thank you Scott hello everyone what an
Uzi place this is you're like the center
of the universe right here except yeah
except the living room in Moscow where
Edward Snowden is but it's it's it's
great to be here and talk to you and
about the very hot issues that under for
the courts in the law relating to
privacy and related matters but I
thought I would come at it through the
through the root of the Supreme Court
and I'm sure one question on your mind
is who's my favorite Supreme Court
justice now this is a somewhat difficult
question because I had a favorite
Supreme Court justice for many years but
unfortunately he's gone that's David
Souter I love David Souter because he
was just so weird and I mean in a group
of basically computer professionals
you'll be pleased to know that one of
the Supreme Court justices didn't have a
computer didn't have a cell phone didn't
have an answering machine on his dial
phone in his house he lived this sort of
19th century existence he doesn't like
electric light he moves his chair around
his chambers over the course of the day
to catch the sunlight he eats the same
thing for for lunch every day he has a
cup of yogurt in an apple including the
core which is disgusting when you think
about it but anyway justice Souter I
thought always had a wonderful
perspective on what it meant to be a
Supreme Court justice because the
Supreme Court is at once a very public
and important institution but it's also
an institution where people don't know
much about it people don't know much
about the justices don't know who they
are don't know what can I just tell the
folks who are running the conference my
little clock is running and I don't know
well you know after two or three hours
you might get tired of me so there it is
there it's not
sorry to say I knew that we'd get it
back to justice Souter justice Souter
you know he had this great perspective
because you know they're they're famous
but largely unknown and and he sometimes
would have a little fun with that and
I'll give you I'll give you an example
now for reasons that remain obscure
David Souter and Stephen Breyer our
frequently mistaken for each other now
if you know what they look like they
really don't look anything alike but it
happens to both of them all the time and
not long ago justice Souter as he often
did was driving from here in Washington
to his home in New Hampshire and he
stopped in a little restaurant
Massachusetts to get something to eat
he's sitting there and a couple came up
to him and the guy said I know you
you're on the Supreme Court right to the
ice is it your Stephen Breyer right and
sue didn't want to embarrass to fellow
in front of his wife so he says yes I'm
Stephen Breyer they're chatting for a
little while but then he says so Justice
Breyer uh one thing I always wanted to
know the question Souter wasn't ready
for he said it so Justice Breyer what's
the best thing about being on the
Supreme Court he thought for a minute
and he said I have to say it's the
privilege of serving with David Souter
now how can you not love a guy like that
right but he's gone now and I got a bit
it's all right so let's talk about the
Supreme Court by the numbers for a
minute are you you have six men and
three women first time in history there
are three women on the Supreme Court
there are six Catholics and three Jews
there are no Protestants on the Supreme
Court first time in history for that
there are representatives of for New
York City boroughs on the Supreme Court
you have Sonia Sotomayor from the Bronx
Antonin Scalia from Queens Ruth Ginsburg
from Brooklyn and Elena Kagan from
Manhattan tragically staten island is
unrepresented on the Supreme Court but
perhaps future appointments will address
that anyway those are I hope some
interesting facts about the Supreme
Court but I don't think they are really
terribly important here's an important
fact about the Supreme Court there are
five Republicans and for Democrats I'm
going to talk for somewhat longer not
two or three hours but
going to talk for somewhat longer but
you now know most of what you need to
know about the United States Supreme
Court there are five Republicans and
four Democrats and you know we sometimes
believe we sometimes hope that the court
is a refuge from the partisan politics
that we're so familiar with on the other
side of first street in the capital or
in the race to the White House and
perhaps at some glorious time in the
past that was true but it is certainly
not true now the partisan disagreements
that that roiled the country that
prevent you know people like the really
distinguished nominee for assistant
attorney general for civil rights who
was tragically i think projected by the
senate yesterday meaning those sorts of
fights they take place in the supreme
court as just as they take place in
Congress and to see why this moment in
the history of the Supreme Court is so
important this closely divided but
