Transcripts For CSPAN2 Book Discussion On The Case Against The Supreme Court 20150330

Members please turn off yourself comes at this time if he thinks you have please double check to make sure it is actually off. With that i am very pleased to introduce the founding dean of the university of California School of law which the six short years as one of the finest law schools in the country. A prolific scholar a legendary teacher of constitutional law and related subjects he himself argued many cases before the United States federal courts including the Supreme Court. A frequent public commentator on issues and perhaps the most gifted translator legalese into plain english. [laughter] which the public oppose him a huge debt of gratitude. Caller. Thank you. Let me start by thanking the tucson festival of books for having me and for all of you for coming it is enormously gratifying for me as an author but to see so many people on a beautiful afternoon coming to hear about the Supreme Court and the constitution is wonderful. [applause] thankyou. I will tell a story that the book begins with. I was teaching with acacia were very familiar with that involves a woman born 1906 and Charlottesville Virginia with a normal childhood show to local Public Schools through junior high and always received passing grades. Her father left her mother her mother was destitute and had no choice but to place the girls in foster homes. When she was 17 she was raped by her foster fathers nephew became pregnant as a result. The foster parents were embarrassed by her pregnancy her foster parents had institutionalized called of homes for epileptics and the feeble minded. She gave birth to a daughter in soon after virginia began to in voluntarily have her sterilized. Virginia adopted a eugenics what a short hearing was held. She was given the i. Q. Test which was the earliest form testified she had a low iq. Many years later that harvard professor found carry and gave further career version and it was in the normal range. Another witness testified at her hearing that the social worker had agreement carries baby then six months alone and said something didnt see a normal about the baby. Just as the state of virginia ordered a tubal ligation be performed to be surgically sterilized. The lawyer took the case to the Supreme Court it should have been an easy case. After all the constitution and prohibits cruel and unusual punishment she had done nothing wrong. Even by that point in history with the word liberty in the constitution and translated fundamental rights surely one of the rights is a right to procreate but the Supreme Court eight one decision written by Justice Oliver Wendell Holmes ruled against carey. With the most revered jurist one of the most extensive language anywhere the Justice Holmes said three generations of imbeciles are enoughs. 1 4 her the sterilization. 60,000 people in the United States or in voluntarily surgically sterilized as the results of the of movement and the Supreme Court decision. I was teaching this and my knees students understandably were outraged by the case. The night after the class are realized i had been making excuses what the Supreme Court had done but all too often in my teaching or by writing a was making excuses. But if i thought about it critically to realize the Supreme Court has often failed at the most important times and wanted to write a book that said that. [laughter] host what d. C. Is the purpose to have a constitution in the first place . Guest i think the constitution is an effort with a document that is difficult to change. What makes it different from all other laws is in a statute passed by congress can be changed by congress any ordinance by the city council can be changed by the city council but the constitution it takes threequarters or twothirds of the states chancery quarters and houses of congress so why as a nation and sees itself as a democracy want to be governed by a doctor mitt the documents so difficult to change . Those who wrote the constitution do that there would be tremendous temptation is to compromise the precious values they do from World History that a crisis is the time to centralize power so they wanted to put a separation of powers into the document that in times of crisis there would be a of prescience a one hour most precious values in the document so in this sense it is the elaborate edifice to make sure the shortterm passions dont lose sight of longterm values. What is the purpose of the Supreme Court and the constitutional system part. To enforce the constitution also to ensure uniformity of federal law but i think the preeminent purpose is to enforce the constitution. The question i asked in the book all of you is how has the Supreme Court done over the course of American History to enforce the constitution . Host the most important constitutional issue writeup until the civil war was slavery. How would you grade that handling of that . America is it possible to give the f dash f. [laughter] until the 13th amendment that was ratified to abolish slavery not a single Supreme Court case expanded the rights of slaves every Supreme Court decision progressively and forced the institution of slavery and protected the rights of slaveholders. I dont believe on its own it could have eliminated slavery but it could help to chip away and it did not have to with dread scott purses sanford to say that slaves our property and that is born in the United States are not citizens. Dread scott was a slave who was taken from the state of missouri he brought a lawsuit in federal court been taken to a slave state to a free state was made a free