Ellis H. Roberts

Transcription

[MUSIC] >> GOOD MORNING EVERYONE! AND WELCOME TO RADCLIFFE DAY 2015! AND WE DO HAVE A SPECTACULAR DAY. SO I'M SO HAPPY THAT YOU'RE HERE. I'M LIZ COHEN. I'M DEAN OF THE RADCLIFFE INSTITUTE FOR ADVANCED STUDY. [APPLAUSE] I KNOW THAT WAS FOR THE INSTITUTE. TODAY WE CELEBRATE RADCLIFFE PAST, PRESENT, AND FUTURE. AND WE HONOR JUSTICE RUTH BADER GINSBURG WHO WILL RECEIVE THE RADCLIFFE MEDAL THIS AFTERNOON. [APPLAUSE] IT IS A TRADITION TO BEGIN RADCLIFFE DAY WITH A PANEL DISCUSSION THAT CONNECTS DIRECTLY WITH THE LIFE'S WORK OF OUR HONOREE. THE PANEL IS NOT DEDICATED PURELY TO OUR MEDALIST'S SUCCESS, THOUGH THAT WOULD BE RICHLY DESERVED AND EASY TO DO. INSTEAD, WE EXPLORE THE COMPLEXITIES AND THE CHALLENGES FACED BY ANYONE WORKING TO CHANGE THE WORLD. THE RADCLIFFE MEDAL CELEBRATES THOSE WHO DO THE HARD WORK AND FIGHT THE GOOD FIGHT. THEY WIN MANY, BUT NOT ALL. LAST YEAR OUR RADCLIFFE MEDALIST WAS HARVARD PRESIDENT DREW GILPIN FAUST WHO IS HERE WITH US TODAY. [APPLAUSE] THE MORNING PANEL THAT RADCLIFFE DAY WAS TITLED FROM CIVIL WAR TO CIVIL RIGHTS, THE UNENDING BATTLE TO VOTE. AND IT FOCUSED ON THE HISTORY OF CIVIL RIGHTS AND ACCESS TO VOTING, IN HONOR OF DREW'S COMMITMENT TO SOCIAL JUSTICE. OUR EXPERT PANELISTS DISCUSSED MORE THAN A CENTURY OF CONTROVERSIAL VOTER ID LAWS, REDISTRICTING PLANS, AND COURT DECISIONS, ALONGSIDE SUCCESSFUL EFFORTS TO ENFRANCHISE MORE AMERICAN CITIZENS. THE YEAR BEFORE THAT WE HONORED JANE ALEXANDER, ACTOR, ARTS ADVOCATE, AND FORMER DIRECTOR OF THE NEA. ON THAT PANEL TITLED FROM ARTIST TO AUDIENCE, A POET, A PAINTER, A COMPOSER, A CURATOR, AND A THEATER DIRECTOR SPOKE. THEY SHARED THE CHALLENGES FACED BY BOTH EMERGING AND ESTABLISHED ARTIST TO PRODUCE NEW AND IMAGINATIVE WORK AMIDST ALL THE FUNDING OBSTACLES. AND THEY REMINDED US OF THE ENDURDING POWER OF CREATIVITY. CHIEF JUSTICE MARGARET MARSHALL, TODAYS MODERATOR, WAS AWARDED THE RADCLIFFE MEDAL THE PRIOR YEAR. THAT PANEL EXPLORED DYNAMIC BETWEEN THE LAW AND SOCIAL CHANGE. TITLED FROM FRONT LINES TO HIGH COURTS. ITS TOPICS RANGED FROM LABOR REFORM TO EDUCATIONAL ACCESS, TO MARRIAGE EQUALITY AND REPRODUCTIVE RIGHTS. IN THE COURSE OF DISCUSSING STIGMAS, SETBACKS, AND SUCCESSES, THE PANELISTS CONSIDERED THIS QUOTATION FROM MARTIN LUTHER KING, JR. THE ARC OF THE MORAL UNIVERSE IS LONG, BUT IT BENDS TOWARD JUSTICE. BUT HOW DO WE MEASURE THAT ARC? ONE WAY IS BY UNDERSTANDING THE POINTS THAT GIVE ITS SHAPE AND DIRECTION. FOR THIS MORNING'S DISCUSSION WE