Republican majority the last time it's
important to look back at the last time
in the Supreme Court was not evenly
divided the last time there was a very
clear ideological majority on the
Supreme Court and that was in the mid
and late 1960s when towards the end of
World War ins 10 years chief justice
when there was a solid liberal majority
there were seven liberals on the court
and there really was a liberal agenda
that the courts you know the Supreme
Court was pushing in a year after year
you saw dramatic movements of the law to
the left very very intentionally 1964
New York Times against Sullivan Justice
Brennan is famous opinion that a changed
libel law and gave you the press
important new protections 1965 griswold
versus connecticut Justice William O
Douglas is famous opinion that created a
constitutional right to privacy said
that married couples could no longer be
forbidden from buying birth control 1966
old Warren's decision in
versus Arizona the case that
revolutionized Criminal Procedure and
perhaps more importantly change
television dramas forever I like the one
right everybody knows they have right
right to remain silent 1967 perhaps the
best named case in the history of the
Supreme Court loving versus Virginia
what was the case of loving about loving
versus Virginia of course it was the
case about marriage it was the case that
said that the states could no longer ban
racial intermarriage think about that in
1967 there are people in this room who
were alive in 1967 I think I'm right
about that and yeah it wasn't until
nineteen sixty seven that the Supreme
Court got around to saying that Rachel
intermarriage bands were
unconstitutional of course a decision
that's much in the law in the news today
because of a similar fight going on
about same-sex marriage but you know it
is worth remembering that in nineteen
sixty when barack obama's parents got
married in hawaii their marriage was a
crime in 19 states and there were people
in prison in this country for that crime
at that time so it is worth celebrating
frankly that the country has come so far
that laws like that are not only
unconstitutional but they are literally
unthinkable but you know the changes you
never know how change is going to come
up the supreme court because you never
know when justices are going to leave
when richard nixon became president in
1969 four justices left in quick
succession you know jimmy carter is the
only president in american history to
serve a full term and just have no
appointments to the quarter because they
were there were no vacancies but richard
nixon was only president for five and a
half years you'll recall he had to leave
early but he got four appointments to
the Supreme Court and and who left Earl
Warren left John Harlan left Hugo black
left and eighty-four de Sol left and who
did Richard Nixon a he named Warren
Berger Chief Justice Harry Blackmun
Lewis
how and william rehnquist and as you
think about Richard Nixon's appointments
to the Supreme Court it tells you
something about the Supreme Court but it
tells you something even more important
and this is this is something that you
know I think cannot be overemphasized
and that is the most important political
development of our lifetime which is the
evolution of the republican party the
republican party of the 1970s is
unrecognizably different from the
Republican Party of today it was
basically a moderate party it was not a
religiously oriented party was not a
socially conservative party and when
Nixon had all those appointments to the
Supreme Court people thought oh the
court is going to move dramatically to
the right but it didn't and and the 70
Supreme Court were nearly as liberal as
the 60s think about the big decisions of
that period had the Nixon tapes case
where they essentially forced Nixon out
of office Pentagon Papers case they
approved school busing in 1972 they
edited the death penalty in the United
States though they let it back in in
1976 and still the most controversial
decision of the mall 1973 Roe vs. Wade
the K the case that said states could no
longer ban abortion was a 722 opinion
and the only two dissenters in roe v
wade were william rehnquist and byron ye
who was appointed by President Kennedy
so three of the four Republican
appointees to the court Nixon appointees
to the court were in the majority in roe
v wade simply unthinkable in today's
Republican Party the big a change of
course began in nineteen eighty with the
election of Ronald Reagan who brought
with him to Washington someone who is I
think a very underrated figure in recent
American history and that's edwin meese
edwin meese he was an advisor to the
president reagan later the Attorney
General and if he said look there has
been a liberal agenda at the Supreme
Court for a long time we need a
conservative agenda and
in appointing lower court judges in
enforcing the law edwin meese really
started to bring out this agenda so what