person. The Supreme Court have ruled against them but instead said the matter where they are born our property but not citizens so they cannot sue the allows citizens of one state for the citizens of another but then they went further to say the missouri compromise was unconstitutional this was the key compromise that dealt with with the Louisiana Purchase specifying which states could be slave states or free states and the Supreme Court said the missouri compromise had the effect to take the slaves away from slave owners and violated the constitution and helped to precipitate the civil war. After birds congress adopted in the states ratified 13, 14 and 15th amendments. Guest those amendments radically changed the nature of society, government. The 13th amendment prohibited involuntary servitude also with laws to enforce it. The 14th amendment begins by overturning dread scott verses samper that all persons born or naturalized in the United States are United States citizens and. Also says the state deprives life liberty or property without due process and it can deny any person a coproduction and this is the first time the constitution would ever directly implied state and local governments than the 15th amendment adopted 1870s says the right to vote cannot be denied on race or previous condition of servitude. Host how would you grade the Supreme Court early interpretations without a mandatory curve . [laughter] guest i would give f or f. Why . Unless you are lawyers she probably never heard of there first Supreme Court case ever interpret the amendments 1870s three called the slaughterhouse cases. Louisiana adopted a law to give a monopoly to a slaughterhouse to the louisiana legislature. Some butchers who did not want to workfare brought the challenge in the Supreme Court rejected the challenge and in doing so narrowly interpreted every provision of the amendment and for example, the Supreme Court said the equal protection clause could be used only to protect African Americans from discrimination. But that is not what it says this is no person but because of that case not and tell 1971 the Supreme Court found anything other than racist to violate the constitution . Then for the first time when sex discrimination was unconstitutional with disabled opinion of the slaughterhouse cases the Supreme Court effectively had a provision wrote that out of the constitution when provisional mention no state can deprive any citizen of the privileges or immunities of United States citizenship to make sure states could not deprive people of their most fundamental rights. But the Supreme Court said federal courts cannot use the privilege immunities clause for state and local laws deemed unconstitutional it was five years old plan and the constitution the Supreme Court said no. Since the slaughterhouse cases there is a new one Supreme Court decision that has not been ever ruled that uses that privileges and immunities clause so what they did was projected a few years later that is rarely get to 1896 with plessey verses ferguson the Supreme Court held a separate but equal as constitutional that the law requires racial separation is permissible because of that jimcrow covered every aspect of southern life to imposing apartheid to so much of the United States. Host another charge is one that has failed with a crisis. Where some of the of worst decisions that took place . Why have a constitution . To make sure in a time of crisis of shortterm passionist to not lose sight of longterm values. One example the worst Supreme Court cases in American History of 1944. During world war ii 110,000 japanese americans aliens and citizens and 70 thousands were routed from their homes and placed what roosevelt called concentration camps. Race alone was used to determine who would be free and who would be incarcerated. Of japanese families were housed literally in horse stalls they should have been an easy case for the Supreme Court. Grace alone should never be used to determine who is free or incarcerated it never can be used to determine who is a danger. Nonetheless the Supreme Court in the six three decision upheld that decision of japanese americans justice black wrote the opinion for the court and he said war is about our chip this is just a hardship that japanese americans have to bear. Given the book you said dissent of the case as a rough paraphrase of editing is fundamental to our system is the idea that gilts is personal rather than inherited. The later jackson rates mcadoo not suggesting should interference the army to carry out the task is the people ever let command fall into unscrupulous hands the courts wielded no power equal to its restraint. Was there anything the Supreme Court could have realistically done to stop the internment of japaneseamericans . Guest it is decided 1844. At this point the tide had turned no longer fear of a Japanese Invasion on the west coast for glenn not saying that is justified but i think it would have been so easy for the Supreme Court to say that this was unconstitutional. Remember Robert Jackson was attorneygeneral of the United States under Franklin Roosevelt and even he said it was unconstitutional and what particular a troubles him is the decision for the space like of loaded gun to be used for the government and the future to take away liberties in wartime and i think that is what we have seen since september 11. Host another dark chapter in the Supreme Court history as you tell if it was the first 35 years of the 20th century period that professor is often called the of what in our era. How did the court golan . From the late 19th century the Supreme Court declared