tv Supreme Court Term Review CSPAN June 30, 2018 4:45am-6:19am EDT
although those of you in the room have cards of our speakers on the table, for the people watching us on c-span, and thank you to c-span for covering us again this year, i'm going to do a short introduction in order of how long they have been covering the court. on my far right, tony mauro, who is covered the court since 1979 and most recently for the national law journal. he has written four books about the court, including the companion book to this years c-span series on landmark supreme court cases. david savage has been with the los angeles times since 1981 and covering the court since 1986 and in recent years with "the chicago tribune." he is the author of the latest
guide to the supreme court by the cq press. bob barnes joined "the washington post" in 1987. he has been a national editor and the metropolitan editor, but returned to reporting in 2005 and began covering the court in 2006. adam liptak on my immediate right took over the new york times beat 11 years ago, but he has a longer history with the times, which he first joined as a copy boy in 1984 after graduating from college. after getting his law degree, he returned as a lawyer in the times legal department. a decade after that, he became reporter covering legal ssues. amy house sitting next to me on the other side is a reporter and independent contractor with scotus blog. until recently, she was the editor. i think my mic has gone off. she was one of its two ofounders. before turning to full-time
logging, she served as counsel in more than 200 merit cases at the supreme court and argued there a couple times. between amy and bob is a reporter and producer for cnn politics covering the supreme court and other legal issues and guiding its coverage on supreme court cases. before joining cnn, she cover the court for abc news going back to the bill clinton era. unfortunately joan, who is on your programs, is represented by the empty chair at the end of the table. she has been for many years, but was pulled off to an urgent assignment today. we can only guess what it might have to do with and is not going to be able to join s.
this is not a panel of expert lawyers, although most of them are. our plan is to talk about the court as an institution and as a collection of individuals and bout what it's like to cover the court as journalists. we do plan to save some time at the end for questions so you might be thinking about the questions and being ready for them at a quarter of 2:00. to begin, when supreme court marshall pamela cowpens bang her gavel on wednesday morning and said the court was in recess until the first monday in october, most of us thought that the big news from the court was finished for the term. at 2:06 p.m. that afternoon, i got in the mail from "the washington post" that justice kennedy was retiring. at 2:01 p.m. come i got the same thing from "the times" and the same thing from nbc. since "the post" got to me first, i will start with bob.
did you know this was coming? when and how did you find out? robert: thanks for having me. how about now? is that better? at first, thanks for having me. did i know it was coming? e were all suspicious. like everyone else, we thought like everyone else, we thought there was a chance. we had all written a story that said justice kennedy retires and had it edited that morning. it didn't happen while they were on the bench. here was a feel. i was one of those who did not think he was going to retire until the beginning of this week. i started to think by some of the things the court was doing, putting off some cases that i thought they might except for next time, i thought maybe they weren't sure if justice kennedy would the back. we were all sort of on high
alert. after the decisions came down, i usually go back to my office after writing the sort of first version of things. there was a weird vibe. there were a lot of closed doors that were not usually closed. it's a sort of made me think something was up and then it was like a fairly dramatic i was one of those who did not moment when all of a sudden aids just started rushing out f the public information office holding these pieces of white paper and we all knew exactly what that meant. that is how we found out about it and it was the usual cramble to get online. arthur: were you all still at the court in case something happened or did someone have to
turn around on the bay bridge? [laughter] >> i had gone home actually. following up on what bob said, we should have had a little dead giveaway and we will talk about the process in which the court announces decisions and where different members of the press are, but some of the reporters in the courtroom that day said that mrs. kennedy was there along with three of the kennedy grandchildren. amy: i think that should've been assigned. i had spent the night before -- i had the kennedy retirement iece ready for a couple of months and i spent the night before working on my justice thomas retirement piece.
there's a little bit of an echo chamber in the supreme court press corps. people looked at pictures with him and the vice president and said that's it, he's retiring instead. arthur: david? david: if you people are here for insight, i think you've come to the wrong place because there's a little bit of an echo hamber in the supreme court i thought if we had this lunch at the end of may and somebody had said, do you think justice kennedy is going to retire, i think some of us would say there's a lot of rumors to that effect, but he's not going to. we thought it pointed to the decisions of gerrymandering and masterpiece cake, which neither had been correct. i was thinking about doing a term end of story. i assumed justice kennedy was probably not going to retire. when we left the court, i thought the chances were very slim. the only good thing i did in the last month was go up to the court at one of the social event where they invite some of us upstairs. some of the justices were milling around and talking. justice kennedy was there with his wife and he's a great storyteller. he had five or six reporters listening to him talk. at the end of may and somebody had said, do you think justice kennedy is going to retire, i think some of us would say i talked to his wife, mary, and
i said i'm concerned about these rumors about your husband retiring. she said, he's been here for more than 30 years. we'd really hate to see him go. she said, he did 12 years on the appeals court. [laughter] and then we started talking about the grandchildren. i thought she wants him to retire. she said he hasn't made the decision yet. i went back to the office and immediately started writing a story to be ready to go. i feel i have been clueless most of the year, but fortunately i was saved by that ne conversation. arianne: i was there. i stayed and i was tinkering with my justice kennedy doesn't retire story. and i was playing around with that lead. i said to my editor, you know? 'm not ready for that.
we all sort of looked that we all sort of looked that every time the opinion came ut, what do you think, i was about 50-50. i was interested in a little tea leaf that did not get about 50-50. attention. there was one case i wasn't paying attention to and kennedy wrote the separate opinion in it. he was calling for the court to revisit something called chevron, which happens to be how you look at it interesting to me wisely choosing this opinion to write that. is he trying to tie a lot of those around it and why this opinion and something that i would expect something more from gorsuch then kennedy, but i had both stories ready to go. i was 50-50. i had both stories ready to arthur: tony? tony: i also had a prewritten story and i had seen some tea
leaves like mrs. kennedy showing up at the court that morning. i also remembered thurgood marshall when he retired that it was the final day of the term, but he was not announced during the session of the court. he decided to tell his colleagues afterwards. sometime in the early afternoon was when the announcement came out. i thought it was possible the same thing would happen with justice kennedy. i wrote a story of an atmosphere piece about the ourt that morning. my final sentence was the kennedy watch is not over yet. for what's that worth, which is not much, i was at least thinking that it was going to out. happen.
