. also participating in this discussion at the national constitution center akhil amar of yale law school, and neal katyal a former acting solicitor general. judge michael baylson a senior federal judge with the u.s. district court of the eastern district of pennsylvania. and moderating, jeffrey rosen, president and ceo. [ applause ] >> ladies and gentlemen, welcome to the national constitution center. i am jeffrey rosen the president of this wonderful institution which is the only institution in america chartered by congress to die simi nature information about the u.s. constitution on a nonpartisan basis and tonight we're thrilled to be introducing live on c-span a wonderful partnership with our dear c-span friends for a new series called "landmark cases" that will explore the human stories behind 12 of the most historic and frequently cited and important cases in supreme court history. this partnership with c-span is so important to us because nike the national constitution center c-span is a none profit with a mission. it was found by the cable television industry to provide balanced and unedited and nonpartisan coverage of public events. you've just heard the national constitution center inspiring motto and we both believe there's no better way to educate the public about the constitution and about the historic occasions that have given it life than by telling the human stories behind these cases. so that's why this series is such a thrill and a privilege to do in clobation with c-span. it's a great pleasure to introduce my friend, a colleague and visionary leader of c-span who has made this series possible, please join me in welcoming susan swain. [ applause ] so glad that you're here. >> good evening and thank you for being here. i'm a native philadelphian and so glad to be home tonight. how many c-span watch doers we have in the room here? great. most of you think about c-span as congress, and public policy events but for about 20 years we've also been doing major historical series. in fact mark farkus -- mark stand up has been the producer for most of these over the years. [ applause ] about a year and a half ago we had just finished one that we really enjoyed a great deal, it was the biographies of the first ladies. it was a year long project for c-span and we were casting about for what to do next. very fortuitously i was invited by jeff rosen to join the board of trustees of the national constitution center for their annual dinner in washington, d.c. justice ruth bader ginnsberg was one of the attendees. she told the story of mr. and mrs. loving being arrested because they had a interracial marriage. the point is so many cases that get to the supreme court have very dramatic human stories behind them. but by the time it goes through all the appeals process and becomes names on dockets a lot of it gets lost and it shouldn't because essentially the supreme court is us. so i came back rather on fire about this as mark will tell you, and terry murphy our vice president of programming, because as you know c-span has actually been lobbying for a long time to have cameras in the supreme court something that's been elusive and we struggle all the time to bring the supreme court to public. what we doverry friday afternoon when they release their audiotapes of the week's arguments we put pictures to those and try to do the best we can to tell about the cases on the docket. so this idea of putting together a series looking at landmark cases would allow us to tell you who are interested more about the history of the court, its import on society, impact these cases have had over time and most importantly the dramatic people stories that the court has heard. one thing you learn is that this court is not open to just the wealthy and the powerful but as we'll learn tonight for petitioners from all walks of society and that's an important lesson for us to understand. so, what i want to show you next is out of that genesis of the constitution center dinner and going back and pitching to my colleagues about the fact that we should do this. i want to show you the trailer that's going to introduce the october 5th series "landmark cases historic supreme court decisions" with c-span and constitution center. let's take a look. ♪ >> all persons having business before the honorable supreme court of the united states are admonished to draw near and give their attention. >> number 759 earnest petition versus united states. >> marbury versus madison is the most famous case. >> this couple were enslaved here on this land where slavery wasn't legally recognized. >> putting the brown decision into effect would take presidential orders. and the presence much federal troops and marshals. and the courage of children. >> we wanted to pick cases that changed the direction and import of the court in society and that also changed society. >> so she told them that they would have to have a search warrant. and mrs. mapp demanded to see the paper and to read it and to see what it was which they refused to do. so she grabbed it out of his hand to look at it and thereafter the police officer handcuffed her. >> i can't imagine a better way to bring constitution to life than by telling the human stories behind great supreme court cases. >> fred korematsu opposed the forced internment of japanese americans during world war ii after being convicted for failing to report for relocation, mr. korematsu took his case all the way to the supreme court. >> quite often in many of our most famous decisions are one that the court took that were quite unpopular. >> if you had to pick one freedom that was the most essential to the functioning of a democracy it has to be freedom of speech. >> let's go through a few cases that illustrate very dramatically and visually what it means to live in a society of 310 million different people who help stick together because they believe in a rule of law. >> "landmark cases" an exploration of 12 historic supreme court cases and the human stories behind them. a new series on c-span produced in cooperation with the national constitution center. debuting monday, october 5th at 9:00 p.m. our partnership with the constitution center is really essential to this project because as you can imagine narrowing this down to 12 cases was quite a chore. we had help from many of their experts here. we also went to people in the legal community and people really on the right and left to try to find a list that would be inclusive and representative of the great history of the court over this time. but, you know, some of you will equitable with our designates. i hope do you because that's part of the process here is to think about what the court has done and which cases are really important and agree with us or disagree with us on the ones we've chosen. and the constitution center is also being invaluable in helping us get the word out. they are part nearing with us for a website that will be full of educational materials about the court, those of you who have children we hope you'll introduce their teach towers this all free of charge. so, that all of us can better understand how the court works and its history over the past 200 years. so, at this point tonight what we're trying to do is to let you know about it. ask you to help spread the word about this series and plan on being with us. in c-span style these are interactive live programs. we have sent a individual journalist out to historic sites associated with these cases. they have been to dress cot's home, for example. and we're going bring to it life by showing you some of the history behind it. but we'll also have some of the best experts at the nation at the table, biographers, historian, court experts to tell us about the importance of these cases, take your cause, answer your questions as part of facebook and twitter. tonight what we'll do, we just had fun preparing for this, but you'll have a group of diverse court experts and historians who will help you understand why we're so excited about this project because there are some wonderful stories to tell. and with this point one other person i want to introduce you to is our vice president of programming terry murphy. terry has been at c-span for 35 years. 