unconstitutional over 200 federal, state, and local laws that were designed to protect workers and consumers. Congress passed a law that prohibited the shipment of goods made by child labor. It wasnt even that protected it prohibited children under 14 from being used and for children over 14 they could not work more than 10 hours a day or 60 a Week Congress did not prohibit child labor but just said if they are used the goods cannot be shipped with interstate commerce clearly timed its authority to article one among the states. Nevertheless it was declared is unconstitutional and said that congress could not regulate commerce in this way. How many children were maimed or injured or even died as a result . This is an example when states tries to get minimumwage or the maximum our laws were declared unconstitutional. And congress tried to protect consumers it was declared unconstitutional when congress tried to regulate Agricultural Farm subsidies it was declared unconstitutional. It is like president franklin proposed to the Court Packing up for a long period of time 1895 through 1936 the Supreme Court designed all of these as unconstitutional. So i the failures seemed to consist of failing to protect minorities against oppression by popular majorities but it seems to be the opposite the Supreme Court for its though will of the democratic majorities that in each of these laws were supported protecting consumers or children subjected to horrible working conditions. When should the court stand up to popular majorities or when shouldnt step back and differ . Guest that is the basic question of did a constitutional law thinking about the constitution. When do we want the court to defer to the political process or stop the process . That is the key difference between liberals and conservatives. To examples. Their recent. Tuesday june 25th, 2013 the Supreme Court to five four declared unconstitutional a key provision of the Voting Rights act of 1965. The five conservative justices wrote the majority the liberals resented it is a provision that in 2006 congress extended 25 years almost unanimously 98 o was only 303 no votes in the house. It is hard to imagine this congress being so close to unanimous but yet the five justices declared unconstitutional the critical provision to usurp the states rights of congresss power. The liberal justices said deferred to congress his judgment it is unnecessary for Voting Rights. The next day june 26, 2013 the Supreme Court five four declared unconstitutional Section Three of the defense of marriage act federal law marriage had to be between a man and woman. The liberal justices plus Justice Kennedy the four conservative justices dissented say we need to defer to congress. [laughter] it cuts both ways isnt it interesting on tuesday it is the conservatives and we will not differ to congress on wednesday the liberals want to defer to congress only kennedy was the majority in both cases. Both liberals and conservatives want to differ and sometimes dont so of the agreement should be when. I think the constitution exists to protect fundamental rights in times of crisis you cannot leave the protection of the minority to a the majority. I think it has a very special role to enforce the constitution for minorities that cannot use the process to protect fundamental rights. In other areas we should give a great deal of deference to the political process to democracy. Host you talk about the Roberts Court. What is his background and his contribution in his role as chief justice . Guest he grew of request indiana his father was an executive in the Steel Company and he grew up in a privileged family. He went to Harvard College and Harvard Law School and was a clerk for a judge all United States court of appeals said can circuit than a clerk for chief justice rehnquist. Then he went to work for the Reagan Administration the office of Legal Counsel in white House Counsel then went to work at a law firm in washington specializing in representing business interests before the United States Supreme Court and took time off to go work at the Solicitor Generals Office they present before the Supreme Court he was the number 2 to Kenneth Starr while there he would refer urging the Supreme Court to overrule roe vs. Wade weighed in with prayer in schools he went back to be a lawyer in tell president george w. Bush made him a judge on the court of appeals to the circuit and spent two years there and tell a july 2005 president George Turvey bush nominated him to be chief justice of the United States john roberts was 50 years old then. If he lives to be 90 when stevens retired you will still be on the Supreme Court and another 30 years. Host in a nutshell what is the case against the Roberts Court . Guest i think it consistently has favored business over employees and consumers and all of us. The Roberts Court has very much close to the courthouse door to those who are injured. To illustrate of opec an example from the book and might surprise you. Did you know, if a person is injured from taking a generic drug that person cannot sue the generic drug company . Not for failure to warn, not for the design defect lot of federal or state court that is resolved to roberts Court Decisions in 2011 and 2013 for quickly tell you about the latter case. The woman in New Hampshire was given a prescription for the pain reliever. Was filled with the generic form of the drug and she took it as prescribed. She suffered a rare horrific but unknown side effect twothirds of her body burden blistered she is permanently blind and was put in a permanent state of a coma and then to say there was a design defect the