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your television provider. >> host: and the name of the book is the end of bic, how the internet makes david the new goliath. the author is nicco mele, and he joins us from boston. before we get into the substance of your book, if you could, relate your personal experience to the book, "the end of big." >> guest: sure. i started my life as a computer programmer and ended up at the intersection of technology and politics. in 2003 i joined howard dean's presidential primary campaign. i joined it very early, in late april of 2003, and was on the campaign for almost exactly 12 months from the early days to the very bitter end. and my experience as a working for an insurgent candidate led me to think a lot about the role of technology in empowering insurgence against the establishment. and so it's really kind of where my book started, you know? in 2007, in early 2008 we watched the astonishing democratic primary where hillary clinton who was the party's standard bearer, indeed, she and bill clinton really built the modern democratic party, she lost in the primaries to a man who'd been in public life less than a decade. and that was a dramatic moment of the insurgent challenging the establishment and winning. in the last couple of cycles, we've seen a similar dynamic at work in the republican party with tea party insurgents challenging successfully, you know, a number of sitting u.s. senators in their own primaries as well as other establishment republican candidates. and so the book started with my interest in the role technology plays in empowering inurgents in political -- insurgents in political campaigns against the establishment. but increasingly, as i looked across a range of other industries and verticals, i saw a similar trend at work whether that be in news, in entertainment, in higher education, in armies and militaries, in manufacturing, across the board it was clear that there were a couple of significant trends at work. >> host: mr. mele, when you joined the dean campaign, did they have the sense of the power of the internet? >> guest: i think when i joined the dean campaign, i mean, they hired me. i was a totally technical guy, so they hired me, so there was clearly some sense that this could be a competitive advantage, that there was a tactical opportunity here that had not yet been tapped. it really in ways was patterned off of moveon. moveon, by 2004 moveon had been around for almost half a dozen years, and moveon had raised a lot of money online for candidates. but never before had a candidate themselves really built a digital operation as adepressively as the -- aggressively as the dean campaign did. you know, in 2000 bill bradley actually petitioned the sec to allow credit card contributions over the internet. so there definitely was some hint that this provided a tactical advantage for insurgents as far as far back a. but it was the dean campaign that really embraced it and just blew it wide open to. >> host: you have a quote in "the end of big," and you say that nobody in washington, d.c. took the internet seriously, so it was allowed to happen. by the time anybody noticed, it had already won. what does that mean? >> guest: so one of the reasons -- i had worked in washington, d.c. at a number of nonprofits in the political space including common cause, and is one of the reasons i went to work for howard dean is that year he was the only presidential candidate whose headquarters was not in washington d.c. inside of washington, d.c. there was a prevailing establishment wisdom about how you went about running and winning a national presidential campaign. and the internet didn't figure into that. it wasn't a part of the equation, you know? the equation you might summarize in shorthand is have a bunch of events, raise money in $2,000 chunks for maxed-out donors, spend most of it on negative advertising on television. that was the model. and joining the dean campaign where he didn't have a national list of major donors to tap, he didn't have a long-established direct mail program. he needed as a candidate to find a tactical advantage, and, you know, necessity is the mother of invention. that is in part what drove the dean campaign to the internet early, was we had to do something, and this was available. and so i joined the campaign knowing that there was an opportunity here i was not going to have on a front runner or very establishment candidate's campaign. >> host: nicco mele, what is radical connectivity that you talk about in "the end of big"? >> guest: one of the challenges of our digital age is we just don't have very good language to talk about it. if i started talking about the role of the internet in political campaigns, that doesn't entirely capture what we're seeing. if i started talking about the role of mobile phones in the arab spring, well, it's a lot more than a phone. talking about a mobile phone doesn't really capture what's going on, you know? one of the challenges i had in writing the book was we just don't even have a vocabulary to describe the kinds of changes that technology is bringing to our society, to our institutions, to the globe. and so when i was thinking about it, part of the argument i make in the book is that what is really different, what has really changed is the degree to can which we're connected to each other all the time at practically zero cost in a totally flat, distributed network without any hierarchy or priority or credentialing. and that's why i talk frequently in the book about the impact of radical connectivity, that it's just a radical kind of connectedness in speed, in frequency, in presence, in immediacy, in global -- you can go almost anywhere in the globe and be connected today. there's a new device i just saw, $150, that'll do text messaging via satellite even from the north pole. [laughter] you know, the total presence and availability of all, everyone with a sport -- smartphone is astonishing and unprecedented in history. >> host: you write: radical can connectivity is altering the exercise of power faster than we can understand it. most of us feel lost in the dust, kicked up by the pace of change. is radical connectivity unraveling society as we know it? >> guest: i don't think it's necessarily unraveling society, it's just creating a wholly different one. [laughter] and that's a challenge to many of our existing institution thes. it's -- institutions. it's why i wrote the book, to look at the impact radical connectivity is having on our technology, on our institutions. you know, in 1975 if i asked you what a computer was, you probably would have described manager that would fill a room -- something that would fill a room. a supercomputer from the mid '70s cost $5 million base price and was really only available to the world's biggest universities, to the world's biggest companies, to the world's biggest governments, especially the pentagon, department of defense. and today you can walk into pretty much any strip mall in america and buy a smartphone that has equal or even greater computing power than a supercomputer. so in just under 40 years, we've taken something that was really only the province of the world's largest institutions, that was considered enormously powerful, that was even a matter of national security, and now you can buy it anywhere in america. in fact, not just in america, you can buy it just about anywhere in africa. the total you ubiquity of in ths technology has led to an enormous diffusion of power from institutions to individuals. and that, that creates enormous challenges for all of our institutions that are built on assumptions about individual, an individual power and individual agency that involve hierarchy and authority and review and credentialing. today if you're not happy about the way something works, you can use social media and radical connectivity, you can just opt out in a variety of ways. i have two little boys, 4 and 2, and there's -- near our home is a park with a huge slide. it's a, you have to climb up three stories of stairs to get to the top of the slide. and i love it, because it exhausts the boys. you know? climb up the stairs again, climb up the stairs again. and hurricane irene destroyed the slides. the local town said it was going to take, i don't remember, maybe 30 grand and two or three years to rebuild the slides. well, you know, two or three years is an eternity for a 4-year-old. and so some parent started a paypal page and posted all around the park flyers, stuck them to the trees saying if every parent that comes to this park gives $50 or $100, we'll have 30 grand overnight. and, of course, raised the money like that. three months later, new slides. that's a good example of the institution of the local government wasn't working for people, and so people used the technology to opt out of it and just raised the money separately. and in ways that's very exciting, but that's also very troubling in other ways. >> host: well, has radical connectivity led to more civic engagement? >> guest: that is a -- it's been a mixed bag. in ways more americans are engaged in the political process than ever before with. at the same time, you're looking at in municipal elections single-digit turnout to elect our leaders. i mean, los angeles, one of the biggest cities in the world, had a ridiculously low turnout in their recent mayoral election. and so i think that, i think they were living in a very fragile civic age where many of the old ways of doing things, the institutions that the nation was built on, they're not, they're not necessarily doing a great job. they're very fragile in their own ways x. that makes them sutt sent bl -- susceptible to significant disruption when technology provides alternative ways of doing business. and the store, you know, the whole story of obama's candidacy and the way the tea party's using the internet to challenge the republican establishment candidates, that's a pretty good example of the political parties being a shadow of their former selves, of not having the republican and democratic party not having nearly the grassroots infrastructure they used to, and instead being major donor fund raising vehicles. that makes them easy to disrupt. >> host: and you write with regard to politics that it does, radical connectivity does make it easier to raise money, but it also paves the way for a dangerous populism. what do you mean? >> guest: i think that the founding fathers, you know, they in designing our system of government and the process of our politics understood that there was this tension between the monarch and the mob. and the purpose in ways of our government was to navigate that tension, to bring some sense of deliberation so that elites could not act with impunity, but also so that the mob could not ignore smart but hard decisions. and that is something that i think is in danger of getting lost. it's in danger of getting lost not just because of the technology. you think you can make a pretty compelling argument that our elites are ignoring the real challenges facing many americans, that our leaders are just not tuned into it. but technology also plays its part. the technology, radical connectivity by flattening the hierarchies makes it very challenging to have any significant expertise. i think that a core, a core challenge of our digital age is credentialing experts. and people, you know, it's been well documented trust in institutions is at an all-time low. any institution, whether that be politic, journalism, government, higher education, you know, you name -- doctors, you name it, trust in institutions is at an all-time low, and technology gives people lots of alternatives and