Many my friends are lawyer, some have argued cases before the italian Supreme Court. When when Citizens United was passed here in the United States they predicted an american model, offer self finance millionaire and billionaire. And look what we have. You said that, i didnt make. So you want to give money to your friend who is running for public office, make sure he gets public funds not private. What we have been trying to get public funds here for ages without very much success. Yes, sir. Not to be the dead horse, but Citizens United. No thats my wife who did that. [laughter] you are equating money and speech but i thought i understood earlier that you did not approve of the decision, i for one think that the legal fiction just as corporations are legal fiction for a particular purpose but i dont see that money equates to free speech. Its the result. In an election campaign, if you you have no money, you have no speech. If you cannot buy the air time for your ads which is a form of speech, if you cant buy the yard signs which are form of speech, if you cannot afford the travel to get you from one venue to another, you you have no speech. You do need the money. Now, my problem with Citizens United was that it took away all restraints on it. It is not that they allow money to be used in politics, but they and nor do we really expect a level playing field, no one has ever suggested will people have suggested that all candidates be restricted to certain amount of money and no one has ever thought that was a good idea. Im not as student of the constitution but it does seem to mean that many of the values in the constitution have to be weighed between different priorities and it seems to me here when you have money out of control which is what i believe youre suggesting now, that the balances so far out of kilter that could not the court take that approach and its rationale. Thats what the minority did in that case. Its not a simple thing and i do not want to make it seem, despite my example, i wrote the book on campaignfinance reform, i wrote a book on the because my wife and i were down in williamsburg having lunch with an old friend from kentucky. He asked me what i thought of Mccain Feingold. Ive said i dont think its a bad idea to have some restrictions on it. Eric said, no. Its a bad thing. It restricts speech. Eric was a true aclu or from the beginning, him and his wife marched in civil rights pray before it became fashionable for whites to do that. I did not question his credential at all. Anything that affects political speech is bad. Thats where the book, i do not agree with the members. Now i think i cant say he is wrong. Forgive me if you said this early i came late, did you mention the potter mentioned in this book to think there is any chance that may have a prophetic role in creating a potential, or as as we look at a potential for practices like silence in schools,. While we had one that came out i think it was in alabama, a moment of silence that the court struck down because the sponsor the bill said and in that minute the teacher should lead them in prayer. [laughter] i mean that was not too bright on that guys part. First of all, nothing nothing stops children from praying in school. Any math teacher will tell you that. Secondly, in many schools now they have set aside places where muslims students can leave the room, go do their daily prayer. What the court held with that you cannot force a child to pray. You cannot prescribe the prayer that you force a child to pray. I do not think that is ever going to change. But was stewards more nuanced than that. Well he was looking at tradition. He also dissented in the bible. I think though history passing by for this reason. In 1962 when were still overwhelmingly a white, anglosaxon, christian country. I think within a few years whites are going to be the minority in the voting population. Susan, how many languages did you saying that Northern Virginia school district. I think like 19 different languages. In one district. We have become a diverse country which we were not at that time. We had one large minority block, the roughly ten or 11 who are africanamericans. The only hispanics lived in new york city and they came from puerto rico. We did not have the cuban migrations yet. No one was paying any attention to what they call look back to california because they were needed to harvest the crops. Now we are far more diverse, i dont dont think anyone ever even knew about islam. Oh yeah something arabs do right . So i think stewart was on the wrong side of history there and what the country has become. So, yes it was nuance and it was wellwritten but the country went a different way which makes it irrelevant now. Last question. I may have misunderstood, i thought you said in one of the cases early in your talk that one of the Supreme Courts had his clerks look for a particular case. Did they do that . But as i told the story, the 1st to the cayman they did not want to use. Remember, the court controls a stock it. I had a case, still studied in some which was decided by the fifth circuit. The fourth circuit. The Supreme Court did not take it. What i have always told students is they were absolutely right because it did not frame the question the right way that they would have been able to answer it. Soso the court, they only decide about 75 cases a year now. They give you one example, the case coming up called fisher v texas dealing with affirmative action. Way back when the Circuit Court for the fifth circuit in texas, the fifth circuit in texas, my google here fifth circuit held the texas could not use race as a criteria for admission. Which meant all of the states covered by the fifth circuit were held to that law. The Supreme Court refused to review it. Why . They never made that clear. But a few years later they took an almost identical case, to the university of michigan and essentially overturned. Soso the court takes a look at not only what the case is about but if it is framed in such a way that we can say what we want to say. Actually go out and speak no, they have to look at what comes in. But they get almost 10,000 petitions. They take less than a hundred. They have to take it as an issue. Expanding on Citizens United. They can run with it once i get a case. You can do that. You may not agree with it but he is the chief justice. He can do what he wants. Especially if he has four other votes. Okay. All right. Thank you very much. [applause] do you want to watch this program again . Visit booktv. Org to watch any of the programs you see here online. Type the author name or book title in the search bar and click the looking glass. You can also share any of the videos on our website by cooking the facebook, twitter, or share icons. Book tv, since 1998 all the top nonfiction authors and books. All available at booktv. Org. The coauthors of notorious rpg and unconventional biography of Supreme Court justice Ruth Bader Ginsburg, recently interviewed by cnn senior legal analyst. From hunter college, new york city, this is just over an hour. Good evening. I am jennifer rabb. Thank you. I have the extraordinary privilege. Tonight along with my colleague i am so pleased to welcome you to this discussion notorious rpg. The shout out