arthur: so did justice kennedy's colleagues know when they were on the bench that morning and kept their poker faces or did they find out roughly when you did? ny idea? >> i believe the press release put out said he informed his colleagues that day. arthur: adam, you've got a front page story in "the times" this morning about the white house's quite campaign to get justice kennedy to retire going back almost to inauguration day. one of you tell us about that and what it took to put that -- why don't you tell us about that and what it took to put that together? adam: it was one of president trump's most dearly sought ishes. he arrived in office with a vacancy with justice scalia's death giving him the opportunity to put one justice on the court, but it was a one-for-one conservative swap.
what he wanted to do was shift the balance of power on the court and almost from the moment he got there, they were angling for that second seat. they knew that justice kennedy was 80 at the time and knew he was considering retirement so they did everything they could. they were very smart about it. however ineffective the trump administration has been in other realms particularly administratively, the judges ave been very effective. the very fact that they put justice gorsuch on the court was telling because justice gorsuch is a kennedy clerk and might reassert kennedy that has legacy would be secure. for talk of the next vacancy, the two names floated in the white house -- what do they ave in common? both kennedy clerk's. donald trump praised kennedy ull some -- wholesomely in
many ways, a lieu of what he many ways, a lieu of what he called justice roberts, an absolute disaster. there was a connection between the trump and kennedy families. justice kennedy's son was a banker that worked with donald trump. e apparently moves in the same circles as donald trump sons. the ivanka trump showed up at the court last year at the invitation of justice kennedy. it did look like this was a concerted and effective effort to charm justice kennedy off he court. circles as donald trump sons. i believe justice kennedy said he retired when he won to spend more time with this family, but he did not the tray any reluctance to stepped down under president who cuts a different profile that justice kennedy, who is sort of a ittle abstract, mild-mannered, very civil, not qualities you associate with donald trump. but he didn't hesitate and that
may have been a consequence of what looked to be a very well executed plan. arthur: ariane, he did a story last night about -- you did a story last night about white very civil, not qualities you house counsel and the likely timetable for announcement based on people you have been alking to. ell us about don mcgann's role and how soon we can expect a nomination. ariane: not only did the conservatives have big wins during this time, there were more dozen cases where the conservatives one, but it was a huge win for the trump administration, starting with the travel ban, which was sweet indication for the president who had lost the load on and how soon we can expect a nomination. arlier versions. this week there was an interesting lower court opinion that not a lot of people paid attention to, but has to do with nationwide
injunctions. that is when a court1 block something863 patches for the plaintiff -- block something not just for the plaintiff for the country. they are nervous about these nationwide injunctions being put in place. big wins for the trump administration coming out. keep in mind that is gorsuch in the 5-4 side. keep in mind that is gorsuch in hat's interesting to look at is done again, one of the is done again, one of the earliest members of the trump dministration.
way back in the campaign, he decided with the federalist society to make judges a priority, supreme court and lower court judges. he really push their working through the senate majority leader and chuck grassley and pushed an unprecedented number of judges through. you really saw what happened there. you saw the travel ban and the lower court ruling in their favor. i think they come out of this with this opportunity now as adam said to really shift things and the white house is assembling a team that a super successful with the gorsuch omination. they are hoping to announce the name of the next nominee as early as july 9. you never know if that's going to happen, but that's a pretty ambitious timeline. ambitious timeline. the democrats, on the other and, this is their worst
nightmare and a lot of wasted nightmare and a lot of wasted they are gearing up themselves a little bit of disagreement on how to go at this. are you going to block earings? they're looking at away to combat the list. they call it #ditched the list. they're putting a focus on roe v. wade and what might happen and put a focus on the affordable care act and the trump administration's recent brief, saying they would not defend key portions. some are feeling a little bit flat-footed knowing that after the garland nomination fell apart. i will summer before the presidential campaign. i look at politics through the prism of the court. i was a little surprised they were not keeping up with that drumbeat about garland.
some people thought he was too much of a consensus candidate. now they are seeing these opinions coming fast and furious and their gearing up for a big fight. the question is how much can they do? arthur: tony and david, you have actually been on the seat long enough that you covered justice kennedy's confirmation hearing in 1987. and you cover the unsuccessful nominations before that. you have covered every single confirmation fight. what can we expect the summer? tony: i do remember the confirmation battle as you mentioned. justice kennedy's nomination was preceded by reagan nominating judge bork.
that was a disaster. i remember actually interviewing judge bork. that was back before supreme court nominees were put away in the closet. they are not allowed to talk but orton gave me an interview. -- bork gave me an interview. then judge ginsburg was nominated and that was a disaster also because it turned out to smoke marijuana's -- he smoked marijuana as a harvard law school professor and that as a no-no back. when anthony kennedy was nominated, it was almost like an anti-climax. here's this plain-vanilla guy from sacramento. as i recall, it was a fairly smooth hearing. i think people were exhausted and just wanted to get it over with. david: what i remember from that time is that then and now
there's a big difference between certain republican nominees. bork was a guy who spent his whole life criticizing the sort of liberal court of the 60's and 70's. he was opposed to a lot of the civil rights decisions, certainly roe v. wade. bork was a guy who was a lifelong critic. if he got on the supreme court, he was going to change a lot and overturn a whole series of presidents. -- precedents. scalia was the same thing, a hard edge, heart conservative, et's overturn. kennedy was a different person. he was a conservative guy. he came up in the reagan administration when reagan was governor. he's a catholic, conservative, pro-court, but he had none of that passion that says i'm going to, and sweep aside the 1960's and 1970's and overturn. he was much more of a temperamental moderate, status
civil rights decisions, quo conservative. here are not a lot of moderate republicans left in washington. that's what we are losing, the last of the sort of moderate republicans. the really great likelihood is the trump administration is not going to seek out a moderate republican of the anthony ennedy mold. they are going to seek out somebody who is a much more committed conservative and much more willing to go back and say these earlier decisions were wrong. roe is certainly in that category and we got to the constitution right and overturn them, so i think that is where they are headed. arthur: is anyone willing to hazard a guess? if they do that, will they lose to republican votes in the senate? my: the interesting question
s not that they will necessarily nominate someone who is going to say that or has said that in the past. with neil gorsuch, he looked at his lower court opinions and what he has written, he had not written anything about abortion or the second amendment. i did a panel last fall and this was after just one sitting. he joined the court in april. one of the panelists said that it turns out the federalist society to him a lot better than his former law partner's. necessarily nominate someone who is going to say that or has said that in the past. if one of the finalists when trump nominated gorsuch was illiam pryor from alabama, who alled roe v. wade an abomination, they will not put someone like that of. they will put someone up who may have a lot of confidence, but for whom, it will be hard to point to something to point to his or her background that gives democratic senators abomination, they will not put something to work with. arthur: anybody else on this
topic? let me ask then with justice kennedy's retirement, how do you think he would like to be remembered as a justice? do you think that is how he will be remembered as a justice? any thoughts about that, bob? robert: i guess i don't know exactly how he would want to be remembered. perhaps if he did, it would be some sort of defender of liberty and dignity and civility, which are words that come up a lot with him. i think what he will be known for more than anything is gay rights. he wrote every opinion, every positive opinion on gay rights for the court, topped by same-sex marriage.