34. 34 years. who is quibbling. this project is very much his. i want to turn the mic macto jeff rosen. thank you very much for being here. [ applause ] thank you so much, susan. you can tell about our excitement and enthusiasm for this series and now i'm extremely excited and honored to introduce three of the most astute court watchers in america, akhil amar, michael baylson and neal katyal. [ applause ] so ladies and gentlemen, this is a very -- please sit down gentlemen, really great group of friends and scholars and let me introduce them briefly because they are so well known to america. neal katyal was the former deputy solicitor general of the united states. he has argued major supreme court cases, 24 of them, in fact. he is now a law professor at georgetown university, a partner at hogan and hartson and happens to be my brother-in-law! >> how do you think i got this job? >> and i am very excited to announce that if this series goes well as we hope it well, then neal and i are going to follow it with another tv series about the supreme court that will be called "brothers in law." [ laughter ] next to me is my dear friend and first teacher of constitutional law, akhil amar. you've seen him before at the constitution center where he's a distinguished member of our scholarly advisory board. he's the most creative and influential constitutional scholar of his generation. he has written many books. he was here just a few months ago to talk about his latest one, which was -- i can't keep track of the title. >> "the law of the land." >> it was not in this list which includes the bill of reits, america's constitution, a biography, america's unwritten constitution. you know this is an educational enterprise. please read his books because it's the best way to learn about the constitution. they will transform your knowledge of the constitution and fire you with a passion for learning more about it the way it has me for my entire life i'm so grateful to this great scholar and teacher. thank you. finally we're so honored to have judge michael baylson. he was appointed to the u.s. district court for the eastern district of pennsylvania by president george w. bush in 2002. he sits nearby at the federal courthouse near the constitution senator. he has an extraordinary career which includes serving as an assistant district attorney under arlen specter, u.s. attorney for the eastern district of pennsylvania, he's adjunct professor at the university of pennsylvania and he had a great discussion a few months ago with judge ted raykoff about whether or not the u.s. sentencing system is broken and needs repair. so we're glad he's here. we won't get through all 12 cases and in addition to give you a flavor of the cases we want to talk about what it's like to argue before the court, what it's like to hear the case that's reviewed by the court, and the extraordinary historical and constitutional insights that akhil can give us but i think we do need to begin with marbury versus madison because that's the case that starts off the series and many consider one of the most important cases the court has decided. akhil, is that conventional wisdom correct that marbury is really all that important? >> you heard justice ginsberg say it was and far be it from me to disagree with her but maybe i'll qualify what she said. we're here to talk about the court and this is the national constitution center. i want you to remember they are not the same. constitution encompasses all three branches of government. this is a wonderful series focused on the third out of three in the constitution and from a expert perspective marbury which basically stands for the proposition of judicial review courts not just the supreme court all courts in appropriate cases and controversies can actually hold even acts of congress unconstitutional if the court feels congress has not acted in a way that's consistent with the constitution. it's an important principle but one that was established actually before marbury, it was pretty well blishd in the american jurisprudence by state courts and previous courts. marbury is the only case before 1850 in which the supreme court ever invalidates an act of congress, striking down state laws a bunch of times, a nation invalidating a stat statute but invalidating happens congress only once in marbury versus madison. ate technical issue. many lawyers wouldn't be able to tell you what's at stake, original versus appellate jurisdiction which is an arcane thing. meanwhile, presidents of the united states by contrast are vigorously enforcing the constitution with vetoes, 25 vetoes before 1850 one little act of judicial review and not so important an issue. presidents are vetoing bills that courts have upheld or would uphold like the bank, and so just to put it into perspective from a certain point of view marbury isn't even the most important constitutional decision of 1803. most important decision was louisiana purchase. without that there's no united states of america as we know it today. just a reminder that as important as courts are, presidents who actually under the constitution are supposed to pick the judges and the judges aren't supposed to pick the presidents but let's see bush v gore, so i want to you remember there are three branches. congress is first among equals. presidents make very important constitutional decision. courts are important. judicial review is much more important over the years. in today's world courts loom much larger than in 1803. today in an average year supreme court is striking down one or two acts of congress and considering big ones like obamacare, death penalty and abortion. that wasn't true in 1803. >> great introduction and remind you marbury has come to hasn't far more today than it did at the time. susan mentioned we were launching a website with lots of great interactive teaching tools and one of the most exciting of them is one that i'm thrilled will be launched officially tomorrow here at the constitution center with justice breyer. this is an exciting tool because we have with the help of our friends at the federalist society which is a leading conservative and libertarian organization and the american constitution society a leading progressive organization assembled the top scholars in america from all perspectives to write about every claw of the constitution and free and online and you'll find this on the c-span site and our website. i'm praying this will work. you can click on any provision of the constitution, read the top scholars with a common statement about what they agree about its history and meaning and then separate statements about how they disagree. i want to give it a test drive to use it to talk about our next case which is lochner versus new york. here with flawless ease i'll click on the due process clause of the 14th amendment. because that's the one that was at issue in lochner. here's the 14th amendment. i'll go to the due process clause and it talks -- first of all we have a text and it's really important to read the constitution before you begin thinking about its meaning. and the due process clause says no state shall make or enforce any law which shall abridge the privileges are immunities of the citizen of the united states nor shall any state deprive any pers life or liberty without due process of law. and here is the common view of what the due process clause means and they talk about a doctrine called substantive due pros. it sounds like an oxymoron. they mention this case called lochner versus new york. they say in the early debad of the 20th century they used the case as a symbol of this substantive economic due process and say now it's wildly revide as an issue of judicial activism. neal, do you agree with our two scholars that lochner is wildly reviled and tell us why it is and if so what its current significance in constitutional debate is? >> yes and no i agree. lochner is a case coming out of new york in which basically new york said we're going to protect bakers and