Supreme Court ruled five four that makers of generic drugs cannot be sued for design defect for failure to warn. Had she taken the brandname version then she could have. This matters because according to the fda over 80 percent of all prescriptions are filled with generic drugs ever is a generic equivalent over 90 percent of the time the prescription is filled. The robber is Court Decision has the enormous victory to the pharmaceutical injury industry but a huge loss to us. Host the previous case is a preemption case as some of the other pro Business Case is so how did they get a wrong . Guest if federal law and state law conflicts federal law wins. Article six says the constitution is the supreme law of the land and in technical terms tread federal law on one hand state law on the other it was preempted but what is interesting is it is a drug that is often prescribed for those with diabetes or other conditions to speed digestion and it is now known a significant percentage of college users users, 29 percent will suffer a horrible irreversible neurological side effects. And now has a black box warning to a different women took the drug for a long period to suffer the side effect. They sued the drug company that they fail to adequately warn consumers. Shes a man that was meant to protect consumers, not to lead to injuries were they cant recover. The majority has two alternatives. Theres a third. The company could choose not to sell that drug. If it chooses to to sell it than to compensate those who are injured. Another series of transient cases decided by the Roberts Court involves something called the federal arbitration act. What is the federal arbitration act and why should the rest of us why should nonlawyers or anybody else care about it . Sure. The federal arbitration act was adopted in 1925. It says the contracts in interstate commerce that have an arbitration clause shall be enforced unless they are revocable under state law. Let me give you a concrete example where this comes up and then i will answer your question directly about why it matters to all of us. At t was advertising free cell phones for those who signed up for service. The concepts in ons and married couple went to get their free cell phones. They like all of us had to sign an agreement. My guess is like most of us they didnt read the agreement they were signing. They were surprised when they got their first monthly statement. They were each charged dirty 2. 80 in sales tax. They believe that at t promised free cell phones so it should have to bear those those costs. They decided they want to sue at t for fraud. It was a classaction suit great at t said theres an arbitration clause in the agreement that you signed. It says if you have any dispute you have to got arbitration and he cant be part of a classaction. But the california Supreme Court had ruled in the discover bank case of arbitration clauses are not enforceable in california in a routine consumer contract. The california Supreme Court said no one is where these clauses. There is no agreement to these clauses so the federal court of appeals said the concept c. Ons when. This is a closet is revocable. The Supreme Court 54 report reversed the decision. Justice scalia talked about the evils of class actions. Class actions terrorize business business, force business to settle claims of arbitration clause has to be enforced. The conceptions cannot bring a classaction not even in arbitration. Justice breyer in his dissent said the reason when a class actions in situations like this where a large number of people each lose a small amount of money no one is going to sue or go to arbitration for 32. 80 so why does it matter to all of us . Arbitration clauses are increasingly ubiquitous. They were found in Employment Contracts, consumer contracts and even in medical contracts. Not that long ago i went to see a new eye doctor for the first time to the receptionist gave me a big stack of papers to fill out in the middle there was a former is asked to sign that if i had any dispute with the doctor arising out of the treatment i could not see the doctor didnt have to go to our arbitration. I asked the receptionist at the doctor would still seem if i didnt sign the form and she said she didnt know. Nobody ever asked her that question before. That doctor did see me but i know many physicians will not see patients unless they sign arbitration agreements come in other words unless they give up their right to sue in court. Around the same time i bought a new dell computer. As you know when you use a computer or tablet like an ipad or a phone for the first time you have to click that you read the terms and agree to them. For the ipad the terms are 46 singlespaced pages long. I just click a green use the machine but this is why i decided to read the terms. Sure enough there was a paragraph that said if i had any dispute arising out of the computer i could not do dell and it have to go to arbitration but i wrote dell a letter saying i did not agree and in him they agreed i could sue them in court if we had a dispute. [applause] delta. Writeback but the computer still works. And i dont mean by telling that true story to undercut the point point. Arbitration clauses are pervasive if they take away the ability people to access the their right to have their day in court. Here today in the many portions of the book we have not yet had a chance to discuss them probably wont have a chance to discuss due to our limited time you paint a pretty bleak picture but there are some bright spots in the book. Can you tell us about what you regard as on the Supreme Courts greatest successes . I