lots of ways to disrupting those institutions. and so it's in the absence of, in the absence of expertise that i worry a little bit about what populism, where populism might lead us. >> host: nicco mele, two contemporary pop lists, howard dean, pat buchanan, both made splashes, but both failed in the end. do you have a reason for that? >> guest: oh, that's a good question. i mean, i think, i think part of that comes down to the dynamics of the american electorate about running caucuses in iowa and primaries in new hampshire to choose leaders which just any sane perp questions the wisdom of that. i also think there's a significant -- probably going to get plenty of e-mails and tweets from angry new hampshireites and iowans now. the dynamics of the presidential primary selection process both is part of the reason why those populists didn't do well. but i also think that americans have some sense of what they want out of their leaders, and the populism is a vehicle for an anger at what a bad job the institutions are doing. and that doesn't mean that americans necessarily want the populist leader, but they have a great deal of frustration at where the country's at. i mean, if you're under 40 in this country, you know, you probably make less money than your parents did at your age, you probably won't be able to afford a home or at least not as nice a home as your parents brought at your age. you know, the quality of your education is the same, maybe a little worse, but it's a lot more expensive. you know, the quality of your health care is probably the same, maybe a little worse and also more expensive. the prospects for your children are dim. you know, you spend more time commuting than any sane human being really wants to. climate change is going to screw everything up, and the institutions of our time aren't doing anything -- if you were born after 1980, you have very little reason to believe in and trust the institutions and the leaders of this country. and i think that is the root of a lot of the frustration and anger we see in both parties. >> host: well, that said, does technology and radical connectivity have a solution for some of those? >> guest: well, i think it doesn't necessarily have an immediate solution. part of what i try to do in my book is identify the nascent beginnings of building solutions, of building real, compelling alternatives to the current systems using this technology. but the truth is it's all very nascent. it's all very early stage. there's not a lot of mature institutions that understand radical connectivity. i mean, wikipedia, wikipedia is probably one of the most mature institutions out there that understands the power that every individual carries around, the computing power and what that means for knowledge and expertise. and even wikipedia isn't that old, and it is struggling to figure out what it means to be an institution. and i think that that is a very, that's very telling about our time. at the close of the book, i talk about -- i open the last chapter with barbara tuchman's "the guns of august," talking about the funeral of king edward vii in 1910. in 1910 most of the countries in the world were run by monarchs or colonies of countries run by monarchs. and between 1910 and 1990 monarchies disappeared globally, disappeared. and that feels to us today like, of course they disappeared. but if you were a part of a royal family in 1910 is, it was not evident or clear that monarchies were disappearing, nor that they should disappear. and yet in retroto spect it look -- retrospect it looks totally clear and evident. and i feel like we're living in the same moment right now. all of our institutions look like they can and should persist, but in fact, i'm pretty unconvinced any of them will. >> host: you quote barbara tuchman in your book and you say about that funeral, on history's clock it was sunset, and the sun of the old world was setting in a dying blaze of splendor, never to be seen again. when it comes to radical connectivity, new technologies and economic organization, what's a been the effect, what effect do you see on economic organization? >> guest: well, more americans are self-employed now than at any time since the civil war era. that in 1820 the vast majority of americans, more than 75%, were subsistence farmers or ran their own small shops or worked in very small farms and small shops. one hundred years later, by 1920, the trend is reversed. most americans are employed by a may very corporation. the pendulum is swinging back the other direction now. we're not quite to the point where the majority of americans are self-employed or employed by small businesses, but there's been an explosion of small businesses over the last decade and a half or so, and in the consultant, sole proprietors, small, medium-sized businesses the nature of the organization of work is changing fairly dramatically in this country. danielle pink has written this kind, has kind of chronicled this. and yet we're not sure how we navigate that. and when i talked a moment ago about institutions that might be emerging, you know, one interesting one on my radar is the freelancers union out of new york city that tries to take, provides shared insurances for freelancers because we're increasingly a freelance economy. and that has dramatic implications for all of our systems built on assumptions about how work would happen, what the nature of work was. another trend i talk about in the book that's related is the rise of 3-d printing and on demand fabrication. i have a 3-d printer, i talk about how i printed sandals for my boys. the future of manufacturing over the next two decades is exciting and almost impossible to imagine where the technology is taking us on this front. and yet it is arriving, you know? gibson says the future has arrived, it's just not evenly distributed. and i think a that is, that's a challenge for our institutions, for our governments, for our politics, for the other kind of crucial institutions of our time, is how to navigate the emerging future when it is so other worldly in terms of the way people thought the world worked. >> host: nicco mele, in "the end of big" you also talk about national security and the military. how does the edward snowden situation with the nsa fit into your book? >> guest: i think edward snowden a perfect example. here's a relatively low-level employee who hadn't been on the job that long who uses a thumb drive to divert the entire national security apparatus of the united states. that is astonishing. that's a senate disruption -- that's a significant disruption. and it raises two questions for me. one question i talk about in the book in the context of another leak, the wikileaks, is whether or not it's possible to keep secrets in a digital age. the, you know, a fundamental attribute of a file is that you can copy it without anyone else's permission, without any loss, without any cost. files are copyable. that's part of the advantage. and in that context it looks to me like it's really hard to keep digital secrets, because you can't keep people from copying things. and that just simply wasn't true in an analog age, in a paper age. it was a lot easier to control information and document flow and keep secrets. so, one, i don't believe we can -- in a digital age, i don't believe we can keep secrets. that has significant implications and raises a bunch of questions about are there secrets that we should keep in a democracy? maybe secrets that are a lot like diplomacy, requires sometimes some secrecy. certainly hard decision making by leaders requires some secrecy. the apparatus of the u.s. government was set up in ways to balance the need for secrecy in some situations with the need to hold power accountable so that it doesn't abuse that secrecy. and part of what we're see anything the edward snowden case is -- seeing in the edward snowden case that the balance of power is loss. the accountability is gone, right? you know, we have the head of the nsa effectively lying to congress about the nsa's activities. the checks and balances, the accountability for our institutions seems to have evaporated here. and it makes, it makes edward snowden feel like the only way he can hold the institution accountable is birdies resulting it. -- by disrupting it. so i think the two major issues raised by the snowden case is are, one, the nature of the secrets in the digital age and the implications for citizenship and the secret ballot, and the second issue it raises is the extent to which our institutions are completely unaccountable. and that is what, that frustration with holding these big institutions accountable is what leads people to use technology to figure out how to disrupt them. >> host: so when you look at a big piece of legislation, let's take the affordable care act, for example, and radical connectivity and new technology, is the aca set up for a new world, in your view? >> guest: well, a mixed bag, you know? it has these health care exchanges which certainly would not have been possible in a pre-digital era or, you know, i struggle to imagine how the health care exchanges would work pre-internet. and so in ways it's looking at digital solutions to a vexing problem. but in other ways i think that it creates kind of more challenges and may incentivize people to seek alternative vehicles for their health care because of the, just the sheer complexity of it. >> host: nicco mele, what is echo ditto? >> guest: echo ditto's my consulting firm. we have offices here in boston and also in washington d.c. we founded the company following the dean campaign with a group of folks who were on the tech team on the dean campaign. and our work involves helping organizations navigate the digital world both kind of technical advice, but also helping them think through the implications of radical connectivity on their work. >> host: in the subtitle of your book, "the end of big," you have the word goliath. if you were to speak to a comcast, to a washington post organization -- two goliaths in our current world -- what would you tell them? >> guest: i would tell them they have to reimagine their customers, tear -- their audience as having more power than they do. this is what is so hard for leaders and big institutions to imagine, is that the people you're leading are more powerful than you are, you know? in the case of "the washington post," it's not the audience, it's the former audience. and you need to figure out how to engage that audience, how to tap into their power, how to help use them to accomplish your goals and ends. i mean, certainly comcast got a taste of this around the sopa/pipa fight last year where there was this piece of legislation about the internet that looked like it was going to pass, and suddenly people broadly went around the united states got up in arms and overnight changed the direction of that piece of legislation. you know, your customers have a lot of power here to disrupt and shape your direction, and if you're not -- if you don't come to it thinking about their power and what they can do to disrupt and to create opportunity for your business and your organization, then you're going to be, you're going to face a lot of surprises. >> host: what would be your message to congress? >> guest: my message to congress is not that dissimilar. i mean, i think my primary message to congress is that the, we need some fundamental overhaul of how this government works. i mean, we vote on tuesday because sunday is church day and monday is market day, and you ride your horse and buggy into town to vote on tuesday. that is just ludicrous. we have 435 seats in the house of representatives, basically because that's how many seats