telling bakers they don't have to work more than 60 hours and the like and challenged by the owners of the bakeries who say no we have freedom of contract essential. we should be able to pay what we want, have them work what we want. the supreme court strikes down the new york worker protections saying yes, freedom of contract. it raises exactly what you just heard professor amar talk about this notion of judicial review, the power of the u.s. supreme court, five justice, just a bare majority to invalidate something that's passed by a democratic process. that's at issue whenever the court strikes something down. however you feel abortion, for example, you know, roe v. wade when it comes to the court strikes down the law of texas and even if 100% of people in texas wanted to restrict abortion, because they believed in a pro life conception, seven justices there, 7-2 justice said no that's off the table in our democracy. this year we had a very strange example of it and one i'll bring it back to lochner, supreme court heard, i think, one of the most consequential cases in our lifetime, indeed many of our cases by is the question does the constitution require states to recognize same-sex marriage? and that was in the courtroom when the decision came down at the end of june a couple of months ago. justice kennedy read his opinion saying yes the constitution requires it. then chief justice roberts read his dissent, something he never had done before. he certainly dissented sometimes but he rarely will read from the bench. he felt very strongly about it. one of the things he said is there is no precedent for the idea that the constitution requires same-sex marriage. then he paused and i'm paraphrasing slightly, wait there's one precedent lochner versus new york the idea that five justices or he called it five lawyers sitting in washington, d.c. could tell for the democracy, tell the democratic government no you can't do something it's off the table you can't strict marriage to one man to one woman. there's a debate about the role of the court and when is it appropriate for them to strike something down and when i went to law school and i had the benefit of studying with professor amar, because of roe v. wade in part conservatives had a consistent methodology which was judicial restraint. the courts shouldn't be striking down and invalidating laws passed by a democratic majority except in extremely rare circumstances. that's what the chief justice, i think, has ad heard to time and again in his opinions. but there's now a new strand of conservative thought that says no, absolutely not. we should resuscitate lochner. my colleague at georgetown is one of the leading proponents arguing cases to the supreme court saying no, use your power to strike down laws that are progressive, and use the power of the court affirmatively as a sword. >> that is a great summary of the debate and that suggests as you just told us if there used to be a consensus that lochner was wildly revide. it now has a constituent and here we have nathan chapman actually talking about substantive due process from the conservative perspective criticizing it and saying it has little support in the texas history of the constitution and you can read his statement. you suggest that there's some other conservatives and you mentioned professor barnett to disagrees. speaking of judicial activism, judge, i want to ask you about the case of miranda. that was famously attacked in its time as an example of judicial activism. today it was reaffirmed by the supreme court which chief justice rehnquist after having criticized it repeatedly said it came to be accepted by the culture a statement that caused justice calia's head to explode. he was not happy with it at all. let's look at the text of the fifth amendment in particular, the self-incriminatation clause and then i want to ask you about miranda. the fifth amendment says -- members of the audience and c-span viewers you can sfifind constitutioncenter.org. no person shall be compelled to be a witness against himself and the supreme court interpreted that to require the reading of the miranda reits. what do you think of the miranda decision? >> at the time of the 1966 i was an assistant district attorney here in philadelphia and it was a, really a very revolutionary opinion. another 5-4 decision in which the supreme court reversed a conviction but not only reverse ad conviction but enunciated a series of rules that police officers have to give certain warnings to defendants who are in custody before interrogating them. and there's really no precedent for this at all, and some police departments had followed this, some federal law enforcement officers had followed this but had never been adopted as a rule of the constitution. now, of course, the self-incrimination law is a important part of the constitution but shouldn't apply just to the mere questioning of an individual when they are arrested and in custody. the miranda rule has resulted in millions of pre-trial motions in courts across the united states because the rule was applicable across all 50 states as well as the federal government. and i don't -- before miranda we had a general rule that in order for a prosecutor to introduce a confession, it had to be voluntary. if the defendant believed the statement was involuntary which was a very flexible pragmatic kind of approach, and the judge accepted that through testimony of witnesses, then the judge was obligated to suppress the statement. but now the tide had turned and it became a question of whether specific questions, the proper specific questions enunciated by five justices in this opinion had been read to a defendant and the defendant acknowledged that he understood them, understood his reits and agreed to talk to the police. now, without getting into psychology and i'm not a psychologist, but i don't think that miranda has really served what the purposes claimed at all. there are many defendants who have committed crimes and they talk about it. they have been arrested and feel that confession is a first step in rehabilitation, in cooperation, and that's what they want to do. not every defendant and perhaps not a majority but some do. and the voluntariness is still a key ingredient. whether somebody has been read a specific set of questions and given the right answers has nothing to do with whether a statement is voluntary. and it has resulted in a number of people who have committed serious crimes going free because the police did not ask the right questions even though the statement given by the defendant was completely voluntary. we still have a problem in this country and that's with the conviction of innocent people. there's still a lot of innocent people in jail and we should achieve for zero tolerance and whether somebody has been warned of their rights has nothing to do with whether they are innocent of being eventually charged and convicted of a crime. >> that's a powerful statement. i think those criticisms of miranda are shared by our conservative commentator paul giselle who is one of the leading critics and on the show we'll tell the human story behind miranda. an amazing story after miranda supreme court decision came down he kept getting into trouble, kept getting rearrested and was shot with a copy of his miranda rights in his post. an amazing story. neal you may not agree with all of the judge's comments. >> i want to supplement it. one of the gate things about the series it will tell the stories behind the case. some of the stories involve the advocates. in miranda someone rofoundly agreed with the judge and his criticism of miranda which is thurgood marshal. thurgood marshal will loom large in this series. he argued brown but he argued miranda and argued against the defendant. he was the solicitor general at the time. the nation's top lawyer. sometimes called the 10th justice. certainly not when i had the judge. >> i called you the 10th justice. >> lawyer marshal told the supreme court actually that there wasn't a right to a lawyer if one couldn't be afforded by the defendant. that that wasn't something that