dont mean to say that the Supreme Court always is wrong. I chose my words in the book very carefully and saying the Supreme Court is often the most important times the most important tasks. Brown bee board of education on may 17, 1954 were the Supreme Court held that separate but equal has no place in American Public education overruling plessy versus ferguson at least with education and ushering the end of jim crow laws. Yet i also believe the Supreme Court could have done so much more than it did in bringing about school desegregation. Think about american Public Schools today. Separate but not equal and becoming increasingly separate. I put up great deal of blame on that on the Supreme Court. I applaud the Supreme Courts decision in United States versus nixon won in 1974 the Supreme Court ruled unanimously that the president s claim of executive privilege to not allow him to keep the white house tapes secret. Mix and produce the tapes when he learned from them that nixon committed a crime, obstruction of justice telling the fbi not to investigate the watergate breakin because it was a cia matter. If we hadnt have the Supreme Court there to enforce separation of powers than the key check or checks and balances would have been lost. I applaud the Supreme Courts decision from june 26 of 2013 the United States versus Windsor Holding section 3 of the defense of marriage act unconstitutional and im hopeful late june of this year the Supreme Court will say state laws that prevent Marriage Equality violate the constitution and and have the same right to equal dignity and love and commitment that heterosexuals have eyes had. A cynical reader might think you like the Supreme Court was liberal and dislike the Supreme Court with its conservative. How do you respond to that . [laughter] but as my examples dont fit into that pattern. Lets begin where we started our conversation. I know of no one liberal or conservative who would disband the Supreme Court decision with regard to slavery like in dred scott. I know no one who would defend the Supreme Courts decision in plessy versus ferguson. Their few today who would defend the their few who would defend the Supreme Courts decision in that child rape cases. Brown versus board of education was unanimous decision. It was a liberal or conservative. United states versus nixon was a unanimous decision. It was not liberal or conservative you think about all those examples where liberals and conservatives would agree both to the failures into successes what im arguing overall is not ideological. Yeah are cases where there are ideological disagreements. Citizens united versus the federal Election Commission which i believe is a terrible mistake by the Supreme Court but i think i can make a strong case against the Supreme Court just focusing on cases where liberals and conservatives agree. You say a number of times in the book that you think on balance in the Supreme Court has made things worse rather than better. Would we be better off without Supreme Court . No, though i have to tell you i spent a lot of time pondering that as i was writing this book. There are constitutional scholars who believe we would be better off without Supreme Court with the power to strike down federal state and local actions. A very perceived as professor at Harvard Law School wrote a book called taking the constitution away from the court saying we should no longer have judicial review. Larry cramer wrote a book called for popular constitutionalism. He is the dean of Stanford Law School in which he says we should and judicial supremacy and yet as i reflect on it i believe that the Supreme Court got it right in marbury versus madison in 1803. They are the Supreme Court said the constitution exists to limit government. There are limits on those limits are meaningless unless they are enforce enforced. Without the court they will often go on enforced. I spent almost 40 years now representing prisoners including some on death row. They represent one time a detainee that they represent a homeless man in United States Supreme Court. A realism that for my clients use the courts are nothing. Criminal defendants, prisoners Homeless People rarely will win in a legislative process. One is the last time a state legislature adopted a law to expand the rights of criminal dependence . When was the last time a state legislature in its own passed a law to increase the rights of prisoners . So even though these groups they often lose in court for people like my client is really the courts are nothing. Are the benefits to people who like your clients were some of the cost you identify in a book on the cost to people like ms. Believe this if that was the plaintiff was the plaintiffs name in the plea this case and the children who were subjected to the conditions, the horrible working conditions of child labor during the years and so on and so forth . The honest answer is i dont know. I dont know how to add up all of the instances where the court make society worse than without the court compared all the instances where the court make Society Better and the 2a them. I would know how to identify all the benefits and costs let alone how to weigh the benefits and costs. I believe we need a court to enforce the constitution and the key is to think of ways to make the court better as an institution less likely to make mistakes in the future. Please join me in thanking professor cherinsky. And our wonderful moderator for his questions. We have about 15 minutes for questions from the audience. There are mike sent a child and i would encourage you to please keep your questions as brief as possible so we