i think his legacy is clear in that way. what's interesting about him is that because he is on that side of that issue, but he also wrote citizens united, which is at least in my experience talking to groups about the least popular decision that any audience ever talks to me about. he has a mixed legacy. the interesting thing is we expect judges to sort of call them as they see them each case at the time, and yet there has always been frustration from both sides about kennedy that neither the liberals nor the conservatives could really count on him and that he was always in play and that he was always the one that they were sort of trying to angle for.
i guess you could argue that's the lack of a firm philosophy or you could argue that it is someone who does take them case-by-case. arthur: any other thoughts about that? i guess you could argue that's the lack of a firm philosophy or i can move back to more familiar territory? this term ended with five consecutive workdays of frontpage, closely divided decisions. sales tax on internet sales, cell phone tracking, free speech for crisis pregnancy centers, racially discriminatory legislative districting, attorney fees for a employee unions, the travel ban, and even a 5-4 antitrust decision with a very energetic oral dissent by justice breyer. there were at least four other decisions during those five days. how do you manage to cover all that or do you even try? i know "the post" can send backup reporters because they are here in town. do you have any backup or are you one man baseball team?
david: i'm a one-man -- i do it myself. usually there is one big case of a day or maybe a second one. i could do to stories. if you want the fourth or fifth best case of the day, you need to go somewhere else. [laughter] >> the court won't admit to this, but it's pretty good about spacing the cases out so we typically don't have to handle more than one real blockbuster a day. arthur: do you think they do that for your benefit? [laughter] adam: i remember the chief justice accommodated us. the press wanted it, but for any other reason, i cannot think of it. adam: well, i remember once the chief justice accommodated us. the press wanted it, but for any other reason, i cannot think of it. 1arthur: ariane, you're our tv
reporter. how fast do you need to get on the air after decisions come down at 10:00? ariane: it depends. >> they cut us off down here. [laughter] ariane: it depends where we are in the term. in the last week, we have an entire team that works on it. we get quickly onto a conference call and get cracking as quickly as we can. so, i can't think -- this term -- i'm thinking the last week -- we didn't have one of those tangled opinions that we've had before. those are the ones where you look at it and think uh oh, what's going on here? i can think of vote counts that were not exactly what i thought they would be, but i didn't feel like we had one where we thought, whoa, what have they done? we have had that in the past as there was an affirmative action case.
a little bit maybe with masterpiece cake shop, the case about the baker. that was closely tailored to the case at hand. you had to look at that. that was a little bit easier this term i would say, particularly in the last couple weeks that are so crazy. arthur: the point ariane is making is a really good one because there is such a pressure to file things quickly. we can write one or two different versions of the story and take 30 seconds or a minute to say file this. it's a great opportunity for making a fool of yourself because you can say the court struck down this. you push that button and then go wait a minute. it's an interesting minute or two of scrambling to read the
opinion, check the votes, make sure they actually did one of the two things you thought they might do and then push the button. it's a fun, hectic time. >> what david said is sort of the dirty secret of our profession. we do pre-write these stories. ap and wire services used to do that all the time. pencil press, the newspaper reporters -- and david remembers this, too -- we would get the opinion at 10:00 and then we could peruse them and have lunch at the court. sometime in the afternoon, we'd wander back to our office and write the story. that just isn't possible now. so, you know, you have to have it out within 10 minutes. i don't think there is anybody
really who could do it at less speed than that and get away with it. there is a tremendous possibility of making an error like this. [laughter] >> i think it's on. tony: hello? anyway, you can get it wrong. sometimes a footnote on page 43 is really important and you are not going to get to that in 10 minutes. so it's just part of what we have to do now. arthur: thanks. i look for examples of the kind of thing that ariane was talking about and i can usually find one every time. -- every term. there was one in april. at the end of the syllabus, they give a lineup of who wrote what. here's what came out concessions
sessions against dimya. justice kagan gave the opinion of the court with respect to 5., two, 4b, and with opinion and are spaced 4a, justice gorsuch filed an opinion concurring. chief justice filed a dissenting opinion. justice thomas filed a dissenting opinion. that was 96 pages worth of opinions. it comes out in a little booklet that looks like a short novel. and so given your 10 minutes, how far do you get?
>> you know, you're seldom going to go wrong with saying 5-4. [laughter] the one i remember being worried about was the sports gambling case. there was a law in 1992 that said states may not authorize sports betting, but there was a second provision that said individuals may not license, sponsor, promote sports gambling. so they were challenging the restriction on the states. right? then the court agrees it is unconstitutional to hamper the states like that, but the government said all well and good, but nonetheless sports betting is illegal because there is another provision of the law that says individuals may not do it. so, i don't know about the rest of you guys, but i was worried about writing a story that says supreme court legalizes sport betting, but actually they didn't. anyway, i always think there's a certain number of landmines that you're sort of worried about walking right into in the cases.
amy: i don't know about the rest of you, but my pre-writes sometimes for the more complicated cases look like the choose your own adventure books we all read when we were little. you can try to game out after the oral argument to different paths the case can take. but sometimes there's only so much you can do. for example, in the partisan gerrymandering case out of wisconsin, the idea that they might dismiss it for lack of standing wasn't a huge surprise, but the result in the maryland case was more of a surprise. the danger that you have this pre-write, but you don't want to make that the narrative for the story. you have to read the decision and make sure you are actually reporting what it says and not what you thought it was going to say. ariane: so, going back to the first case, already you had to look and see who was where and what's the vote count. but that was interesting, too, because that was one of the earlier cases.
