washington. he appointed the first 13 u.s. marshals. >> the president still appoints the u.s. marshals confirmed by the senate. if you would thin think in law t that would change as the director and the deputy direct director. >> we have a couple more. >> i'm just curious from the spouse perspective what is it like? >> i'm curious also, sir. thank you for asking the question. in her the microphone. i'm the type of person i don't really think about it and i don't think about what he does. i keep myself busy but when i do think about it i kind of forget. he was always good at keeping in touch and what they are and what they were doing but there were a few times that he wasn't calling and you know that is the things that happened whether they got in a car accident or somebody, you know, was taken to the hospital so it was one of those things that when you think about it, you freak out because i am more worried about when you are in dc with the sniper case watching tv and when they were doing that chased down the highway crashing at 100 miles an hour, the little instances like that. i know that he' he is good at wt he does command really he always told me what he did and when he was on the show manhunt useful but he did. that's what you really do. that is the reality. that is what got me through. [applause] in his book on certain justice lawrence argues that the supreme court under the chief justice john roberts is rewriting the constitutional wall in a variety of areas including free speech, privacy, voting rights and presidential power. he spoke at the harvard bookstore in cambridge massachusetts. >> thank you very much. one of the research assistance when you could be outside enjoying the weather. i'm glad that something true you all here and i'm glad to be talking to you. he spent some time speaking with his high school music teacher he didn't know that he was working with me and she kind of unloaded on him upon the great disillusionment with the great supreme court and had been looking at the headlines about how people like linda greenhouse were saying that it was a private and polarized court. why weren't they just a bunch of politicians, why should i trust these guys? and my students tried to reassure that it's not really as bad as all of that. she wasn't convinced. she made an analogy to umpires. she's only going to be an umpire involved in the strikes. he was only going to be neutral. she didn't find it very convincing. there's judgment involved in the work of an umpire and they famously described i as a living and breathing document the way thathat today described the supe court constitution. she was a lot more convinced by what elena kagen said. in the tough caseand the tough e the only ones that reached the court judgment was involved. we bring a lot of ourselves to the process of deciding cases and this is as it should be. she responded, she was very bright and she said what if it's not what roberts claimed she could make it. why isn't it just a matter of him elected judges serving for life and imposing the political preferences on the rest of us. and he is a very loyal research assistant in his reply was read his book. [laughter] good for you. the umpire analogy was great pr and also did contain a germ of truth mainly good judges like good umpires should apply their philosophies consistently issued and bend them to cut slack for their favored players that they like to bring home the pennant. that much is true but of course the analogy is the vast oversimplification. it is a personal understanding of what the constitution is about. the national history connects us to. it is the language like liberty, equality, ambiguous principles like what the role of the court should be and how active of the role it should play in american life. all of those don't come down. they are not written in stone that were objectively decipherable and they shouldn't expect the justices and not the philosophies to their door should we always expect to find the philosophy striking is as bright or even as neutral when we might be coming from a different worldview. elections of course have consequences, and the selection of justices by a serie the serif increasingly conservative republican presidents with a certain perspective on the world and on the constitution. the umpire analogy is off base to the extent that it pretends the system expects judges to be blank slate that thing other than their view in the wall to the cable. so, max did urge them to teach legal experts some important lessons. it's filled with great stories about everything from really fascinating cases to the justices personal obsessions with things like baseball. one story that he mentioned featured in the book was about the devotion to the cincinnati reds which extended to making sure his clerks were watching this small tv he set up in the chamber on the playoffs between the mets and the reds. he re-signs in that order. my assistant went on to explain that reading the uncertain justice which he hadn't read that he helped me with a couple of footnotes and it's like we touch the tale of an overhead someone else touches the trunk. somebody touches the underbelly but nobody has seen the elephant full so he finally saw the elephant and he read it and said the story about the increasing number of the five to four split along the political and even partisan lines make good press but it shouldn't disillusioned because it was a lot more misleading than informative. it turns out only about one fifth of the cases since roberts became the chief justice in 2005 has been divided fiv five percor and at least one third of the 5-4 split involved unlikely bedfellows like the alignments where one of the liberals joining us with robert kennedy, thomas and alito to create the 5-for alignment in which the dissenters are the other liberals possibly a is invariably protective of the privacy rights