Amendmentat saying e. T. Is not person wouldnt help. And so constitutional amendment a dont want to leave people with a kind of dispairing feeling. On Citizens United, i dont really know how to work my way out of that box. Of i think if you read the if y treatment, youll say, at least i understand a little more wheru they were coming from. Fr it doesnt seem soo crazy, and d some of the Simple Solutions su dont seem so workable. Able. And just, knowledge is power, being able to understand why yoo shouldnt let people pull the wool over your eyes and say, here is a separate solution thae should make you feel a bit utio better. Im ansh academic, and to some extent thats a strange breed. Were you surprised at roberts vote in obama care . No, in fact, i went on television, on msnbc and elsewhere, both before the oral argument and after, saying s roberts woulday cast the decisi uphold the individual ower mandate. Because i knew that roberts kn basic views are quite ws are libertarian, he thinks taxes arx not as coercive. Coercion is a big thing. Co taxes are as coercive as directt regulation. Ifre government hassed power toa make you buy insurance, they f could throw you in jail for not. Doing it here. All theyre doing is raising your taxes a bit, and not to a a degree that actually makes you l do ity. Yo inu fact, the tax add on that u have to pay if you dont buy the insurance is typically less dollars than the Insurance Premium would be. Be. So i made those statements, Rush Limbaugh said this guy should be committed. Hes crazy, theresit no way th robert the will vote that way, especially on the basis of the taxing power. Ised. Nt surprised. I was a little surprised that kagan and breyer joined robers,a scalia, alito and thomas to make a 72 decision that those statee that dont accept the broadenedd medicaid program, which is almost entirely paid for by theo federal government would lose t all their medicaid dollars. That was quite a departure from their liberal colleagues like sotomay sotomayor. I was a little surprised. I have a theory in the book whyg they did it. Since roberts is doing a te moderate thing and upholding thh purchase emandate, we can go along with him on this, and it wont make much difference theyt believed that every state would go along, they didnt realize y how many states would say no hurting people s o severely andy undermining obama care. They also got some benefits from the way they voted, that is they prevented roberts from going s further still and holding that you cant use money to influence state decisions. Even that would have been a more radical state decision, and it was possible. By offering to join limb on the basis that this was like a gun to the head of every state, because it would hurt them so u much to pay the penalty of all getting rid of all of medicaid, by going along, they prevented it from being more drastic. He had five votes anyway, but hd they enabled him to get seven. You partially answered something that was on my mind ai you talk. To a layperson, when you see the 54 on one part of the obama care and the 72 on the other, l it looks like horse trading. Im curious to what degree you i see horse trading as a common part of the decision making. I dont think it was straight out horse trading, because the chief justice already had five votes to strike down the medicaid mandate. He didnt need the other two. Or its always nicer to be the author of a 72 decision. Ink he i dont think he needed those votes. If he needed t them, it would b plausible. There are few cases in which justices seem to do that. Partly because they care, not only about the bottom line in p thisa case, they care about ther legacy. They know that they are laying y down a precedent. The Supreme Court is the only branch of our National Government that has an s a obligation not imposed by the constitution, but imposed by pod tradition, of writing opinions o in which each justice, either by saying something or joining in an opinion or joining a descent explains what he or she is reasoning that leads them to that conclusion. Or no other branch does that. Members of congress can vote and then go home. The president can take action or not action, its up to him how much to say to the people. Because they have to rationaliz people. Peoplethem like alito are still young. Elena k they dont want to lay down a land mine that will blow up under their feet. Er al how would the court deal wh state law and federal law . It seems like not enforcing federal law is not a long term solution. Utcongress, ityzed may be the best thing available. Its not a matter of not enforcing federal law its a matter of enforcing the law. People who came here innocently when they were children who were brought here by their parents, deciding not to support them. Awy i think its within the president s prerogatives. It may a not be a long term solution. Its an exercise. Stic Justice Kennedy struck d doma. It seemed like the decision was bigger than it could have been g like it was doing some serious work there. One of the possibilities in t the defense of marriage act, which said, even if you are a married couple in a state that allows same sex couples to marrs the federal government which usuallywhic defers to the state definitionsof of family l trea relationships will treatt you a unmarried, and youll use tax bi benefits, about 1,000 Different Things youll lose. That when the Supreme Court struck that ndown, it by no means meaw itas would. It was quite clear, the four justices, four nominated by democrats, would regard that law as completely inconsistent with principles of liberty and equality and dignity. S. The fact that the federal w government wasas interfering wi state prerogatives in an indirect way won the have bothered them very much. They would have been troubled to join an opinion that rested entirely on that rational. Because that could come back to bite them. Ite if its not up to any federal institution to decide whether same sex couples can marry or not, then when it comes to the ultimate challenge, when some e, states say, we want to ban same