United on eight justices who did endorse the disclosure current requirements. Only Justice Thomas dissented in that decision. I know it doesnt look very hopeful i think that congress is the way theyre on a deeing regulation trend until the Supreme Court. What can change normal terms of obama or anyone else couldnt even get through nominations for regular courts though Supreme Court. The president ial elections do matter. Hi, im jim. My question deals with roberts vote on the health care issue. Do you think he was motivated by the fear that the court began to look like a political entity rather than a jurisprudence entity . Youre welcome to speak to this too. Its probably one of the most common questions we get, isnt it . Yeah. Do i think so . No. I take him at the word. I take him as sincerely trying to grapple with the issues presented in that case. I think he was first inclined to vote with the four conservatives and strike the law down as violating the Commerce Clause. When they came back and staid means entire law goes, not just the mandate, and not just the provisions of the law that are economically tied to the mandate guaranteed issue and community rating. But were going take down the entire statute. I think my sub decision. I havent been able to do any reporting on it. My position was it was too much for him. Hes more of a minimalist than the folks to his right. And more of an institutionalist. I feel like he must have said to himself there got to be another way of the mess. The tax question had been presented and argued both by the solicitor general and others who in the case and that was there for him to rely on. I dont think it was a, you know, cynical or strategic move. I think it was a rather desperate move to extract something from what would been something much too far for him. I agree with that whole heartedly. I think the media really did focus on the Commerce Clause issue in the case. To the exclusion of the tax issue almost. It was always in the case and when the case got to the Supreme Court, the solicitor general really beefed up the argument. And there is this doctrine that if the court can find a way to interpret a law in a constitutional fashion versus an un striking it down that it should take the pac that uphold it. I think he found that pac power was the right. . For people interested in the Health Care Case. Ill plug a book thatcom out this week. Published by Oxford University press called Health Care Case it consistencies of 20 essays and different aspects of it. I wrote one of them on my what my view of the chief justice. Its a nice little book. Its a as fascinating case will there was so much going on outside the court too at the time. You talk about special interests so many organizations. So many law professors and others who wanted the court to go one way or the other were writing constantly. There are speeches on the floor of congress about it. I cant remember a time when there was a strong effort to get justices recused from the case as we saw with the effort against justices kagan and thomas. So its really a fascinating case. Its worth reading what linda just suggested. And my chapter in the book. [laughter] sure. Hi jack mac ken city. I cant see you with the lights. Yes, you are jack mackenzie. Its nice to have you come this way. I would like both of you, if you could, to comment in some substance about what Justice Oconnor has said. Ill say one thing about it. I would love to hear anything you would have to say about it. Her participation in the bush against gore was not a slip of find. During the oral argument she ridiculed the she was really heavily engaged in the case. What is your view of what do you think about now that shes made this comment . Well, i think she first of all, its not unusual for some justice to have regrets or second thoughts about decisions they have made. I think with Justice Oconnor, she has seen a good part of her legacy endangered by the fallout of bush v gore and the more conservative justices that have seated her on the bench. I dont know that i can say anything more. She didnt really elaborate a lot. She said maybe we shouldnt take the case. What can you do with with the case . So it wasnt a full recantation. It wasnt, you know, after justice luis pol who cast a deciding vote in 1987 which projected the gay rights claim, in that case, and after he left the bench he said he felt he had voted the wrong way. She didnt say that . Its hard, you know, i dont want to attribute to her a kind of a global regret that she doesnt steam feel. Sir . My name is tom. This is a question out of shared ignorance. I left law school about 50 years ago. I guess i can reveal the law school by saying another firstyear student that year was justice scalia. Im curious about the history youre talking about the Roberts Court. And roberts the is newest justice when he became the Supreme Court chief just is what the history of having the newest justice be the chief justice when in a Academic University head of the history of the English Department of someone with senatety. The head of the committees have senatety that is how they got head. The implication being there longer. Therefore no wiser. When you talk about the Roberts Court and yet he was he became a Supreme Court justice what does that say if its the Roberts Court. B. With what is the history we oob im sure, hes not the first chief justice who arrived in court as there have been a few just ises promoted. William was one of them. Typically they have been just picked out of a hat and all of a sudden its chief justice. Its interesting its a pattern that George Washington established by naming john jay as chief justice first chief justice of