Transitions and segues from one issue to another, even though they werent in the same order he would have wanted them to be taken up. Decisiondable care act 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. It shows an enormous skill in counting to five and seeing what positions he can espouse that will get him to victory, even if its a small or incremental steps. Its very effective and will continue to be. The only other big thing that is tote dramatic if you come the court, i will show you around. The remarkable thing is to look three women. See left, center, and right on the court. It has had a tremendous effect on the court as well. Mayor are and soto very forceful justices. Theyre both going to make it difference over time. Sotomayor still thinks she is on a threemember court, which she was on the Second Circuit, because she tries to dominate the argument with questions that interrupt the advocate, interrupt the other justices. More than once chief Justice Roberts has had to tell her, tell the advocate, answer the first. Usticess question she has proven herself to be very effective in teasing out important issues through the question, as aggressive as it is. Kagan has also been very strategically important in a number of cases, and very effective in her questioning. Shes a great writer. The issuea case where was whether a drug sniffing dog can be deemed to be reliable in a Fourth Amendment search, and she said, a sniff is up to snuff by my lights. That may not sound like great prose, but it passes for humor at the Supreme Court. [laughter] those are a few thoughts. We will talk more about the cases that are coming up. One prediction about the samesex marriage cases. The Supreme Court issued a ruling that allows californias proposition 8 to go into effect. Perceivedom lines are as favorable rulings towards samesex marriage. They did not resolve the fundamental question of whether there is a constitutional right for samesex marriage. Given whatdiately, seem to be a huge green light, couples around the country including from conservative Southern States filed challenges to state laws that ban samesex marriage. These cases are coming today Supreme Court on a Freight Train to the Supreme Court on a Freight Train. The couples want equality and justice vomit and think they have a receptive environment in the u. S. Supreme court justice, and they think they have a receptive environment in the u. S. Supreme court. They are wrong. No country has ever recognized a constitutional right to samesex marriage. When Justice Scalia said that an earlier gay rights ruling would lead to a recognition of gay marriage, people thought that was absurd. Parts of the country have moved very quickly. Advocates of lgbt quality have developed a sense that the Supreme Court is there, ready to help and create equality. The real message of proposition eight is that the court did not want to get involved in deciding whether there was a right to samesex marriage and was trying to avoid issuing a ruling. The court was almost begging you can read this in some of the in Justice Kennedys opinion about doma. Justices are conservative ideologically, disposition only. They dont know what this will mean for the country. Its a foundational thing here. Samesex marriage advocates are headed straight towards the Supreme Court. The Supreme Court will feel that it has to take up the question. It is going to present them an enormous dilemma. The justices will be unable to avoid the question here i. The Gay Rights Movement can suffer a massive setback from the Supreme Court in a ruling that there is no such right, which can slow them down in state legislatures. The moral message sent to the u. S. Population. What has been perceived as a great step forward for that community and that they have a friend in the Supreme Court and get turned around in the opposite direction. Justice kennedy was in favor, but we dont know what he was going to say because of the standing decision. Do you agree with toms assessment . I am not sure whether they would take the case. They dont have to. The Supreme Court with only a few exceptions takes unlike the Supreme Court of georgia only takes the cases it wants to. Unlike the defense of marriage act, that was a case the Supreme Court had to take. It was not forced to, but he feels compelled when an act of congress has been declared unconstitutional. There were institutional reasons why the court found it hard to dodge the doma case. There would be no such reason that the Supreme Court would feel duty bound to take these questions. If the court thought it was too early, they could pass. Thats the only thing im not sure about. Perry was not a sure thing for the court to take in the first place. You have to wonder. It is something we will not know. Im trying to picture the point at 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 other side of the standing issue. Nobody was sufficiently sure what tony kennedy was going to andith the case to go ahead go to the merits, even though he would have gone to the merits. The reasoning is sound. In momentum and appearances. Said that this marriage. To gay in this ruling this past term, he said you are providing states for makingueprint gay marriage constitutional. Im not certain what the cases are. I had better start watching the Freight Train. I have one more question. Are marked in your comments about the shifting dynamics of the court. We are losing the middle ground. 