ARE LOOKING AT DECISIONS AND DISSENTS IN THE FIRST DECADE OF THE ROBERTS COURT THAT MARK THE PATH OF THAT ARC AS IT MOVES THROUGH HISTORY. JOHN G. ROBERTS WAS NOMINATED TO THE POSITION OF CHIEF JUSTICE BY THEN PRESIDENT GEORGE W. BUSH IN 2005. AT THE TIME OF HIS CONFIRMATION, CHIEF JUSTICE ROBERTS SAID JUDGES ARE LIKE UMPIRES. UMPIRES DON'T MAKE THE RULES. THEY APPLY THEM. HE WENT ON TO SAY I WILL REMEMBER IT IS MY JOB TO CALL BALLS AND STRIKES, AND NOT TO PITCH OR BAT. IN THE TEN YEARS SINCE, THE ROBERTS COURT HAS MADE A LOT OF CALLS. THEY HAVE CALLED SAFE AND THEN CALLED OUT ON DOCTOR ASSISTED SUICIDE, VOTING RIGHTS, CAMPAIGN FINANCE REGULATIONS, AND REPRODUCTIVE HEALTH TO NAME ONLY A FEW. THIS MORNING OUR PANELISTS WILL HELP US DECIPHER THESE CALLS. AND I CANNOT THINK OF A BETTER UMPIRE THAN CHIEF JUSTICE MARGARET HILLARY MARSHALL. [APPLAUSE] MARGIE HAS HELD MANY IMPRESSIVE TITLES, INCLUDING PARTNER AT CSAPLAR AND BOK, PARTNER AT CHOATE, HALL AND STEWART, PRESIDENT OF THE BOSTON BAR ASSOCIATION. GENERAL COUNCIL OF HARVARD UNIVERSITY. AND OF COURSE CHIEF JUSTICE OF THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. WE LIKE TO THINK THAT RADCLIFFE MEDALIST IS ALSO ONE OF HER PRIZED TITLES. AND WE ARE HONORED THAT SHE WILL BE GIVING HER PAPERS TO OUR SCHLESINGER LIBRARY. [APPLAUSE] AS AN ASIDE, LET ME PROUDLY MENTION THAT THE SCHLESINGER LIBRARY HAS A NEW FACULTY DIRECTOR. AND SHE IS WITH US TODAY. HISTORIAN AND AUTHOR JANE KAMENSKY WILL BE JOINING THE RADCLIFFE INSTITUTE AND THE HISTORY DEPARTMENT AT HARVARD IN THE FALL. [APPLAUSE] THE SCHLESINGER LIBRARY'S MARSHALL PAPERS WILL BE A REMARKABLE RESOURCE FOR ALL WHO ARE INTERESTED IN CHIEF JUSTICE MARSHALL'S VALUES AND VIEWS. DURING HER 14 YEAR TENURE AS CHIEF JUSTICE, SHE AUTHORED MORE THAN 300 OPINIONS. THE BEST KNOWN IS LIKELY GOODRIDGE V. DEPARTMENT OF PUBLIC HEALTH, WHICH IN 2003 MADE MASSACHUSETTS THE FIRST STATE TO LEGALIZE MARRIAGE FOR SAME SEX COUPLES. [APPLAUSE] THIS IS A DECISION THAT REVERBERATES MORE THAN A DECADE LATER, AS YOU CAN SEE. INCLUDING VERY RECENTLY IN THE CHAMBERS OF THE ROBERTS COURT, AS WELL AS GLOBALLY WITH LAST WEEK'S VOTE IN IRELAND. [APPLAUSE] MARGIE RETIRED FROM HER POSITION AS CHIEF JUSTICE IN 2011. BUT HER WORK IS FAR FROM DONE. SHE TEACHES AT HARVARD LAW SCHOOL, SHE SERVES AS SENIOR COUNSEL AT CHOATE, HALL, AND STEWART, AND SHE CONTINUES TO SHAPE OUR APPRECIATION FOR AND UNDERSTANDING OF THE JUDICIARY. SO IT IS WITH GREAT PLEASURE AND GRATITUDE THAT I ASK YOU TO JOIN