working with on my colleagues make sure we get a chair comprehensive deficit and debt reductionru plan that thispu congress can vote on and put in action. with that mr. president i yield the floor and note the absence of the a quorum. >> at this meeting of the national association of attorneys general, former acting solicitor general walter dellinger predicted the supreme court would uphold the new health care law. he and former general theodore olson participated in a discussion about the supreme court's current session. this is an hour, 15 minutes. >> we are here to discuss united states supreme united states supreme court cases for this term. we are on c-span and my name is roy cooper. i am the attorney general in north carolina and president of the national association of attorneys general and to introduce our panel here we will have walter dellinger who is the chair of the appellate practice at all melvin ian meyer law firm. is visiting professor of law at harvard university and heads the supreme court and appellate practice clinic as an acting solicitor general in the mid-90s. he argued nine cases before the u.s. supreme court. the most by a solicitor general in more than 20 years. we also have ted olson who is a partner in gibson, done and crunchers from the washington d.c. office a member of the firm's executive committee and cochair of the appellate and constitutional law group. a former solicitor general of the united states, ted is one of the nation's premier appellate and u.s. supreme court advocates and he is argued dozens of cases before the court and i might add that both of them have contributed to north carolina victories in the u.s. supreme court and i thank them for that. the national association of attorney general is fortunate to have dan schweitzer is her supreme court counsel. his principle and very important responsibility to assist state appellate litigators who appear before the united states supreme court and he excels at his job. my thanks to all three of you for your time and for your expertise and i will turn it over to you. >> thank you general cooper. it is a pleasure and honor to be here to talk about the supreme court again which as you said has two of the premier supreme court advocates and analysts of our time. what we thought we would do is talk a little bit about the roberts court generally, then turned to some of the major cases the court is hearing this term and then hopefully we will have time for some questions from the audience so let's start with the roberts court. it is 2011. it is quite a different court from 2005. the court went 11 or 12 years without a change in its membership. over the fast -- past five years we have we have had four new justices. they are different in a lot of ways from their predecessors. ted, it's can you tell us a little bit about how you think a change in membership has affected the court, how the roberts court circa 2011 differs from the rehnquist court that preceded it? >> thanks thank stan and i apologize for turning my back on those of you over there. you'll have to watch the television screen but this is an interesting broom. dan asked me to give a little talk about, or give some information about the court as it recently exists and i did some gathering of statistics. nothing secret here but i thought it was kind of interesting, as dan mentioned there has been for ben for appointments in the last five years. previous to that the court had gone 11 and a half years, almost 12 years without an appointment which was the longest period in history without a new member of the supreme court and we have only had 111 justices on the supreme court of the united states. 44 presidents but only 111 justices including only 17 chief justices, so it is rather interesting that we can't have in this country a tenure on the supreme court that is so long, the tenure of retirement is getting longer and longer and longer. the justices are holding offices for longer period of time. the last four justices who did leave the court collectively averaged 28 years each on the court and their age of retirement on an average was 78 years old, so people are being appointed younger and they are staying on the court longer. and if you figure if you are on the court for 25 years, that is six presidential terms of the impact of a justice on the supreme court is quite significant. the court hears -- sees 9000 approximate petitions every year in grants 75 to 80 so only 1% of the opportunities presented to the court actually turn into a supreme court case that is argued. another change that seems to be happening over the last few years is a greater degree of specialization among the lawyers who practice before the supreme court. now there is more solicitors general. there are more arguments by attorneys general as you know. former solicitors general, saw the statistic the other day in the last 10 terms of the supreme court former solicitors general had arguments of 357 cases in just 10 terms. and this term i counted, there has been 56 cases argued so far. in those 56 cases, 40 were argued by persons in the solicitor general's office either as a party or as amicus and 30 former members of the solicitor general's office had arguments, so that is 70 arguments and 58 cases. of course there are two of sometimes three sides because of the court. the average age now is considerably younger than it was before five years ago when those appointments were made. the average age of the justices then was 71. the average age now with 64. aid of eight of the nine justices then had been appellate court, federal appellate court judges. appellate court judges justice o'connor -- the same is true now. eight of the nine are former federal appeals court judges. at the time of brown versus board of education the only one of the members of the court had been a former appellate court judge in the former system. there were two or three senators there was a former head of the fcc and there was a couple of law professors but now it seems to be almost everyone is a former federal judge. there is a remarkable homogeneity on the court. people think about diversity but all nine come from two law schools. six from harvard and ruth ginsburg went to columbia although she did go to harvard. six of the justices went to harvard law school in three went to yale law school. six of them went to ivy league colleges and if you look at the nine resumes, you see harvard, he yale, rinsed and mentioned 13 times. so people are coming from the same place. there are six catholic members of the supreme court now and three jewish members on the supreme court. 