Yes absolutely. That happens, but usually it is not quite so at the point it is going to print it but it could be like i said feedback from the retailer or there is another coverage that has the same they didnt realize that we need to change. You can watch this and other programs online at booktv. Org. Starting now on booktv, Laurence Tribe argues the Roberts Court is regretting constitutional law in areas such as free speech, privacy, Voting Rights and president ial power. Looks at prominent cases handled by the Supreme Court going back to Citizens United. This is about an hour. [applause] thank you very much, clare. One of the research assistance, i should say thank you all for coming here on this gorgeous day when you could be outside and enjoying the weather. I am glad something drove you all here. I am glad to be talking to you and appreciative of your being here. One of the research assistance, a terrific kid named max went home to New Hampshire in late spring and spent some time talking with his High School Music teacher. She knew that he went to Harvard Law School but didnt know that he was working with me and she kind of unloaded on him about her great disillusionment with the Supreme Court. She had been looking at the headlines, how partisan the divisions seemed to be. A lot of the people whose journalism she respects, people like linda greenehouse were saying this is a very partisan, very polarized court. Why arent they just a bunch of politicians in robes . Why should i trust these guys . And my student tried to reassure her is that it is not as bad as all that. She wasnt convinced. She told him she had listened to the confirmation hearings when john roberts was going to become chief justice. Made an analogy to umpires. She was a baseball fan and found the analogy persuasive, she said the new chief justice, only going to be an umpire calling balls and strikes, it is all neutral, all objective, people dont go to a ball game to see the umpire, they go to see the batters. The catcher, the pitcher, he was only going to be neutral. She didnt find it convincing. She realized there is judgment involved. Judgment about the strike zone, one umpire famously described it as a living, breathing document the way some people like to describe the Supreme Courts constitution. She was a lot more convinced by what a elena kagan said during her confirmation hearing. She said it is nowhere near that robotic or mechanical especially in close cases, the only ones that reach the court. Judgment is involved. We bring a lot of ourselves to the process of deciding cases. That is as it should be, max told her and she responded, she was very bright, did know a lot of law but said if it is not what roberts claimed, he could make it not just an umpire calling balls and strikes, why isnt it just a matter of unelected judges serving for life, and max is a very loyal Research Assistant. His reply was read Laurence Tribes book. Good for you, max. The umpire analogy, he told her, was great pr and it did contain a germ of truth, namely good judges, a ploy philosophies consistently. And some flak for their favorite players or teams, to hold those they like to bring home the pennant or to hurt their political adversaries. That much is true. The umpire analogy is a vast oversimplification. It suggests personal judgment, personal understanding of what the constitution is about, when its ambiguous terms mean, what our National History commits us to, have nothing to do with it, ambiguous language like liberty, equality, ambiguous principles like what the role of the court should be, how active a role it should play in american life, all of those things dont come down from on high, they are not written in stone, they are not objectively decipherable and we shouldnt expect justices not to bring their personal philosophies to bear, nor should we always expect their philosophy striking us as right or as neutral when we might be coming from a different world view. Elections have consequences and the election of justices by a series of increasingly conservative republican president s with a certain perspective on the world and on the constitution is among those consequences. The umpire analogy is off base, pun intended, to the extent that it pretends that the system expects judges to be blank slates, to bring nothing of their views of the worlds or the law to the table. So max did urge his music teacher to read the book, that it would teach even legal experts some important lessons but it would also be fun, he said but, for her and other non lawyers. Is filled with great stories, from fascinating cases to the justicess personal obsessions with things like baseball. One story he mentioned to her that features in the book, justice stewarts devotion to the Cincinnati Reds which extended to making sure his law clerks were watching this small tv he set up in his chambers when he sat on the bench during the 1973 playoffs between the mets and the reds. The clerk knew his bosss priorities and in mid argument on some technical preemption case he sent stewart a note, this is what the note said. Flies to write, agnew resigned as. In that order. My Research Assistant explained reading on certain justice which he hasnt read, yelled to with a couple footnotes he saw the elephant, reading it taught him the standard story about the increasing number of 54 splits along political and partisan lines made good press, but shouldnt disillusion her because it was more misleading than informative. Only a fifth of the cases since Robert Justice in 2005 have been divided 54 and at least the third of the 54 split involve unlikely bedfellows. One of the liberals like him prior or sotomayor create a 54 alignment in which the dissenters are the other three liberals plus scalia who is more protective of privacy rights from the government and more liberal than any other justice. You wouldnt know that from the refutations the lee has