can get to as many people as possible. If you would line up behind a mikes i will point to one side of the room and then the other. You point out that the court got it wrong but at that time there were many states that were passing laws or it in voluntary and posted for quite a while. The last one i believe was rescinded by North Carolina in 1975, 70 something rather. Since it became clear that states were backing away from those why is it not possible for the Supreme Court to go back to that decision and say this was a bad decision bikes we overruled it ourselves. Its implicit in this question and you are absolutely right. The Supreme Court has never explicitly overruled buck versus valeo. Its overruled in 1942 and skinner versus oklahoma. That involved oklahoma eugenics law that said person three times convicted of a crime involving moral purpose it would be sterilized. The right to procreate is a fundamental right. Laws that provide for involuntary sterilization are unconstitutional. What happened in the 15 years between buck versus bell in 1927 in skinner versus oklahoma in 1972 . Obviously the nazi movements eugenics cause the United States to no longer be palatable. You mightve seen recently virginia passed a law directing compensation to those who were voluntarily surgically sterilized. Its a symbolic gesture. Most of those people are no longer live in no money can restore the inability to have children but i hope theres a day the Supreme Court says skinner versus oklahoma implicitly impede the court explicitly overruled buck versus bell. Will you share your view on the constitutionality under article iii of the federal arbitration act and the likelihood of the Supreme Court might decided that issue reaches reaches . I will answer simply and quickly. I think this is a very proarbitration of the Supreme Court. Arbitration tremendously favors business over those who were injured by business. Why . Because business doesnt want cases to go before juries. Business perceives that juries are proplaintiff or proproin favor of those who are injured. An arbiter is somebody who is likely to be displayed by emotions. Also its important that business gets to strike those who are arbiters as to consumers but individuals who want to make the income as arbiters notepad if they develop a pattern of business they will no longer be employed to do it so theres a subtle bias. One way in which the Roberts Court is being probusiness is to systematically rule in favor of attrition selecting the court will consistently uphold arbitration rejects constitutional challenges. Thank you. Could you address the issues in the arizona case before the Supreme Court right now regarding redistricting a vote of the people . The case was just argued in the Supreme Court about 10 days ago. Its Arizona State legislature the arizona redistricting commission. Arizona i think wisely adopted an initiative to take districting progression of districts out of the hands of the legislature and give it to an independent commission. California followed arizonas lead in the california has created an independent district for state legislative districts. In fact i shared an elected commission and we put him back in the late 90s and independent commission. Otherwise the Political Party that controls the legislature draws districts to maximize their seats for that party. Computer programs are sufficiently sophisticated. There can be an enormous variance between the amount the Political Party state for state and the number of districts bearable to control. I strongly favor independent district commissions paid arizona legislators brought a challenge this thing article i of the constitution says that the legislature of the stage to set the time, place and manner of state elections and they say therefore you cant give that to a districting commission. The United States court of appeals for the ninth circuit upheld the arizona law. It said legislature refers to the political process of the state. Its not just the legislature itself. Besides that look at the language of the constitution that the legislature should know the time, place and manner of elections. To me that doesnt say anything about districting and i think its permissible to give districting to an independent commission. When i first heard of this case i thought the challenge was frivolous. I thought it was so clear that the people unless they wanted to do this they should be able to. The conservatives would most like this because this is after all a state choosing parts up in the people of the state choosing. Its clear from the oral arguments 10 days ago that the most conservative vote to strike us down i dont know whether majority is going to be on the case. Its not possible to solve an oral argument but an independent commission for districting is a key, its progress towards key government and i think it would be a shame if the court takes that away from the states in their ability to do this. [applause] you have made the case against the Supreme Court. How do we fix fix it . [laughter] thats the last chapter of the book. The last chapter before the conclusion i hope you all get the book and read it. Let me quickly because im getting more questions, i list many reforms that i think together could make a real difference. It would change the way justices are picked and merit selection of justices were a think a president can create an independent Commission Democrat and republican say i wanted to send me names and out i promise to pick your names are asked for additional names. We need to change the confirmation process in the senate to make it meaningful. I strongly favor 18 