and justice gorsuch cited with -- sided with the liberals there. and oral arguments, you have a tea leaf about that. he, like scalia, does not like vagueness, particularly when it comes to criminal defendants. we sort of knew, okay, there was a good chance here that gorsuch would go with the liberals, but that wouldn't mean he was changing his jurisprudence. in fact, it was a move where he was following in the footsteps of justice scalia. and i wrote that. you had to put that pretty high up because people were thinking, who is this justice gorsuch? this is his first term on the bench. is he going to be a solid conservative or not? and even after i wrote it, though, i got a note from one of
my bosses saying -- and i don't think identity enough job -- saying what is this? he sided with the liberals. it was very interesting. there were those things on deadline that you have to look for. and that instance, you can be prepared for it because you knew it might come. just when you were talking about that case, it brought me back to that. arthur: so amy, in addition to writing in-depth analysis on your own blog, you often help to cohost the live blog on scotus blog, which is actually online as things are happening. and yet you can't bring a laptop or cell phone into the courtroom, i can't even bring my apple watch into the courtroom because they are afraid i might report something. how do you manage to do that? how many people are listening in?
amy: yeah, there are no electronic devices allowed in the courtroom so you have to go up and listen to the opinions being announced. there's something to that to see whether mary kennedy will be there on the last day of the term. they can add a level of nuance seeing how the justices react to each other while the opinion is being read from the bench. one of the most vivid memories i have of being in the courtroom was when i was in the bar section as a lawyer back in 2003. it was the last day of the supreme court's term. and so we expected to see the decision in lawrence versus texas, striking down texas' a ban on consensual sex between two adults. this was a case because we knew it was the last day, we know it was coming. a lot of the lawyers in the gay-rights community was sitting in the bar section. as justice kennedy was reading the announcement from the bench, talking this is a matter of fundamental human dignity, the tears are pouring down the faces of some of these lawyers. another memory was the decision
in a case. bann was the acronym. by all means necessary. as justice sotomayor is reading her very sharply written dissent from the bench, the other judges are visibly uncomfortable. there looking around at the crown molding. justice was recused because she had been a solicitor general when the united states filed a recent case. she was the only one who looked happy to be there at the time. [laughter] you can have that level of nuance or you can be in the public information office. and it's quite a scene, especially on big announcements days, especially at the end of the term. there's kind of an unwritten protocol for who stands where as the opinions are handed out at 10:00 when the marshall bangs her gavel. the audio comes on in the public information office.
they announce justice alito has our opinion on number 17 whatever of janus versus american federation of municipal state employees. they start handing out the opinions. and the folks really in a hurry, the wire services reporters, grab the opinions and turn around and literally run out of the room. we all know to stand out of the way. if you're not there on a regular basis, you don't necessarily know that. a young reporter kind of got body slammed the other day. someone lost their shoe. the day they announced their travel ban, having learned from this experience, one of the wire reporters turned around and said to a reporter standing at the doorway between the public information office and the pressroom, he said you probably don't want to stand there. she laughed because he thought he was joking. another said no, really you don't want to stand there.
in the scrum that followed, somebody said did somebody lose a shoe? [laughter] i go back to the pressroom and start trying to decipher it. who wrote the opinion, which will usually tell you a lot. what was the vote? you try to start pulling out the money quotes from the decision. some justices write introductory paragraphs that are more helpful than other justices. this is the question and this is our answer. sometimes you really have to wade through and see what people say and then turn to the dissent. we've had as many as a million people on the live blog back when they announce the decision in the affordable care act case. that was really kind of a one-off. good numbers, but nowhere close to that. arthur: who is first on the line? who gets the opinion first? amy: the wire services folks. arthur: and do the rest of you sort of have a regular alphabetical order or custom or
do you elbow each other around? >> it's a little bit of a free-for-all, but the rest of us are more civilized. [laughter] >> i was going to mention, one thing we have talked about this sort of the difficulty in translating a decision. often, we're faced with translating something that happened that is not a decision and we don't have much guidance on. i mentioned before when the court didn't take a couple of cases that were follow-ups, one was this case from the state of washington where a florist is basically in the same situation as the colorado baker was. she said she serves all people, but she won't do wedding flowers. and so, that case had been waiting for the court to act on. the court could not take it and
the washington courts ruled against her. the court could leave it in place. the court could accept it for the next term. the court could send it back in light of their decision that masterpiece, which really did n't say much at all about the facts of the case or how the lower court should now decide that case. and so they decided to send it back. but it's always in one sentence. there's no explanation for that. and that's where sometimes when we read about the court, we read about it in sort of a form of educated speculation. my editors will often say to me, who said that? i say, well i do, because there's no one else to say. sometimes you have to decide some things on your own about what the court's actions might mean and sometimes you might be wrong. arthur: so, one reason i like to
go watch the decision days in june is because of the possibility of oral dissent. in this term, there were six. one by justice ginsburg, one by sotomayor, one by justice kagan, and four by justice breyer. >> check your math. arthur: check my math, okay, my math is wrong. i think that's the most since the 2012 term. in the last couple of terms, there were only two or three. is this a random variation or is there another explanation? how much does the fact that a judge chooses to do an oral dissent affect your reporting of the case? >> i first would just like to point out that three plus four is seven. [laughter] arthur: that's why i'm a lawyer. >> what a know it all. [laughter] >> i think it's a consequence of
a fantastic route on the left. the left lost and lost and what do they do? they are dissenting from the bench. it's an unusually high number. i think most of us noted and used some formula in the side of profound disagreement, justice breyer, as he did yesterday and the day before, dissented from the bench. none of us go upstairs anymore. we are not able to convey the drama that some of us had colleagues in the courtroom. in the travel ban case, again i wasn't there, but justice sotomayor's oral dissent from the bench was very dissenting. >> let me help cnn with technology. [laughter] ariane: i wasn't up in the courtroom. i wish i were. our amazing colleague at cnn was up there.
i didn't have to be up there to hear the pinched tone of elena kagan on that unions case. wow. she was mad and that really struck me. i didn't even have to see it. i heard it coming through the audio. arthur: the scene that you all missed that you cannot hear was the day that the antitrust case came down. the court-martial didn't realize that justice breyer was going to do an oral dissent. she banged the gavel and started to say that the court is adjourned until tomorrow. justice breyer was adjusting his microphone. the chief had a sort of stand up and wave everybody to sit back down. everybody was laughing.