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 . Talk about lot of them being consensus builders and being able to reach across and bring people together. Are they shifting in a polarized way . Are we losing the middle . Have you noticed anything about dynamics . Are there strange bedfellows connections going on . Any thoughts on who we should watch in terms of emerging leaders . Roberts doesice have the skill to bring together unusual coalitions. If they feel like they have been snookered into it, that might cause some ill feelings down the road. Thats an important thing. The kind of alliances we have had in the past, scalia and ginsburg and breyer and oconnor i dont see those happening. E have people like alito. E have a lot of loners someone like scalia seems to have been giving up on trying to build alliances. He would rather lob grenades from the sidelines. Breyerink that justice envisions himself as being able to create a new center in the board. He would like to be able to reach across the aisle. He has some novel and unique views on the constitution how to look at different areas of law. He really would like to be that guy. If the court were to move one step to the left, he would step into those shoes. Say, strangeo bedfellows, you can envision the court in one of two ways. We have got the court to the right and left. The ideologues in questions that lineup that way. Justice kennedy is conservative but in the middle. You can envision the court as being tried magic pragmatic in the middle and realistic on the wings. The middle of the court wants the law to work. There are areas of the law where you get five idea lists. Liberals and conservatives come together to make a five justice majority. This will happen in various areas of criminal constitutional law. Justice scalia has a strong view of the Fourth Amendment. When it comes to the jury trial, Justice Scalia along with Justice Thomas have come together with most liberal justices. We have to give powers to judges, and the edges of the court will say no, the sixth amendment is going to guarantee you a jury trial. Thats the place in the Supreme Court you are most likely to see strange that follows bedfellows. Justice would a be, i dont have faith in them. Long on a justice is, i want to invest in this justice. Conventional wisdom would be, and Justice Kagan and roberts being relatively young. They have a sense of how to align themselves, move the court around. People dont get appreciate it appreciate Justice Sotomayor or. If you look at her concurrences and dissents. Deepvery deep fall and thoughtful. Justice thomas is out there by himself thinking what the law might be like 50 or 100 years from now. Justice sotomayor is closer to present day. She is not really appreciated for her deep legal thinking yet. Over the next five or 10 years, more of those opinions have a chance to become the law and she will be recognized as more influential than she is today. I would love to open it up to questions. I hope i dont phrase this in a convoluted way. Hollingsworth,t it was the most socially controversial case, at least in the media, and the court seemed to throw that back to the appellate court. At the other controversial cases that were not as widespread in the media, they seem to be taking small, incremental steps to a more conservative position in the law. With this upcoming Abortion Case , it seems to be likely it will be a Strong Social case and very widespread and defensive divisive opinions. Do you think the court will throw it back to the states like they have been, or do you think they will try and make those small steps to restrict the rights of it . Those of you who dont follow the Supreme Court cases by name, we are talking about the proposition 8 case from california is the one the court tossed back. This term was unbeatable in many ways. Not only the decisions themselves. It was extremely dramatic, the day in december when the Court Granted those cases. There was a question about, are they going to take doma . We thought they would. On the doma case itself, there was a question about which case they were going to take. There were several doma case is pending in the Supreme Court. It ended up being a very. Ramatic case in new york there were other cases pending that would have made a difference if they had taken different cases. That was interesting in and of itself. Shocked when the Supreme Court decided to take the prop eight case from california. I could not figure out why they would do that. Apparently neither did they by the end of the term. You have to say to your self, why are they doing this . The liberals dont want to take this case because they dont want to risk it. For thetakes four votes court to decide to take a case. The whole thing was very dramatic. They did not just toss it back to the court of appeals. They raise the court of appeals decision and left only the Trial Court Ruling standing, which declared a state constitutional. It was only good for california. Is it a sign of thinker mentalism . Incrementalism . You could say that. The court is taking up the abortion the last 10 they did so was called partialbirth. Time they did so was called partialbirth. The justice voted to uphold the federal ban on partialbirth abortions. Any time the Supreme Court opens for box, there is potential a ruling that could be significant. Is the court here said to the state of oklahoma, this is a case about the two haveregime you can take to a medical abortion in the early stages of pregnancy. What