was that agenda expand executive power
and racial preferences intended to
assist african-american speedup
executions lower the barriers between
church and state and above all overturn
roe v wade and allow states once again
to ban abortion baby part of the Reagan
Revolution is it sometimes calls with
the arrival in Washington of a group of
aggressive young conservative lawyers
two of whom were John Roberts and Samuel
Alito and I think that is worth
remembering about who they were and who
they are but the Republican Party of
Ronald Reagan was certainly not the
Republican Party of today either and you
saw that in Reagan appointments to the
Supreme Court during the campaign of
1980 Reagan made a promise that campaign
promise that Jimmy Carter didn't he can
make Reagan said if I have the chance I
will appoint the first woman to the
Supreme Court 1981 Potter Stewart
unexpectedly announced that he was
leaving the court so Reagan said it was
people look I made a promise keep it
finally a qualified woman for the
quarter it was not frankly that easy in
1981 there were not as many women in
prominent positions in the law
especially Republican women so Reagan's
people had to go all the way to the
intermediate appeals court in Arizona
not even the highest court in Arizona to
find the remarkable figure who was and
is Sandra Day O'Connor and at the time
it was clear that justice O'Connor was
not a social conservative was not a
hardcore conservative she was a moderate
as she remained during her entire tenant
extremely consequential tenure on the
court and that was fine with Ronald
Reagan and and that again tells you
where the Republican Party was 1986
Chief Justice burger stepped down Reagan
elevating William Rehnquist from
Associate Justice to Chief Justice
a Ronald and Antonin Scalia was named to
fill that see no question conservative
justice said conservative justice now
again just a point that I think is
especially relevant to the work that you
do is that the conservative movement in
the courts by and large is a more
authoritarian conservative movement than
a libertarian conservative movement you
know that that's a real split in the
contemporary Republican Party between
the sort of Rand Paul libertarians and
the more traditional you know Pro law
enforcement wing of the Republican Party
well at least as far as the courts are
concerned it is very much the
authoritarian wing of the party so as
you think about Republicans on the
Supreme Court they are largely a
pro-government suspicious of civil
liberties claim kind of Republicans that
was certainly true of Reagan's
appointments it's and as you'll see it's
certainly true of george w bush's
appointments as well so 1986 Scalia goes
on the court 1987 a key moment in the
history of the Supreme Court you know
ever since the war in court as i said
the courts been evenly divided and
there's been one swing justice one
justice in the middle who decides the
outcome of a lot of cases and in the 80s
it was Lewis Powell so Powell left in 87
and that left a key vacancy on the court
in what in Ronald Reagan do he nominated
Robert work and the country really for
the only time in our lifetime had a
national conversation about what the
Constitution man because it worked was
brilliant bore was accomplished he was
prolific he's an honorable man but he's
very very conservative and he had said
things like the civil rights act was a
monstrous thing and there was no right
to privacy in the Constitution and
that something important had happened
between the confirmation of Scalia and
the nomination of Borg the following
year in the midterm elections of 1986
the Democrats we took a control of the
United States Senate and so the chairman
of the Judiciary Committee in 1987 was
no longer Strom Thurmond of South
Carolina but instead a young senator
from Delaware named Joseph Biden and
Biden engineered hearings on Bork that
really were a searching inquiry into
Bork's views and Bork's view probably to
his dismay he answered all their
questions he didn't dodge them the way
subsequent nominees have and the court
this is the Senate said it to be
conservative and he was voted down 58 to
42 in Ronald Reagan facing political
reality nominated someone who was not as
conservative and that was Anthony
Kennedy who is no liberal but is
certainly not as conservative work would
be and that really set the stage for the
ring for the rehnquist Court which I
wrote about in my in my book the nine
and you know when I started work on the
nine I was inspired by a book that I'm
sure is familiar to some of you the
Brethren by Bob Woodward which was
really the first behind-the-scenes book
on the Supreme Court which said that you
know the court had all sorts of terrible
internal rivalries everybody didn't like
Warren burger if you know anything about
the history of the Supreme Court a lot
of the justices have hated each other
over the years you know William O