nurtured as a radical uncompromising conservative. Just yesterday for example elena kagan led a 54 decisions that ruled against immigrant children who had the bad luck to turn 21 before their parents who had green cards got to the head of the slowmoving waiting line for an immigrant visa. Fracking and was joined by anthony kennedy, a republican, ruth ginsburg, a democrat, and elena kagans elena kagans conclusion was joined by sculley a. The dissenting justices ruled in favor of the boy who turns 21 after his mom who immigrated from oil salvador in 1998 had waited in line for eight years. It was his misfortune he turned 21 and had to go to the end of the line. They were unlikely bedfellows. Clarence thomas, samuel paulino, steven briar and Sonia Sotomayor. That was not that a typical in lots of difficult and divisive cases we get these unusual alignments. There was a decision the book deals with in some detail where kennedy led a 53 majority, and elena kagan was recused, striking down most of arizonas show me your papers antiimmigrant law. Scalia wrote a dissent fat called the courts decision mindboggling. He went out of his way and outside the record of the case to attack obama for something unrelated to the case. Is use of executive power to favor the immigrant children known as dreamers. The washington post, which usually selects the president or a senator or cabinet member for the honor bestowed on scully at its worst week in washington prize, partly because he was outvoted in the Obamacare Decision that came down three days later. Those are some examples, the book deals with them, explains them, gives you a way to understand them. Not just the unusual alignment in cases decided by a bare majority that expose the fallacy of the increasingly common description of the Roberts Court as a gain of right wing political hacks and roads. There are plenty of 90 rulings which account for nearly half the decisions in 201213 in which the nine justices are divided among themselves. It looks unanimous but in fact there pointing and lots of Different Directions and if you study the directions and you dont have to be a legal maven to understand them, you just have to speak plain english and decipher what the court is doing. What is really going on and where the court is likely to go next, then the numbers alone suggest. Among the most intriguing and eliminating divisions within the ranks of the five justices appointed by republican president s are those between scully and the lido alitali. They thought he would be a clone of scalia. Nothing could be further from the truth. They battle one another previously about free speech, privacy, the need to stick to the original meaning of various parts of the contradiction. In the argument about interactive video games to kids without the consent of their parents it looked like all be no alito, the original constitution didnt treat violence speech lately, and alito told one of the lawyers with Justice Scalia want to know is James Madison thought about video games. Did he enjoy them . What if they were violent . What about the opinions involving the governments use of gps to track somebodys car for a month without a warrant. In that case there was a more fascinating back and forth in the opinions between alito and scalia. There are analogies from the 79s. He said like what . Scalia said a constable could hide in a coach for weeks to monitor the owners movements and alito in his concurring opinion that all nine justices thought following somebody with a gps for a month without a warrant was impermissible. Alito wrote Something Like this might have occurred in 79 b1 but would have required either a gigantic coach, a very tiny constable, or both. Not to mention a constable with incredible 42 and patience. That is just the tip of the iceberg. Over and over again, justices come from the same wing of the ideological spectrum have been different take on the constitution. They will sometimes agree on the bottom line but their disagreements tell you a lot about things like the pending case about cellphone privacy and lots of other cases where if you just count noses and do arithmetic you will be completely misled. After exploring similar patterns and contradictions on topics, gun rights, the book which people across the spectrum like ted olson, the guy that beat me and david boyd in the bearish the george bush versus al gore case, described his superbly evenhanded. Makes me feel good when people across the spectrum say this is fair treatment of deeply divisive issues. After exploring those patterns and contradictions, the book shows that the court is in the business of undertaking not only scary but promising and innovative inquiries into how governments powers to coerce and to bribe with offers short of coercion might be limited by the constitution in areas ranging from obamacares individual purchase mandate and its medicaid mandates to the states, please bargaining in criminal cases to laws that condition federal subsidies on the recipients agreement to have seen the governments to and even when doing so means undermining the recipientss integrity and its ability to pursue its social mission. Let me say another word about that example. In a decision that i think is overwhelmingly important but got very little attention last year, roberts, writing for the court, said that the government had no authority to tell nongovernmental organizations that were fighting hivaids around the world that it could get government money supplement its private resources only if it promised to join the governments anti prostitution and anti sex trade campaign. A lot of these characters said if we do that we wont get the trust of the workers. Sculley and thomas, descending from the robbers opinion striking down that condition, said too bad, they can just say no, turn down money and roberts says freedom to turn down the governments offer is not always a sufficient answer. When