ME IN WELCOMING THIS MORNING'S MODERATOR MARGARET MARSHALL. [APPLAUSE] AND OF COURSE WELCOME OUR GUEST OF HONOR, OUR HONOREE. [CHEERS AND APPLAUSE] >> GOOD MORNING EVERYONE. AND FOR THOSE OF YOU AT THE BACK, YOU MAY NOT HAVE UNDERSTOOD THAT JUSTICE RUTH BADER GINSBURG JUST ARRIVED AND I FRANKLY DON'T THINK THAT WAS A SUFFICIENTLY WARM WELCOME, SO COULD YOU PLEASE WELCOME AGAIN JUSTICE. [CHEERS AND APPLAUSE] >> MARGARET MARSHALL: THANK YOU. JUSTICE GINSBURG, IT IS WONDERFUL TO HAVE YOU HERE. WE ARE GOING TO PROCEED THIS MORNING BY TALKING ABOUT THE PAST TEN YEARS OF YOUR COURT, AND DISCUSS SOME OF THE DECISIONS THAT HAVE COME DOWN IN THAT TIME. ONE OF THE QUESTIONS I THINK ALWAYS IS DOES A CHIEF JUSTICE MAKE ANY DIFFERENCE. I DON'T REALLY KNOW ABOUT THAT. [LAUGHTER] BUT I DO KNOW WE DO TALK ABOUT THE WARREN COURT AND THE BURGER COURT, AND THE REHNQUIST COURT. AND WE THOUGHT AFTER TEN YEARS OF CHIEF JUSTICE ROBERTS, WE COULD TALK A LITTLE BIT ABOUT THE ROBERTS COURT. THIS MORNING WE HAVE FOUR EXTRAORDINARY PEOPLE WHO REALLY KNOW A LOT ABOUT WHAT GOES ON IN THE UNITED STATES SUPREME COURT. THREE OF THEM BECAUSE THEY WORKED FOR JUSTICES ON THE UNITED STATES SUPREME COURT. THREE DIFFERENT JUSTICES. AND ONE OF THEM, BECAUSE FOR 30 YEARS SHE FOLLOWED EVERY MOVEMENT, EVERY SYLLABLE, EVERY SENTENCE OF THE ROBERTS COURT. AND I HAVE TO SAY, LINDA GREENHOUSE, THAT YOU KNOW MORE INSIDE STUFF THAN ANYBODY I KNOW. BUT SHE WILL TELL YOU THAT SHE NEVER GOT ANY OF IT FROM THE LAW CLERKS. AND I THINK THAT'S PROBABLY CORRECT. WHAT WE DECIDED TO DO IS HAVE A VERY SIMPLE FORMAT, WE'VE HAD SOME WONDERFUL DISCUSSIONS LEADING UP TO THIS. EACH OF THE THREE, JOHN MANNING, AND LINDA GREENHOUSE, AND LAUREN SUDEALL LUCAS ARE GOING TO PRESENT THREE CASES, AND THEN THE FOUR OF THEM ARE GOING TO DISCUSS DURING AND AFTER. AND THEN PROFESSOR KLARMAN WHO CLERKED FOR JUSICE GINSBURG IS GOING TO MAKE A FEW REMARKS BEFORE WE ADJOURN TO LUNCH. SO, PROFESSOR MANNING. >> JOHN MANNING: THANK YOU VERY MUCH CHIEF JUSTICE MARSHALL. I WANT TO THANK DEAN COHEN AND THE RADCLIFFE INSTITUTE FOR PUTTING ON THIS WONDERFUL EVNET, AND TO THANK CHIEF JUSTICE GINSBURG FOR BEING HERE AND TO CONGRATULATE HER ON THE LATEST IN A LONG SERIES OF MANY WELL DESERVED HONORS. I'M HERE TO TALK ABOUT THE SUPREME COURTS FAMOUS DECISION IN NATIONAL FEDERATION OF INDEPENDENT BUSINESS V. SEBELIUS. THE CASE GOT A LOT OF HEADLINES FOR A COUPLE OF REASONS. FIRST AT THE MOST BASIC LEVEL IT UPHELD THE CONSTITUTIONALITY OF THE