sex marriage here, the federal government might be powerless to intervene. What was unclear was where kennedy would go, and on what wt ground. One possibility, since kennedy y is a strong advocate of states rights is that he would o invalidate doma, solely on the basis that the feds had no business telling the states that people that they think are legitimately married are unmarried for federal purposes. That would be purely a federalism decision. What i think youre referring te is, they went further than that, once the states lets say tht state of massachusetts has said that bill and john are legally married or that nancy and linda are legally married, for the r federal government to say sa anything other than that is to t insult their dignity. Theres no possible rational fo that, other than to say that ar they are second class citizens. That their union does not count as much as that of other people. Thats what kennedy said. He used federal state relationsr as a hook, but then he swung all the way across the stage and made everything turn on liberty, equality and dignity, which is why every lower court case since that decision in windsor has said that regardless of any rea federal state rdelement, when a state decides that two people cannot marry, even though theyre otherwise eligibleen ane even though they love each otheh and want to form a permanent jub relationship justec because sex, theyre of the same sex, every lower court has said we cant rationalize, understand the windsor opinion if we dont go all the way here. In fact scalia did everybody a d favor saying, now that youve said this, youre bound to take the next step. D this and thats going to come back t bite him. Yes . Could you tell us if you had the opportunity to rewrite one of the amendments which one it would be, and if there isnt a second, could you explain why . If i had an opportunity to rewrite one of the amendments, e which would it be . I had a public officsher whoe the final galley, if you haveo any changes in the constitution you would like to make, this is the time to make them. I think what he meant was, if you have any corrections in you, text, this is the time to make them. Am i think the second amendment, t though its not something of which im a great fan, because im not myself a believer in th importance of guns as a way of protecting people. The seco they protect them more than the hurt them. Muscl if we were to get rid of it as s Justice Stevens proposes we do, the idea that all of a sudden wf would have universal registration, all kinds of l safety requirements, you have v to, severe restrictions on gun ownership, thats ath fantasy, h thing that prevents powerful restrictions on gun ownership in this country, is not the secondc amendment, but the first the ability of the National Rifle association and others to exerto powerful influence and the fact that for many people in this country, this is a voting issue when they are on the pro gun side. Getting rid t of the second ecod amendment would have very little positive effect in terms of of t those who favor stronger efforto to secure gun safety and reduce the carnage, but would have lots of negative effects. That a lot of people would say, now w that youve gotten rid of a of second amendment, we have stuff we would like to do in the first, maybe the fourth, and maybe the fifth and the sixth. One of the reasons that its so dangerous to tinker with the t bill of rights, and this goes t your question of an amendment to get rid of Citizens United by yc changing the understanding of the First Amendment, is that once you start, its hard to gg know where you t stop. Like its sort of like mississippi, i know how to spell it, but i go dont know how far to go and how to go on. I wanted to ask im from aus ausz where you managed to eliminate huge gunfire episodes . You see the court, you worry about the political awli answerb and all the rest. Im sorry, maybe from an outsider to do that,n of the modern democratic nations, the Supreme Court as the umpire to use your earlier analogy with some questioning, the umpire is quite visible in america. And i wonder if that had risen at the time where the constitution was written that there was it was such a radical experiment going into democracy, that in that processi of developing the whole new constitutional structure. Wa there was a fear of giving too much power to the people and their representatives and i there was a whether the call with marshall and addison e gave itself much more power as a kind of elite to control the roh excesses of the people and thei representatives. And, therefore, underlying all this is a basic mistrust of the people. Well, i think the constitution as a whole manifests lots of disrupt of the people, distrust of the masses t that they would somehow cancel all their debts and injure the stability of the financial inju system, people like Alexander Hamilton were deeply concerned about that. The Marshall Court though many t people regard what it did in 1803, 1805 really moved rather r cautiously, that is, even thougs it invalidated one narrow narrow provision of the judiciary act of 1789 in marbury, the next time the court invalidated any part of an act of congress was 1857 in the rather infamous justly infamous case of dread scott versus sanford, the courtr was really keeping a sort of m damaclese over the political br branches, getting them to take their oath more seriously, by t threatening if it didnt it might come down upon them. It it wasnt exercising that powere with the kindrc ofis frequency c vigor that had has in years since. Then in thes period of the 1890 to 1937 the court went quite wild striking down all kinds ofw social economic regulation, i there was a constitutional revolution at that point about e not because of courtca packing, but because of death, a lot of m the old members of the court fd died, fdr had a chance to replace them, we got a court that was much more differential toial politics. Except for certain areas where it has been since the 1940s, the pervasive disrupt of majorities of the people, that they