was required. now, you know, it's very interesting thing for someone like thurgood marshal who spent his life on school desegregation and defending poor black americans on death penalty cases in the south. good reminder that advocacy in law doesn't always reflect someone's individual preferences. >> akhil, you have bean critic of criminal procedure cases and one of the other ones we're talking about is mapp versus ohio. tell us about the facts of that case and then whether or not you're a fan of it. >> first a shout out to my great students here. i think someone was telling me that thurgood marshal who held the job that neal later held as solicitor general he argued 33 cases before the supreme court. neal you're up to like 26 next week or next month? so with a-rod and other things keep a guy on this young man and i can tell you he's never use ad performing enhancing drug. [ laughter ] so, it is true that i am a critic -- i'm generally a huge admirer of the warren court and the warren court revolution. i'm a critic on procedure. i'm on the conservative side. in that, gentlemajudge, you mad thoughtful points about miranda. it's possible people confess to things or are perceived as confessing to things that they didn't do because words are unreliable and in certain context where someone is trying to get you to say something, it might very well be that you confess or seem to confess to something you didn't do and so that's why miranda is a little complicated. i believe the purpose of the criminal justice system is to get at the truth and especially to protect innocent defendant from erroneous convictions. mapp is a case about suppression of reliable physical evidence. whereas miranda involves suppression of words a confession that may or may not be reliable. that's the question. but when we toss out the proverbial smoking gun, the blood stained knife with the defendant's fingerprints on it and the victim's blood on it, we are tossing out highly reliable evidence, and in some cases when we exclude reliable evidence we make it more likely in all sorts of ways i can't go into right now that innocent people are themselves targeted as the suspects rather than the culprit who really did it. here's one other thing i want to you understand about mapp. mapp did not originate the so-called exclusionary rule which suppresses reliable physical evidence, it merely in the 1960s applied that rule against the states and here i just want to remind you all of one of the most important doctrines in all of american constitutional law is the doctrine that lawyers called incorporation. and almost everything that you call the bill of rights is actually strictly speaking not the biffle rights because the original bill of rights applies only against the federal government. congress shall make no law abridging free speech and so on. original amendments limited the federal government and only the federal government but after the civil war we the people added this 14th amendment to the constitution and one important idea that i actually do believe in is that the fundamental privileges, immunities, right, freedoms, theretofore applied only against the feds now apply against the state. so i'm a critic not just of mapp but also of earlier cases saying the federal government in a federal criminal case is barred from using reliable physical evidence if it acquired it in a certain way. and by the way no framer ever believed in the exclusionary rule not sayingle one of them. no court in america excluded reliable physical evidence for the entire 100 years after the delaration of independence. kind of a made up rule. a rule made up during the lochner era to limit federal government and white collar pro se accusations and then in the 1960s got applied states. when you ally against states we're not talking tax evasion but murder, rape, robbery where there are victims. >> so it is important for you to hear akhil's extremely provocative views but i want you and susan wants you to educate yourself about the views on the other side and you can do that both by looking at the constitution, akhil writes about the privileges and immunity clause of the 14th amendment. but also every week c-span will bring together scholars and thought leaders and historians of different spechts to present the debate so you can make up your own mind. two of the 12 cases that we're talking about are considered among the worst in supreme court history, and i think arguably at the top of that list is dred scott versus sandford. it's an epithat i remember the president wral debate between john kerry and george bush the worst example of judicial activism is dred scott. neal why is that the case and what does dred scott stand for? >> dred scott is the pro slavery decision that prompts the civil war. this is why it's that important. it's a huge big deal. it's important today because as akhil said look at the text of the 14th amendment,s he was talking about the due process clause. another part of the 14th amendment says equal protection of the laws to all persons. all persons. why does it say persons? other parts of the 14th amendment single out citizen for rights. equal protection clause reads differently? well why? dred scott versus sandford said that if you were a slave, if you were a noncitizen, you had zero constitutional rights. none. and we fought a civil war in part about that, to repudiate that. when representative bingham wrote the text to the 14th amendment the draft he said i need 0 overrule the worst line in the worst supreme court case in american history that line that said only citizens have constitutional rights. so now the 14th amendment reads the way that it does and that's why rights are given to us on m. now when i argue to the court i get a half hour to argue my case and the other side gets a half hour. dred scott's argument the first oral argument was four days long. then there was another argument for four days long. by the way, the lawyer for dred scott was justice curtis' brother arguing the case in the u.s. supreme court with his brother as one of the justices hearing it. and, you know, he may have done a good job may not have but unfortunately the southern states had a powerful advocate who wasn't actually in the courtroom, president buchanan. he was elected. hadn't been sworn in. he went and lobbied the justices secretly to side with the southern view in dred scott which they ultimately did and president buchanan's inauguration is on march 6th, 1857. actually on march 4th, 1857 and the decision comes down on march 6th. he gives his inauguration speech two days before the decision comes down but knees what the decision says. he says it in the speech. so very different time period than now in which supreme court is more regulated. a real stain on the court's history. >> a couple aspects of dred scott. dred scott says in effect only citizens have constitutional rights and the 14th amendment says no persons who aren't citizens have constitutional rights. neal just told you that. dred scott said blacks could never ever be citizens. this is important because in about 20 minutes there's going presidential debate and one of the guys who will get up there -- this place has to be nonpartisan but i don't have to be. one of the people who is going get up there will tell you that actually people born in the united states aren't absolutely entitled basically to be citizens. the 14th amendment says everyone born in the united states and subject to the jurisdiction thereof is a citizen and that sentence was also about overruling dred scott. and so the resonance much dred scott for aliens and for people who were born in the united states, whoever their parents happen to have been is an issue we're still talking about today. >> that's fine. >> i didn't cross the line. >> in this house you can talk about any constitutional issue wish and you can express strong opinions. we just don't talk about politics. you've not done that and called our attention to text of 14th amendment all persons born in the united states are citizens of the united states and state in there they reside. go out and check out