AFFORDABLE CARE ACT, OR AS THE PRESS LIKES TO CALL IT OBAMACARE. THAT WAS A BIG DEAL IN AND OF ITSELF. THE COURT SAYS THAT CONGRESS HAS THE CONSTITUTIONAL AUTHORITY TO ORDER YOU OR ME TO BUY HEALTH INSURANCE, OR PAY A FEE OR FINE IF WE DON'T. CONGRESS HAD NEVER QUITE DONE ANYTHING LIKE THAT BEFORE, SO THE DECISION ITSELF WAS A BIG DEAL. SECOND, THE COURT DIVIDED IN A KIND OF GOOFY, INTERESTING, AND REVEALING WAY. [LAUGHTER] YOU KNOW, ONE THAT MADE PEOPLE KIND OF SCRATCH THEIR HEADS AND SAY WHAT'S GOING ON. CHIEF JUSTICE ROBERTS WAS AT THE CENTER OF ALL OF THIS. IN ONE PART OF HIS OPINION THE COURT SAID THAT THE INDIVIDUAL MANDATE COULD BE JUSTIFIED UNDER CONGRESS' POWER TO TAX. UNDER THE CONSTITUTIONAL TAXING POWER EVEN THOUGH CONGRESS HAD NOT CALLED THE THING A TAX. THERE CHIEF JUSTICE ROBERTS WAS JOINED BY THE COURT'S FOUR DEMOCRATIC APPOINTEES. IN ANOTHER PART OF THE CHIEF JUSTICE'S OPINION HE WROTE THAT THE INDIVIDUAL MANDATE COULD NOT JUSTIFIED AS AN EXERCISE OF CONGRESS' POWER TO QUOTE REGULATE COMMERCE AMONG THE SEVERAL STATES. IN OTHER WORDS OBAMACARE PASSED MUSTER UNDER THE TAXING CLAUSE BUT FLUNKED THE COMMERCE CLAUSE. THOUGH NO OTHER JUSTICE JOINED THE CHIEF'S OPINION ON THE COMMERCE CLAUSE, THE COURT'S FOUR OTHER REPUBLICAN APPOINTEES WROTE A JOINT DISSENT THAT ESSENTIALLY SAID THE SAME THING AS THE CHIEF JUSTICE DID. THIS IS AN ODD TURN OF EVENTS. USUALLY IF THE COURT FINDS THAT CONGRESS HAS THE POWER TO DO SOMETHING UNDER ONE CLAUSE OF THE CONSTITUTION, IT DOESN'T BOTHER TO OPINE ON WHETHER IT HAS THE POWER TO DO THE SAME THING UNDER ANOTHER CLAUSE OF THE CONSTITUTION. WE CALL THIS A DICTUM. AND THE COURT ISN'T SUPPOSED TO WRITE ON ABSTRACT QUESTIONS THAT DON'T AFFECT THE OUTCOME OF THE DECISION. BUT TODAY I'M ACTUALLY GOING TO TALK ABOUT THE DICTA IN THE CHIEF JUSTICE'S OPINION ABOUT THE COMMERCE CLAUSE, BECAUSE I THINK THAT PART OF THE CHIEF'S OPINION CRYSTALLIZES THE ROBERTS COURT'S APPROACH TO FEDERAL CASES MORE GENERALLY. I THINK THIS COURT LIKE ITS PREDECESSOR, THE REHNQUIST COURT FEELS VERY COMFORTABLE SECOND GUESSING CONGRESS' LEGISLATIVE JUDGMENTS ABOUT HOW TO CARRY ITS POWERS INTO EFFECT BASED ON THE COURT'S OWN ABSTRACT ASSESSMENTS OF THE VERY BROAD CONSTITUTIONAL PRINCIPLE OF FEDERALISM OR RESERVED STATE POWERS. NOW IT'S IMPORTANT TO ACKNOWLEDGE UP FRONT THAT THE CHIEF JUSTICE AND THE JOINT DISSENT AT LEAST PROPORTED TO REST ON THE TEXT OF THE COMMERCE CLAUSE. AS YOU MIGHT THINK. THEY WANTED TO POINT TO SOME PART OF THE CONSTITUTION