the offer uses government leverage over private resources to get people to sing the governments tune. So the court is moving in lots of intriguing directions that the book deals with. The book identifies powerful trends in various justices use of coercion and marginal as asian that connect important aspects of decisions discussed in the book. Like for example the 54 ruling upholding the core of obamacare, the 72 ruling striking down the medicaid part of obamacare. The 54 ruling striking down one Campaign Finance regulation after another. Those may not seem like they have a lot to do with each other but i show in the book that in fact they are born of similar views and are subject to similar contradictions and there are decisions i dont discuss in the books that were handed down since it was finished and like the decision in greece versus galloway, holding sectarian town meeting prayers, terrible discussion in my view over four powerful dissents, the most brilliant of which was that of elena kagan, maybe i am biased, she was a student of mine but that is balanced by the fact the chief justice was a student of mine and i see a few of my students in the room. I have had a great time teaching and that given me a kind of look into the approaches various people are likely to take. One of the things about the case that distressed me most was all nine justices including the suppose the liberals went out of their way to say the Supreme Court had been right 31 years ago when it upheld legislative for errors in march versus chambers. That is the beginning of difficulty for separation of church and state so they were counting angels on the head of the pin when they should have been saying the pin was rusty to begin with. So the more i read from the book or give away its insights in advance the less you will be tempted to read it yourself. This was advertised as a reading from the book. Let me read a couple of paragraphs from the chapter called freedom of speech sex, lies and video games. And area where almost press about the court is wrong. Lots of people, distinguished people like floyd abrams say it is the most speech protective court ever. There are other people like in the New York Times is a what is really going on is the justices vote for the speakers they agree with and not the other way around. The book shows that both of those positions are absolutely untenable. Let me begin and end with these two paragraphs from the freedom of speech chapter and take your questions. Throughout the 1960s the justices of the Supreme Court spent a day in the basement watching porn together. By all accounts it was fantastically awkward. Unable to define obscenity but convinced that the First Amendment couldnt possibly protect the newly dangerous and morally corrupting expressions the court was forced to create constitutional law one 6 seen at a time. The films ranged from scientific documentarys to the improbable likes the paid of lesbian nymphomaniacs. Justice thurgood marshall, civil rights hero, took merciless pleasure in narrating the clips for the benefit of Justice John Marshall harlan ii, an elegant former wall street lawyer who was by then losing his eyesight so marshall would basically say look what is happening now. Look what he is doing, look what she is doing. Mocking justice stewarts insistence that i know it when i see it clerks would call out in the dark eyes see it i see it in 1968, 20 years after serving in the u. S. Navy, a still youthful stewart reflected on more adventuress times and confided in a particular the curious quirk. You might wonder who that was but i think you will all guess. That he had indeed seen it. I said mr. Justice, have you seen it . He said just once, off the coast of algiers. That is all i was ever able to learn about what it was that he saw. So that is all i want to say about the books and welcome your questions. Thank you for your attention. [applause] you had your hand up . Make sure you have the mike. Justice marshall in the 300s, the traditional role to say what the law is. That is not thurgood marshall, that is john marshall. Ten years ago. If this is the case my question is about the case, tantalizing in jerusalem and citizenship. You, quote a case that the court decided judicially has the right to intervene. The congress which voted to enable the person to claim is really citizenship but dont give the outcome. The case is still pending. Was in the court twice just like the case of the woman, carol and bond, who poisoned her best friend, or tried to, a botched job, she put this arsenic compounds on doorknobs but all she did was turn her best friends fingers read. The question was whether she was prosecuted by the u. S. Government for violating the law passed to enforce the chemical weapons treaty which is a little bit odd day. This is an Agatha Christie domestic dispute. That question was whether she could challenge congresss law on the ground that it violated states rights and the Obama Administration said she has no stand even though shes a friend with imprisonment. The Supreme Court unanimously said that is wrong. This is a case where she does have standing and the court decided in round 2 this year that congress had exceeded its authority or at least we should interpret its law not to apply this way. In the case you mentioned, there was this guy who wanted his place of birth on his passport to be designated jerusalem. Congress had said was born in israel but he wanted wanted to be designated as a citizen of israel whose capital was jerusalem. Obviously a politically very volatile issue. The Clinton Administration was involved in it and barack obama and his Justice Department took the position that the court had no business resolving anything about this. It was a matter between congress and the president. If Congress Told the president and the state department what to put on the passport, let them fight it out. The Supreme Court sai