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tv   Book Discussion on Dissent and the Supreme Court  CSPAN  November 8, 2015 10:00pm-11:04pm EST

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the moment of time and david did a fantastic job. where is david? david did a fantastic job and all of my people to a great job they helped me so much. we are doing a couple of other things right now. it's not easy. [inaudible conversations]
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[inaudible conversations] >> good afternoon everyone. i would like to thank everyone here for coming out to politics and prose. as we embark on another wonderful reading. i would like to take care of some quick housekeeping first. again please silence your cell phones at this time and we have c-span with us this afternoon so when you ask your questions please run up to our audience mic and form a look line. lastly this is not the last event for today so while we usually would ask you to fold up your chairs david assets you leave your chairs where they are for next event. my name is christopher banks and i welcome you to politics and prose on behalf of the co-owners of politics and prose and on
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behalf of our staff. we do over 500 events a year in addition to events in the space our us poison pellets locations in different venues across the city. we hold book groups classes and literary trips throughout the year. i would like to begin by saying that i'm i am pleased to welcome public-policy law professor of history at virginia commonwealth university melvin urofsky as he presents his book "dissent and the supreme court" its role in the court's history and the nation's constitutional dialogue urofsky is written and edited 52 books and has devoted his career to studying legal history. his previous books include spider visa supreme court justice louis brandeis which was deemed fundamental by the knicks times book review. in addition to division and discourse in the supreme decisions. kirkus reviews comments that
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"dissent and the supreme court" urofsky's liked him a scholarship and -- combined for an outstanding read. his latest offering, urofsky reviews a 226 years of high court decisions. a major concept found in his work that well may be the opinion of the majority that is rain today over time it is often the wisdom of the dissenting view that prevails preview frames history is an ongoing debate over the meaning of the constitution shows how judicial in a sense reinvigorates democracy itself. without further pause i present professor sub war. thank you. [applause] >> it's always a pleasure to be politics and prose. how shall i dissent, let me count the ways. how many of you saw the movie mary poppins? either as children, parents or grandchildren? you remember that scene where
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uncle albert m. bird and the children are having a tea party on the ceiling and she starts singing this song about different kinds of laughs and making fun of them and how bad they are trying to get them down. well, i thought that would be a great way to start the soy called the people and asked them could they write a song for me about dissents. the answer was what is a dissents? so lacking a song and given my voice my family will tell you it is a blessing by itself but i do not sing, let me read to you. see if you can guess who wrote this first quote. i am unable to agree with the judgment of the majority of the court and although i think it's useless and undesirable as a rule to express the sense i feel bound to do so in this case.
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anybody want to guess who that is? oliver wendell holmes. the next one is from a lawyer who says dissent is like, site falling into three categories, excusable, justifiable and reprehensible. law school dean kathleen sullivan, great supreme court dissents lie like. ammunition for future generations to unearth when the time has come. pierce butler. i show in silence acquiesce the right development or statement of the law. they often do harm. for myself i say lead us not into temptation. and finally william o. douglas. the right to dissent is the only thing that makes life powerful for a judge on an appellate court. so you can see there is quite a range of opinion and by the way
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i had two or 300 of these quotes that i gathered in the course of writing this book. and even today you find there are many people who disagree with the whole idea of dissenting. last year there were dissent or separate opinions in two out of every three opinions that the u.s. supreme court handed down. this year the percentage is likely to be higher given some really high-profile cases that are coming up but we are used to that. this has been the pattern ever since the early 1940s. before that believe it or not there were very few dissents at all. up until the 1940s, the supreme court police unanimous in 95% or better of all their
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cases they determine. we started out with an english heritage of syria out of opinions. that is every judge would write an opinion on the case. the problem here was that while you could tell who one by counting up the boats he couldn't always tell what the reason was that the person had one. john marshall believed that it would be better for the court if it spoke in one voice and remember this is the beginning of the republican buddies trying to do is establish a court as a co-equal branch of government. and by the force of his personality and his logic this is what happens. and this is still the belief of some jurists that the court should speak in one voice because it carries more weight that way. in europe some countries have until recently actually forbidden the publication of dissent. now were their dissent -- there were dissents from the beginning