Douglas a cantankerous liberal who
served on the court longer than anyone
in history one summer he had a car
accident drove was a car off of a cliff
in Washington State the first question
everybody asked fact the Supreme Court
was where was Felix Frankfurter at the
time because they hated each other so
much but Rehnquist was very popular
among his colleagues why well he
engineered a tremendous reduction in the
courts workload in the 80s the Supreme
Court was deciding about 150 cases a
year
and by the 90 but by the time rink was
died in 2005 they were deciding about 72
cases a year do the math 70 cases / 9
justices / for law clerks apiece it's a
cushy job being on the Supreme Court no
wonder they live so long right in the
80s there was a proposal to add there
was so much work for the Supreme Court
to add a sort of a super appeals court
underneath the the Supreme Court and it
went to the White House for evaluation
and the white house counsel at the time
assigned a young lawyer on his staff
named John Roberts to write a memo about
this proposal and this is what young
John Roberts wrote while some of the
tales of woe emanating from the court
are enough to bring tears to the eyes it
is true that only Supreme Court justices
and schoolchildren are expected to and
do take the entire summer off now the
chief justice doesn't talk this way
anymore the summer off looks good from
where any sitting and the court remains
basically a congenial place and while
you are here in Washington I urge you if
you can go see a Supreme Court argument
because it's really the best free show
in town notwithstanding because it's my
remarks here today although hot this is
not created you but and there is of
course one very well known fact about
Supreme Court oral arguments that is
that there are eight justices who are
very engaged and very prepared and asked
lots of hard questions and Clarence
Thomas never says anything now februari
22nd which just passed was the eighth
anniversary eight years since Justice
Thomas last I've asked a question at the
Supreme Court but it is it is true that
he is a full of the full participant in
the courts deliberations and he asked
and he writes as many opinions as anyone
else and the court remains and he's a
congenial member of the court but you
know in thinking about the rehnquist
court it is useful to think about the
court in two departments 1986 22
thousand and two thousand to two
thousand five and the dividing point in
the history of the Supreme Court it in
many respects to this day a dividing
point in the history of our country is
the court's decision in Bush v Gore now
I admit I am somewhat obsessed even
today with Bush v Gore you know Justice
Scalia does a lot of public speaking and
and he often you know gets a kind of
hostile question oh yeah what about bush
v gore and he always says the same thing
Oh get over well I'm not over it you
know when I my last book before the nine
was a book called too close to call I
wrote a whole book about the recount for
that book I tried to interview Al Gore I
really wanted to interview Al Gore talk
about you know interviewing for this
obviously you want to talk to him well
we would talk to me didn't want to
relive the experience so I wrote the
book with that well while I was working
on the nine I I met al gore at a social
occasion and I said you know mr. vice
president you're not going to believe
this I'm writing another book where Bush
v Gore is at the center of it I said I
think I must be the biggest Bush v Gore
junkie in the world and he said to me
you may be seconded uh which you know
you got it you got to give him a not for
that well um as you I believe you know
which one that case and became president
and something important happened at the
Supreme Court from two thousand and two
thousand five but the court moved to the
left the court got more liberal think
about the big decisions of that period
they ended the death penalty for the
mentally and did the death
penalty for juvenile offenders they
decided Lawrence v Texas the case that
said gay people could no longer be
thrown in prison for having consensual
sex and they rejected the Bush
administration's position on Guantanamo
Bay and the history of and the treatment
of the detainees in there all of them
liberal decisions why because justice
O'Connor who was the swing vote of that
period became more and more alienated
the modern Republican Party she didn't
like John Ashcroft she didn't like the
war on terror she didn't like the way
the war in Iraq was being conducted and
above all justice O'Connor was alienated
by an event it doesn't get talked about
a lot now but is I think a very
important event in the history of the
last decade which is the Terri Schiavo
case a case about we should make
critical decisions for critically ill
family members and it was precisely that
time that justice O'Connor was dealing
with the sad descent of her beloved