fit in the building despite the fact the size of the average house district has quadrupled over the last 40 years. the mechanisms of our government are due for a dramatic overhaul, and congress will not be able to navigate out of the current cul-de-sac they've got themselves into unless they understand and embrace the changing nature of our society, of our world and reimagine what government might look like in the digital age. i firmly believe that we're at a moment of opportunity here with this, with radical connectivity that rivals the start of the country. and you can see hints of it. the speaker's office has some interesting digital tools, the white house has some like we the people, but it's nascent, it's small, it is not tapping the incredible power and ingenuity of the american people. >> host: nicco mele is the author, "the end of big" is the title. "how the internet makes david the new goliath." this is "the communicators" on c-span. >> c-span, created by america's cable companies in 1979, brought to you as a public service by your television provider. >> next, a preview of some of the upcoming cases for the supreme court which begins its new term today. then the impact of the health care law on medical costs. and later, the senate returns at 2 p.m. eastern for general speeches followed at 5 p.m. with debate and votes on a pair of judicial nominations for the u.s. district court. >> this is the clarke school for the deaf where calvin and grace met for the first time. he was a teacher living in a dormitory here, and he was a tenant in a boarding house on the property. we're now in grace's bedroom in her clarke school dormitory building, and this window here is where grace would have looked out and seen calvin across the courtyard at the next building, and she would have put a candle in this window to signify to calvin that the parlor room below them was available for them to meet up in. in this room is where calvin and grace when they were courting would meet up and be able to sit and talk and have some time together. despite him being in his 30s and her her 20s, they still had to abide by the rules of the school and needed to meet somewhere where they were supervised and chaperoned while they were on campus. >> meet first lady grace coolidge tonight live at 9 eastern on c-span and c-span3, also on c-span radio and c-span.org. >> a look at supreme court chief justice john roberts exiting st. matthews cathedral with the archbishop of in washington, d.c. yesterday. this is the conclusion of the annual red mass. it's traditionally held the day before the first monday of october when the supreme court begins its new term, and the service dates back to 1928. it's intended to invoke blessingsings of those responsible for the administration of justice. it's attended by members of the court and other washington officials, and we'll take a look at some of the other attendees. [background sounds] [background sounds] [background sounds] [background sounds] [background sounds] [background sounds] [background sounds] [background sounds] [background sounds] >> and as the supreme court begins its new term, some of the cases on its docket involve issues like affirmative action, campaign finance, abortion and contraception. the cofounders of scotus recently discussed some of these issues. they were joined by court correspondent pete williams of nbc news and tony mauro of the national law journal. the forum was held at the university of georgia. it runs about an hour and 20 minutes. >> okay. welcome back to what is our third and final panel odd in this terrific -- panel today in this terrific and very well deserved program in the honor of scotus blog. my name is sonja west, it'll be my honor to moderate our panel today which will be the most law-heavy of the panels we have seen today. we heard some great information morning about scotus blog and its ground breaking work covering the united states supreme court, about what it means to cover an institution like the court in this digital age, and today we're going to move -- this afternoon we're going to move on to focus a little bit more on the institution they have this covering the supreme court. before we do, i do just want to share one personal anecdote about what scotus blog has meant to me as someone who follows the court closely. this summer, on june 26th, my 5-year-old daughter was scheduled to have her tonsils out. so those of you who follow it know that also happened to be the data windsor and perry, the two same-sex marriage cases came down from the court. my daughter was wheeled back from surgery at 9:59 which is -- [laughter] one minute before the court handed down. and so i was put in this terrible sophie's choice type position of caring for my daughter and refreshing scotus blog and following scotus blog over and over and over again which i'm sure the nurses had no understanding of what i was doing or thought i was a terrible parent. [laughter] it also shows the extent a that we rely on scotus blog to get our information in a timely way, to get it in the hospital rooms and the bedrooms and the academic settings around, so i'm very grateful for the work that you're doing. so we are here today, as i said, i'm so honored and lucky to have with us on this panel four of our country's most prestigious and keen observers of the united states supreme court. so we felt that we couldn't let them leave athens without spending some time picking their brains about the roberts court. and most of us -- i assume if you're in this room, you take an interest in the supreme court -- we probably all vividly remember the scene of chief justice william remember keys request's -- rehnquist's funeral in 2005. it was a moment of intense significance. chief justice rehnquist was one of the longest-serving justices, 19 years as chief justice, asks one of those influential chief justices in the history of the institution. his impact was unquestioned. his death also brought to an end an 11-year period during which the same nine justices had served together. that was the second longest consistent roster of justices since 1823. and what was also striking about that moment to many of us was the image of one of his pal bearers which was a former clerk of his named john roberts and at the time the nominee to be the new chief justice. so the shakespearean-ness of that was lost on few of us. later this month the roberts court will mark its eighth birthday, and in that time the supreme court has gone through a number of changes. in addition to the chief, it has three new associate justices, and the changes are showing no signs of being over soon. four of the current members of the court are over the age of 75 really highlighting that we are in a stage of transition among the court. so it seemed like a great time to take a look at the roberts court as it begins to hit its stride. and there are a few more knowledgeable -- there are few more knowledgeable sources than our panelists today who have been watching from the front rows of the press box and at times the advocate podium. and we wanted to begin by asking them to tell us what we should be paying attention to about the roberts court, what it is that is noteworthy, what is striking them as interesting, potential differences between its predecessor of the rehnquist court. i know many of you have been following all morning, but i did want to take just for those of you who are new a quick moment to give another quick introduction to who our panelists are. next to me we have tom goldstein, the publisher and co-founder of scotus blog, almost frequent advocate who's argued almost 30 cases before the supreme court. next to him we have amy howe who has also argued before the court and been involved as counsel in cases before the court. pete williams covers the justice department and the court for nbc news, and at the end we have tony mauro who has been covering the united supreme court since , most recently for the national law journal. so i'll start by giving them each a few moments to tell us what they think is interesting about the roberts court. i will follow up probably with a few questions, but then we will definitely be looking for questions from the audience, and i hope we can have a terrific conversation. so i'll start with tom. >> sure, and thank you all so much for coming. this is, obviously, a topic that's great fun to talk about for everybody up here, and it'll be wonderful to have your questions and your thoughts on it. i guess if we're talking about the arc of the roberts court, i'll make kind of a short-term and a longer-term point. one is in terms of cases to watch this term, i'm sure we'll be talking about a bunch of them, but i'm focused on a set of cases that show how it's true that the major constitutional debates in america never end and that the roberts court and to some extent the rehnquist court before it were a reaction to the era of the warren court era and to some extent the early berger years where conservatives really thought the supreme court had gone off the rails to the left. so on a whole array of issues whether it's race, abortion, religion, everything like that. you know, for the past 30 years or so conservatives have been trying to fight back against a set of jurisprudence that they want to overrule, and we've seen that done successfully by the court's conservatives trying to put in place a course correction and an array of issues, affirmative action, campaign finance, lots of things. and that's not to say that the conservative view is right or wrong, but these debates do happen, and there are a couple of areas in the law that are up in front of the supreme court this term that could help to complete an agenda of the roberts court. and those are we have the possibility of an abortion case coming back to the supreme court which has been referred over to the oklahoma supreme court called klein, and they have an abortion protesters' case as well. and the conservatives on the court have been very interesting in protecting free speech rights generally, but including the rights of abortion protesters. that's one of the most significant areas that's fraught in american law that the roberts court really hasn't tackled, that's abortion. and i do think that in the coming years, including in this term, we may see them tackle it. and the second is religion. .. are 74, 75 or older. you cannot expect that ruth ginsburg, from the last or justice kennedy and justice scalia will be on the court in eight years. if that means is for a long, long time both just a skinny and justice o'connor have formed a kind of moderate conservative core at the supreme court that prevented it from swinging for particularly far in one direction or the other. justice o'connor is gone. justice kennedy will not be there in 10 years in all likelihood. so whoever wins the presidential election i think has a real possibility to tilt the court significantly to the left if justice kennedy and scalia are replaced. the left has made no bones about they will a worse will -- overrule a swath, or if justice ginsburg replaced by a republican president, the eliminating agent that is just a skinny would be gone and the law would move material more to the right. >> going into the same-sex marriage argument, particularly when david and had filed the case the chose the california proposition eight, the ban on same-sex marriage, lots of people have been staunchly opposed to their filing the case. they felt that boys made no bones about the fact they wanted to wind about the a supreme court and get a fundamental right to same-sex marriage declared. a lot of people worried that was too much too soon, that the case could get to the court, it