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but far and few between. in the 19th century the only important ones were the two dissents by the queen and the dred scott decision and they didn't have a great impact in some ways beyond a few years because they civil war settled in. steven field in the slaughterhouse case had an enormous impact and got us to believe corporations were persons. then there was john marshall harlan the first in the civil rights cases, which continues to have an impact unto this day. moreover he even if a justice did not agree with the majority opinion well into the 1920s p., and they were all men at this time come might often justified the disagreement without a separate opinion. one reason was that up until the mid-1920s the court heard almost every kind of case, cases that today would be decided in a
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magistrate court in the local township, and maybe a little state court. they were bankruptcy cases. there was, you remember the thing in the "fiddler on the roof." he sold me a horse. it was a mule, that sort of thing? those cases come before the supreme court. they were poor and importance only to the people that were litigating it and is louis brandeis said was more important to decide case than to decide it right, just get it out of here. then in the 1920s we begin to get the sense, especially those of oliver wendell holmes louis brandeis and harlan fisk stone but in the terms of the court's total caseload these are really only a few. if you take a look at the total number of dissents that say brandeis and holmes wrote their lesson by% actually about total number of opinions they wrote in
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their tenure on the high court. things began to change with the judges bill of 1925, which william howard taft lobbied for it. which gave the court for the first time in its history almost complete control over its docket it became what taft wanted it to become, namely a constitutional court. and with few exceptions since then its annual vote consists of two types of cases. challenges to laws either state or federal uncommon -- on constitutional grounds and once the court decides the only remedy is a constitutional amendment. this happened with the income tax cases in the 1890s. then there are questions of statutory interpretation. what do congressman? one would think that with all the money that congress has,
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with the thousands of aids servicing the congress they would be able to write a law that was understandable to everybody. but they don't. and many times what the court has essentially said is, this is what we think you mean and if it's not rewrite it paid you can do that so you don't need a constitutional amendment. now in a constitutional court, justices began to develop jurisprudential philosophies and they try to be true to them. i'm not saying that justices before them did not have consistent use nor that there weren't any constitutional cases before them. but the majority of the cases they heard as i just told you didn't require consistency. better decide a case and decide it right. now with the majority of cases being constitutional questions, the cases had to be decided right and at that justices disagreed he felt it necessary to explain why.
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now there are many reasons that it multiplied during the 1940s. one was named philip -- felix frankfurter. if any of you have ever tried to read a supreme court case and thought it was load it with that footnotes that felix is fall. he wrote them as they were like review articles. he thought of something that only the elite should understand. he wrote, more dissent the majority opinions in the fact is that no one pays any attention to date either to his majority opinions or to his dissents but he made a lot of noise and because he wrote his opponents on the court known as the prima donnas william douglas and hugo black felt they had the right to answers or you begin to get cases not only with the majority opinion in may dissent, and
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another dissent. you actually had cases where there have been nine separate opinions. i haven't found any that i can't. so far there have been ones with nine. another recent that dissent started to multiply work works. brandeis and the others had one clerk and it was a large investment of that clerk's time to get it sent in. now that justices have four clerks each. i think the chief has five. it's not hard. okay you take this to centanni take that one and we will just keep grinding them out as much as we want. now my theme in the book is that of constitutional dialogue. now this is a dialogue that takes place between the court and other branches of government. first of all it's a dialogue that takes place between the
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justices and members of the supreme court. let me quote the fearsome roof bader ginsburg. my experience teaches that there's nothing better than an impressive dissent to lead the offer of the majority opinion to define and clarify her circulation. the virginia military institute case decided by the court in 1996 held the denial of admission to women violated the 14th amendment equal protection clause. i was assigned to write the court's opinion. the final draft released to the public was ever so much better, oh okay. it's hard to read that way but we will do the best we can. anyway going back the final draft released to the public was ever so much better than my first second and at least a
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dozen more drafts thanks to justice scalia's attention grabbing dissent. now we go to justice scalia. who is ginsburg's good friend below opt-ins india and nemesis. scully wrote though they fact never comes to public light the first draft of the dissent often causes them majority to refine his opinion eliminating the more vulnerable assertions and nearing the announced legal rule when i have been assigned the opinion to the court in a divided case nothing gives me so much assurance that i have written it well as the fact that i'm able to respond satisfactorily in my judgment to all the onslaughts of the dissents were separate and currents is. ironic as it may seem i think a higher percentage of the worst opinions of the court not in russell but in reasoning are unanimous ones.