justice thomas, who just delivered the majority opinion and who sits next to him, had this and norma smile on his face and was laughing at justice breyer's joke. and then brian delivers an opinion basically saying that thomas had swallowed the snake oil that the lawyers were selling. ariane: breyer was an antitrust law professor. but the reaction in the press room when realized that justice breyer was reading a dissent from the bench, was, you've got to be kidding me. [laughter] arthur: people often say that the whole court changes with every change of personnel on the bench. is that consistent with your observation? if so, how has the court changed with the new justice this last year and a half?
or is it just that there is a new justice? amy: justice scalia was either credited or blamed depending on your perspective on the hot bench. if you go back and listen to when justice ginsburg was an advocate before the court and she gets the talk for 10 minutes straight without interruption, so i think a lot of the lawyers are little bit jealous. justice gorsuch, i think in the , on the one hand, he is quieter. during the janice case where everyone knew he was a swing vote, he did not ask any questions at all. he can sometimes be a fairly active questioner and sometimes relatively quiet. the one thing that justice gorsuch seems to do, he will really press a point in a with the some of his colleagues don't . he could be trying to make a point with a lawyer, trying to get the lawyer to concede something. i'm thinking here of a colloquy he had with michael dewey's den, general, inolicitor
the cell phone privacy case. trying to press the point that the criminal defendant had a property interest in the cell phone records that the service provider had. if you have ever seen michael argue, you know that he is incredibly well prepared, and there was no way that justice gorsuch was going to get him to back down. but the other thing going on is he had some unique views on the laws. i heard justice kagan talk about this when she was the junior justice. at the conferences, they go around the table and vote. as the junior justice, he is the last justice who gets the vote. to a certain extent, this is his way to talk to his colleagues. so he has some unique views on the law that he will press at some length, but i think there are probably a couple of different motivations going on. arthur: adam, you wrote the other day that justice gorsuch had turned in the most consequential freshman
performance by a member of the supreme court in living memory. how so? adam: that's a good sentence. [laughter] welcome that we talked about the one case in which he joined the liberals. in 14 others, he provided the decisive vote going the other way. it's a fair bet that in every single one of them that justice merrick garland would've gone the other way. so the raw numbers, the raw power come up lives a. also, notwithstanding some reports of friction with other justices, he was also entrusted with very big cases. the biggest business case of the term was the workplace arbitration case epic. junior justices wait years to get a decent assignment, this was his chief justice roberts second. trusted him to turn in a sophisticated and sound opinion that would keep the five conservative votes. and then he also hit the bench with a lot of self-confidence. as amy was saying, he has a lot of well formed, idiosyncratic views. he is writing a lot. it's got to be the reason why in
issuing only 59 signed decisions in argued cases, the lowest number since the civil war or something, they nonetheless took forever to get them out. that was in large part because there was a lot of separate writing and a lot of that was attributed to justice gorsuch. amy: just a minor data point to add to what adam said, he had a in his second seating as a justice, there were 15 5-4 decisions and he wrote the majority opinion in five of them. roughly a arthur: along the third. lines of how many 5-4 decisions there were, last term a year ago, the court was unanimous more than 57% of the time. this time that dropped by 20%. -- this term, that dropped by 20%. they were unanimous only 34% of the time, quite a dramatic change. with relatively few exceptions, the big 5-4 decisions split
along party lines, that is, the party of the president who had nominated the justice -- the travel ban, the union dues, voter registration, the employment arbitration case. is the court becoming as politically fractured as the rest of washington, or are they individuals calling them as they see them? >> yes to the first. they are becoming as fractured as washington. a lot of the cases they took this term that caused this big fight where they took conservative challenges to laws in liberal states. the janice case, for example, something like 22 democratic leaning states have these laws - that allow for agency fees. the other 28 states have right to work laws. the supreme court took a challenge to the democratic state laws and overturned them on a 5-4 vote. david: the five republicans voting to overturn the democratic law the four dissenters.
the masterpiece cake shop case was a religious liberty challenge. something like 21 states have state civil rights laws that say , if you run a business, you must provide a full and equal service for all customers, including gays and lesbians. mississippi does not have that law. texas does not have that law. but california, the north east and west coast state, illinois, has that kind of law. they're taking that first amendment challenge to take a cut out of a democratic states 's laws. there were quite a few cases. there was a california law that says these crisis pregnancy centers have to put up a little notification that says whether or not you have licensed people on staff. they struck that down. you can't tell people that you do or do not have license d medical professionals on staff? firsts a fast
amendment violation. i think part of the real divide this term was the cases they took up. and it is split very much. they had the voter purge case from ohio. ohio has a fairly aggressive move to remove voters from the rolls. guess what the vote was? i mean, everybody would have known before the case was even argued. i've followed this from a distance, i would predict that the republican appointees would five see it one way. it's a fairly complicated statute. the four democratic appointees would see it that other way. and you would've been right. a lot of that is what's going on this year. ariane: i think that's right and the 2016-2017 term may not be the best one to use as a point of comparison. because for most of that term, that only had eight justices, saw a lot of their decisions were like, let us all get along and issue an hour decision.
the cases that they would have been hearing during much of that term, were cases that they had agreed to review when there may have been uncertainty about when they were going to get a new justice, and who that justice might be. amy: in the weeks and months after justice scalia's death in february 2016, they were not taking much in the way of cases. and the ones they took were pretty uncontroversial. >> i thought -- i thought though, that there were some examples -- i can think of one at least, where i think they sort of put aside their differences a little bit. on the partisan gerrymandering case, for instance, where kagan joined with the rest to say that this case needed to go back for more work, but then she used that to write a very, very long concurring opinion that basically laid out how you could bring a successful case against
partisan gerrymandering. made the case against partisan gerrymandering in that opinion. i think it ended up sort of being more effective by doing it that way, than it would have been if she had done it as a dissent. i think sometimes they are strategic about those kinds of things. >> i think bob is quite right. the decision was unanimous, but that's a little misleading because it was clear that there were four votes. kagan represented 4 votes for people ready to do something about partisan gerrymandering. if gorsuch was not on the court, that would've been five votes to do that. >> i don't think it's necessarily right on friday.