THAT WAS AN ISSUE. THEY ARGUED BECAUSE THE INDIVIDUAL MANDATE TOLD PEOPLE SITTING AT HOME MINDING THEIR OWN BUSINESS TO GO OUT AND BUY SOMETHING, THAT THERE WAS SIMPLY NO COMMERCE HERE FOR CONGRESS TO REGULATE. IN OTHER WORDS, WHAT THEY SAID WAS IN THE STATUTE THAT CONGRESS CREATED RATHER THAN REGULATED COMMERCE, AND THAT THAT WAS NOT PERMISSIBLE. LOOK, THIS IS AN INGENIOUS ARGUMENT. INGENIOUS. BUT IT DOESN'T HOLD WATER. [LAUGHTER] AND HERE'S WHY. THE OBAMACARE STATUTE IS ALL ABOUT INTERSTATE COMMERCE. EVEN IF I'M SITTING AT HOME MINDING MY OWN BUSINESS NOT BUYING ANYTHING MUCH LESS INSURANCE, THERE IS A MASSIVE INTERSTATE HEALTH INSURANCE MARKET OPERATING ALL AROUND ME. AND THE INDIVIDUAL MANDATE UNQUESTIONABLY AND QUITE DIRECTLY REGULATES THAT INTERSTATE MARKET. AND HERE'S HOW. A DIFFERENT AND UNCONTESTED SECTION OF THE ACA SAYS THAT YOU AND I HAVE THE RIGHT TO GO OUT AND BUY INSURANCE, EVEN IF WE HAVE PREEXISTING CONDITIONS. SO IF I'M A HEALTHY YOUNG PERSON, WHY ON EARTH WOULD I BUY INSURANCE UNTIL I NEEDED IT? THAT IS TO SAY UNTIL I ACTUALLY GOT SICK. THIS INCENTIVE THREATENED TO DRAIN THE HEALTHIEST PEOPLE OUT OF THE RISK POO IN THE INTERSTATE HEALTH INSURANCE MARKET. AND THE INDIVIDUAL MANDATE REGULATES THE INTERSTATE COMMERCE AND INTERSTATE HEALTH INSURANCE MARKET BY PUSHING THOSE POTENTIAL FREE RIDERS BACK INTO THE RISK POOL, PLAIN AND SIMPLE. SO IF IT'S NOT THE TEXT OF THE COMMERCE CLAUSE THAT'S REALLY DOING THE WORK HERE, WHAT IS IT? CERTAINLY NO CLAUSE OF THE CONSTITUTION TELLS CONGRESS THAT IT CAN'T MANDATE INDIVIDUAL BEHAVIOR. NOR IS THERE ANY UNSTATED CONSTITUTIONAL TRADITION OR PRACTICE OR LINE OF PRECEDENT THAT PROHIBITS CONGRESS FROM ORDERING PEOPLE TO BUY THINGS IF DOING SO WOULD HELP CONGRESS REGULATE INTERSTATE COMMERCE. SO WHAT EXPLAINS THE CHIEF JUSTICE'S AND THE JOINT DISSENT'S POSITION? A COUPLE OF THINGS. FIRST, AS I MENTIONED, CONGRESS HAD NEVER DONE ANYTHING QUITE LIKE THIS BEFORE. FOR THE JUSTICES WHO WERE SKEPTICAL OF THE COMMERCE POWER JUSTIFICATION FOR THE STATUTE, THE ABSENCE OF A PREEXISTING PRACTICE OF, LIKE THE INDIVIDUAL MANDATE, WAS QUOTE THE MOST TELLING INDICATION OF A CONSTITUTIONAL ISSUE OR A CONSTITUTIONAL INFIRMITY. SECOND, THE STATUTE REFLECTED A LARGE EXPANSION OF FEDERAL POWER. AND THE CHIEF JUSTICE'S WORDS QUOTE ALLOWING CONGRESS TO JUSTIFY FEDERAL REGULATION BY POINTING TO THE EFFECT OF INACTION ON COMMERCE WOULD BRING COUNTLESS DECISIONS AN INDIVIDUAL COULD POTENTIALLY MAKE WITHIN THE SCOPE OF FEDERAL