the statement on the citizenship by akhil. wait i'm clicking. it says coming soon. akhil you have to turn in your citizenship clause. >> these guys were asking for extensions for their papers. now i'm begging from them. >> you got maybe three days because you've been doing a lot of work for us. the country is wait. soon you can read akhil. >> a dog ate my homework. >> you introduced me as a court watcher. i'm a court follower. as a district court judge i'm at the bottom end of the hierarchy and i got to follow the supreme court more than watch them. but i haven't given up my first amendment rights so when i come here i can criticize miranda but when i go back across the street i have to follow them. >> excellent. tell us, judge, many of these cases obviously originated in the lower courts and the human stories are often played out before you as a judge, so what is it -- let's take the most famous, most celebrated case that's brown versus board of education. district judges played a crucial role initially, many of them shoulding segregation and then had to implement it. >> i've had some of my cases go up to the supreme court and i've been affirmed but there are sometimes when the supreme court reverses what a lower court judge did and send it back you got to follow as best you can what the supreme court says the rule is. of course this applies -- there's an intermediate appellate court in the federal system called the circuit court of appeals. and that's where a person who doesn't like hat i do, they go first to the circuit court and which can affirm or reverse what a district court judge did and then a supreme court has what we call discretionary jurisdiction, supreme court doesn't have to take every case that is, that someone asks it to take, it has discretion what to do. and it takes actually very few of the cases where people filed petition requesting that the supreme court hear the case. but when any of these cases reverse they go back to the district court which has to fashion a remedy and sometimes supreme court decisions can be very confusing. many of them as you know are 5-4. some are 4-4-1 which means there were four justice on either side and then one justice which happens to be no, secret, justice kennedy casts a vote deciding one way but his opinion real carries a significant amount of weight because he broke the tie and when that case comes back to the district court and i have a case like that involving lower marion school redistricting and i had to decide whether, what the lower marie an school district did complied with justice kennedy's single opinion. in a case that was otherwise 4-4. >> what did you decide? >> well, i decided that lower marion had acted lawfully and my opinion was affirmed by third circuit and the supreme court refused to they are case. >> have you ever been reversed by the supreme court? >> not directly. [ laughter ] there have been some cases where they disagreed with something i did in a different case but not directly reversed. i've been affirmed four times. and the most interesting one was a case involving vaccine. can i have 60 seconds. >> sure. >> some of you know that congress set up a special remedy for people who claim they have been injured by a vaccine. and congress set this up to encourage parents to have children vaccinated. and they set up a special court where if you feel you've been injured -- your child has been injured by a vaccine you can go to this special court, but -- you can get a remedy but your damages are limited. the individual who had filed in our court, he claimed that was improper and unconstitutional. and that he had been deprived of his right to sue. i rejected the claim, the 3rd circuit agreed with me and the supreme court affirmed that. >> great. i have to ask the oprah question, how does it feel to be reversed by the supreme court? >> well, you know, it's not something you go home and celebrate. [ laughter ] it's a learning experience. they are the supreme court. they get to decide. look we've had cases where in my court each of us worked individually. we decide a case ourselves. and there was a case that another judge had, it's a post-conviction case where the district judge decided one way. it went to the 3rd circuit which first had a three judge panel reverse 2-1. then went to the 3rd circuit, which is all the 11 judges. reversed the panel 6-5. then went to the supreme court which reversed the 3rd circuit 5-4. who can say whose right or whose wrong in a situation like that? that's a true story. >> that's a great reminder of the important -- >> what about justice kennedy. >> who will remember that one. >> he's a great friend of the national constitutional center and there are good arguments on both sides much these cases. neal the oprah question to you, what does it feel like to argue before the supreme court? >> well it's scary every time. you know, my first time it was a big case, challenging president bush on guantanamo bay tribunals and for the first two weeks i didn't sleep much being really scared about it. the court is snag in oral argument particularly this court over other historical courts. since justice scalia got on the court in 1988 it's extremely vigorous, active bench. so much so i average about 70 questions per half hour argument. there's a real premium placed on conciseness but trying to figure out an answer that doesn't follow up another question make your points the most effective way you can. also something that you know that if you mess up it can be, you know, the fodder for late night comedians and the like. it's an incredibly daunting thing. i have to say the overwhelming feeling every time i walk out of there as well, we have one institution in government that really works. i mean all nine of them, they are bringing their a-game every day. the questions are super hard. they are written by them. they are not drafted by the clerks. they read every brief. they in every case i've argued. that's a really magnificent thing. as an advocate, i worry about cameras. we were talking about cameras in the courtroom during the opening remarks. i worry about it. from a democratic perspective, i wish every american could see what i see when i'm arguing in front of the courtroom. it it'd be a pretty amazing thing for the country to behold this institution with people on the political right and the political left. >> back to the cases. the first amendment needs to be discussed and the case we've chosen to illuminate is shank versus the united states. there was a metaphor about free speech. akhil, tell us about the shank case. >> i think it is more on this list as metaphor for the importance of the freedom of speech more generally and not just vis-a-vis the federal government, but more importantly against states. a lot of what you call the bill of rights really is state and local governments. "new york times" versus alabama, but it's the same free speech principle at the heart of the first amendment. i'm a little bit of the skunk at the picnic. marbury is important, but perhaps a little bit exaggerated in its significance. we talk about shank because a big law school is harvard law school and they've been cranking out generation of generation of lawyers. enough with the harvard guys. here's the big point. >> akhil is a real populist. >> exactly. >> this brings to mind chief justice roberts had the famous question are the concerned the court is all graduates of elite universities and he said they're not. one went to yale. >> one the constitution was adopted, it was drafted right across the road. we, the people of the united states, actually did something. we do. what we did was debate the thing up and down the continent for a whole year in a conversation that was robust, uninhibited. there were people who were for it. there were people that were against it. people said nasty things about ben franklin and george washington. governments are feckless and don't get anything done. they're back and forth, and no one gets shut down. that's baked into our constitution even before there's a first amendment. we have freedom of speech and press before the first amendment