could go badly for the supporters of same-sex marriage and they could get a decision that would set the cause act decades. at the point of the public -- public opinion change quite a bit and i think the people who had been concerned about the lawsuit were, in fact, very excited and were thinking that maybe the court would not go ahead and declare a right for same-sex marriage. justice can be a couple of weeks before the oral arguments in the same-sex marriage case gave a speech in which he complained that the court was taking on too many hot button issues, that perhaps should be properly left to congress or the executive branch. they did not get a lot of play at the time but i think people should have paid more attention to it because on the one hand as somebody who's litigated before the court and false the court you think what are these folks complaining about? they have near perfect no over the cases that they have to take it if they don't want to take these cases they should just leave them alone. arguably there are some cases like the windsor case, health care case, that they feel compelled to take because different circuits have reached different outcomes on the same question and they need to step in to resolve the case. but i think that justice kennedy's speech, the swing vote on the court, illustrate the fundamental on the court. on the one and many of them as tom said in remarks earlier this morning like to think of themselves as sort of oracle like, to use the chief justice's metaphor during his confirmation and, the umpire we decide the law and we issue would end and everyone follows it. but inevitably when they take these cases, health care, same-sex marriage, they will weigh in on abortion and the health care case is going to be back again in all likelihood, legislative prayer, campaign can finance, they get sucked into politics. i think this fundamental tension of what their role is and sort of the divisions on the court. we've got the conservatives on one side, liberals on the other, and the prospect perhaps of some significant change in one direction or the other on the court may help to explain some of the decisions like the fisher case that was sort of incremental rulings. we have a challenge to the university of texas use of affirmative action in its undergraduate admissions process. and everyone going into the oral argument certainly was concerned about the court was going to strike down the university of texas policy and perhaps get rid of a from of action altogether. after the oral argument seem like affirmative action would survive to fight another day and at least in theory it has by the court has made it much harder for universities to user from an action. and the surprise about fisher was not only that it took from the beginning of october until the end of june to get a decision, but that we got this 13 page opinion to which justice breyer and justice sotomayor signed on. so the question in fisher, much like some the things people, you talked about with health care case, we were probably never know until the justices release their papers. i'm hoping my children will read them to me in the nursing home because it's going to take that long. whether or not there's something going on with some of these instrument rulings can be attributed to sort of waiting for a big swing on the court, and perhaps justice sotomayor and justice breyer were willing to impose some limits of affirmative action in return for saving affirmative action altogether. perhaps that is what was going on in 2009 in the first round of the voting rights act litigati litigation, the holder case when by a vote of 8-1, it didn't go that well for the voting rights act this time around. so we'll have a lot of issues that are sort of at the core of what we think are of as constitutional law, we'll have abortion, legislative prayer, campaign finance. we could get in all likelihood the challenge to the birth control mandate of the affordable care act, different courts of appeals reached different results. so that's almost surely coming back. we are certainly going to get issues of self privacy coming back to the court. so it will be interesting to see whether or not in some of these cases that are at the core of what we think as constitutional law the roberts court as it is constituted continue this more incremental approach in the years to come. a couple of other things that i think are interesting to watch. we saw in the last term ruth bader ginsburg who is not retiring, and she said she has made it very clear in interviews that she sticking around, and she is not retiring and no small part because she really enjoys her job. we saw her i think in this past term emerge as the new leader of the court's liberal wing taking over from justice stevens since he retired. another theme, this is one really to tease out and it will depend a lot on the shift on the court in years to come, is that you both the chief justice and justice kagan are both in the early to mid 50s, and you can really get the sense that perhaps the two of them are playing the long game here, that they are thinking about where the law -- it's like a chess game. the two of them are thinking about where the law is going to be going in years to come and trying to start to shift, shape that to shift that right now. >> i would just say that the single most important change in the green card in recent years has been the retirement of sandra day o'connor and her replacement by samuel alito. sandra day o'connor who someone as tom described as a moderate conservative replaced by somebody for whom you can scratch the word moderate, going conservative mix of that has changed the boat line up, potential -- potential vulnerabilities case. aiming or the route the importance of their time at a john paul stevens and ruth bader ginsburg as the leader of the left side of the court. i want to expand on the incrementalist thing because we've seen several examples of where the court does like today, prefers to take baby steps. we saw it in the voting rights act when a couple of terms ago the supreme court came right up to the edge of striking down the voting rights act in the case that amy referred to that came out of texas. and then said, we're going to leave it up to congress. we think the data that forces states like georgia to have preclearance automatically is out of date. we think congress hasn't done its homework. testing, is this working, congress? you have another chance and you didn't. the courts took the next day. we saw in the gun control case when supreme court ruled for the first time with the second and enemies. that's one of the faceting things about covering the u.s. supreme court. yes, every term brings some narrower slice of exactly what the fourth amendment applies to. is if the person is sitting behind the driver in the car or the person on the other side of the car when there's a search? there's always some new tiny little slice of what the fourth amendment really provides. then you get a case like, the case involving the gun rights. for the first time in our nation's history, the supreme court said what the second amendment is. it's a really big deal. even so, all the supreme court said is the second amendment protects your right to own a gun in the home for self-defense. it wasn't a freestanding, free floating automatic you can have a gun whatever you want kind of decision. we've seen a lot of cases not that are in the lower courts about exactly where it can have a gun under what circumstances, concealed carry, the rules for getting a gun? does the state make it as a test of all sorts of permitting? so that i think is something that will continue. we have a lot of big deal issues and as tom mentioned we can have an abortion case, is the supreme court really going to roll back roe v. wade? anytime an abortion case comes before the spring for there's always that possibility but in recent years the byword has been incrementalism. >> thanks. and, of course, i also want to mention in your introduction you didn't mention that i was the first person to take you to the supreme court. how long ago was that? >> ninety-five. >> pleased to do it. anyway, a few thoughts about the court. this was an extraordinary term. i don't know if we'll ever see one like it again, although we have been saying that before. but for the court to take on affirmative action, same-sex marriage, voting rights all in the same week it was really an amazing affirmation of the fact that this court in particular has no hesitation about taking on the big issues of the day. i can imagine other courts in the past having wanted to let the issue of same-sex marriage percolate further. and, of course, they didn't end that matter altogether, but for them to embrace it now and to really make a dramatic change in how same-sex marriage is viewed legally was just extraordinary. and i don't think we would have seen that, that before. and then just last week, justice ginsberg officiate over a same-sex marriage in washington, d.c. when you just step back and think about the sweep of it all, it's extraordinary. on affirmative action, yes the court did make a sort of compromise or middling stance and but i think the reason, why justice breyer joined the majority is that he saw that the majority had declared that greater -- in particular was still good law, and breyer said that's good enough for me right now. let's just stick with it. we will see how that evolves. but also want to mention that i think this term and the previous term demonstrated that this really is the roberts court. finally. he really i think is taking control of the docket and tremendous influence over how, over the outcomes as well. i've just written a story that's going to be an american lawyer magazine, looking about, at chief justice roberts career as an advocate before the supreme court. seen what that career tells us about his chief justice jay. there's a couple things -- chief justice share. the incremental approach you're talking about on voting rights where in 2009 they stepped up to the brink and almost declared it constitutional, but then said it's congress' turn to do something. of course, congress didn't act, but that sort of made it much easier for courts to take this next step this term in striking down section four of the voting rights act. i think we'v we seem justice gig recently said at one of the interviews that she now regrets not distancing herself from roberts opinion in 2000. because she does see sort of laid the groundwork for this current decision. and also in the affordable care act a decision the year before. one of justice roberts tricks as an advocate before the court was to right -- every question you can imagine justice asking him he would write it down on an index card, categorize it, hundreds of questions. and then he would shuffle the deck of index cards so that he could have transitions and segues from one issue to another, even though they weren't in the same order that he would have wanted them to be taken up. affordable care, decision almost looks like the cards were shuffled. in the sense that he was able to form one majority on the commerce clause issue and then segue to the taxing power issue with a different majority. it just shows the enormous scale at counting to five and sing what positions he can espouse that would get him to victory, even if it's a small or incremental step. it's very, very effective i think, and will continue to be. the only other big thing that's really quite dramatic is, and if you come to the court i will show you around just like i did sonja, but the remarkable thing to look up there and see three women, you know, left, center, and right