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so this is part of the dialogue. the judges talking to one another. and sometimes those changes minds. here again let me go to justice ginsburg. since her words are better than mine. i have to have very experienced she told the washington -- of holding dissent from a supple one of their justice. in time it became the opinion of the court in which only three of my colleagues dissented so there is a dialogue going on here. sometimes after the book goes to conference it may appear that the majority is here and the minorities here and then when people start writing he began to see not just the strength of different arguments that their weaknesses as well. so this i think is one of the most important of the dialogs that are taking place and it happens every terms on almost every case.
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there is also the dialogue between the court and other branches of the government such as congress. for example in an opinion that most academics think is not only stilted but stupid the court held that women who suffer discrimination in pay had to report it within six months of when they discovered it. now if you had a case of lily led better who didn't discover for 27 ideas because the men didn't go around saying i make more than you do so how was she to know that she was in getting paid? justice ginsburg writes an opinion here, a dissents that says this is statutory interpretation and congress if this is not what you meant by the this stupid interpretation, rewrite it. that same day a senator named hillary clinton introduced the law. the president at that time
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george w. bush, threatened to veto the bill if it got passed congress. you may remember when the first things obama did when he came in was to sent by the congress to read pass a law which they did and he had a big signing ceremony calling it the lilly ledbetter law. there is also, and of course there is dialogue between the president and the court. a good example here the cases that came out of wanton amao with the people who are interned there in a nonstate status and the court saying they are entitled to due process. george bush kept trying to evade it in the court said they are entitled to due process. finally and this is the hardest one i think to track. there is a dialogue between the court. you may remember the federalist paper called the court the least
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dangerous branch because it has needed the power of the purse, the congress, nor the president. the only power that the court has is the goodwill that the people hold it in. and it screwed up a couple of times as dred scott in the 19th century. there was and continues to be a hullabaloo over roe v. wade. but for the most part in the judges are getting much more adept at communicating with the public. now finally there does what i was most concerned about was the conversation between the dissenter and future courts. here we come to what some key people have called for fedex dissents. prophetic dissents. chief justice hughes said a
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dissent is an appeal to the brooding spirit of the law to the intelligence of a future day when a later decision may possibly correct the error to which the dissenting judge believes the court to have been betrayed. a few examples may suffice and then i would like to say a few words about the current court. and get to some questions on that one. what example is hugo black in the 1942 case? smith smith betts was poor, charged with armed robbery, asked for a lawyer and was told a lawyer be appointed by the state was only available in capital cases. the supreme court upheld the state court decision and tear is what blocks it. the sixth amendment stands as a constant admonition that the
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constitutional safeguards that provides a loss justice will not still be done. it embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skills to protect themselves when brought before a tribunal with power to take his life or liberty. we are in the prosecution is presented by experienced counsel. that which is simple orderly and necessary to the lawyer, the untrained layman me at pier intricate complex and mysterious. that was 1942. over the next 20 years every time a sixth amendment case on representation by a lawyer came before the court, this is what like bank blows goats. it was there. they kept having to do it in gradually what happened was every single case was overturned on a technicality because in the succeeding case they said of course he would have to have a
