From our studios in new york city, this is charlie rose. The Supreme Court issued several anticipated rulings. Affecting everything from how we watch television to when the police can search your cell phone. Joining us from washington to talk about the high courts ruling is adam liptak. Characterize this day and these decisions. On one level the Supreme Court confronted two big technological issues and you would not think they would be particularly good at this but they were fairly savvy in both cases. The bigger, more surprising one was a sweeping privacy ruling saying the police have to get a warrant before they search the cell phones of anyone they arrest. 12 Million People are arrested and the search is a routine so that is a big pushback from a court that is not often sympathetic to arrested people and criminal defendants but they seem to think that the digital age is different and we need different Fourth Amendment rules in the era of big data. It was a 90 decision . 90 and i got to say i did not see that coming. This is the year of unanimity. They are unanimous more than half the time and on a controversial case like this it is not what a lot of people thought was coming. Why did the court go there . There seems to be a sensitivity and this is the second time they have done this. They also went 90 to say the police cannot put gps on your car and track your movements for month. They have come to an understanding there is Something Different about the digital age and the amount of data the government can collect and sift about private citizens and they are pushing back. This is in this sense a proprivacy court. Roberts wrote the majority opinion . Yes. He is a very colorful writer and he made clear that he understands that smartphones are barely phones, they are Mini Computers that have every aspect of your political affiliations, email, photographs that allow the allowing the police to search your cell phone is not different from allowing them to waltz into your house and look at everything you know. They can be called diaries, albums, televisions, maps, or newspapers. All that. Which is a profile of who they belong to. That is right. That language, the music of this decision suggests it is not limited to people who are arrested. This is going to inform lower courts as they think about computer searches of all kinds. The court has put its foot down and put down a marker that digital information, the vast amounts of information is different in kind for the Fourth Amendment. How will this affect Law Enforcement . The chief justice very candidly says this will exact a cost. It will make it harder to solve some crimes that he says if you weigh that interest against personal privacy, privacy wins. He acknowledges that personal privacy has a cost. Lets talk about the aereo case. The justices thought their service was too clever by half. Aereo puts miniature antennas in cities and assign you your own antenna and streams over the internet live broadcast television. Six justices said that is basically theft and not acceptable under the copyright laws. The three dissenting justices did not disagree for the most part. They found this practice distasteful but said the law is as written contains this loophole. As you can put your rabbit ears on your tv and watch Live Television there is nothing different of putting up a miniature antenna miles away and watching live tv on your ipad. I read a press statement which said they think that will put a Chilling Effect on innovation. There is some truth in that probably and the court tried to write the decision very narrowly so it would not affect other Cloud Computing services but this particular thing was too much for them to swallow and the broadcast industry really thought they would be in deep trouble if materials, copyrighted materials that they get paid large fees for by cable and Satellite Companies are available free to people. It could cause that cable package to come unbundled, which would terrify broadcasters. This is a decision that will kill a business. Aereo will go out of business. That is probably the outcome. There is a suggestion that Live Streaming is different from stored streaming which you can look at. I think the short of it is that aereos days are numbered. So sum up the Supreme Court as you have watched it. The court is still divided on campaignfinance, on religion, on race, but this has been a term in which the nine justices have come together and as able lawyers as they are found Common Ground and in many cases issued 90 decisions which is not the story we in the press usually tell about the court but it is the story this year. Does that Say Something about the leadership of john roberts . It cannot help but say that. But were in mind he gets one vote. He does have the power to assign the majority opinion but that is his only special power. It may have something to do with the fact that they have lived together for four years and they know each other a little bit better and they get to choose their own cases. They had two huge terms, one over health care and the other over samesex marriage. This current term is not as big so in lower profile cases they get together and try to work together. Thank you for joining us. Back in a moment. Stay with us. Laurence tribe is here. He has taught constitutional law for more than four decades. He has argued dozens of cases before the justices including bush vs. Gore. His new oak is called book is called uncertain justice. Ted olson writes i am pleased to have Laurence Tribe back at this table. Ted olson, very nice praise. He is an evenhanded and fair guy. Justice roberts will be there for a long time. He has been there for nine years and you can see not in the standards divisions of 54 but the under currents, some important trends about privacy, about race, about gender, about sexual