50 years ago that was unthinkable. so what has changed enormously. another interesting little statistic is four of the boroughs of new york city are represented on the supreme court [laughter] justice scalia is from queens, justice ginsburg is from brooklyn, joe does -- justice sotomayor is from the bronx and a leg in -- elena kagan is from manhattan. that means the next supreme court justice will be from staten island. we need that diversity. and if you think it is justices, justice is 18 of the 36 courts this year came from harvard or yale. 20 of the 36 clerks on the supreme court this year had previously clerked on the d.c. circuit for the second circuit or got 20 out of the 36 from those two circuits. and 20 of the 36 came from eight specific retro court judges so you will see that the justices and the clerks and the lawmaking in the supreme court is all coming from the same place. as you may like that if you are from harvard or yale and you may not think it is so good if you are from the west coast. three women on the supreme court all from new york city. isn't that amazing? and then one more final fact and i will quit boring you with statistics. the supreme court has issued 22 opinion so far this term. as is sometimes the case earlier in the term, you see these five five-4 decisions at the end of the term and more unanimity because it is easier to write opinions when everybody is in agreement. but it seems to be even more remarkable is here. only 10 dissents, 22 times nine or eight in many cases because justice kagan has been recused in 15 of the 22 but only 10 of 22 cases. all the justices have written two or three opinions for the court except justice thomas. he hasn't written a single one for the court yet this term and here we are in the middle of march so to speak so there are some demographics on the supreme court that tell us a little bit about what the court is in. >> a couple of comments on ted's very interesting statistics. the first is the fact that they for judges to step down and served an average of 28 years, i think is unfortunate. i think five or six presidential terms is too long for a justice to sit. it is a combination of life tenure and his desire to appoint the younger. >> you know you are on c-span so the justices that are their -- [laughter] >> anything critical i would say each of the nine is an exception. [laughter] but i do think appointing a justice at a young age, that is i don't think anybody should have that responsibility that has not yet had his or her first midlife crisis. at least you gain some empathy and understanding for the weaknesses of the human condition more than young people have so i think that is unfortunate. i do think that the narrow range of background on the courts, they tend to be overwhelmingly judicial/academic. professors like ginsburg, kagan, it canady, scalia. we see that pattern. what we don't have on the court since justice o'connor stepped down is any justice who has ever held elected public office, and i think that is quite strikingly different from the brown court which as ted mentioned had three former jena senators and the governor of california who would then the vice presidential nominee on the ticket that was expected to win in 1948 are expected to be -- there were at least three justices on that court, maybe four who were plausible -- my possible presidential contenders. i think sanders o'connor brought that to the court having been a state senator in arizona happening one elected office, having cobble together complicated legislative majorities. so i think it is led to a court that has in my view too little respect for politics. the court thinks more about doctrine and less about workability, so i think in that sense i would like to see whatever party or ideology the breadth of the court expanded. >> justice scalia has actually commented on that in one of his opinions or more of his opinions calling this rule elite, as if we are all coming from the same small law school, new england or northeastern elite and we are passing down the laws for the rest of the country. he commented on that. of course he is part of that culture and so. >> think you wanted to comment reitzig duly honor to jewish justices, justice sotomayor and kagan. they continue a trend with the possible exception of the department of justice alito. every justice that has been named to the court i believe since justice scalia has been a nonactive -- or argument of the justice he or she replaced to the point that it is getting to be a virtual cacophony up there. i'm a hat general roy cooper. the court is asking 60, 70, 80 questions in a single argument setting so there is just a rather extraordinarily intense process of asking questions. i think it is, while lacking in political governmental experience, is extraordinarily sharp intellectually. i doubt if we have ever had a court that is the equal of this one in terms of intellectual firepower across the board. i think ted is shaking his head in agreement with that. i know arguing before justice sotomayor i was arguing a case on behalf of north carolina. justice sotomayor's first term on the court, term before last and arguing against an excellent advocate carter phillips and he had a rebuttal. and he made a point that sounded really good. unless you knew that there is was a response to it, very very deep in the record and i was kicking myself for not anticipating the fact that a skilled advocates like carter would do that in rebuttal. is going to have no opportunity to point out what i thought the flaw in this excellent point was. he is halfway through and justice sotomayor says but in the third counsel to the second appendix -- [laughter] i said whoa this is not with all due respect to north carolina one of the cases that was the headline case of the term and yet she was so down into the weeds in the case. just an example of how extraordinarily well prepared this court seems in people who haven't argued before or seen the court are really stuns to go through a couple of cases that aren't the big cases everybody has been talking about and how extraordinarily well prepared the court is on these matters. justice sotomayor is it very intensive sharp questioner. justice kagan seems to be a very strategic question her. i think she has brought a sort of taking sense of the court's dynamics to bear. when she asks a question it seems to go right to wear the critical decision-making point is going to be in the case. she doesn't us the first questions. that honor usually goes to justices ginsburg or sotomayor but the question she asks is often one picked