and the government and more liberal than by air or any other justice. you would end now that from that reputation that's only a has nurtured as a radical uncompromised conservative. just yesterday the elena kagen led a decision that immigrant children had bad luck to turn 21 before their parents who have green cards got to the head of the slow-moving line for an immigrant visa. her opinion was joined by anthony kennedy republican governor ruth ginsburg a democrat and her conclusion was supported in a separate opinion written by roberts and joined by scalia. the justices that ruled in favor of the boy that turned 21 and emigrated from el salvador from 1998 waited in line for eight years but it was his misfortune he had to go to the end of the line. they were also unlikely bedfellows. clarence thomas, samuel alito, stephen breyer, and sonya sotomayor. that wasn't difficult in the divisive cases you get to these in the usual alignments. there was a decision the book deals with in some detail where kennedy led a 5-3 majority and elena kagen was refused. striking down most of the arizona show me your papers immigration law school he wrote a dissent that called the decision mind boggling. he went out of his way to attack obama for something unrelated to the case. his use to pay for the children as dreamers. the "washington post" which usually selects the president or senator or cabinet member for the honor bestowed upon scalia the worst week in washington price partly because he was also outfitted in the obamacare decision that came down three days later. those are just some examples and the book deals with them and explains them and gives you a way to understand them. it's not just the usual alignments in the cases decided by the majority that exposed the fallacy of the increasingly common description of the roberts court of the gang of right-wing political hacks in robes. there were plenty of rulings that accounted for nearly half of the decisions in 2012 to 2013 in which the nine justices were divided among themselves. it just looks unanimous but they are pointing in lots of different erections. and if you study the directions -- you don't have to be a legal maven to understand them you just have to speak plain english and decipher what the court is doing. they divide among themselves in ways to tell us a lot more about what is really going on in where the court is likely to go next and the numbers alone suggest. among the most intriguing and eliminating divisions in the ranks of the five justices appointed by republican presidents are those between scalia and alito when he was nominated for the court of the people called him scalito thinking he was going to be a clone. nothing was further from the truth. they've battled each other about free speech and privacy and about the need to stick to the original meaning of the various parts of the constitution. first it's in the oral argument about selling the violent interactive video games to kids without the consent of their parents. it looked like alito was prodding the lawyers about handling and crippled it it's pretty violent the original constitution didn't treat violent speech differently and alito losing patience told one of the lawyers i think what justice scalia wants to know is what james madison thought about the video games. did he enjoy them and what if they were violent? what about the use of the gps to track somebody's car for a month without a warrant? in that case, there was an even more fascinating back and forth in the opinion between alito and scalia. scalia said there are in allergies from the 1790s to this and alito basically said likewise lacks scalia said the constable could hire for weeks to monitor the owners movements. and alito in his concurring opinion -- and this is where all nine justices thought following somebody with a gps for a month without a warrant was impermissible. he wrote something like this might have occurred in 1791 but it would have required either a gigantic coach, very tiny constable or both. [laughter] not to mention a constable with incredible fortitude and patience. and that is just the tip of the iceberg. over and over again the justices who come from the same plane of the ideological spectrum have a different take on the constitution. they will sometimes agree on the bottom line but the disagreements tell you a lot about the pending case about the cell phone privacy and about lots of other cases where if you just count noses and do arithmetic you are going to be completely misled. after exploring similar patterns and contradictions on topics like equal buddy, gun rights, states rights in the book which people across the spectrum including ted olson, the guy that beat me and david in the bush v. gore case described as a superbly evenhanded. it makes me feel good when people across the spectrum say this is a fair treatment of the deeply divisive issues. after exploring those patterns and contradictions, the book shows that the court is in the business of undertaking something promising and innovative inquiries into how the government's powers to coerce and drive offers short of coercion might be raided by the constitution in areas ranging from obamacare individual purchase and the medicaid mandate that states to plea bargaining and criminal cases to the law that conditioned federal subsidies on the recipient's agreement to see the governments to even when doing so means undermining the recipient's integrity and its ability to pursue its social mission. let me say another word about that example. in the decision that i think is overwhelmingly important, but that got very little attention last year. roberts writing for the court said that the government had no authority to tell the nongovernmental organizations that were fighting hiv aids around the world that it could get government money to supplement its private resources only if