REGULATION AND EMPOWER CONGRESS TO MAKE THOSE DECISIONS FOR HIM. TO PUT IT COLLOQUIALLY, IF CONGRESS CAN MAKE US BUY INSURANCE, IT CAN ALSO MAKE US EAT OUR SPINACH. ACTUALLY THE COURT SAID BROCCOLI. BUT YOU GET THE IDEA. THAT THE CHIEF JUSTICE WROTE IS NOT THE COUNTRY THE FRAMERS' OF OUR CONSTITUTION ENVISIONED. AT ONE LEVEL THE CHIEF JUSTICE IS QUITE RIGHT ABOUT THAT. THIS IS NOT THE COUNTRY THE FRAMERS ENVISIONED. BUT THAT'S NOT REALLY THE LEGALLY RELEVANT POINT. EVEN FOR ORIGINALISTS. THE FRAMERS OBVIOUSLY DIDN'T ANTICIPATE A COUNTRY OF 320 MILLION PEOPLE, A GLOBAL ECONOMY, UBER CARS, APPLE WATCHES, OR EVEN AN INTERSTATE HEALTH INSURANCE MARKET. WHAT THEY DID ANTICIPATE WAS THIS. THAT THEY COULDN'T FORESEE THE FUTURE. AND THEY EXPLICITLY PROVIDED FOR THAT REALITY IN THE DESIGN OF THE CONSTITUTION. AND HERE'S WHAT THEY DID. THEY DID SO BY GIVING CONGRESS PRIMARY AND BROAD AUTHORITY TO ADAPT FEDERAL POWER TO UNFORESEEABLE CHANGE. AS THAT OTHER CHIEF JUSTICE MARSHALL SAID IN A FAMOUS OPINION CALLED McCULLOCK VS. MARYLAND WHICH UPHELD CONGRESS' POWER TO CREATE A CENTRAL BANK, THE FRAMERS KNEW THEY COULD NOT DEVISE A COMPLEX SET OF RULES FOR A CONSTITUTION INTENDED TO ENDURE FOR THE AGES. THEY DID SET OUT SOME RULES. THE PRESIDENT HAS TO BE 35. LEGISLATION HAS TO PASS 2 HOUSES. EACH STATE GETS TWO SENATORS AND SO FORTH. AND THOSE RULES CONGRESS CAN'T MESS WITH NO MATTER HOW THE WORLD CHANGES. BUT FOR MOST ASPECTS OF OUR GOVERNMENT, THE FRAMERS SAID VERY LITTLE. THEY MOSTLY LEFT THE DETAILS BLANK, AND THEY ADOPTED SOMETHING CALLED THE NECESSARY AND PROPER CLAUSE THAT GIVES CONGRESS PRIMARY AUTHORITY TO FILL IN THOSE BLANKS. AND CHIEF JUSTICE MARSHALL'S WORDS, QUOTE TO AVAIL ITSELF OF EXPERIENCE, TO EXERCISE ITS REASON, AND TO ACCOMMODATE LEGISLATION TO NEW CIRCUMSTANCES. IT WAS TO BE THE AMERICAN PEOPLE SPEAKING THROUGH CONGRESS AND NOT THE JUSTICES WHO WERE TO FIGURE OUT HOW, WHAT GOVERNMENT MEASURES WERE APPROPRIATE AS AMERICA PASSES INTO NEW AGES AND NEW WORLDS. SOMETHING LIKE THE INDIVIDUAL MANDATE OR WHATEVER THE NEXT INNOVATION MIGHT BE OFFENDS SOME PARTICULAR CONSTITUTIONAL TEXT OR LONG STANDING PRACTICE. IF CONGRESS WERE TO PASS A LAW AUTHORIZING MATURE 34 YEAR OLDS TO BECOME PRESIDENT, THEN THE COURT CAN AND MUST SAY NO. BUT IF THE COURT HAS LITTLE MORE TO GO ON THAN ITS OWN SENSE THAT THIS OR THAT ARRANGEMENT IS TOO NOVEL, THAT IT GIVES CONGRESS TOO MUCH POWER, OR IT IS SOMETHING THAT THE FRAMERS WOULD NOT HAVE COUNTENANCED IN THE WORLD THAT THEY