the United States. The constitution article iii of the constitution actually doesnt say that. It says there shall be one Supreme Court. And article iii of the judicial article doesnt even mention the chief justice. It doesnt ascribe any functions to the chief justice. We only learn that there is a post chief justice because elsewhere the constitution it says that the chief justice preside over the trial of the president ial impeachment. So, you know, it scrolled been otherwise. There was six justices on the court. But, you know, on what it is. We kind of from the very beginning got elected to that. And you can do it. And, you know, on the federal court of appeal. The chief just judge in fact is the senior among those who have not yet reached the age of 55. That person becomes chief judge for seven years, i guess it is. Yeah. What you think . Suggest that the office of the role is not as important and why could we not develop a system where the chief justice is in fact the senior justice and fellow with the most experience . There would be nothing unconstitutional about that. If youre a originalist. There would be well if youre an originalist who goes by the intent of the framers. Those who frame the constitution seem to assume that somebody would be nominated and confirmed to a position of chief justice and hold that position for life. Thats the original understanding. Its an interesting question. I agree. I couldnt add to that. But whether it means that it really is the Roberts Court or the renner renne qis court. I think its part just tradition we call it that. I will say that during one of the interviews i had there was a justice who said he didnt understand why Supreme Courts call after the chief justices names. He said why should chief justice be blamed for what that court did . And suggested instead that the court be named after the president who named the last justice to the Supreme Court. Which would make this court the obama court. Which i think could woman as would become as a big surprise to president obama. [laughter] okay time for one last question. I share your thoughts, please, on the testimony of the roberts case during the conformation proceedings and specifically whether you feel he was perfectly candid . Whether he was candid during the conformation hearing . I think he yes. I think he knew what he wanted to be when he got on the Supreme Court. If you look at the first roberts term, 2005 2006 term. A lot of people came away from the term saying he voted in a minimalist way. He was who excoriated him for, you know, foe faux judicialist it was in a short time we saw different john roberts emerging. And we saw a different dynamic on the court. I think in response to what was going on, you know, behind the well, but also in the areas that he had very the second term, 2006 07 term they took up the seattle Louisville School district case. Very did different term. Very different. Very devicive and many 54 rulings. They were issues i think he had rather firm views on. So theyre not always consistent. They approach the law in different ways and they have different views. This is about a. Thank you. Congratulations. To begin with you would read just one page from the book, page four and i will preview this and let thomas explained that this is actually not thomas is writing. Its somebody elses, just as holmes and i think it helps us capture very well the issues that he was struggling with and whats so great about this look so i will give you my copy. Thank you, thank you. This was some from whom dissenting opinion in the abrams v. United states. This is the first case in which homes defense the importance of free speech and thus is a real turning point in our history of the First Amendment. Its an incredibly powerful dissent especially the last paragraph in which holmes tries to explain in a philosophical way why its important that we have free speech and whats interesting about the last paragraph is that it against and a rather strange, almost in congruous way, as those holmes is making the case against free speech and not for it. Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent as when a man says the circle or you do not care wholeheartedly for the results or that you doubt either your power or your premises. At this point holmes shifts direction almost very suddenly and very brilliantly in my mind. But when men have realized that time has upset many fighting faiths they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free. And ideas, that the best test of truth is the power to get itself accepted in the competition of the market and that truth is the only ground upon which their wishes safely can be carried out. Bad at any rate is the theory of our constitution. It is an experiment as all life is an experiment. Every every year its not everyday we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system i think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law have an immediate check is required to save a company. Thank you. We will talk a little bit about the First Amendment that of course that parrot wrath is more then the First Amendment. The way of thinking about our democracy. Before we get to that i would love to hear a little bit about yourself. You are former journalist so i understand why you would the interest in the First Amendment as a journalist but what street to this topic . Its not just selfinterest that i would want to write about the First Amendment. As i said this dissent i holmes represents a turning point in our nations understanding of the First Amendment. It marks a turning point in holmess life as a justice and a thinker but it marks the beginning of a larger transformation in the