it promised to join the government constitution campaign. now a lot of these characters said if we don't do that we won't get the trust of the workers. scalia and thomas dissenting from the roberts opinion striking down that conditioned said too bad. they can just say no and roberts says freedom to turn down the governments offer is not always a sufficient answer when the author uses a government leverage over private resources to get people to sing to the governments to do. so there are a lot that deals with. the book identifies powerful trends in various injustices of use of coercion and marginalization that connect important aspects of the decisions discussed in the book like the five to four ruling upholding the core of obamacare. the seven to two ruling striking down the medicaid part of obamacare. the five to four ruling striking down one campaign-finance regulation after another. those may not seem like they had a lot to do with each other but i show in the book that in fact they are born of similar views and they are subject to similar contradictions. and then there are decisions that of course i do not discuss in the book that were handed down since it was finished like the decision ithat decision in f greece versus galloway's applauding the sectarian town meeting prayers. terrible decision in my view. over for powerful dissent. the most brilliant of which is probably that maybe i'm biased she was a student of mine but that is balanced by the fact that the chief justice was a student of mine and i see a few of my students in the room so i have had a great time teaching, and that gives me kind of a look into the approaches that the various people are likely to take. one of the things about the case that distressed me the most is that all nine of the justices including the supposedly bubbles went out of their way to see that the supreme court had been right 31 years ago when it upheld by the legislative prayers in marsh versus chambe chambers. that is the beginning of the difficulty for the separation of church and state. so they were counting angels on the head of a pin when they should have said that the pen was rusty to begin with. anyway, the more i read from the book or give away its insights in advance the less you will be tempted to read it yourself but this is advertised as a reading from the book. but the freedom of speech sex, lies and video games, an area. there were distinguished people that say it is the most speech protected court ever and there are people like adam liptak of "the new york times" that say what is going on is the justice vote for the speakers they agree with and not the other way around. i think the book shows both of those positions are absolutely unattainable. let me begin and end with these paragraphs from the freedom of speech chapter and then take your questions. throughout the late 1960s the justice of the court spent a day each year in the basement watching porn together. it was fantastically awkward. unable to define obscenity but the first amendment couldn't possibly protect the unduly dangerous and more laker expressions. it is one scene at a time. the films range from scientific arguments are useargument to rad probable escapades of lesbian maniacs. justice marshal a civil rights hero to converse with pleasure in narrating the clips for the benefit of john harland the second coming and elegant former wall street lawyer who was by then losing his eyesight so marshal would basically say okay was happening now. the assistance that i know that when i see it the clerks would call out in the dark i see it. [laughter] in the 1968 about 20 years serving in the u.s. navy that still youthful steward reflected on the more adventurous times and confided in a particularly curious clerk. you might wonder who that was i think that you will all guess that he had indeed seen it when i said have you seen it? that's all i want to say about the book and i really welcome your questions. thank you for your attention. [applause] [inaudible] is to see what the law is. spinnaker was 210 years ago. if this is the case because the question is about the case that is about jerusalem and the question of the citizenship. you close the case if the court decided that they have the right to intervene and it took the site of the congress which voted to enable them to claim israeli citizenship but you don't give the outcome. hispanic the case is still pending. it was in the court twice who poisoned her best friend were tried to. she did all of this arsenic compound on the doorknobs and other things that all she did is turn her best friends fingers spread. whether she was prosecuted in the u.s. government for violating the law to enforce the chemical weapons treaty which is a little bit odd. this is an agatha christie dispute. the question is whether she could challenge congress law on the amount that it violated a states rights and oddly the obama administration said she has no standing even though she is threatened with imprisonment. she rightly and unanimously said that's wrong. this is a case where she does have standing, and then the court decided in round number two of this year the congress had exceeded its authority or at least we should interpret the law not to apply this way. there was this guy that wanted his place on his passport to be designated in jerusalem. congress had said -- she was born in israel, but he wanted to be designated as a citizen of israel whose capital is jerusalem. that is a political and very volatile issue. he was involved in it and barack obama and his justice department took the position that the court had no business resulting anything about this. it was a matter between congress and the president. if congress told the president and the state department what to do on the passport can't let them fight it out. the supreme court said it's our job to see what it is and whether the