effectively on the court. it's i think had a tremendous effect on the court as well, and both kate and sotomayor -- kagan and sotomayor are very forceful justices, they will both make a difference over time. justice sotomayor is i think still, think she's on a three-member court, which she was on the second circuit, because she tries to dominate the arguments with questions and interrupt the advocate, interrupt the other justices. more than once, chief justice roberts has had to tell her, till the advocate, you know, answer justice breyer's question first and then you can answer justice sotomayor's. but still i think she has proven herself to be very effective in teasing out the important issues through her questioning, as aggressive as it is. and justice taken has been also very -- justice kagan has been also very strategic in a number of cases and she's also a great writer. there was a case where the issue was whether drug-sniffing dog is, can be deemed to be reliable and a fourth amendment search, and she said, you know, the smith is up to snuff, by my rights. that may not sound like great prose, but at least it passes for humor at the supreme court. [laughter] anyway, those are some few thoughts and we'll talk more about the cases that are coming up. >> can i mention one prediction about the same-sex marriage cases? the supreme court issued a ruling that allows california proposition a to go into effect. those bottom lines are perceived as very favorable towards same-sex marriage. but they did resolve. there's a fundamental question whether it's a constitutional right. what happened is the consequence is that almost immediately given was seen to be a huge green light couples around the country including in some very conservative southern states filed a series of challenges to state laws that banned same-sex marriage. and those cases are coming to the u.s. supreme court on a freight train, a very fast freight train. because the couples involved both want what they perceive as an equality of justice but also the problem is that they are wrong. it was unimaginable a few to go to the supreme court would recognize the constitutional rights of same-sex marriage. no appellate court has ever recognized a constitutional right to same-sex marriage. never ever. when justice scully in 2003 said an earlier gay-rights ruling would lead to a revolution of gay marriage people thought that would answer. parts of the country have moved very quickly. and advocates of lgbt equality have developed a sense, some of them that the supreme court is very ready to help and create equality. but the real message of the california proposition a case was the supreme court did not want to get involved in deciding whether there is a right to same-sex marriage and was trying to avoid issuing a ruling on the case. the court was almost begging, and you can revisit some of the language and justice kennedy's opinion about doma, almost begging to allow this to play out in broader society over a time. the justices are conservative ideologically, conservative disposition it. they don't like change about. they don't know what this will mean for the country. it's a foundational thing. i think the problem is for same-sex marriage advocates is that they're headed straight to the u.s. supreme court. there will be divisions that the u.s. supreme court will feel like it has to take up the question within the next year and a half, and i think it's going to present them an enormous dilemma. the justices are going to be unable to avoid the question. justice kennedy i don't think wants to be in the same essence on the wrong side of history because this right will be recognized in the next 25 years, almost inevitably, but i think that the gay-rights movement could suffer a massive setback from the supreme court in a ruling that there is no such right which could slow them down in state legislatures, for example, and the moral message that gets into the us population. and so what has been perceived as a great step forward for that community and that they have a friend in the supreme court, to get turned re rent in the exact opposite direction very quickly. >> of course justice kennedy was in favor of giving -- gay marriage and property but we don't know what is going to say because the standing decision. you agree with tom's assessment? >> the only part that i'm not sure about is whether they would take the case. they don't have to come as you will understand. the supreme court with only a few exceptions takes, unlike the state supreme court of georgia, for example, only takes the cases that it wants to. and unlike the defense of marriage act that was the case the supreme court for to much had to dig. i don't mean that literally. it wasn't forced to but it feels compelled to weigh in when an act of congress has been declared unconstitutional. so their institutional reasons why the court would find it very hard to dodge the dome a case. there would be no such reason that the supreme court would feel duty-bound to take these questions, and if the court thought it was just too early they could pass and let it cook for a while. that's the only thing i'm just not so sure about. >> the other interesting thing was, perry was not a sure thing for the court to take in the first place, the way that windsor was. so you really have to wonder, and again this is something we won't know who those four votes were to take the case. i'm trying to picture the point in which the court voted on the case and whether or not they voted on standing first. it was such an unusual lineup of justices on either side of the standing issue that we wonder whether or not -- nobody was sufficiently to her what justice kenny was going to do with the case to go ahead and go to the merits, even though he would have gone to the merits. >> i guess the reasoning is sound, founder i think it is probably the case that i still believe in momentum and a parent is, too. justice scalia in his dissent also sort of said this as he predicted in lawrence v. texas that this would lead to gay marriage. this ruling this past term he said you're providing states with a blueprint for making gay marriage constitutional. so i guess i'm not certain what the cases are. i better start watching the freight train. >> one more question and then i will open it up to the audience. so you all touched in your remarks in this concept of the shifting dynamics of the court and sor sort of losing a middleground with justice o'connor and probably send justice kennedy. and i would love to hear if you have any thoughts on how those dynamics are shifting among the justices. are there any new leaders emerging? both chief justice roberts and justice taken in their confirmation hearings there was a lot of talk about them being consensusbuilding and being able to reach across and bring people together. are the shifting more in a polarized way? are we losing the middle to have an even more polarized court and we had before, which is hard to imagine? but are we going that way? have you noticed anything about dynamics? is there any sort of strange bedfellows connection going on the receipt people online in ways that pure ideological breakdowns? any thoughts on who we might need to watch in terms of emerging leaders of? >> as i said, chief justice roberts i think does have the skill to bring together unusual coalitions. you know, if they end up feeling like they have been snookered into it, that might cause some ill feelings down the road. but i think that's an important thing. the kind of alliances that we've had in the past, scalia and ginsburg in a way, and breyer and o'connor were very close. i don't see this happening. we have people like alito. you have a lot of loners in a way that aren't necessarily, someone like scalia who seems to have given up completely on trying to build alliances. he would rather just lob grenades from the sidelines. >> so i'll mention a few justices. i do think justice breyer envisions himself as being able to create a new center in the court. that he would really like to be able to reach across the aisle. now, he has some really novel and unique views on the constitution and have to look at different rates of the law. but disposition i think that he really would like to be that guy. and if the court were to move one step to the left i think he'd step into those issues. if you were to say where's your most, place you'll see strange bedfellows, that's going to be the place where the court, you can envision the court in one of two ways, perhaps. one is we've got, this is going to be the court to the right and the left. the ideologues in questions that line up that way say affirmative action, and justice kennedy is conservative but he's in the middle. you can also envision the court in other areas as being pragmatic in the middle, and idealistic on the wings. and that is the far left and right of the court, the middle of the court wants the law to work. there are areas of the law where you get five idealists, say three liberals and to conservatives come together to make a five justice majority. and this will happen a lot in the various areas of criminal constitutional law. so, for example, justice scalia has a very strong view of the fourth amendment, particularly the fourth amendment how its historical in users and privacy and private property should be protected. also when it comes to the jury trial, justice scalia sometimes along with justice thomas have come together with the most liberal justices. % of the court is like you can have all these jury tells. we have to give power to judges. the edges of the court will say it's a matter of principle. the sixth amendment will guarantee you a jury trial. that's the place in the supreme court you're most likely to see strange bedfellows. the you were in the business sense, and the stock since, if you wanted to be long on a chassis, being short of justice would be i don't have faith. long as i want to invest in this just a. i think that the real future. right now the conventional wisdom would be justice kagan and chief justice roberts being relatively young and they could have a great strategic sense of how to align themselves, how to move the court around. they very rarely dissent. the justice to our belong on that people don't get appreciate it i think would be justice sotomayor. and the reason for that is, if you were to look at her separate writings, her concurrences in a sense, they are very deep and thoughtful and forward-looking. they are for the left what justice thomas' are on the right. he is out there by himself thinking what the law might be 50 or 100 years now. justice sotomayor is closer to kind of present-day and what the law might be. but she has some -- she's not appreciated for her deep legal thinking that. and i think over the next five or 10 years more of those opinions have the chance to become the law and shall be recognized as more influential than she is today. >> amy, any thoughts? we would love to open it up to questions. i believe we have microphones here. we need people to come -- we have to come to the microphones. >> okay, so i hope -- i hope i don't praise this like in a way that is too convoluted, so if we look back and against the last year, when you look at hollingsworth. it was a very i guess the most social controversial case, at least in the media and the courts seem to just kind of throw that back to the appellate court, right? but if you look at the other controversial cases that were not as widespread in the media, they seem to be taking the small and criminal steps to a more conservative position on the law, like in the voting rights act. so with this upcoming abortion case, the court kind of