and what do the people insist on in this ratification process? dudes, you forgot the rights. the bill of rights comes out of that conversation. what is the first amendment? no abridgment of free press. what happens? government starts abridging free press. it is a crime to criticize the president and the congress. it's not a crime to criticize the vice president, who is the leader of the opposition political party. all these rules expire after the next election and that sucks. and courts, who are not doing vigorous judicial review, uphold all of this. governments will later make it a crime to criticize the government and the courts are as late as the early 20th century upholding some of this. shank is that later period where, again, whenever we're in wars and they try to suppress dissent, again a war and trying to suppress. shank is from that area. freedom speech is part of how we adopted the constitution. today, thank goodness they do. they do across the board. this is universally embraced by justices scalia and thomas on the right and justices kagen and ginsburg on the left. we said again in the 14th amendment. it's now finally being taken seriously in a way that at the time it wasn't for shank. >> that's a beautiful way to state that. neal, probably the second most reviled case on our list is c e korematsu versus the united states. >> you'll get the stories in the segment later in the fall, but i do think the japanese internment cases are supremely interesting on a human level. the first one is gordon's case. gordon is an 18-year-old student at the university of washington, and he learns that the folks in washington have set an exclusion order that because of his skin he could be curfewed. he had to be back in his room. ultimately, they moved japanese americans to these camps. over 100,000 japanese americans forcibly relocated out of their homes and moved into these camps. he's 18 years old and says i'm going to challenge that. he stays out past the curfew and goes to the fbi and turns himself in. they arrest him and put him in a trial in seattle. he goes to trial. he says i did this absolutely, but this law is unconstitutional. it singles me out on the basis of my race and makes a bunch of other arguments. the district court has none of it. says this is a time of war. we're not going to be second guessing the president and his generals who want to do this, so they uphold his conviction and say you're going to be sentenced. the judge says the problem is the only prison i can sentence to you is a prison camp and it is 1,000 miles away in tucson, arizona. you've gone through this trial. that's good enough. you can go home. gordon says, you know, i'm actually a quaker. part of my faith is that if i've been validly sentenced, i've got to serve my sentence. the judge says i can't send you. i don't have the resources to send you to tucson. what does gordon do? he says, don't worry. i'll get there. he hitchhikes all the way to tucson to serve his sentence over 1,000 miles. he gets to the prison in tucson. he shows up to turn himself in. the warden says we have no record of you. he says, no, i'm gordon. i've been convicted and so on. the warden says don't worry. go home. they figure out who he is and he serves his sentence, but that's the kind of man he was. a man who didn't take up arms against the government or rebel in some way, but fought his challenge in the legal system. he believed so much in it and yet the supreme court didn't vindicate him and instead deferred to the president. there's a whole sad story line of why the court did that. it's very fashionable to blame the court, but a lot of the blame lies with the court and the solicitor general, the nation's top lawyer, who misrepresented what was going on to the supreme court and the solicitor general knew it at the time. he knew he was telling the supreme court things that weren't true about the japanese american threat. jay edgar hoover didn't believe the internment of japanese americans was justified. how do they balance national security versus individual liberties in a time of armed conflict? >> neal told you about a japanese american, a person born on american soil, whether his participa parents are citizens or not. it is a birthright citizen. the first sentence was introduced to overrule the dred scott case. now you understand the stakes when there's very loose talk about how people who were born in the united states are somehow not citizens because we have to inquire into the status of their parents. once again, the centrality of birthright citizenship is a very important constitutional principle linking back to dred scott and through the japanese internment cases and teeing up the conversation that's going to be happening in just a few minutes perhaps in the republican party debate. >> well, speaking of that debate, like all good c-span shows, this one should end on time. but i want to close by telling you, ladies and gentlemen, both how excited we are and asking you to join us as pioneers in constitutional education. you have the opportunity to watch the shows every monday and then learn more. click on the links. click on the websites. read the decisions. read the majority opinions. read the dissents. make up your own mind. you don't have to be a lawyer to be engaged in this process of constitutional education. you just need to be a person. akhil mentioned justice holmes. justice holmes said the constitution is made for people with fundamentally different points of view. the constitution is a debate all citizens can participate in and c-span believes that with its great nonpartisan motto. my justice was the greatest justice of the 20th century. he reminds us public discussion is a political duty. it's not just a right we have of free speech. we have an obligation to educate ourselves about the best arguments on all sides of the constitutions. thanks so much to susan for her vision in creating this series and to her phenomenal team. tune in on october 5th. thanks so much. [ applause ] all persons having business before the honorable supreme court of the united states are admonished to draw near and give their attention. >> number 759 petitioner versus arizona. >> read your arguments number 18, roe against wade. >> marbury madison is probably the most important case this court ever decided. >> slavery wasn't legally recognized. >> putting the brown decision into effect would take presidential orders and the presence of federal troops and marshals and the courage of children. >> we wanted to pick cases that changed the direction and import of the court in society and that also changed society. >> so she told them that they'd have to have a search warrant, and mrs. mapp demanded to see the paper and to read it, see what it was, which they refused to do, so she grabbed it out of his hand to look at it. thereafter the police officer handcuffed her. >> i can't imagine a better way to bring the constitution to life than by telling the human stories behind great supreme court cases. >> fred korematsu boldly opposed the forced internment of japanese americans during world war ii. after being convicted for failing to report for relocation, mr. korematsu took his case all the way to the supreme court. >> quite often in many of our most famous decisions are ones that the court took are quite unpopular. >> if you had to pick one freedom that was the most essential to the functioning of a democracy, it has to be freedom of speech. >> let's go through a few cases that illustrate very dramatically and visually what it means to live in a society of 310 million different people who help stick together because they believe in a rule of law. >> landmark cases, an exploration of 12 historic supreme court decisions and the human stories behind them. a new series on c-span produced in cooperation with the national constitution center debuting monday, october 5th, at 9:00 p.m. as a companion to our new series, "landmark cases" the book. it features the 12 cases with a brief introduction in the backgrou background, highlights, and impact of each case. published by c-span in cooperation with