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lawyer if it was a complex case, or if the person lacked the mental capacity to be able to understand what was going on. and the court kept finding lack of mental capacity, technical cases to keep overturning it at the shying away from overturning that. brady until earl warren becomes chief justice. let me tell you a story here which not only says how the dissenter is important but also have the court works. by the early 1960s the court was ready to overrule betts v. brady but the court can't reach out so warren tells his clerk to start looking for cases involving the sixth amendment. three cases,. the first one involved a man who
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had molested both his son and his daughter and there were plenty of witnesses. this guy was guilty, no question. the court was not about to overturn betts v. grady so that went to the site for a while. the second one to come up and talked to guys who had committed an armed robbery, okay? and one of them as my son the former prosecutor used to say, did the right thing. ieee ratted out his colleague. however the court had appointed a lawyer but now a lawyer had a heart problem because he had one client who was still pleading innocent and another client who said guilty. the court refused to appoint a second lawyer and so that case comes up in here again the court did not want to overturn a case in favor of somebody who was
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clearly guilty. enter clarence earl gideon. as we know as henry fonda, who allegedly, allegedly i say had robbed a pool hall in florida. and was convicted on the basis of testimony of someone who many think was the guy who really did it and gets to prison where he spent a lot of his life and he writes a handwritten supreme court review. the court takes it in its known as --. you didn't have to pay the fee and all that but comes up. and the court appoints a lawyer who represents them and the court unanimously overturns it. that's on the basis of what hugo
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black had written 20 years before and in a gesture of extreme magnanimity warned signs the case who writes the opinion. and he later said what when betts v. grady was decided to never thought i would live to see it but he did read most authors of great dissents do not live to see their ideas. john marshall harlan and plesea, oliver wendell holmes and abramson of the speech cases and louis brandeis in homestead versus the united states. brandeis is in the minds of many scholars including myself obviously the author of to the greatest dissents that were ever written. one is in witney versus california which is technically
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a concurrence that but was really a dissent in which he laid down what is the basis of modern first amendment speech. it wasn't finally accept that the court for 40 years. by then and when the court finally did adopt it, it was pretty much along the lines of brandeis that had laid out. the other is a case known as olmstead versus the united states, which i tell my students ought to be adopted as a case study by the harvard does the school. rory olmsted was a policeman during prohibition out in seattle and realized he could make more money is as a bootlegger than they could as a policeman. so he raises some money. we would now call it crowdsourcing from among his friends and he starts this bootleg operation. now they had boats that ran and they didn't deal with the stuff
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that could make you blind way they did in chicago. they ran in the good stuff from canada on speed boats. he had a farm along one of the inlets in oregon with a hidden basement where they scored the stuff until they needed it. he had a fleet of cars deliver. he added bank of telephones. you would call up and say i need a case of rye or whatever and you would have a within an hour. you either had a credit line with him or not. he was rarely rates it because his brother was on the police force. he was also part of the ring but they knew when the raids were coming. moreover the state of washington didn't really care. they weren't quite as bad as new york which absolutely refused to enforce prohibition but they didn't really care so the feds come in and they use, because olmsted was using modern tech knowledge he known as a telephone, and this was one that had a dial and a wire that connected it.