taking that on, that seems to be likely that it will be a very strong social case and very widespread and very divisive opinions. so what is your prediction? do you think that the court will kind of throwback to the states like they have been doing recently? or do you think they will try and make those small steps to kind of restrict the rights of? >> a couple of thoughts about that. those of you who don't follow the supreme court cases by name, we are talking about the proposition a case from california is one of the court tossed back. and i want to add to buy something amy said earlier. this term was, as tony said, unbeatable in many ways. not only the decisions themselves, but it was extra me dramatic day in december when the court granted those cases. because first of all there was a question about okay, are they going to take delma? we thought they would for the reason that indicated earlier, but then on the delma case itself was also questioned about which case they were going to take because there were several oma cases pending in the supreme court and ended up being very dramatic case from new york of edie windsor, the woman whose partner that an iris send that an iris senate over three of $60,000 in we can't recognize you as married so you owe this inheritance tax. but there were other cases been. it would'v would have made a die if they taken different cases, so that was interesting enough in itself. but then i have to say, i was shocked when the supreme court decided to take the property case in california because i for the life of me couldn't figure out why they would do that. apparently neither did they by the end of the term, but you had to say to yourself, why are they doing this? certainly the liberals don't want to take this case. because they don't want to risk it. the conservatives must have thought that had justice kennedy's vote at that time. it only takes or votes in the court to decide, to take a case. to grant sort -- search. the whole thing was for a dramatic. so what they asked they did is they didn't just tots -- possibly act. they raise the decision time and left only the end trial court ruling standing which declared it unconstitutional. it was good only for california. i think that is a sign that incrementalism. i'm sure you could say that. the problem with the abortion case is that i guess the mischief, depending on which side you're on here, is that the court is taking up the question of abortion at all. the last time it did so was the question of so-called partial birth. and indicates justice kennedy who normally would vote in favor of abortion rights, found that too far. so he voted to uphold the federal ban on partial-birth abortions. so any time the supreme court opens that box, there's the potential, you know, a ruling that could be very significant. it's just at this point, what happened is the court, the state of oakland, this is a case about the to go regime you can take to have a medical abortion in the very early stages of pregnancy. and what the supreme court has done is that okay, we have this case, we are not sure what the law says here. so they sent it back to the oklahoma supreme court and said, explain what the law means. what really is at stake here, so we can get an accurate picture before we decide whether to hear this case, what's really at stake here? so it's a little bit different in that sense. we don't even know if they're going to take the case, but if they do, a, in theory it could be limited just to the question of the medical abortion, but b come once you go down that road, who knows quickly of a lot of new justices on the court that are never decided this issue before state so there is also another big louisiana case that was decided just yesterday, and so those pro-life advocates have been reading strong signals from the u.s. supreme court including from this federal case that pete mentioned, to bring cases to the supreme court. my take away from the last decision is that justice kennedy had a very significant way changed his mind about roe v. wade. that he believed, he was part of a three justice, a group of three justices who in the famous casey case had voted to save roe v. wade when a lot of people thought the conservative rehnquist court would overlook it and i think that justice kennedy, the take away from his opinion in the most recent partial-birth abortion case is that he believed that he, on some level, got snookered or that people had overread his willingness to preserve the roe right. so with just a skinny so goes the court on abortion. it seems very likely but it does not -- to our members on the right would be very willing to significant circumscribe the right, although perhaps they would want to be incremental about it so that it doesn't seem like they're being too aggressive. but i think each abortion case that gets to the supreme court you should expect right now the supreme court to materially restrict roe, and that they will do it in a way that doesn't seem entirely overt. but wasn't a very strong signal to state legislatures that additional restrictions our constitutional. >> the capital fact, as pete said earlier, is your justice alito replacing justice o'connor and justice o'connor was a big champion of the undue burden test for abortion restrictions, and without her on their it seems just to be, you know, the wall of support for roe is crumbling. >> this is a case that lends itself particularly well to the incremental approach. without getting too much into the nitty-gritty, it's not that the law outlaws medical abortion in oklahoma. it tells doctors how they can prescribe particular pills. that doctors don't like to prescribe it a way that the law would require it to do. and so they could say, you know, it gives the opponents of abortion on the court the opportunity to say, we are not getting rid of all medical abortions in oklahoma. we are certain that getting rid of surgical abortions, which this one particular option has been eliminating. >> if i understood correctly, part of what you think is the incremental approach helps keep away the media and the public letter about what is happening and to think the two worked together. do you agree with that that is one of the reasons why slowly, not get the headline of the court overrules roe? >> sort of. i mean, it's not just the headline. i think our early on with the bunny rights act case, the supreme court just was not ready to say we've had the voting rights act, enough. but like eating it up, by giving congress a chance, then it was is reluctant to come around the second time. >> they did say in the opinion, congress, we give you a chance and the challenges to the voting rights act said this time around, congress didn't hold a single hearing but it didn't propose a single bill. sorry, we give you a chance and you blew it. >> anymore questions? >> just a question really for tom and amy. do you have any thoughts on whether or how the court would handle what appears to be the case between georgia and florida over the chattahoochee river? >> so, for those in the state, this is georgia versus florida water wars, are like so many water wars, long-standing. and i don't think that the justices have any sense of how they would resolve this question. so it's an interesting procedural example of the supreme court has sometimes you can follow was not as an original action. florida will sue georgia in the u.s. supreme court, not in the corporate goes up on appeal and the justices decided the case. what the supreme court has the power to do is order and equitable apportionment of rivers, here the chattahoochee, and say georgia will get, literally will say something like 38% of the flow above -- it will into this complicated degree allocating water between the states. florida versus georgia case as this overlay of a lot of other environmental litigation between the states and another overlay of the involvement of the u.s. army corps of engineers. so i have any protection of what would happen in the case but it was is really another illustration of how interesting the u.s. supreme court is that they decide same-sex marriage and the voting rights act and then they will have figured out a different segment of the chattahoochee river, how much of the water should be going to florida v. georgia. but the other thing i would predict is we won't know for a long time. these water cases go into the u.s. supreme court and they had been there for 30 years. it's really entire generations of lawyers have put their families through college on the basis of long-standing cases like that when. and i expect florida announces it will file a claim so have to be referred that will take years to figure out, unfortunately. >> while we're waiting for the next question, i just want to tell you about a case that's coming up this kind of event is kind of interesting. it's not one that's going to change the course of mighty rivers, but when the experience, and i'm sure those of you who, law students about this as we can experience of reading a case that comes before the supreme court, when you read the briefs, these are challenging, tough cases. so you read the person is brought the case, that is challenging the decision. you read the briefs and you think while not, that's a pretty good argument. out to win. injury the briefs on the other side and you say, that's a pretty good argument, too. i do know how they're going to choose. i'm going to tell you about a case where i think no one should win, and that involves the following provision, following in your pocket constitution. article to give the power to the president to fill up all vacancies that may happen during the recess of the senate. by granting commissions that will expire at the end of the next session. so how does this come to the supreme court? in january of last year there were three vacancies on the national labor relations board. so many that it didn't have a forum that it couldn't do anything. so president obama had sent some names of. the senate didn't act on them, and he said to you know what? the senators are all out scheme and seeing their constituents and on overseas trips. the senate is out of session. it's clearly in recess. so i'm going to use this recess appointment power to put three people on the national labor relations board. well, the senate took a very different view of whether it was in recess or not. the democrats are running this and actually barred this playbook from the republicans and what they do is they go into pro forma session. the senatorial equivalent of rattling a bag of chicken bones, but what they do is they call the senate into session, a gavel into order and then they say we will be in recess until tomorrow at noon, boom. but they say because we do that, we are not in recess so you can't use the recess appointment power. so the first question the supreme court has to decide is, isn't this exercise that the supreme, that the senate goes through a real recess or not? in other words, is it a recess? during which the president could use the recess appointment power? yes or no? but the second question is, remember what the section of the constitution says but it said the presiden president shall hae power to fill all vacancies that may happen during the recess of the senate. so a second question here is, does the recess have to arise -- sorry, does the vacancy have to arise during the recess? or can you use the recess appointment power to fill a vacancy that arose a long time ago? fade to black, a backup, why do we have this in the constitution in the first place? remember, the congress used to be out of session for months at a time, half a year maybe or more. and they would be far-flung and have