would gang up on minorities, racial and gender and other minorities, and they would not treat ental fundamental rights seriously, what weve done in the end is strike a balance in which there are some areas where the court t is moreri active, others less. And it would be sort of a long process to engage in the full ee debate over i whether the courth has struck the balancee right. The Current Court is moving again rather frighteningly to some people in the direction of reviewing laws that affect the c economy in a serious way, for example, laws that were passed e in vermont, to make it harder for pharmaceutical companies tok jack up the drugs by getting the information about drugs to drug certain doctors so that theys would prescribe more costly drugs. The court struck that down oosn the basis of the First Amendment. Ent. Sotomayor joined the conservatives in that, and breyer went almost apoplectic. He said this is a return of theu loughnerrn area, the period fro the 1890s to 1937 when the court was striking down economic regulation rather loosely. Ather because if you strike down an o economic regulation, simply rel because itat deals with speech i one way or another, it deals de with information,al informationn our society is at the heart of almost everything. Almo and using the First Amendment that way could give the court mt the kind of power that i think is presupposed in your question. Some people think that is s exactly whats right, because c the ability of government to interfere in our economic livesc is lincompatible with the premises of liberty. Other people think that t meaningful liberty requires government interference and the safety net. But i think this court, if it pe had one or two more people likel roberts, alito or scalia may go dangerously in the direction that in 1937 we abandoned. You just mentioned that ntioe informationd in our society is crucial and critical. Whats your view of some of the Supreme Court justices who have changed the wording of some of their opinions after their ter issued. Are you being an academic, im suren study every opinion to see which way i found some real doozies. Youre not it does bother me, but what happens is, the and its notf just part of the current insatiable instantaneous news e, cycle. Theres been a lot of demand from decades ago to know exactly what the court decided the very moment it decided it. The Printing Office of the court as it used to be, now they may have something a little more fat fancy, the Printing Office usedt to come out with slip opinions within o minutes of the decisio and because they were produced so quickly, there often was a slip in the slip opinion. And it would sometimes reveal something the justices thought their latest draft had fixed. I n one thing i noticed, when the Supreme Court in 1992 reaffirmer the core of roe versus wade in a case called planned parenthood of pennsylvania against casey, ifof you carefully read the you rehnquist descent you can tell from the very first opinion thaa it was a majority opinion, it ba was going to be a majority over opinion overruling row versus wade. That got patched up when kennedy, suitor and oconnor as a group decided that it was important for stability of the society and for the equal status roe versus wade ade not be overruled. They patched it up, and so a lot of students it turns out none of my colleagues teaching constitutional law anywhere in the country seems to know that, i thought everyone knew it. Cons but people study this decision as though it was sort of ordained that the court would e not get rid of roe versus wade,f it came within inches of doing exactly that. Came wi how to solve that problem, im c not really certain, you could make the country wait before tht court announces an opinion. Opino but thats rather difficult. E wl especially when the whole country ise hanging by its finr nails on a case like obama carem or some other case. So you announce it and then you sort of clean up the opinion, but i think there should be muce more journalistic integrity about the way and academic integrity about not making changes, sort of sub rosa, i think if the court is going to make a change that actually ally changes the meaning of what it initially announced, it should d have an obligation to make that clear with some kind of air atta sheet or supplement. This will be the last t question. Thank you, professor for you book, for your presentation, for your work. I was stuck for the freedom of r speech interpretation of the court when they upheld Citizens United. And i believe that for the criticism that i heard here about the individual judges brings a more profound question, and that is, that as the american democracy is turning into a plutocracy, is the court a reflection of that kind of change . Ome some think its a partialh cause of that kind of change, others think its as reflection i think its more complicated ultimately than that. The aren rt courte rules as itt does in Citizens United, is not a belief that Corporate Power and wealth should dominate our society. But tya belief that government cannot be trusted to decide whose voices should carry weight. Itsy an antigovernment igoven decision, much more than a Pro Corporation or a plutocratic bee decision. Itsn somewhere between anarchyt and daze a mistrust of rts government. Many of the courts decisions e making it easier for businesses to prevail over individuals, ini reflect as ivi try to show in th book, not so much a bias in i favor of bign business as a mistrust of litigation and of the trial process as a way of solving problems. When you focus on what it is wy that drives the justices, ves motivates them, that may give us a better idea of what kinds of o questions to ask, and what kinds of things to look for in the backgrounds of the next set of justices who will come along when some of those who are agin out, as it were leave the court. So it is opposed mistrust of the government to the trust on the but the court has said you can fully disclose all of their contributions online and instantaneously. You can perform structured appropr