orientation, about the way we lead our lives and i thought it was time to make those things more understandable for a general audience. Not just for specialists. And to get beyond the simplified stereotypes of right versus left because that is not where it is at. It is all these labels we tend to put. Journalists are busy and they have their own lives. Theyre beginning to realize that the courts decision affect their lives and they want some easy answers, but what i tried to show in this book is that although the answers are interesting they are not easy. Hl mencken once said that every complicated problem has an easy answer and it is usually wrong. In fact the answer that these justices are just alterations in robes is just wrong. They have serious philosophies. Their philosophies are not those of just umpires calling balls and strikes as the chief justice once said. But they are not philosophies about how can i make my Political Party stronger than the other guys Political Party. Lets go through the things in which you say they have clear trends. Privacy. The court is looking at the impact of new technology. More of the justices including sotomayor and scalia. To take an example of someone who is thought as a liberal and conservative, realize that there are serious threats from new technology to privacy. They have different approaches to those threats and interestingly, breyer is to the right of scalia. The trend is one of grappling with new problems. The court does not have a leftright commitment on privacy. Can you predict how they might come down on a case . When i study a case closely what i said the chief justice would cast the decisive vote based on the taxing power. I do not claim to be unique. I do not say that i have a crystal ball. The issues we need to study are beneath the service. They are deeper than that. They are understanding the deeply thought, well studied philosophy of an individual judge . Each has Life Experience and a philosophy about the role of the states versus the federal government. About the power of the government to coerce individuals and to bribe them. There are a lot of issues that have not been surfaced yet that are important in the Supreme Courts decision. They are earnest and trying to find the answers during the questioning period and take their role seriously. They are often testing their views against one another. They often use the lawyers simply as target practice. The use the lawyers to bounce their ideas off because they do not have nearly as much dialogue within the court as some people might wish. I think in preparation for each case, i think every justice including Justice Thomas who thinks in silence, thinks about the case deeply, take Something Like affirmative action where you could not have more different views than that of thomas and soto mayor. Theyre both views that when you read the opinions including sotomayors view, they grow out of personal experience. They both said affirmative action made a huge difference in their lives but it was a different difference. Thomas said it proved that you should not look to people to give you favors because of your race. Because then you will never know whether you really belong. Everyone will doubt your achievements. Sotomayor said i do not doubt my achievements. I might not have gotten here without a leg up. Race was one of the things in which you said you can get a sense of the court. Court is moving toward the view that we have gotten the racial problems largely behind us. I think that is a mistake but when they decide a case like Shelby County saying that there has been a lot of progress, we no longer need to have the preclearance procedures in the justice department, Justice Ginsburg said it best in her dissent which is it is like saying that we have stayed dry in a storm so we might as well give the umbrella away. It is not a very rational response. I do not think it helps to pile on. A lot of liberals look at a decision like Shelby County and get a lot of joy out of castigating the court and saying it is blind. What good does that do . They have the votes but what we need to do is understand what is driving them. What are the possible levers and what are the motivations . Sometimes the answer is theres nothing we can do short of an eventual change in judicial personnel and that will depend on a lot of things beyond theory. It will depend on who wins the next residential election and who controls the senate. When we have another opening on the Supreme Court. We might as well understand it realistically rather than self congratulatorily attack the court when we agree with it or or praise the court when we agree with it. There are more than enough points of view to merit expression. Most of the arguments about these things are arguments where there is no right answer. The country is divided about a lot of these issues like reproductive rights and race because they are tough issues. They are competing values. Is reproductive rights a case where you can see a clear trend . The court is ready to cut back further but not ready to overrule it. We will see more when we see the case involving the 35 foot buffer zone around clinics in massachusetts. There are values of free speech on one side and reproductive rights in the other. The court, though it reaffirmed roe v wade in 1992, probably ready to give more leeway to those who believe that the unborn have rights of their own. The court has not taken a serious look at the abortion problem for number of years but that is my sense of where the justices are. And on gender issues . The court has been silent partly because it has not had new opportunities. When it interprets statutes like the interpretation that made it harder for women to sue unless they sue quickly when they first discover any sign of discrimination. Congress has come back and corrected