congress is invading the president's foreign policy prerogatives. it's our job and therefore your attempt to keep it away from us is impermissible. and now they have heard the arguments on a very difficult question on the one hand the congress does have the power to impose the constraints on the president just as it has tried to do with respect to the exchange of guantánamo prisoners saying you have to give a 30 day notice. the president in that case and in the case of israel and jerusalem said it is none of your business how i conduct both my job as commander-in-chief. it sounds very much like george w. bush. it's not your business how i conduct my commander-in-chief or instruct m my commander-in-chief to conduct foreign policy whether it is for a clinton or john kerry and the court isn't buying it and the question now will b be how do you strike the balance between the congress authority to draw the limit and the president authority to make the final call and i don't really have a prediction. >> one of the advantages never having been named to visiting court is i don't have to do that. i don't have to decide. i can be as academic and help people figure out what they think which is what the book is designed to think. not even my liberal friends are conservative adversaries. it is designed to talk to both sides and help them talk to one another. during the election "boston globe" reported that the press was curiously indifferent to the prospect of whom george w. bush would nominate for the supreme court justice. do you see this as an ongoing concern in the ensuing elections whether people are on the right or the left clicks >> i think it is enormously important because the choice of presidents determines a lot of things including the choice of the justices. and perhaps in her way as we saw when ronald reagan nominated and he was defeated and nonetheless the president carries a huge weight as does the selection of the senate. the people are so much more concerned than the cost of living and whether they can get a job with whom the who they cay and a lot of things in the end the supreme court would have a lot to say about it and so far, most people have put the impact and they are low on the list of issues. one of my objectives is to gradually nudge people to paying a lot more attention to that. i don't do it by buying into the idea that it's all politics, but i do try to show how the way the justices look at the world makes all the difference. take for example racial issues and affirmative-action. they have a strong view the country has pretty much gotten where it needs to go on the issues of race so the way to stop the race discrimination is to stop this on the base of the race. let's not pay attention to the race and the problem will take care of itself. there are four other justices who think that it's profoundly misguided. it is deeply problematic of the racial history as ours can't simply like an aust ridge put its head in the sand and hope the problem will sweep itself away. justice kennedy is sort of in the middle on that issue and is often criticized for being indecisive. but i think if in fact you see there is something to be said for each plaintiff view and in particular i know that probably given the demographics not many people in the room are fans of clarence thomas, but the fact is the deep debate between clarence thomas and sonya sotomayor about affirmative-action is incredibly informative. they both recognize they have been the beneficiaries of race sensitive decision-making by universities and to some extent by the government. he said it's made me feel inferior all my life. all my life people say he's an affirmative action baby. he is there only because he's black. i feel excluded. she says i understand that but i feel very differently. i know that i wouldn't be where i am today but for the benefits of affirmative action and i don't want anyone most to be denied that opportunity. it doesn't undermine my sense of self. what does that experience have to do with the constitution written on the parchment in the national archives? it has everything to do with it. you can't find algorithmically mathematically through some robot computer program. you have to give it meaning in terms of your life into some justices are a lot better than others at being open and candid about what it is in their own experience that brings them to the place where they are. the people of the united states are smart enough not to eat quite a bit with the idea that they are not being judicious. go ahead. >> would they be surprised if the quality in many decisions were the judges go one way and liberal the other. they have been the citizens united and i wonder to me people are being basically the same and i'm wondering whether there are other cases and whether there is any trend when it comes to the issue of the economic power whether that is also surprising. on every effort is now comes before it to limit the influence of wealth and corporat of corpor but also with the unions whether that's a set of decisions that do tend to split and partisan ways whether that's somehow a reputation of my view that these people are trying their best to give vent to their beliefs about the constitution we can agree or disagree with citizens united but the fundamental philosophy of the majority in the cases is not contrary to what lots of people seem to think. that corporations are just human beings interact or that money is speech. they are not saying that. they are saying we don't trust the government to decide. what should be heard and how much money the various interests should spend on speech and a and doesn't have anas ithappened ths an anti-hillary clinton documentary. another way to look at it is however much we may worry and i do a great deal about the injury to the representative democracy of having to grade 12 play such a huge role. we may be less