to ride horses to get back into town. so you did have a secretary of agriculture, rather than wait for the congress to come back, the president could use this recess appointment power. and it's been used throughout our history. but in recent decades, this is a very controversial thing, so the supreme court will have to settle this dispute. as they say, i hope both sides was because i think both of their arguments are wrong. >> it's a huge deal not only for the nlrb because it could invalidate a ton of prior decisions of the nlrb but of a nose our political system is broken. the senate confirmation process is broken. this is the president's way of trying to evade -- update the breakdown in some sense. and get the supreme court as is very likely holds that his recess appointment are unconstitutional, but it didn't read very probably by the lower court but probably wrongly. the u.s. supreme court doesn't care about all that. it's very likely to rule that the recent -- recess appointment are unconstitutional. that could create even more of a catastrophe in, whether democrat or republican president, whatever, because it will really strengthen the hand of the senate and the minority party in the senate and may put enormous hydraulic pressure on the nuclear options to get rid of filibusters on appointments altogether, and could -- it's a place where the supreme court, because it is not actively involved in political process and doesn't really feel palpably how it is that it's decisions will play out and tends to interpret -- their job is to interpret the constitution. i think this is a very, very significant ruling, not just for the nlrb, but for what will happen in politics afterwards. it's like campaign finance. they set these chips often emotion and the entire country can change. >> the one thing that's a little bit different from campaign finance just this is not necessary an issue that breaks down on traditional, at least outside the court on traditional ideological minds, because the battle has been going on so long and i know this because we were involved in challenges to recess appointments during the george w. bush administration, represented senator edward kennedy. you had at that point the bush administration defending the recess appointments with, there were a bunch of different separate dishes filings during the recess appointments in the budget ministers and the court denied them all over and opinion by justice stevens not dissenting from the denial but regarding the denial in which he said in essence we are not going to act on this right now because it's not going to be used that often. [laughter] new administration comes in, you know, a new set of pressures to make these appointments and it's going to be a lot of fun to watch. this is what john elwood who writes catnip for law nerds. >> one of the case that separates the idealist from the pragmatist, the people are taking to get all these terrible things that could happen and those who interpret the constitution, so we might see some strange things. great, another question spent a question about judicial activism. ginzburg last week gave an interview in which she charged her conservative colleagues of judicial activism. we know that term that scully has used an introductory political science classes. we teach that. i'm sure law school, you talk about it. the question for you, does it have any value beyond just a rhetorical tool that the left and right throw at each other? now as we are seeing justices are throwing at each other, or does it have a value in modifying behavior from the pragmatists or the center? what are your thoughts? >> i don't think it has much significance. everybody knows that that word is just so overused. i mean, the definition of an activist judge is a judge who ruled against your point of view. and i think our definition in that interview, justice ginsburg, was how many laws the court has overturned. or declared unconstitutional. even that's a tricky measure. there are some laws that deserve to be overruled, and they don't necessarily mean ideological bent or pro or against any branch of government. so i think it's kind of, it's just come its rhetorical, doesn't have much meaning. >> i agree. >> back to back the supreme court invalidated section four of the voting rights act, and the defense of marriage act. and both sides screen activism at the other. there's just no objective way of knowing supreme court, the constitution talks about equal protection of the laws, for example, which is a play in both these decisions on some level. it doesn't tell us what those terms mean. and so the court when it strikes something to them if we're going to believe in judicial review, has not just the power but the responsibly to enforce the constitution and we actually wanted to. it's an important tool to protect minority rights against legislative overreach. there's just no way for anybody faithfully to say, are objectively to say, is what the constitution really means. if you exceed that in your a judicial activist. it is very interesting to note the ways in which that term is used, and that is, conservatives really used it in talking about the warren court. nixon and reagan, and then when the rehnquist court really got every summer solid majority, then the length of appropriated the phrase of judicial activism and started talking about conservatives being judicial activist, all of which is to understate i think and in. but when you are talking about something so complicated the supreme court decision, to the general public, you have got to figure out a way in which you can say what you're going to say any form of a bumper sticker. and so it has really utility in that way. i mean, to try and explain why you think that the majority in the voting rights act case is wrong, but the defense of marriage act case is right come in three sentences or less is nearly impossible. >> more questions? >> would you comment, please, on the campaign finance case? will that be a really significant extension of citizens united? do you think we can increase the overall limits and contributions to? first of all, what it is, this is a case the supreme court will hear. as you although, in federal elections, elections for president, members of congress and the senate, there's a limit on how much you as a person can give to an individual candidate. that there's also a limit on how much you can give to all candidates in the election. you can only get $2500 per candidate per election. that there's an aggregate limit as well. and that applies only to candidates but also the political parties and other kinds of political committee. that's aggregate limit is what's being challenged before the supreme court by a businessman from alabama who wants to give a lot of money to a lot of candidates, and the republican party as well. so it's sort of like abortion. anytime of the supreme court takes up this question of campaigns and money, there's always the choice of whether it will ever get back to 1976 decision in which it said, spending money is one thing. contribute money is another. one is protected at first amendment speech in essence, and the other isn't and can be regulated spent in the first one is citizens united, so do distinction to do. it's campaign spending, not a cogitation. >> that's right. that's another distinction there. the rule of the supreme our soldiers in the past to uphold limits on campaign contributions is -- supreme court upholds, that you can get, you make a deal. out to be a contribution to campaign and then when you get elected he will help me with my road project. that's still the justification that's been used repeatedly by the supreme court to justify limits on contribution. now in essence what you have is that people in this case saying, wait a minute come in citizens united you let any individual, a lot of people, give an unlimited amount of money to back. you let corporations and labor unions spend as much as they want. so why shouldn't we be able to spend as much as we want, to? that sort of the fundamental question here stripped of its legal niceties. you know, justice kennedy again has been one of the deciding vote here in doing this, he takes very seriously this question of corruption. the question is, will the court continue to hold to that corruption and houses and say, no, there's a reason to limit the amount of money people can throw into the process? because the more you throw in, the more likely you are to get favors back your spent personally, i think this provision of the law has not been there in the world but i do think the court is still committed, this majority is committed to the idea that the congress can limit how much money you can give to a predictor candidate, either it looks like you are driving the candidate or you will be bribing the candidate. >> that's not before the court. >> that idea i think is fine. but it doesn't make -- the court is equally committed and citizens united t. being able to spend money and that not being speech but its fundamental. it's not junior varsity speech. it's the speech at the heart of the first amendment of the constitution. it's the most important speech. the difference of the system unite a majority in the since they could not be more stark. most important speech and one halted not to be speech at all. so the rationale is citizens united which is unique to be able to spend money to speak in the electoral process really runs apart against the idea of a restriction that prohibits you from getting to attend in texas, won california one in nevada, the trendsetter and republican party because that doesn't line up with the corruption russia. nobody thinks they get into a candidate and texas, california and michigan or whatever that your actual sum up getting a quid pro quo from them. i think this will be a step forward spent i would say nobody thinks that. >> nobody really understands the supreme court. the congress thought it. for one example. there are certainly people who are in favor of campaign finance restrictions he believed it passionately that they believe a lot of things the majority of the supreme court does not. so it's a fair point but i cannot see the supreme court upholding this restriction, and they do think it changes in the direction incrementally of taking a harder look at the amounts of money that are these, that are individual campaign contributions restrictions. but i don't see it breaking down the wall and getting a constitutional ruling that says just like you can spend unlimited amounts of money, you can have contributed unlimited amounts of money. >> i suppose that's right, but it's not just the trend, it's a march, the supreme court is rapidly going away from any support for any campaign finance restriction, i think. i just don't, i think the line between spending and contributions is sort of blurred. it may be one of those and criminal decisions but i think they are still heading in the direction of pretty much dismantling everything. i think the corruption justification is in trouble, among many of the justices. >> more questions? >> i have a crazy question but my colleagues was a it's the only time i ever ask. i'm wondering about the courts approach to the broader area of information rights and information capital. what i have in mind is, you might think of the industrial revolution and urbanization as kicking off this decades long political struggle, that the court initial plays a role in protecting because baseline and capital and finally made a case like west coast hotel and affirming a new kind of regulatory era, a new approach to policing this baseline. so i'm wondering now with the information age it sounds like a cliché but