you know what i mean? when that opinion came out monday -- >> being right for four days is pretty good. [laughter] >> i think bob was correct to say the day that opinion came out that elena kagan was saying , ok, we passed on this case because of standing grounds, but there's still a good argument for, here is how we go forward on partisan gerrymandering in the next case. that's not going to happen. the trump appointee is not going to be a fifth vote to strike down partisan gerrymandering. john roberts thinks it's inherently political. there is no way to say it's too political. it's political and we should stay out of it. that's what's going to happen. there's not going to be a 5-4 decision striking down partisan gerrymandering. >> i'm not completely sure this is apropos. if somebody talked about how sharp justice kagan's dissent was in janice. i think she feels very strongly about the union fees, but a lot of what was going on in janus janice was also a battle over
the idea that courts should not lightly overturn this just because they thought it was wrong. i think we will be hearing a lot about stare decisis in the next couple of years, like in roe v. wade, just to give you one small example. ariane: on that note, which , which means as lot to us, and maybe not the general public, you look at how hard she went on the issue. why are we overturning the precedent here? why are we doing that? it is interesting, because in the travel ban case, justice sonia sotomayor brought up and korematsu, and tried to make the link. and the chief with her to that and said, that is not fair, it has nothing to do with koremat su.
and then to me, a little bit out of nowhere, he overrules it. you felt on one side that i felt like kagan was talking to the chief on the separate case, then he had the tension between sotomayor and the chief. that was very interesting. decisis.re >> does anybody think the chiefs paragraph about korematsu was written after he read the draft of the dissent? >> of course. [laughter] well, no, he -- didn't say so, but he referred to it. >> another thing was that the united states changed the position in four important cases, arbitration, the voting rights case from ohio, the union dues case and a case about judges are officers of the -- whether administrative law judges are officers of the united states who have to be appointed by the head of the agency. did this annoy the court?
if it and annoyed them, did it under them enough to make any difference? >> it certainly did not annoy them enough to make any difference because they won all the cases. it was interesting. this used to be something to chief justice was very tough on the solicitor general's office during their previous administration. >> still not working. >> lost all communications. there he was! [laughter] >> and, he did not bring it up very much, this term when the other side was -- now that the tables have been turned on that, justice sotomayor at one point did call out the solicitor
general and said come up by the way, how many times have you changed your position this term? and he said, three. i think it was actually four. but you now, it is not surprising that a conservative administration changes its position to a conservative position and then has it upheld by a conservative court. so. >> i don't really think the court should get that upset. if the obama administration chaco position on janice was based on this 1977 decision that the majority then overruled. the sg's office will say it is aboud is wrong, whether they disagree. covered an event where she gave a talk, and of course, coming from the office, gaveeral's
the top with another former solicitor general. i think it was before this came out. she talked about how serious it was to flip a position. her tone was like it is a big deal. i thought that was interesting. >> part and parcel of what is going on in washington where the norms of behavior are sort of shifting. people saying, oh, we never did it that way, or, you are not supposed to do it that way. nobody says you can't do it that way. it just becomes more partisan. addition to -- [laughter] -- the reporting on decisions, you also cover oral arguments. you can be upstairs on day when they are not handing out decisions. where the any highlights of this term in the oral arguments? anything that might have changed
the outcome? any takers? tony? -- i don'tere was know if it changed the outcome, but there was one rather interesting one where chief justice roberts really got angry. primarily at justice breyer, but just in general on principles of how cases are supposed to be argued. it was the city of hayes versus vogt, a criminal case. justice breyer was asking the lawyer about some factual information about the case. the lawyer said, this isn't in the record but -- he was starting to answer the question
, and robert said, wait a if it second. is not in the record, you are to tell us, about could be just the same as if somebody came in off the street and told us, this is what happened. and it was really kind of tense. the poor lawyer coped with it very well, did not know quite what to do, then justice breyer said, you don't have to answer that question. presumably because chief justice roberts was so angry. roberts says, oh, he can answer the question, but take notice. i will not give any credence to what she is going to say because it is not in the record. issuesn't sound like an to get really angry about, but that is the kind of thing that chief justice roberts feels strongly about and so, anyway, the case was dismissed and the lawyer for the defendant haven't
-- thatdealt with this chief justice's anger, she won. courte it was the lower case, that was upheld. down and write about the oral argument, but people also went online to find examples where all the justices had gone online and done their own research in various cases, and cited to it in their opinions. there was plenty of fodder. >> please, don't put extra evidence into the oral argument. the amicus briefs are full of them, and they are routinely cited >> i'm curious what some . of my colleagues think about this. what other interesting phenomenon's that you see in the court, is that sonya sotomayor
talks a lot in the argument. justice breyer is the other one who halfway through says, i'm confused as to what this is about. then he sort of talks for a while, and doesn't really ask a question. but, justice sotomayor talks a lot. --etimes, when she doesn't if it is a conservative side or whatever, -- she will keep talking, and basically, the counsel starts to answer and she will talk right over them and keep talking and talking. she had some really long dissents at the end. she seems to be speaking to the wider world, getting a message out to the wider world. it doesn't look very effective inside the court. to say, come on, everybody should ask questions. she sort of is filibustering. i'm curious what the rest of you
think about that. she is playing a different game than a lot of the other justices at oral arguments. >> i think it is also true for dissents. i think it is also true for that, they play to the progressive crowd, and she gets very good feed back from her crowd about it, but it is not clear how effective it is as a matter of legal strategy and jurisprudence. whereas elena kagan it was not , who is not very far from sotomayor ideologically plays a much more strategic game. >> i think you saw this in the trump versus hawaii dissent. there were sort of two factions within the more liberal justices on the court there we had you had just is writer and justice ,agan who are more pragmatic who wrote the dissent that kagan joined, that talked about -- the majority relies on the exemption and waiver provision, but we are not sure how effective it is of an option for people trying to come to the united states. and then there was the sotomayor-ginsburg dissent that
was strong, talking about this is a muslim ban. >> the travel ban argument was my favorite moment where she justice breyer, one and at get gets toon advocate many questions, he tries to give them extra time. the sg's extra time on the travel ban argument. eel gets up and he gives a pretty good argument. the mark of a good argument is just as the red light comes on to your closing statement and you land it like you are a figure skater. then chief justice says you can have five more minutes. [laughter] >> i forgot that. >> scotus log compiles the fabulous statistics at the end of every term. looking at the one for this term, total questions for
-- for argument this term, 124 average total questions per argument. a 60is two permanent in minute argument. how can anybody answer a question? hasim he is only one who done an argument at the supreme court. >> when i was teaching, i talked about somebody got up and responded. he began with a traditional mr. chief justice, may it please the court, then he got out the word ," before justice sotomayor asked him the first question. i think that is why the lawyers are so -- lawyers who are you -- who argue regularly before the court, are so good, because they manage to answer that we'vee's questions, and in their arguments. if you going second to try to address with the other justices have asked during your opponent's argument. >> you can tell when someone is
a newcomer. they will come to the court and give an opening sentence or 2, and say, your honor, i have three points to make. as soon as they make it to one, for the next 15 minutes -- -- andver get to sometimes, justice kennedy will say, could you get to that second point now? the idea is you will get three points, no, that is not going to happen. >> it really is an amazing talent. there is a fellow named tom goldstein who has that talent that you mentioned. whenember there was a time seth waxman was giving an argument. three justices asked him questions at the same time. he just sort of stood back and said, "whoa." then he answered each question in order like it was the easiest thing in the world. tom does that as well.