congressional quarterly press. "landmark cases" is available for 8.95, plus shipping and handling. coming up tomorrow here on c-span 3, we'll show you a hearing on the gold king mine spill in colorado where millions of gallons of toxic wastewater were discharged into waterways. environmental protection agency administrator and sally jewel testify. that'll be before the natural resources committee. it started tomorrow morning at 10:00 eastern here on c-span 3. a number of bills are pending on capitol hill that aim to update the electronics communications privacy act, a move that the white house and tech community supports. but witnesses from the federal trade commission and securities and exchange commission, who testified before the senate judiciary committee today, say they would not be able to obtain information on cloud services. here's the hearing. it's two hours and 20 minutes. today's hearing is intended to help inform the committee about the most recent views of a wide variety of stake holders concerning the need to reform the electronic communication privacy act or as we know it around here ecpa and various ways of fixing it. the committee's last hearing on the topic was four and a half years ago. since then, numerous proposals have been advanced by members of the committee. in 1986, congress enacted ecpa to protect the privacy of americans electronic communication and to provide the government with a means to access these communications and related records in certain circumstances. however, dramatic changes in the use of communication technology have occurred since 1986. americans now depend on e-mail, text messages, social networking websites, web-based apps, and countless other electronic communication methods on a daily basis. and more than ever these communications are being retained in some form due to dramatic reduction in the cost of storing data in the cloud. these communication technologies are enriching all of our lives. they're a great help to me in keeping in touch with my constituents in iowa and for the most part we have american technology companies to thank for this digital revolution. these companies are now a significant engine of growth for our economy but creating an increasingly global market for these communication technologies. but of course these technologies are also being used every day by those who intend to do our society great harm, terrorists, violent drug dealers, child predators, environmental criminals, and you can go on and on. these technologies create a digital trail that is often essential to bringing these offenders to justice. in light of these changes, there's a growing consensus that ecpa must be modernized to adapt to this new landscape, and whatever updates to the law we make, of course, must be consistent with people's protections under the fourth amendment. the privacy and technology communities have criticized ecpa for failing to provide sufficient privacy safety guards for individual's stored electronic communications. indeed given the way americans use e-mail today, it hardly makes sense that the privacy protections for an e-mail should turn on whether it's more than 180 days old or whether it's been opened. at the same time, law enforcement officials have expressed concern with certain aspects of the current ecpa framework and how it currently works in practice. and they are concerned that reform efforts to a statute they use every day do not unduly hamper the effort to investigate violations of law. both the department and the civil law enforcement agencies have expressed the need to address an emerging gap in their authority in the target of the investigation fails to respond to lawful civil process for e-mail evidence in the target's possession. they contend that this gap could allow offenses such as civil rights violations, security fraud, and consumer fraud to go unpunished. in addition, many state and local law enforcement officials are frustrated with the current timeliness and quality of responses by providers. unlike traditional search warrants, law enforcement agencies cannot control how quickly they obtain evidence through ecpa warrants. they rely on the providers to conduct the searches for them. to these officials, any heightening of ecpa's legal standards should be accompanied by changes to the law that ensure that they receive the information they need timely. in addition, some officials have expressed concern that the voluntary nature of ecpa's emergency exception can result in unacceptable delay in important cases. for example, when a child is abducted. closely related to these concerns is the ongoing issue of encryption and the going dark problem, which the committee recently held a hearing on. this is another example of a situation where agents may need the legal standards to obtain critical evidence but then are not able to access it quickly enough or even at all. as i said at our last hearing on ecpa, the reform that we discussed in 2011, if we're considering changes to legal standard under ecpa, we should also, as i said, quote, be working to ensure that these same problems are granting law enforcement the necessary access to address the going dark issue. i sent a letter to deputy attorney general last week to get an update from the department about how that process is proceeding. reforming ecpa's treatment of stored electronic communications therefore is a complicated and potentially far-reaching endeavor that sits at the intersection of -- [ cell phone ringing ] that's bad. i'm sorry. that sits at the intersection of privacy rights of the public, the investigative need of law enforcement officials, society's interest in encouraging and expanding commerce, and the dictates of our important constitution. the key is to strike the right balance between these interests as ranking member leahy declared at our last hearing on the topic 2011, quote, meaningful ecpa reform must carefully balance privacy rights, public safety, and security, end of quote. i agree. i'm grateful for the presence of all the witnesses today, and i now recognize senator leahy. >> thank you, mr. chairman. i remember when electronic communications act was passed 29 years ago. in fact, the final -- i was talking to the former director of the fbi last month in vermont when we worked out the very final parts of my capitol office at 10:00, 11:00 at night. we passed it. keep in mind, those calls were on landlines at that time. call waiting was novel. few had heard of e-mail, but we did figure there would be new electronic communications, and we thought ecpa could provide that. but there are now many ways that nobody could have anticipated that we're communicating. the privacy rules concerning this are simply outdated. government agencies can obtain the contents of an e-mail without a warrant if that e-mail is more than 180 days old. well, we don't expect our private letters or photos stored at home to lose fourth amendment protections because they're more than six months old. now, tomorrow is a major historical date in iowa. it's senator grassley's birthday. i think they declare it as a day of public rejoicing, but if i sent him a note, which i've actually written, to him and he puts that note in his desk, handwritten note in his desk, somebody's going to have to have a warrant to go and get it. i didn't put anything in there to justify the warrant, but if i sent him a text and that's stored in the cloud, why should it be any different? why shouldn't somebody just be able to take it out? we introduced the ecpa act to bring privacy protection from the digital world. in the house, even more. 300 co-sponsors. both parties support the bill. an extraordinary coalition of industry and civil society supports this bill. the senate for democracy and technology, heritage action, the aclu. usually representatives of those people have to have an arbitrator get on an elevator with them if they're all in there together, but they agree with this. i think to use a technical term passing this is a no-brainer. five years ago, the u.s. court of appeals in the sixth circuit found the contents of e-mail fully protected