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they use modern technology, if you want to call it technology. two alligator clips on the phone lines leading into his office. and they sat there and they took notes and it was quite hear what he was doing. on the basis, and they didn't have a warrant. so he is arrested and convicted and he appeals the supreme court and the majority opinion by chief justice naf is so wouldn't you feel like taking a knife to avenge his carving something. there was no entry into the building there for the fourth amendment is not violated. brandeis writes a dissent in that case which does two things. one of which is completely revamped with the fourth amendment -- that's the amendment that forbids the search or seizure without a warrant, what that means and what it means was pithily stated
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by justice potter stewart 40 years later. the fourth amendment affects people, not places. but the more important thing he did was introduced for the first time the notion of privacy as a constitutional right. now, if you want to know what a great dissent does other than say i disagree with the majority, first of all it's got to cast the facts of the case in such a way as to support the reasoning. so even though majority and minority they agree on what the basic facts are there looking at it in different ways. now most justices today a sign the factual part which is usually the first couple of power grabs in the opinion. brandeis said that i get my facts right it will be harder
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for them to argue with my logic later. the second part of an opinion, a great opinion, has to be the logic that if you read it and say of course it's got to be. the third thing, it's got to grab you. it's got to be written well and unfortunately in the 200 years that we have had a supreme court , the number of good stylist can be counted on the fingers of one hand with change. those all over one's own homes homes -- oliver wendell holmes, brandeis occasionally, robert h. jackson and anthony scalia which even if you don't like what he writes he writes is so well. i like to read his opinions as entertainment rather than anything else. listen to brandeis though in
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olmsted. the makers of our constitution undertook to secure conditions favorable to the pursuit of happiness. they recognize the significance of man's spiritual nature, of his feelings and of his intellect. they knew that only part of the satisfaction are found in material things. they sought to protect americans and their beliefs, their emotions and their sensations. they conferred as against the government the right to be let alone, the most comprehensive of rights and the most valued rights by civilized men. to protect that right every unjustifiable intrusion by the government upon the privacy of individual whatever means employed must be deemed a violation. it took 40 years that the court to catch up and there are still some people who say there's no way to privacy and to the constitution. brandeis did not live to see
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this. now let us go to the current court also known as the nasty court. antonin scalia's likes to see himself as the great dissenter. and he has had some influence. one cannot deny that. he has almost single-handedly rewritten with the competition clause means. there were two cases in which the fourth amendment cases in which he overturned convictions that have been secured without a warrant but i using in one case and are one of sniffing dog outside the premises and in the other people were driving around with this device you know could grow marijuana. you need a lot of light which generates a lot of heat and
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generates electricity and if you're in california you can't see the house. they are driving up and down the street with his heatseeking device and all of a sudden it spikes and they say are hot and sure enough it was marijuana. he follows the exact same logic that brandeis did regarding wire tip -- wiretaps in the olmstead case but refuses to cite the olmstead case because of privacy. now let me read you just a couple of quotes from his honor. in his dissent in the case that upheld the tax structure of the affordable care and scalia's dismissed the majority opinion as quote. applesauce and said the law should better be named skoda's care. last term stephen breyer used a dissent -- the term using the
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protocol for lethal injection and announce he had perhaps come to believe that the eighth amendment the death penalty may violate the eighth amendment. scalia's cost, justice breyer does not just reject the death penalty he rejects the enlightenment. and then last term in the blockbuster cases case regarding same-sex marriage, scalia's characterized the majority opinion as containing the mystical aphorisms of a fortune cookie and the conclusion was it be averted joined an opinion his opening lines were written as kennedy's work i would hide my head in a bag. actually scalia's has written one of the great prophetic decisions of modern times. i don't think he meant it that way. a few years ago in the winter case, remember that was where
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the woman's partner died and the irs refused to give her the spousal deduction and so she paid it and then sued and the court upheld her. i think it was 6-3 and kennedy wrote the majority opinion. kennedy tried really hard. he really did, to and the decision in terms of federalism i.e. marriage has always been up to the states so if the state says the marriage is significant degree majority is about to this great depression but scattered and among other things were allusions to equal protection and scalia's jumped on this. he wrote a really nasty opinion but in it he said you know what this opinion is going to do? the next thing is going to be same-sex marriage and this is how they're going to do it in a predicted the next day the aclu filed a suit in virginia and
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another one in pennsylvania following exactly what scalia's said they were going to do. sure enough last time he was prophetic but not as you would imagine. anyway there's a lot more stuff in the book. some of it is somewhat amusing. some of it isn't. it's not a history of every dissent and lawyers among us who have favored dissents may or may not find what they're looking for. but what i've tried to do is get the sense that illustrate this point and we shall soon find out if readers agree. thank you. [applause] i am told if you want to ask a question we have a microphone. just one? go ahead mark.