than confident that the solution to the problem is to take the very people that we be the order paid and bought for, bought and paid for, sorry, the very people that were bought and paid for and defend it like check and say right out the steam for the campaign-finance reform. and by the way don't do it so that it will reassure your reelection or favor incumbents, something that the court is not able very well to police. giving that power to the people that we are afraid are influenced by many by reversing the supreme court's understanding of the first amendment it doesn't look like much of a solution to me so that is one of the most serious paradoxes that confront us. the paradox of speech and money and power. >> is the constitutional amendment the only way to reform the campaign finance? >> i try to help adam schiff and a few members of the house and the senate and the congressman who was a student of mine to draft based on that the amendment would be a good idea. i tried to help write it in the best way possible that what i ended up with isn't something that i isaf could particularly support because all it would do is give these guys that frankly got there as a result of the financial influence as well as everything else the power to write their own ticket for re- election. the amendments people have proposed many of them are ridiculous saying that corporations are not people. what good would that do? if he were suddenly to walk into the harvard bookstore and i think he is not a person if he started speaking into the mayor of cambridge into th and the ciy council said we don't want et doesn't even get to vote to have a lot of influence in cambridge we are going to prevent him from spending money circulating the views that would violate the first amendment and say he is a person that can help. so constitutional amendment. i don't know how to work my way out of that box. it doesn't seem so crazy and some of the simple solutions don't seem so workable. knowledge is power. being able to understand why you shouldn't let people pull the wool over your eyes and say here is the simple solution should make you feel a bit better at least it makes me feel better and i am an academic. to some extent that is a strange breed. >> were you surprised of the vote in obamacare? >> not only was i not surprised that i went on to msnbc and elsewhere before the oral argument and elsewhere saying that he would cast the decisive vote to uphold the individual purchase mandate on the basis of the taxing power, not the commerce power because i knew that the basic views were quite libertarian and he thinks that taxes are not as coercive. they are not as coercive as the direct regulation because if the government has the power to make you buy injured and it could throw you in jail for not doing it here. they are raising the taxes of it and not to the degree that actually makes you do it. in fact, the tax add-on that you have to pay if you don't buy the insurance is less dollars than the insurance premium would be. i made the statement said rush limbaugh said this guy should be committed. he's crazy. there's no way that he will vote that way on the basis of the taxing power. so i wasn't surprised. >> they joined alito and thomas to make a 72 decision striking down a congress ruled that those states that don't accept the broad and medicaid program which is almost entirely paid for by the federal government would lose their medicaid dollars that was quite a departure from their liberal colleagues like sonya sotomayor. i was a little surprised. i have a theory in the book about why they did it. since robert is doing a moderate thing up leading to purchase mandate we can go a long with him on this and it won't make much difference because they stake in the belief that essentially every state would go a long. long. long. they didn't realize how many would say no ideologically based no hurting their own people severely and undermining how workable obamacare with the. they also got the benefits in the way they voted which is a preventative roberts from going further still and holding that you can't use money to influence federal money to influence state decisions. that would have been an even more radical decision, and it was possible. but by offering to join him on the basis that this was like a gun head of every state because it would hurt them so much to pay the penalty of getting rid of all of medicaid by going along they essentially prevented it from being more drastic. he had five votes anywa any wayt they enabled him to get seven. >> when you see the one part of the obamacare and the other it looks like a poor strategy and i'm curious what degree you see the horse trading as being a common part of the decision-making. >> i don't think that it was a straight outsource trading because the chief justice already had five votes to strike down the medicaid mandate. he didn't need the only two. it's nice to be the author of the seven to two decision but i don't think he needed those votes. that would be more plausible. but there are very few cases in which the justices seem to do that partly because not only about the bottom line in this case that they care about the legacy and they know they are laying down the precedent. the supreme court is the only branch of the government that has an obligation posted by the tradition of writing the opinions in which each justice was joining the opinion or joining the dissent explains what he or she is reasoning is that leads them to that conclusion. members of congress can vote and then go home. the president can take action because they have to rationalize their opinions and live with it for all these reasons they are still young and younger still and they don't want to lay down the landmine that will blow up under their feet. >> how would they dea do they de state law and federal law in the legalization that is recently