by the fourth amendment regardless of its age, and that's effectively become the rule nationwide. service providers no longer turn over the contents of e-mails without a warrant. we simply codify current practice. some have raised concerns the bills would have for civil regulatory agencies such as the fcc. we wanted these agencies to be effective, but there's nothing in our constitution that says only certain agencies have to follow the constitution. others don't have to. fcc has not been able to obtain e-mails without a warrant because of the 2010 federal court ruling and our bill doesn't change that, so i'm disappointed the commerce department wasn't asked to join the panel given its important perspective. this is an important issue. thank you. happy birthday a day early. >> thank you. before i introduce the panel, i would want to put some letters that we received outlining concerns of the current ecpa reform proposals from law enforcement agencies. five i will name. the national association of assistant u.s. attorneys, federal law enforcement officers association, the major county sheriffs association, the national district attorneys association, the iowa county attorneys association. i would ask without ththat thes objection will entered into the record. she worked in the office of white house counsel and served as the assistant u.s. attorney d.c. before that, she was a policy counsel for the national partnership for women and families. she has a law degree from the university of michigan. our second witness, andrew s ceresney. before joining fcc, he was a partner at a law firm where he has practiced white collar criminal investigations. prior to that, he served as assistant district attorney in new york. third witness, daniel salsburg is the chief council of the office o technology, research, and investigation. before that, he wa a senior trial attorney for commodity cftc. mr. salsburg received his undergraduate and law degree from the university of pennsylvania. i want to thank all of you for testifying. >> chairman grassley, ranking member leahy, and members of the committee, thank you for the opportunity to testify on behalf of the department of justice regarding the electronics communications privacy act or ecpa. i look forward to discussing with the committee how the department uses ecpa and how the statute might be updated and improved. ecpa has always sought to improve -- while safe guarding individual privacy. it is important that ecpa reform efforts remain focused on maintaining both goals. electronic communications play a vital role in government investigations. indeed as technology has advanced and as electronic data and storage have augmented traditional means of communicating and storing information, governmental access to data is more important. ecpa is critical to tracking down criminals in investigations into murder, kidnapping, organized crime, child exploitati exploitation, identity theft, terrorism, and more, but criminal investigations are only a subset of the circumstances in which ecpa applies. the statute applies when the government acts as a civil litigant. we agree that notwithstanding several updates to ecpa the statute draws some lines that do not account for the development of technology and the ways in which we use electronic and stored communications today. for example, there's no principled basis to treat e-mail less than 180 days old different from e-mail more than 180 days old. there's no lesser protection to e-mails that have been opened to e-mails that remain unopened. how to account for changes the technology while maintaining privacy protections and providing for public safety and law enforcement imperatives remains a central challenge of ecpa reform efforts. personal privacy is critical important to everyone. all of us use e-mail to share personal information and we want it to be appropriately protected. many discusses about enhancing privacy focus on a proposal that would require law enforcement to obtain a criminal search warrant based on probable cause to compel disclosure of stored content from a public service provider. this is a sensible approach provided that congress consider crafting limited alternatives for certain investigative functions. for example, civil regulators and lit gators typically investigate conduct that while unlawful is not a crime, but criminal search warrants are only available if an investigator can show probable cause that a crime has occurred. lacking warrant authority, civil investigators enforcing civil rights, environmental, anti-trust and a host of other laws will be unable to obtain content from storage providers. as wrongdoers take steps to shield that information from civil investigators, the amount of critical information that is offlimits to government will only increase. efforts to update ecpa can reflect these considerations and ensure appropriate judicial oversight to communications. any proposals to changes should address the ability to civil lit gators and -- the department also has several more technical yet important concerns that we believe merit consideration. although discussions about updating ecpa have often focused on this content information, there are other parts of the statute that would benefit from further examination. the administration is studying these proposals, but the department has significant concerns about aspects of these proposals. the department of justice appreciates the opportunity to discuss all of these issues with the committee, and i look forward to your questions today. >> thank you. andrew? >> thank you, chairman grassley, ranking member leahy, and members of the committee. thank you for inviting me to testify today on behalf of the fcc. i share the bill's goal of updating ecpa's collection procedures, but the bill in its current form proposes significant risk to the american public by allowing law enforcement agencies to investigate and uncover final fraud and other unlawful conduct. i firmly believe there are other ways to update that offer stronger privacy protections without frustrating the civil ends of law enforcement. the mission is to protect investors, maintain orderly efficient markets. our division of enforcement furthers this mission by investigating potential violations to the federal securities laws. a strong enforcement program is critical to the fcc's effort to protect investors from fraudulent schemes. electronic commune cases often provide critical evidence in fcc investigations as e-mail and other message content can establish timing, knowledge, or relationships or awareness that certain statements to investors were false or misleading. when we conduct investigations, we seek e-mails through the key actors through an administrative subpoena. the subpoena recipient may have erased e-mails, inserted damaged hardware, or refused to respond. individuals who violate the law are reluctant to produce evidence of their own misconduct. it is at this point in this an investigation that we may need to seek information from an internet service provider or isp. the bill at issue would require government entities to procure a criminal warrant when acquiring e-mail content. we would effectively not be able to gather electronic evidence directly from an isp regardless of the circumstances, even in instances where a subscriber deleted his e-mails or fled to another jurisdiction. it would also incentive subpoenaed individuals to be less forthcoming. they may be emboldened to destroy or not produce them. among the type of scams we investigate are ponzi and pump and dump market schemes. in these types of frauds, illegal acts are likely to be communicated through personal e-mail accounts. technology has evolved since ecpa was passed. there's no question the law should evolve to protect privacy interests, even when significant law enforcement interests are also implicated. as part of that balance, any ecpa reform can and should afford a party's information that is sought from an isp in a civil investigation notice and an opportunity to participate in judicial proin

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