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you have been waiting. >> sometimes justices will actually read their dissents or portions of their dissents and and i wonder if you have any comments on that practice. >> it's a rare practice and it's usually done for punctuation where they feel strongly about it. one of the things that felix frankfurter did was put them into reading all opinions from the bench. so ever since i think that if he's in the 60s the chief justice will announce a case and the writer of the majority opinion will then say we find in favor of and give a short, very short summary of why and then made up their dissents in the dissenters me but sometimes when people are really angry at what
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the majority has said they will read their dissents dissent from the bench. it doesn't happen often but when it does you hear about it. >> i would like you to comment on two crucial decisions in the 21st century core versus bush and citizens united. in both cases dissent was incident giving us a disaster with bush and citizens united has totally desecrated the whole concept of democracy with regards to politicians being paid by tremendous quantities of money. >> let me do bush bee gore first. bush bee gore is a one-off. it set no precedence. in fact the following year in new jersey that democratic
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candidate for senator, think was convicted and sent to jail, and it was past the filing deadline so that democratic party called and it was frank lautenberg out of retirement. lautenberg -- and the republican party went to court trying to use bush bee gore as a reason why they shouldn't allow that in the court just said that has nothing to do with this case and there's not been a single case since then it has been decided. you will find scholars. i'm sort of neutral on this point but some of my colleagues believed the court had to step in to avoid an even worse result and that would have been the republican legislature of florida deciding for bush.
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that this would have been in terms of public perception. remember jeb was governor at that time. he had pulled strings so that the legislature would -- the white house so it is true that the dissent there doesn't carry much weight that either does the majority opinion. it was a one-off case and hopefully in our lifetimes we are not owing to see another one. >> the american public such as the iraqi war. >> well you know that there are a lot but you cannot tell that gore would have been different. we don't know what gore would have done. the second part, i'm not sure yet that they dissent in that case will not be -- even though
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that's a constitutional position , it was decided well. majority opinion in those cases are not strong enough. let me go back to several years ago. i wrote a book on mcconnell versus the federal election. this was in the kay feingold law that came before the supreme court and it was upheld, almost all the provisions were upheld. the problem was that this was a spatial challenge which is something the court doesn't really like to deal with but it had to be because the law said it had to be. it challenges when somebody says this law might offend. in the court says we don't know if it's going to or not. mitch mcconnell said i will have trouble raising money for my re-election. just been reelected two months
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earlier so the court wasn't too impressed by that. but what i did right and historians, elected with backwards and whenever somebody says what's going to happen i always say i'm a historian not a profit. this time i said i'm going to be a profit. what i argued was that as soon as the court began to get as applied challenges that is when the law actually did something to somebody they were not going to uphold. and they were not going to uphold that on the first amendment which is exactly what happened. now i think citizens united is a terrible decision. i think the code finished the court overreached itself -- the court overreached itself. it certainly doesn't look good.
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>> does a question and intelligence these supreme court justices? couldn't they realize what would happen with all that money for people to spend? >> it doesn't say very much for -- >> let me say two words to you. donald trump. what happens if you have somebody that's very rich? can you restrict how much they can spend on their campaign? the court says no. perhaps in a world governed by bernie sanders that would be but for the most part we do not restrict people spending their own money. also let me give you a different example, one that i use with my students. let us assume for the moment i am inarticulate. that's my son making faces. let's assume i am inarticulate. i can't get up before crowds.
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i don't really like and i'm going to have strong opinions. mark your however is running for office and it turns out that every one of the ideas i hold mark supports, okay? now, i want to help him. anything wrong with that? if -- and you were not getting it but if i give mark a lot of money that's my speech. that's my speech. i'm using my money to essentially get my ideas out. the first amendment -- now the question you raise and one which i don't have a good answer for is when we get into these mega-quantities and what to do about that. but in terms of the book i wrote was money and speech. in politics they are the same thing. without the money there is no speech.