up by other justices who may be relatively undecided in the case. i want you to go back and finish her answer to justice kagan's question so i think she has shown herself to be, the skill she brought to bear in bringing together a fractured harvard faculty. [laughter] i was skeptical as to whether those would translate very well to the supreme court but i think they may have. >> i was talking to one of her colleagues just last night who said she is is the nature of a already. walter mentioned a number of questions. you said 60, 70, 80, 90. there has been over 130 questions during a one-hour argument so you are talking sometimes two questions per minute and they don't wait for you to finish answering the question. [laughter] they sometimes don't wait for their colleagues to finish asking the question. so it is going full speed and as you all know they are all asking questions except justice thomas who just finished his fifth anniversary without having asked the question and his explanation for that is because i like to hear from a have a good. that is what you are up there for a not that my colleagues show off. [laughter] probably they are asking lots and lots of questions and walter that is absolutely right. each new appointment is for the justice on the court who is more active during questioning. one of the factors might be that now three of those four last justices that argued cases before the court, roberts, alito and kagan of course had argued cases, all three had been in the solicitors general office. i think they plus justice ginsburg argued possibly 63 cases before the court so they have had experiences. they know what it is like. >> you would think they would show more sympathy for their colleagues. seriously, think of the 17 chief justices. john roberts is the first one who comes to that position from a career in which what he did for a living was being one of the best if not the single best advocate before the u.s. supreme court. so he made his mark as a professional, figuring out how to come up with an argument that five justices would agree with and i think that brings them to the chief justiceship within extraordinarily well developed skill set that i think over time will make him an extremely influential chief justice. okay, what are we turn now to some of the cases they work has heard this term and decided. last week the court issued a decision that i know has disturbed a lot of people in the country and it involves a group of people engaging in a very hateful ugly protest at the funeral of a soldier who was slain in iraq and by one vote the court held that these people were shielded from tort liability in a suit brought to the father for the attention of infliction of emotional distress. walter what were the courts thinking there? >> this case involves marine lance corporal snyder who was killed in the line of duty in iraq. his father selected the catholic church in their hometown of westminster, maryland as the site for the sons funeral and the funeral was posted in the papers. this was yet another instance in which the westboro baptist church from topeka kansas picketed and protested at a funeral. they had done this hundreds of times all over the country. their view seems to be that began a is overly tolerant of sin and that god kills american soldiers as they deserve it punishment. signs include, god hates the u.s. and thank god for 9/11, america is doomed. thank god for ieds. thank god for dead soldiers. god hates you and you are going to hell which was a sign that seemed most directed at lance corporal snyder. the family brought an action for various support liability claims including intentional affliction of emotional distress and prevailed in a jury verdict including an 8 million-dollar punitive damage judgment that was remitted to $2 million. the supreme court held that action was hard by the first amendment. the opinion by chief justice roberts. events as the court sense of sympathy for the families. the chief justice says that the record makes clear that the applicable legal term emotional distress fails to capture fully the anguish westborough's choice added to mr. schneider's already incalculable grief, but on the legal question of whether the first amendment prohibits holding westborough liable for its speech in this case, the court held that it did prohibit liability for that speech. a bipartisan group of senators led by mitch mcconnell on the republican side filed in support of the families. one of the major motivations for filing that brief was to try to defend from many collateral damage in this section the federal military funeral statutes that protect, that attempt to protect funerals of our arlington national cemetery and other military funerals from disruption and to try to distinguish that also to side with the family in the case. i think what the case turns on and it is important -- in one instance it is the waning endorsement and the faithfulness of the setting makes the courts first amendment endorsement even more striking, even stronger. it shows chief justice roberts to be firm and a very strong first amendment can't. justice alito once again as he was in the animal brutality case is the outlier who sees more interest in privacy and other concerns than in the first amendment. this was a very strong reaffirmation of first amendment bias. it is possible is also a narrow decision, however. this is a jury tort verdict. and that raises very serious questions if you allow tort verdicts in circumstances such as these. as to whether the punishment will have a lot to do with hostility towards the ideas or positions of the people who are the defendants in the tort case. and that is compared with other kinds of statutory framework make sit of great concern and one of the points that is hard to answer is the point that chief justice roberts made in his opinion where he said that had everything been exactly the same, but the sign said god bless america and god loves you instead of god hates america and god hates you, the defendants would not have been subjected to liability. it was what westborough said that expose it to tort damages so the chief justice use that to show the case turned entirely on the content of what was said. the possibility of a jury of awarding punitive damages can punish not just the interference but whether they agree with the message or disagree with the message being conveyed. what i want to emphasize is i think to those of you is that the court, this is what we hope to do by filing an amicus brief for members of the senate, the court said we are not deciding and not passing on