happened it seems like it's not enforcing the federal law as a long-term solution. >> it's not a long-term solution but right now it may be the best thing that is available. it is deporting people that have serious criminal records rather than people who've been here, have abided by the rules and by the law who came here innocently when they were children who were brought here by their parents deciding not to deport them until you get to the end of the line and that is going to be decades away. .. even if you are a married couple in a state that allows a same- sex couples to marry, the federal government which usually defers to the state definition of family relationships will three u.s. and married and you will lose tax benefits, social security benefits, about a thousand different things. when the supreme court struck that down it is by no means clear. it was quite clear that four justices, the four nominated by democrats, would regard that law is completely inconsistent with principles of liberty and equality and dignity. they were not particularly enamored with states' rights. the fact the federal government was interfering with state prerogative in an indirect way would not have bothered them very much. in fact, it would have been rather troubling to join an opinion that rested entirely on that rationale because that could come back to bite them. if it is -- it is not up to any federal institution to decide whether same-sextuples could marry or not. when it comes to the ultimate challenge, some set to fire some states say we want to ban here, federal government might be powerless to intervene. what was unclear is where kennedy would go in on what grounds. one possibility, kennedy is a strong advocate of states' rights, he would invalidate doma solely on the basis that the feds have no business telling the states people they think are legitimately married are i'm married for federal purposes. that would be purely a federalist decision. what i think you're referring to is he went further than that. once the federal -- once the state -- let's say the state of massachusetts has said that bill and john are legally married or that nancy and linda arm legally married, for the federal government to say anything other than that is to insult their dignity. there is no possible rationale for that other than to say that they are second-class citizens. their union does not count as much as that of other people. that is what kennedy said. he used federal-state relations as a hook. then he swung all the way across the stage and made everything turn of liberty, equality, and dignity, which is why every lower court caved. since that decision, regardless of any federal state element when a state decides that two people cannot marry even though they are otherwise eligible and even though they love each other and want to form a permanent relationship, just because there of the same sex every lower court has now said we cannot rationalize, we can't understand the windsor opinion if we don't go all the way here. and, in fact, scalia did everyone a favor in his dramatic descent saying, now you have said this you are bound to is said -- bound to take the next step. that is try to come back to bite him. yes? [inaudible question] >> the opportunity to rewrite one of the amendments. could you explain why? [laughter] >> the question was if i had an opportunity to rewrite one of the amendments, which would it be. before i answer that question i will tell you i have a publisher who sent me the final gallery and said, if you have any changes in the constitution you would like to make this is the time to make them. what he meant is, if you have any corrections in the attacks this is the time to make them. you know, i think the second amendment, though it's not something of which and a great fan because i am not myself a believer in the importance of guns as a way of protecting safety. i think they endanger people more than they protect them. the second amendment is not among my favorites, but there it is in the constitution. it did not shock me that the courts david more muscle. if we were to get rid of it has justice stevens propose we do, the idea that all of a sudden we would have universal registration, all kinds of safety requirements, you have to, you know, severe restrictions on gun ownership, that is a fantasy. the thing that prevents powerful restrictions on gun ownership in this country is not the second amendment but the first. the ability of the national rifle association and others to exert powerful influence and the fact that for many people in this country, like it or not, this is an issue when they are on the pro-gun side but not so much when they are on the pro gun safety side. so getting rid of the second amendment would have very little positive effect in terms of those who favor stronger efforts to secure gun safety and to reduce the carnage. it would have lots of negative effects, that is, a lot of people would say now that you have gotten rid of the second amendment we have some stuff like to do to the first and maybe the fourth and maybe the fifth and sixth. one of the reasons that it is so dangerous to tinker with the bill of rights -- and this goes also to your question of an amendment to get rid of citizens united by changing the understanding of the first amendment is that once you know where you're going to stop, i sort of know how to spell it but i don't know how far to go and how long to go on. [laughter] yes? >> i guess -- [inaudible question] [inaudible conversations] >> huge gun violence episodes. >> the visibility of the empire. the political allowances. >> my hearing or your accent. so from an outside point of view , the modern democratic nationalist, the supreme court as the umpire, to use your earlier analogy was some question in, the empire is quite visible in america. and i wonder whether that may have arisen