i just think sometimes -- i would have fainted if somebody had done something like that. [laughter] actually, through history, some lawyers have fainted, through history during oral argument. it's an amazing skill. >> i don't know if it is true abut there is a story about lawyer who argues regularly before the court, that he practices. your sentence and pause -- the justices ask a question, he practices pausing in the middle of the sentence so as not to give them the opportunity to jump in. >> one thing this points out, it is hard to write really fast. the quality of the efficacy of the court is just fantastic. both written and oral. the questioning is fascinating. the justices are very good lawyers, there are very able public servants. they are not typical of washington public servants these
days, and it is a real pleasure to cover it. >> another statistic that caught state in the scotus blog pack, is the keep an eye on who asked the first question at oral argument and how often. i thought it was remarkable. the first questioner this term, justice ginsburg, 54% of the arguments, she was the first questioner. justice sotomayor, 17%. so between the two of them, 71% of the time, one of them was asking the first question. that turns out to be pretty consistent going back. 52% term, the two of them, of the time, they had the first question. the term before, 61% of the time. the two terms before that, it was in the same range. i hadn't noticed that. is that an obvious phenomenon you have seen that i just wasn't aware of? is there some reason why they feel the need to be the first one out-of-the-box so often? >> i got the impression justice
ginsburg always comes to the argument. if there are a couple of things about the case she wants to get clear right away, she always asks. she always has something she is unclear about. it is not a part of the arguments, she is basically saying, before we get into this, does this mean? she wants something to be -- clarified right at the start. >> especially if it is something to do with procedure. she is the court's civil procedure maven. if there is a potential flaw that might keep the court from getting to the merit, she is the one that will identify at first. >> there was a study that -- it's a little controversial, but there is a study that says that female justices are more apt to be interrupted. so maybe they want to go first, so that they can forestall that. >> we will try to get to questions in a few minutes see , so you can be thinking of your questions. tony, you wrote a piece last week went in out the courts per curiam opinion in the maryland
gerrymandering case. the court basically said we are not ready to think about this case. it did nothing to resolve the gerrymandering issue, but you pointed out it did something else useful. it reminded practitioners and in-chambers opinions, still matter. in-chambers" opinions, and why do they still matter? >> i like to write about the dusty corners of the supreme court practice. that is one of the dusty as dustiest ones. they are written by a single justice for the court. it comes up when lawyers have a day that they want, or an extension of time. -- have a stay that they want, or an extension of time. they will petition the justices who oversee the circuit from where the case comes from. it used to happen all the time
, where the justice would hear the lawyer's argument in chambers, or by brief. he or she would come up with a short opinion to resolve the case. now, those petitions are usually handed off over to the entire court. there are very few in-chambers opinions that occur now. but there is a rich history of storyincluding this great in 1970. -chambersnd in chamber opinion from justice douglas, but he wasn't there, he was in the woods in washington state. so they trekked out to the justice, made their case in person to justice douglas.
he listened, and he pointed to a tree stump, ß, come back tomorrow. my opinion will be on this tree [laughter] and sure enough, they came out, and he issued an opinion denying them what they wanted to do. the reason this came up, is because the maryland gerrymandering case had to do and a luminary injunction, the fact that it had been filed like six years after the redistricting map had been established. so there really isn't much precedent on that, but in-chambersted opinions from justices marshall and kennedy. so anyway, it is a little historical note.
you can read all about it at greenback, the law review, they have taken all over the gathering of in-chambers opinions and publications of in-chambers opinions. that is it. >> assuming my mic is working, how are we going to handle the questions? give one of the microphones to the floor? >> [indiscernible] >> ok. so, if someone has a question, theirn't they raise you hand, yes sir -- and i will repeat it. >> i heard alan dershowitz on npr, and he said that he would not be surprised if ruth ginsberg resigned because of what has been 5-4 decisions are about to become 6-3. what does the panel thing about that? >> so the question is, alan dershowitz speculated rick bader ginsburg might resign soon because 5-4 opinions are about
to become 6-3 and what does the panel thing about that? >> the chances of her giving donald trump the opportunity to fill her seat are zero. [cheers and applause] >> is that a consensus? >> i think that is why justice ginsburg's trainer is regarded as the most important person in america. [laughter] and i think it calls to mind what thurgood marshall used to say. you know, when people wanted him to retire. he would say, just prop me up and keep on going. >> every court rules on aspects of presidential power. this next court in the next couple of terms will rule on very intensely, personal business conduct and other conduct of a president that is going to appoint the next
justice, in a way that is more -- that talks about more personal behavior than of official conduct, and how the president's previous personal behavior and conduct and camping behavior, interacts with his official role. do you see that shaping the nomination fight, in terms of democrats bringing up the conflict of interest issue, that is perhaps a bit more different than a nixonian behavior? -- will it beeen a different nomination fight? and also, how do you see that shaping the nomination fight in coverage?ience in >> for people whom another not have been able to hear, do we nominationthe process is going to be changed in some way by the possibility that whoever -- whatever justice president trump now points may be sitting in judgment on questions about president trump's personal behavior? anybody? >> it is a fairly abstract -- i am not a political reporter.
i am a retired lawyer. it's a fairly abstract question to try to sell to the democratic base. i think if they are trying to come up with a winning strategy, roe v. wade is probably just going to be a much more compelling argument for the democratic base in terms of its simplicity. >> with the new opening do you see the court changing the 5-4 decisions that kennedy good to -- that kennedy did, to actually change stare decisis? >> do you think of the way that the court handles stare decisis is going to change? that was the question.