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yes sir. >> you mentioned the current court is what did you say, a nasty court. can you elaborate on that and what effect that could have? >> up until fairly recently the court at least publicly was simple. it had people in james mcreynolds was an anti-semite and used to leave the conference room and brandeis both. felix frankfurter hated anybody who disagreed with them and you had other people who are less than nice. but if you read u.s. report which is the official report of the court you would never know this. there was a civility about it. he didn't accuse, who was it scalia's had a series of dissent
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back i think in the 90s. they were called that sandra. every majority opinion he essentially wrote that's what they were being called. you don't get that and one reason is because if i dissent from you today i may need your vote tomorrow in a case in which i feel very strongly about so i'm not going to go out of my way to offend you. now scalia's, i wrote an op-ed piece for the philadelphia newspapers in which i said that scalia's has essentially been a failure. when he was appointed in the 1980s conservatives cheered really were finally going to get somebody really bright, which she is, really articulate, which he is, to fight william brennan
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who they saw as the eminent who even after the court had a majority by republicans was still rolling majority opinions out of the hat. it didn't work out that way. it turns out that scalia's is much more like william o. douglas, the most liberal member of the 20th century and douglas said he only so i have to say this mind. so he never tried to get people to join us at innings. he never tried to build coalitions. he didn't care if anyone signed on are not in scalia's has been the same way. so instead of forming a conservative block that was strong for which he was the intellectual spokesmen take a look what happened last year. conservatives were all over the place. linda greenhouse who is the former new york times court reporter has said his nastiness is seeping down into the lower
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courts. and she cited some lower court cases where the dissent essentially said that scalia's can be nasty so can i. i don't know if that answers your question completely. you are next, maam. you are next. go ahead. >> okay, i am not a lawyer but i am very angry about some of the court's decisions but particularly the voting rights act one, which i believe is the one where ruth bader ginsburg read her dissent in full. so it's relevant to your book. it seems to me that it ignored and gave no difference. >> it a -- gave deference to congress but roberts made it quite clear that the case relied
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on situations that have existed in the 1960s and went congress had never revisited. so for example did a certain district still district emanate against blacks or not and what he essentially told congress is you have the power to pass this law under the 15th amendment but you can't pass a law based on data that is 50 years old. so bring the data up to date and you are good. and he made this quite clear. he said to the congress, you have the power but it has to be current data, not 50-year-old data which made perfectly good sense. so of course congress can't get anything done. i would say the claim bias if
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not more so on congress because roberts opinion is not without merit in terms of if you want to be judged on what you were 30, 40 or 50 years ago or what you are now? >> will if they knew that a number of states that were covered by the voting rights act were just waiting as was the case. >> that's not the courts business court's business. >> while the other thing, well first there were census hearings in 2006 when the act was renewed with the huge amount of material and second is that the executive branch that determines. >> congress in the voting rights act of 65 specifically identified states and districts, not the president. the attorney general has the responsibility to enforce the law.
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but the case that came up involved a small butter district it was nowhere like it was an effective had he been existed that then. so i don't like the results of it but the reasoning is perfectly sound. that's what the court has to do. this is part of the dialogue. they told congress he want to have this law you've got to have an up-to-date law. perfectly reasonable. >> the constitution covers that? >> well the only part involved would be the 15th amendment which is the post-civil war amendments giving former slaves the right to vote. >> then how does the constitution provides that you have to keep loss up to date? >> oh, the court does that.
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>> another thing that bothers me is that scalia's is an originalist except -- >> except when he is not originalist. he can find an originalist reason for almost everything. >> all right, well. >> yes sir. >> i live in italy. my friends are lawyers. some have argued cases before the italian supreme court with citizens united passed in the united states. they predicted berlusconi and american model is self financed millionaire billionaire. >> and look what we have. >> you say that, i do not. [laughter] so you want to give money to your friends running for public office.