it in the Lilly Ledbetter act. Most of what it has done on gender in recent years has been in terms of statutory interpretation. It is pretty much established that lines drawn along gender are lines that are probably unconstitutional. Sexual orientation is an area where there is also a clear trend. Justice kennedy is leading the charge and i think that having struck down the defense of marriage act, the court is probably ready in one of these cases from the lower courts to take the next step and say that states cannot give secondclass citizenship to samesex couples. People who are arguing states rights, the court will argue it is not. States rights never completely trump individual human rights and dignity and liberty, equality. A guy like kennedy has said the whole point of states rights is to protect liberty. To make government closer to the people so they can take a participatory role in government. I do not think you will allow the tail to wag the dog and say states rights trump personal rights. Who has been the most influential thinker including justices on you in the way you see the law . A great question. I would say probably Justice Brennan some years ago. His architectural sense of how the law fits together has influenced me a lot. He and Justice Oconnor dissented when the Supreme Court said that states that do not raise their drinking age to 21 will lose 5 of their highway funds. Now you do not think of brennan as a states rights advocate normally. But like oconnor, he realize that when the government has the power to use its enormous fiscal leverage not just to tell states and individuals how to spend its money but had to spend their own but how to spend their own money, how to make their own policies, that we are putting rights on the auction block. There is a chapter in here called rights for sale that talks about the limits on governments power not just to coerce people but to bribe them, in effect, into giving up their rights in a thing brennan saw that that is a seamless web. You cannot give government the power to manipulate and bribed without limit. In respect to states rights, without losing a lot of principles with respect to individual rights. These are my curiosity questions. Who among all the justices and who among all the justices and opinions was the most Brilliant Writer . Robert jackson. You could say John Marshall but it is an earlier style and it is hard to appreciate. Early 19thcentury writing but Robert Jackson was extraordinary. When he said that compulsory unanimity produces only the unanimity of the graveyard, he said in a few words what few have been able to say in entire books. Will we be better off, there is a similarity to the Supreme Court in terms of their education, ivy league. All 9 went to harvard or yale. Exactly. I do not have anything against harvard or yale but that is crazy. And all of them you do not have to be a lawyer to be on the Supreme Court. The only job where you have to be a lawyer is solicitor general. You dont have to be a judge. You look at the court that decided brown. It was former senators, former governors, that kind of Life Experience makes a difference. It was a great court. When oconnor was on the court the fact that she had been a state court judge and a state legislator brought something to the proceedings because the court is a mix. It is a chemical composition of the court which has changed dramatically if you suddenly do not have anyone there who has the experience of politics. Lets assume that Hillary Clinton decides to run and lets assume she is elected. Might she consider barack obama as a possible Supreme Court nominee . There have been president s who became chief justice. William howard taft. I guess he is the only one. It is not inconceivable. He would make quite a good judge. He is your student. He was my student and was my research assistant. For two and a half years. He was great. But what it takes to be a great president is different from what it takes to be a great judge. I do think he might be a better judge. It is too early to say how good a president he has been. There are things i wish you might have done early. He has had some major accomplishments. He does have this quality to see all sides. It is important that you come to closure. And you have a principle that you have studied. When you look at the court today and the decisions it faces, what are the great issues that have not come to the court that will come to the court . Issues about bioengineering, the meaning of personhood. Not only at what point does a fetus become a person but is a chimpanzee a person, artificial intelligence. You need a lot of fermentation and you need legislatures to weighin and lower courts. Eventually as lincoln said we cannot be a country half free and half slave. We cannot have person mean one thing in mississippi and another thing in california or new york. Eventually the basic concepts of what are human beings, what are the rights of persons have to be decided in a way that although it can be changed by amendment has to be decided by the Supreme Court. Is there a justice who you disagree with philosophically but when you read his opinions or her opinions and you say, damn. Scalia. I love his opinions. They capture the essence of a point. Even when i disagree with him strongly. He is great. There are several great writers on the current court. Kagan is remarkable, and sotomayor. And the clarity of roberts. They are so clear they can be understood by ordinary human beings, which matters. One of the principles of the book we wrote is the constitution and the interpretation is not a matter for just experts. This is a matter for national discussion, for national conversation. I think we underestimate the intelligence of the American People if we assume you have to talk legalese and jargon all the time. That is why lik