the Supreme Court has done is said, we have this case. We are not sure what the law says here. To thent it back oklahoma Supreme Court and said, explain what the law means. What really is at stake here . It is a bit different in that sense. We dont know if theyre going to take the case. Do, in theory, it could be limited to this question of medical abortion. Went to go down that road, who knows . Once you go down that road, who knows . There is another big louisiana case that was decided yesterday. Beenife advocates have reading strong signals from the u. S. Supreme court to bring cases to the Supreme Court. My take away from the last decision is that Justice Kennedy had changed his mind about roe. Three part of a group of justices who in the famous katie case had voted to save roe versus wade. The take away from kennedys is that he believes on some level he got snookered, and people love over read his willingness to preserve the row right. Roe right. It does seem likely that there are four members of the Supreme Court on the right who would be very willing to significantly right,cribe the roe although perhaps they would want to be incremental about it so it doesnt seem like they are being too aggressive. Each Abortion Case that gets to the Supreme Court, you should expect the Supreme Court to materially restrict roe. It in a they will do way that does not seem entirely overt, but will send a strong signal to state legislatures that additional restrictions are constitutional. Fact, Justice Oconnor was a big champion of the undue burden test for abortion restrictions. , the wallr on their of support for roe is crumbling. Without getting too much into the nittygritty, its not that the law outlaws medical abortion in oklahoma. It tells doctors how they can prescribe particular pills. Doctors dont like to prescribe it the way the law would require it to do. It gives the opponents of abortion on the court the opportunity to say, we are not getting rid of all medical abortions in oklahoma. Were not getting rid of surgical abortions. This one particular option has been eliminated. Part of what youre thinking is, the incremental approach helps keep the media and public glare of what is happening. Is that one of the reasons why they do things slowly . Sort of. Its not just the headline. Early on with the Voting Rights act case, the Supreme Court was not ready to say, we had the act enough. S by giving congress a chance, they were not so reluctant to come around the second time. They did say in the opinion, congress, we gave you a chance. Challenge to the Voting Rights act said, this time around. Congress did not propose a single bill. We gave you a chance and you blew it. . Anymore questions amyhis question for tom and. Do you have any thoughts on whether or how the court would handle what appears to be an imminent case between georgia and florida over the chattahoochee river . For those in the state, this is georgia versus florida. The water wars are long standing. I dont think the justices have any sense of how they would resolve this question. Its an interesting procedural example. Florida will sue georgia in the u. S. Supreme court. What the Supreme Court has the power to do is order and equitable apportionment of getrs and say, georgia will it willhe flow above enter this complicated degree allocating water between the states. There is an overlay of environmental litigation between the states and another overlay of the involvement of the u. S. Army corps of engineers. It is really another illustration of how interesting the u. S. Supreme court is, that they decide samesex marriage and the Voting Rights act and then they will have to figure out in different sections of the chattahoochee river how much of the water should be going to florida versus georgia. We wont know for a long time. These water cases go to the u. S. Supreme court, and they have been there for 30 years. Entire generations of lawyers have put their families through college on the basis of long standing cases like that. It will have to be referred to special masters. I want to tell you about a case coming up this term that is interesting. It is not one that will change the course of mighty rivers. Who have those of you felt this as well, the experience of reading a curis case that goes before the Supreme Court you read the challenging the decision, you read their briefs. You think, thats a pretty good argument. Then you read the briefs on the other side and say, thats a pretty good argument too. I want to tell you about a case where i think no one should win. That involves the following provision. Article two gives the power to allpresident to fill up vacancies that may happen during the recess of the senate by granting commissions that will expire at the end of the next session. In january of last year, there were three vacancies on the National Labor relations board. Some namesbama sent and the senate did not act on them. He said, the senate is out of session and clearly in recess. Recessng to use this appointment power to put three people in the National Labor relations board. Took a different view of whether it was in recess or not. The democrats borrowed this playbook from the republicans. They go into pro forma sessions. If the senatorial equivalent of rattling a bag of chicken bones. They call the senate into session and gavel it to order and say, we will be in recess until tomorrow at noon. Because we do that, we are not in recess. The Supreme Court has to decide, ex