at the time when the constitution was written. it was such a radical experiment going into democracy. and that the press a piece of developing the all new constitutional structure there was a fear about giving too much power to the people and their representatives. and i think there was a concern at the earlier stage, kind of an overseer of patrician, the control the unruliness of the masses, if you like. and i wonder whether the marshall call for madison reflected that same concern and irrigated to itself much more power as a kind of patrician the lead to control the excesses' of the people of their representatives. and there for underlying all of this is a basic mistrust of the people. >> i think the constitution as a whole manifest lot of distrust of the people, distrust of the masses that they would somehow cancel all of their debt and injured the stability of the financial system, people like alexander hamilton were deeply concerned about that. a martial court, though many people regard what it did in 1803, 18 no five has quite radical, it moved rather cautiously. that is, even though it invalidated one narrow provision of the judiciary act of 1789, the next time the court invalidated any part of an act of congress was 1857 in the rather infamous dread scott the sanford. so the court was really keeping a sort of damocles over the provincial branches, getting them to take their oath more seriously by threatening that if they did not it might come down upon them. but it was not really exercising that power with the kind of frequency or figure that it had been years since. then in the time, 1890's-1937 the court really went quite wild striking down all sorts of social economic legislation. a constitutional revolution, not because of court packing but because of death. a lot of the old members of the court died. we got a court the was much more deferential to politics except for certain areas where there had been since the 1940's and pervasive distrust of majorities of the people, if you will, that they would gang up on minorities , racial and gender and other minorities and there would not treat fundamental rights seriously. will we have done in the end a strike a balance in which there are some areas where the court is more active. it would be sort of a long process to engage in a full debate over whether the court instruct the balance. the current court is moving rather frightening way to some people in the direction of reviewing laws that affect the economy in a serious way. for example, laws that were passed in vermont to make it harder for pharmaceutical companies to jack up charged by giving information about drugs to certain doctors so that there were prescribed more costly. the court struck that down on the basis of the first amendment. after four joined the conservatives and match. breyer went almost apoplectic. this is a return of what was called the locker area, the time from the 1890's in 1937 when the court was striking down economic legislation rather loosely. if you strike down an economic legislation simply because it deals with speech in one way or another, it deals with information -- information is at the heart of almost everything. and using the first amendment that way could give the court the kind of power that i think is presuppose in your question. some people think that is exactly what was right because ability of government to interfere in our economic lives is incompatible with the premises of liberty. other people think that meaningful liberty requires government interference and a safety net. but i think this court, if it had one or two more people like roberts, alito, scalia, thomas, but go dangerously in the direction that in 1937 we abandoned. [inaudible question] >> you just mentioned that information in our society is crucial to my critical. what is your view of the supreme court justices who have changed the wording of some of their opinions after their opinions were issued? you being an academic am sure you study every opinion to see which way -- [inaudible conversations] >> it does bother me, but what happens is to find it is not just part of the current insatiable instantaneous news cycle. there has been a lot of demand from decades ago to know exactly what the court decided the very moment it decided it. so the printing office of record as it used to be -- now that may have something more fancy. the printing office used to come out with what was called slip opinions within minutes of the decision. because they were produced so quickly there often was a slip and slip opinion and it would sometimes reveal something that the justices thought the latest draft at fixed. one thing that i noticed, when the supreme court in 1992 reaffirmed core of roe v wade in the case, planned parenthood of pennsylvania against casey, if you carefully read the rehnquist dissent you could tell from the very first of the opinion that it was a majority opinion. it was going to be a majority opinion overruling roe v wade. but that got patched up when kennedy and o'connor decided that it was important for stability of the society and for the equal status of women that roe v wade not be overruled. they patched up. so a lot of students -- it turns out out of my colleagues teaching constitutional law anywhere in the country seems to have know that. i thought everyone knew it. people study this decision as though it was preordained that the court would not get rid of roe v wade. it came within inches of doing exactly that. how to solve that problem, i'm not really certain. you could make the country wait before the court announces an opinion, but that is rather difficult especially when the whole country is hanging by its fingernails on a case like obamacare or some other case so you announce it and then you sort of clean up the opinion. i think there should be much more journalistic integrity about the way -- and