>> is the court willing to change stare decisis with those 6-3s? >> well, there is a lot the court could do, they could look at something like roe v. wade and not overturn it. but really hamper it, cut back. there might be an appetite to do that. so you wouldn't see for instance, it being overturned. but at the end of the day, it would be weakened. be a sort of intermediate steps that they could take in a case like that, or with kennedy's legacy. it is interesting though, if you look back at sandra day o'connor . she saw her legacy cut back a great deal. you wonder, it could be anthony kennedy next year. and sort of see what happens, it would be fascinating to get his perspective on that. >> i would not be surprised to see affirmative-action overturned by a new court.
it is sort of hanging barely there anyway. justice kennedy's embrace of the university of texas' plan was so limited, i don't think a conservative majority would have qualms about overturning that. >> you look back at justice o'connor's opinion in the michigan affirmative action case where she essentially set a 25-year lifespan for that. that was in 2003, 15 years ago. >> chief justice roberts has been considered by a few news articles to be the new swing vote with justice kennedy's retirement. considering he is an institutionalist and the damage done by these 5-4 decisions, do you think you might moderate his views?
>> so, does the panel think that chief justice roberts might moderate his views in order to to help the course institutional reputation? i'm not sure that the great summary, but it will do. >> you are quite right. he is an institutionalist. he cares about the constitutional authority of the court. he is also an incrementalist. he's also not particularly old, 62. he is a conservative. he will move the court to the right. >> with respect to touching on what roberts said earlier about contained in a positions by justice kennedy, what did you see from the last term? did you notice he was deviating from that? i read articles about that. especially with the ban case. but even with others that proceeded that -- preceded that, there was less of a focus on civility and dignity, and more about siding with the right. >> well, i have read several
times and i will read many more times his concurrence in the travel ban case. i'm not exactly sure what the message was that he was trying to send there, but i think he .as getting hacked at i think he was saying, look, the president has broad powers here. but presidents have to follow the constitution. maybe henk, i think -- may have understood it better than i did, but maybe i think that was a message she was trying to send. >> we have had all male questioners so far. >> [indiscernible] there we go. >> [indiscernible] going forward in a more conservative court, releasee the -- where do you see the court going, in terms of the administrative state and curtailing its? i am curious specifically, where you see the substantial curtailment coming. >> david?
>> you are right. they will curtail the administrative state. this chevron doctrine -- i assume that they will write some decision in the next year or so that disagree overturns chevron. that is sort of power to judges, rather than agency executives. i remember back in the 70's. when scalia liked chevron, we it was the idea that reagan was in charge. the idea that there would b the epa -- the idea that the epa would making all these decisions , let us turn it over to executives. the right has really changed on that, particularly when obama was president. they did not like deferring over to the obama administration. judges should decide this, not agency bureaucrats. i think that is one. the other is the case of decided at the fcc. i think the top administration's
briefs -- the trump administration's briefs or pretty interesting on that. they want to push the idea that these people are presidential appointees subject to removal by the president. of, good cause. " we don't want judges who are just there on merit." they wanted the court to say they are subject to removal at the political. there is sort of one officer will know of in that situation, a guy named mueller who was appointed under regulation that has a good cause removal. so i think that is another area. verydecided that case narrowly, but i think they will push on the idea of saying, "we want more political control and political accountability in the agencies." >> [indiscernible] >> i was struck by or justice opinion ofe in the the death penalty cases. i was curious if you have any
thoughts about that particular comments by justice breyer? >> a question about justices who publish dissents from denial of what purpose does that serve, and especially insents by justice breyer death penalty cases. >> very often it's an attempt -- sometimes they are circulated internally, to try to persuade people to change their votes. when that does not happen, it is attempt to tell litigants, bring us another case like this, we are interested. death penalty cases are a special case. they are an artifact of dissent from a couple of years ago. justice breyer thought, maybe he could get the court to reconsider, once and for all, the constitutionality of the death penalty. that was a lost cause even with kennedy on the court. and now, he can write as many dissents from denials as he
wants, and this court is not going to overturn the death penalty. >> i was going to say sometimes you see, especially in the death penalty cases, these dissents from denials by sort of a rotating cast of liberals. you think, why did one liberal join this one, but not join this one? you know, it takes four to grant cert. i think they don't want to say, we will actually take this case, because in a how it will turn out. but it is a good way to, sort of, send the message out about what they are upset about. as that of said, hope for a better case or one that would give them a better chance. >> before you answer another question, it is really hard to hear a lot of what you're saying and this corner here. they are asking really good questions and answers are making
great points. could you project a little bit more so the whole room could hear? >> we will try. we have time for one more. yes? >> i'm glad you have a sense of humor. i had someone send me an emailed this morning, saying, who is adam liptak and is is he credible? [laughter] so ira him back and said, why, he is linda greenhouse's successor. >> that's no answer. [laughter] absolutely, i thought it would put him off long enough to read your article. justice ginsburg won a to present the court in a nonpolitical fashion, and as you pointed out, by friday, things would be different. article.a very scary when you were writing it, the exchange between trump, for example and justice kennedy come out with reference to his son,
iout the banking interests -- am curious see reaction in writing the article, how it makes you feel about the court. we talkedstion is, -- about it in the beginning, about whether the trump administration's attempts to get kennedy off the court, do they shake my confidence in reality and in the political system of democracy? routine. quite presidents try really hard to usher people off the court. the fact that justice kennedy's son had business dealings with president trump, i don't know that that by itself kills everything -- tells you everything. it is worth knowing, but , there are successful kennedy middle-aged men who have gone on to have careers, and it is not strange that in new york, people would have business dealings with each other.
so i am glad he stood up from a credibility. [laughter] but i don't know that there's anything particularly unusual about this. lbj was more active in trying to get people off the supreme court. >> so we have come to the end of our time, apologies to everyone who was not able to hear everything, even can watch it on c-span, they will be rebroadcasting it tonight and tomorrow. year,n come back next when we promise to have a working sound system. thank you all, very much. [applause]
it's something we track. i couldn't get that government data. so i did my own research at our public hospital to see what was happening to our children's blood levels. and it was the easiest research project i've ever done. and what we saw was alarming. the idea of having cameras in the courtroom. this is 40 minutes.