way we think about free speech. Prior to 1919, free speech in this country was pretty much an empty slogan. It wasnt until filled from us. And so the history of the protection of free speech in this country begins in 1919. It begins with a series of cases dealing with the espionage and sedition acts that were passed during world war i under which many socialists and pacifists were convicted. The court hears a number of cases in 1919 and then in those early cases the Court Upholds the convictions of people who were prosecuted and holmes himself writes the opinions upholding these convictions. And then he turns around eight months later in writes this dissent. When the First Amendment professors teach the First Amendment they begin with these cases and they begin with holmes initially upholding these convictions and then suddenly eight months later the writing is a very powerful dissent. So when i was a student this is how i learned the First Amendment and its how i teach my students but there has always been this nagging question for me, why is it different for holmes eight months later . We tend to gloss over it as though oh well the facts of the cases were different or an easy explanation. That didnt sit well with me and i thought there must be something more to it. I was hoping to write a story. I wanted to write it look that was more than just a kind of academic analysis of law that had you know some richness to it. I started thinking about how important it was to the history of free speech and when i began to dig into it became clear to me that it was an incredibly moving and effective story that involves more than abstract ideas and involves human relationships so that is how i got thrown into it. Tell us a little bit about the process of research and writing. How did you actually enter this question. Was the sources you thought were particularly revealing some ou talk to the new holmes . There might be a few or were there questions you wanted to answer . How did you engage the topping to get into this wonderful book . I started doing preliminary Research Reading all the biographies of holmes and reading his published letters. He was a very prolific correspondent and although he instructed most of the people he corresponded with to burn his letters thankfully most of them did not so most of them survived. So i started reading the letters in the published ones became published once all of which are at harvard. I started making a timeline of holmess life during this period of time from roughly the middle of 1919 until sometime in 1920 and i made it day by day timeline of everything going on in his life. The case is court was decided the letters he was writing and the books he read. He kept a list of every vote he read in his life from his 30s on any red etan. Just the titles of the books that he read and he would read in the summer sometimes 40, 50 or 60 bucks during his summer recess. I started reading some of the books that he read trying to find little clues and scoured newspapers to figure out what was going on. I looked into what was going on in the lives of the people he was friends with so i created this timeline. We know its a twoyear timeline and i just kept looking at it. And thinking about whats going on in his life and how all of these pieces fit together. For me, thats when i really began to understand why he changed his mind. There is in some smoking gun. There is not one moment you can point to and say are hot thats why he changed and when he changed it. Its a kind of gradual process but in order to really understand that process you have to see it in order in Chronological Order and i think thats what i had been missing prior to this vote. There were some scholars that delved into this a little bit and pointing out that some pieces of the story but at least to my mind it was never clear how it knits together. So when i saw that in the timeline, for me that was where the real sort of revelation came thats wonderful. Before you and i were talking about historians and as a historian i will tell you its a wonderful book. Whats interesting is what you just described it on thick most historians would have approached it that way so thats why its wonderful we have lots of people doing history. This might be pushing it a little bit of the kind of approach it as a journalist. Right, i did and as a storyteller really. The advice that i tried to get myself was the advice that novelists usually get which is to show and dont tell. I didnt want to tell the reader why holmes changed his mind. I wanted to show holmes changing his mind. There were a few times in the narrative where i is the narrator interject commentary or analysis. There are some times when i have to but for the most part i try to let the events speak for themselves and i hope that they do, and i hope in the reader finishes, the reader understands everything that i would have told the reader that i sat down and said here is why holmes changed his mind, bullet. 1, bullet point to in bullet. 3. That is what academics are used to but you know a i dont think that doing it that way gives you as rich a sense of whats going on. I think you missed something and its just not as fun for the writer or the reader to do it that way. In our second talk about the people that influence and versus talk about holmes a little bit. As you acknowledge for a jurist holmes has gotten a fair amount of attention here there are several books about them but he still a fascinating purpose. Give us a sense from your perspective as someone who immersed himself in this important person. How would you describe the flaws and strengths would you describe as him having . First a couple of basic biog