year nonrenewable term limits. [applause] i think we need to change the way the court communicates. I believe there should be cameras in every Supreme Court proceeding. [applause] the ethical standards that apply to Federal District court in federal court of appeals judges do not apply to Supreme Court justices. We should apply the same ethical worlds to the Supreme Court justices as we do other judges. We should also make it that no justice gets to decide whether you are accused. Those are just some of the reforms in the nexttolast chapter but i think i can make the case that together these are steps that may have prevented mistakes in the past. During the American Civil War lincoln jailed several of his critics and the Supreme Court ruled that was unconstitutional. Lincoln ignored the decision so in a time of war if the president of the supreme Supreme Court disagreed that the Supreme Court actually have the ability to defend their rights . Es is the answer to your question but the history is somewhat but not completely accurate. You are absolutely right that during the civil war lincoln jailed his critics in lincoln suspended the writ of habeas corpus so his critics couldnt come to court. I was clearly unconstitutional. But it wasnt declared unconstitutional until the ex parte milligan case after the lincoln was no longer live. I believe that the court could have declared it unconstitutional. Is there a chance that a president could ignore a Supreme Court ruling . Sure there is but i believe the Supreme Court has so much institutional credibility over such a long period of time but that is unlikely to happen. Richard nixon initially said he was going to disappear disobey the Supreme Court ordered to release the tapes and he was told by the Republican Leaders that he should not do that but he should comply with the law. So yes theres a danger of president s of the finance in the Supreme Court but thats not a reason for the Supreme Court not to enforce the constitution. You you just touched on this but why are the Supreme Court justices the only justices and federal, Appeals Court that do not have to follow the canons of judicial ethics . I think its wrong. That is just the way the law as written written. Federal district court, federal court of appeals judges have have to meet ethical rules or they dont just apply to Supreme Court justices. Also when i alluded to this very quickly now theres a motion to a Supreme Court justice be disqualified is left to that justice to determine it. No one should be a judge for himself or herself really got to come up with a different procedure for it. Im going to stick with this line of readers since all of you have been in line. Thank you. Do you think the Supreme Court was the correct place to take the issue of who won that election, gore v. Bush . No but for technical and not obvious reason. The question up what was the question of florida law. Even assume that the Supreme Court was right that counting uncounted ballots without preexisting standards violated equal protection. There were two possible things to do, create the standards. It would be easy to do. How many corners of the chad had to be attached and pick whatever number you want and you got it or stop the counting of the ballots which to do with the question of florida law. There is no doubt liberals and conservatives would agree to that. The law is very clear and has been from the beginning of United States that state law is left to state courts to decide. Its not for the United States Supreme Court to decide. Questions are purely state law. What i think the Supreme Court got wrong in gore bush v. Gore was they sent it back to the Supreme Court discussed borderline that discuss bush v. Gore in the book. Much of our discussion this afternoon has been on the arbitration system and the arbitration clause. Could you describe that process and a little bit more detail so maybe we might understand that . Sure. Anytime theres a contract the contract can say that rather than go to court the parties agreed they will go to an arbiter. The arbiters are private individuals. Its not a judge. There is the american arbitration association. There are groups of arbiters. You are a high, a lawyer or nonlawyer could be designated as an arbiter and the contract would specify how the arbiters decided. Let me give you an example of the Supreme Court called circuit city versus adams. Do you remember circuit city . Adams applied for a job there. On the back of his application in small print that said if he had any dispute was circuit city he would have to go to an arbiter and couldnt go to court. Who reads all the small print in an application for a job . A few years later after working at circuit city he had a discrimination claim against circuit city and he sued them in california state courtbased on california law. The United States Supreme Court ruled 54 no. He edited the contract was circuit city because on the back of his application is set up a good arbitration. So whether its an Employment Contract or a consumer contract or medical contract if people agreed to give up their right to good go to court and go to private arbiter instead they are then bound to do that. Arbiters decisions are generally not published. They are very difficult to get an arbiters decisions overturned and by so aggressively enforcing arbitration agreements the Roberts Court closed the courthouse door to all of us when we are injured. Im afraid we are out of time unfortunately. Thank you all for attending the session. Dont forget to become a friend of the festival to ensure that the festival remains a free event. Additionally all