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>> we have been trying to get public funds for ages without much success. yes sir. >> citizens united,. >> that was my wife who did that. go ahead sir. >> i wasn't clear on the point. you are equating money and speech but i thought i understood earlier you do not approve of the decision. i for one think it's a legal fiction just as corporations are illegal. i don't see that money equates to free speech and you can see the results. >> in an election campaign if you can't buy the airtime per year as which is a form of speech, the can't buy the yard signs which are a form of speech , if you can afford to
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travel to get you from one venue to another you have no speech. you need the money. my problem with citizens united was that it took away all restraints. it's not that they allow money to be used for politics, and nor do we really expect a level playing field. no one has ever suggested -- will people have suggested that all candidates be restricted for a certain amount of money and no one has ever thought that was good. >> i'm not a student of the constitution but it does seem to me many of the values in the constitution have to be weighed between different priorities. it seems to me here where you have money out of control which is what you're suggesting now that the balance is so far out
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of kilter that could not the court take that approach in its rationale? >> well that's what the minority did. it's not a simple thing and i don't want to try to make it seem, despite my example. i wrote the book on campaign finance reform. i wrote a book on that because my wife and i were down in williamsburg having lunch with an old friend from kentucky, and he asked me what i thought of mccain-feingold. i said well i think it's not a bad idea. eric said no, it's a bad thing. every 16 years and eric was a true aclu from the beginning.
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he and his wife marched in louisville in civil rights before it became personal for -- pat fashionable for white people to do so. i didn't question his opinion at all. that's why with the book because i didn't agree with him at first. now i think i can't say he is wrong. >> forgive me if he said this earlier because it came in late that you mentioned that potter stewart dissent. do you think there's any chance that might have a prophetic role in creating -- as we look at the potential for practices like mine in schools like mine that might pass a a test to being nondenominational. >> we had when it came out in a moment of silence at the court struck down because the sponsor the bill said and in that minute the teachers lead them in prayer.
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that was not too bright on that last part. first of all nothing stops children from praying in school. any math teacher will tell you that. [laughter] secondly in many schools now they have places where muslim students can leave the room and go and -- what the court held with the can't force a child to pray. he can't describe the prayer that you force a child to pray. >> wasn't stewart's dissent more nuanced? >> while he was looking at tradition. he also i think dissented in the bible reading. i think though history passed him by for this reason. when he wrote, this is was 1962 when we were still overwhelmingly a white anglo-saxon christian country.
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i think within a few years whites are going to be the minority to the voting population. susan, which is beset in the northern virginia school district? one school district. we have become an extremely diverse country which we were at that time. we had one large minority bloc, the roughly 10 or 11% who were african-american. the only hispanics within new york city may have come from puerto rico. we hadn't had the cuban migration yet. no one was paying any attention to what they called -- in california because they were needed to harvest the crops. now we are far more -- i don't think anybody even knew about islam.
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that's something arabs do, right i think stewart was on the wrong side of history in what the country has become so yes it was nuanced and it was well-written. the country went a different way which makes it irrelevant. last question i'm told. >> i may have misunderstood because i thought you said in one of the cases earlier in your talk that one of the supreme court's said his clerk looked for a particular case. did they do that? ..
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the fourth fourth circuit in richmond, it was academic. the supreme court didn't take it and what i've always told the students asked about it they were right because it didn't frame the question the right way that they would have been able to answer it as the court was constituted. the only decided to 75 cases a year. to give you one example there is a case coming up called fisher
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versus texas dealing with affirmative action. way back when, the circuit court, the fifth circuit in texas held that texas could use the race as a criteria for the mission which meant all the states covered by the fifth circuit were held to that law. the supreme court refused to review it. why, they never made clear they just refused. but a few years later they took an almost identical case from the university of michigan when dealing with law school and the other dealing with college and essentially overturned. so the court takes a look not only what is the case about but is it framed in such a way that
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we can say what we want to say about it. >> we actually go out and seek -- think they have to look at what comes in but they get almost 10,000 which they take less than a hundred. >> they can't influence it though. >> -- once they get the case they can run with it. >> you can do that. >> you may not agree with that. but he's the chief justice. he can do whatever he wants especially if he has the votes. >> thank you very much. [applause]

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