husband John into Alzheimer's disease so
it was not it was not just an academic
issue to her and eventually in his
second term George W Bush I did have a
chance to name two justices to the
Supreme Court and very quick succession
and and he named John Roberts and Samuel
Alito and finally the modern Republican
Party has his voice on the Supreme Court
and John Roberts is more conservative
than the man he replaced william
rehnquist and Samuel Alito is a lot more
conservative than justice O'Connor whom
he replaced and we see that in the
history of the modern decisions at the
court we have you know so many decisions
we're in a law enforcement with law
enforcement women's the death penalty it
is expanded acceptance sort of certain
circumstances certainly the the signal
is the signal decision of the Roberts
Court I think to this day is the
Citizens United case which has greatly
changed campaign finance laws
essentially begun not ended it be gone
the deregulation of American political
campaigns you know the crucial idea that
the Supreme Court has accepted is that
money is speech you know people talk a
lot about the corporations or people
that's actually a fairly minor and even
uncontroversial I
yeah I mean I work for CNN I work for
The New Yorker we are always waving the
First Amendment we want access to
proceedings we say see it as a person
Amendment right what we do corporations
do have First Amendment rights there is
nothing controversial particularly about
that but what is controversial is the
notion that in money is speech the idea
of giving money to a campaign is like
giving a political speech that suggests
that metaphor means that you can't
regulate it just like you can't regulate
speech so the court is in the process of
deregulating American politics on racial
issues this is a court deeply hostile to
a firm ative action in any kind and he
saw that at an extremely important
decision last year where the court
struck down the critical part of the
Voting Rights Act perhaps the most
important civil rights law of the past
50 years which is in many respects now a
non and non any state this law because
of what the Supreme Court did there are
exceptions notes people sometimes
described Justice Kennedy as a moderate
that's it that's really a mistake
Justice Kennedy is not a moderate he
actually has very extreme views he just
has somewhat idiosyncratic passions he
is someone who does believe there should
be limits on the death penalty so he
often sides with the four liberals the
four Democratic appointees on death
penalty cases and most importantly
Justice Kennedy is clearly a supporter
of gay rights and there have been three
important three only three decisions
about gay rights in history about issued
by the supreme court if the roamer case
in Colorado Lawrence v Texas which I
mentioned let and
and the the Windsor case striking down
the Defense of Marriage Act last year
all three kanic decisions were written
by Justice Kennedy but no one should
think because of that the Justice
Kennedy is somehow a member of the
liberal wing of the court it's just
simply not the case and the most
important thing any Supreme Court
justice can do is vote with his or her
feet in other words leave because
justices know that their departure gives
a president a chance to put his stamp on
the Supreme Court for a very long time
for the decades-long tenure and the most
important thing you can know about
justice Souter and justice Stevens these
two Republican appointees they gave
their precious seats on the court to a
democrat barack obama and he appointed
Sonia Sotomayor and Elena Kagan and it
is worth pausing to remember as I near
my conclusion here that the last three
justices to leave the Supreme Court
three more different human beings you
will never see Sandra Day O'Connor tis
tall charismatic outgoing former
politician from Arizona David Souter the
shy reclusive bachelor from New
Hampshire John Paul Stevens a wily
antitrust lawyer from from Chicago three
different personalities but they all had
one important thing in common they were
three moderate Republicans who left the
court completely alienated from the
modern Republican Party Souter and
Stephen so alienated that they gave
their see cease to a debt to a
democratic resident the blast saw I have
for you is what what is the future of
the Supreme Court well in the best law
school tradition I will answer that
question with a question who's going to
be the next president because that's the
only question that matters
when you think about the history of the
Supreme Court it is we are going to have
one kind of Supreme Court if Barack
Obama is followed by Hillary Clinton who
was followed by andrew Cuomo we're going
to have another kind of Supreme Court if
Marco Rubio is president followed by Ted
Cruz and I leave that thought with you
and look forward and look forward to
watching the future of it all unfold
thanks very much for having