there's a lot of truth behind this cliché. by far the most important capital that now our ideas and information. so i'm thinking now of a case where larry lessig after losing the case raises hand and says i couldn't make them feel the importance of having access to these digital materials to this information, you know, to all the information which is now locked up in copyright. you wonder if that case, i know the irony of thi this but is cut like the locker of information age. it's weird to say that because lochner protects existing capital by being come by overturning congress and hereby affirming congress and not expanding on the first amendment our copyright clause can we protect existing capital. size is one if you see kind of thing in particular, copyright information privacy, both private companies, you know like google and privacy from those companies and from the government businessmen like we're in the middle of a political storm and i was wondering if the supreme court play a role in this in the next few years? >> i think i would very much -- [inaudible] >> back in the day, at the beginning of the last century, the supreme court used the constitution to protect a lot of these kind of property rights and said that there's a due process right, for example, that invalidate a bunch of laws that restricted your ability to enter into contracts for labor and that sort of thing. the supreme court has kind of gotten out of the business of broadly reading for due process cause with significant exceptions, but this notion of a broad substantive due process right to protect something that might be regarded as a property interest or some kind of liberty interest like being able to engage in contracts for child labor, the most extreme example. and now he of the question of what you going to do with new kinds of property? it's not a form, it's not a car, it's not a house but it's an an idea. was that the constitution lies in the same way? i think the answer to that question is pretty clearly no. the court has, a case where congress passes a law that says okay, i give you a copyright, and i'm going to get an extension of coverage about to get an extension to extension and an extension to extension to extension and it is basically the walt disney law which is the disney company has the cartoons and wants to give to exploit them longer and longer and longer. .. so the most significant if patent cases, lots of informational property reits that come up with a new drug, that come up with a new machine. the supreme court has banned cutting back on rights and saying too many things have been patented. it's inhibiting innovation. so there's an area with the supreme court has said we will allow competition in fewer rights. this may be zero to justice ginsburg are interested in the area uniquely. it is probably that copyright and refuse to not copyright. this is an area by area theme. this is for the supreme court get deeply involved in recognizing rights. they are privacy vis-à-vis the government. you mention the cell phone cases coming up, without a warrant search your cell phone. we remember the gps case from a couple turns ago with the government was able to follow you around. the question is whether they had warrant to put the gps device on your car. that's how justices conceive of informational issues in terms of your ability -- debates of your ability to keep things private, government, not your ability to develop an idea index waited economically. >> first of, thank you all for being here. we appreciate you coming to the university of georgia. i've two questions about the health care decision and in particular, the chief justices opinion in that case. first, there is a lot of reporting on bad feeling caused by the chief justices ruling on the taxing power basis for the so-called individual men day. so my first question is, have there been any aftershocks on that? has that had any effect in particular during the most recent term? the second question is asked to the commerce power, there's sort of two points of view. one is the chief justice opinion was written airily. as you know, the chief justice concluded there is not a basis under the commerce power for the individual mandate. the other point of view with something of a trojan horse that we can expect in the future, really conservative wing of the court to be more aggressive in fighting the beyond the congress power. so that's my second question. which is a more accurate characterization? and there are many in this ruling characterization with a trojan horse watch out for what's coming in the future care or station? >> one of the update has been a supreme court justices who sit on the bench and have your colleague call you an ward bond birdbrain monday and hope we see the next day. you just have to get used to that if you're a judge. especially if you write your concurrences and dissent. and they get over it. you know, we heard the same thing after the bush v. court decision, that they were very strong feelings and they were not at each other. that went away pretty fast. my sense is it's gone away pretty fast because the same john roberts who voted to uphold the affordable care act was john roberts who voted with conservatives to strike down the voting rights act this term as well. they need each other the next day. you can get to doctor colleagues. i have not seen any signs that it has effect to the alignment of justices on issues or that they are not at each other and they won't go to lunch or anything. i just don't think it's persisted in any way. >> they eschewed these dishes and sutter have a device that is supposed to be not at each other and they go away for three or four months. it's like okay lets get back to near-term, new slate. >> tenure has an impact, too. they realize they are in this bunker for many, many years together. so they may as well get along with each other. i think that plus the summer recess helps bygones be diagnosed. >> unlike a lot of institutions in washington d.c., there's genuine respect between the chest this is for all of their colleagues. one senator may respect to have dozen other senators a lot. but there's a bunch they are. same in the house of representatives since they within the executive ranch. but the nine justices of the u.s. green court really to recognize each of the other ones ask incomplete, good faith. the work super hard. they are completely committed. they are polite to each other. and so, it is not a situation. you name disagree very strongly with the views of another justice in another case, but it doesn't cause you as a member of the court to lose respect for them in a way that would cause them to have it great that you can carry it forward into other cases. so on the second question on whether to "buffalo bill in bologna: the americanization of the world" -- just to frame it, i thought it was well put that while the individual may make it up outcome of the's main theory that congress gets to regulate commerce in the u.s. economy and health care about 60 to 2 billion gazillion dollars in commerce, were you talking about? the majority of the supreme court says no, this violates the commerce power. congress gets to regulate commerce. it doesn't get to make commerce. congress is required people to buy insurance. therefore it exceeds congress' powers. the question was, is that conservative ruling go into later rear its head as a landmine by chief justice roberts and health care. >> you stated the question perfectly accurately. time will tell. when i read those predictions, i am reminded of the bb so blackadder with rowan atkinson that many of you may know of and everything has a cunning plan. my thought and reading all the commentary about the commerce clause landmine, i did not see it. i thought it was overblown. >> i agree. >> the whole premise of the case from the view of the challengers was this love was completely unheard of. congress never before has required you to buy a product. and so the law that comes out of congress can require you to buy a product. so if you believe the premise that the case, that this congress justice and in this business, then the doctrinal rule is one that doesn't have a lot of consequence because it invalidates a null set of laws. the right areas where congress is trying to make you bite things. perhaps the longer-term conservative outcome is on the spending cars. there is another piece of the ruling that for the first time ever petite and congress lots of time is enabled because the structure of our government to order you must do x. but he can say if you don't understood that's fine. it's your choice, but we are going to take $8 billion in highway funding. the choice is yours. you're a sovereign state. do whatever you think is best. the supreme court in the health care decision with respect to medicaid funding said for the first time seriously now, you can go too far. this is congress could not revoke all the safe medicaid funding if they refuse to expand the rolls. so that is the place where you can see the consequences coming, where they don't congress wants to make the seas do something. .set about the restriction on congress' ability to gain back the purse strings is something we could see more of. >> unfortunately, we're out of time. i went to thank you all for coming. clap back [applause] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] >> we'd need some fundamental overhaul of how this government works. i mean, we vote on tuesday because sunday is church stand monday as the market day and you ride your horse and buggy into town to vote on tuesday. that is just ludicrous. we have 435 seats in the house of representatives. basically because that's how many seats in the building despite the fact that five quadrupled over the last four years, the mechanisms of our government are due for a dramatic overhaul. congress will not be able to navigate out of the current cul-de-sac they've got themselves into unless they understand and embrace the changing nature of our society, of our world and reimagine what government might look like. >> pentacle insurance representatives discuss implementation of the health care law and impact on controlling rising costs. last week health care exchanges created by the health care a lot open for public enrollment. the national journal hosted this one-hour forum. >> so we are here to talk about bending the cost curve, but i am going to actually serve as something of a provocative question. and that is how big a worry as reducing health care costs? anybody who has been following health care caused those over the last three years we've actually seen some nfa moderation and health care costs so over the last three years we've been talking about a 3% average increase in health care costs and that is compared to i believe about a 7% increase in some of the previous years. so the question is, are we really that concerned, is that going to continue along this 3% route? have we really change the behavior? maybe it did start with the recession. have a change behavior or are they so concerned about this? >> i would think that is a uniquely washington question. when you get out in the community, it is a devastating burden on employers, both public and private. my daughter still pacer increases in premiums for teachers this year. we have major trade-offs and what we'd invest in infrastructure education. it is a huge burden. being a public employees got flat funded. they haven't had raises in five years. it is absolutely challenging that beset her of our economy. >> i would add i think it is very not good to see between medicare costs are way, way down because it's not

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