KNEW, THEN THE COURT IS MAKING A JUDGMENT CALL THAT THE CONSTITUTION EXPLICITLY RESERVES TO CONGRESS. IN CASES LIKE SEBELIUS IT IS PRECISELY THIS ALLOCATION OF DECISION MAKING POWER THAT SHOULD BE FOREMOST IN THE COURT'S DELIBERATIONS. THANK YOU VERY MUCH. [APPLAUSE] >> MARGARET MARSHALL: THANK YOU JOHN. AND I DO HAVE TO SAY I DID SEE YOU REACHING FOR THE SPINACH QUICHE THIS MORNING. AS YOU KNOW, WHAT WE'RE GOING TO DO IS GO BACKWARDS AND FORWARDS BETWEEN QUESTIONS FROM AMONG OURSELVES, AND ALSO QUESTIONS FROM YOU. THERE ARE NOTE CARDS IF YOU HAVE ANY PLEASE PASS THEM ALONG AND SOMEBODY WILL COME AND PICK THEM. RAISE YOUR HAND. AND THE PEOPLE AT THE BACK, IF YOU CAN'T HEAR, PLEASE WAVE LIKE CRAZY AND WE'LL TRY TO FIX THAT. I HAVE ONE QUESTION, AND ANY OF THE THREE OF YOU CAN ANSWER IT. ONE OF THE POINTS THAT JOHN MADE IS THAT THIS COURT, THE ROBERTS COURT HAS BEEN SECOND GUESSING CONGRESS' POWER TO A REMARKABLE EXTENT. IS THIS NEW? I MEAN FOR THOSE OF US WHO THINK ABOUT THE PRE NEW DEAL, IS THIS A DIFFERENT WAY THAT THE COURT IS VIEWING ITS RELATIONSHIP WITH ANOTHER BRANCH? MICHAEL? IF YOU DON'T WANT TO TALK, LAUREN. >> MICHAEL KLARMAN: IT'S NEW, BUT IT'S NOT BRAND NEW. THE SUPREME COURT RARELY CHALLENGE CONGRESSIONAL LEGISLATION IN THE 19TH CENTURY. THEY STRUCK DOWN A STATUTE IN MARBURY VS. MADISON, THE FIRST CASE TO DECLARE THE POWER OF JUDICIAL REVIEW. THEY DIDN'T STRIKE DOWN ANOTHER FEDERAL STATUTE UNTIL DRED SCOTT. THE INFAMOUS CASE OF CONGRESS TRYING TO KEEP SLAVERY OUT OF THE MISSOURI COMPROMISE TERRITORY. THE TERRITORY ACQUIRED IN THE LOUISIANA PURCHASE. BUT CONGRESS, THE COURT RARELY STRUCK DOWN CONGRESSIONAL LEGISLATION UNTIL THE 20TH CENTURY. IT'S SOMETHING THAT HAS HAPPENED FAIRLY REGULARLY IN THE LAST 40 YEARS. I DON'T THINK IT'S DISTINCTIVE TO THE ROBERTS COURT. >> MARGARET MARSHALL: OTHER COMMENTS? >> WHAT'S ALWAYS INTRIGUED ME ABOUT THE CHIEF JUSTICE'S ROLE IN SEBELIUS IN WHAT MOTIVATED HIM TO BOTH GRATUITOUSLY EXPRESS HIS VIEWS ON THE COMMERCE CLAUSE, AND JUSTICE GINSBURG WROTE A FABULOUS DISSENTING OPINION ON THAT CASE. POINTING OUT THAT ENITRE COMMERCE CLAUSE DISPOSITION WAS GRATUITOUS. WHAT MOTIVATED HIM TO DO THAT AND THEN TO PULL BACK AND FIND A DEUS EX MACHINA IN THE FORM OF THE TAX POWER TO SAVE THE STATUTE AND MAYBE SAVE THE COURT. I DON'T KNOW, WHAT DO YOU THINK? >> I FIND IT A PUZZLE. [LAUGHTER] >> MARGARET MARSHALL: ALSO KNOWN AS TAKING THE 5TH AMENDMENT. [LAUGHTER] >> THERE'S ONE PERSON IN THIS TENT WHO KNOWS THE ANSWER AND SHE'S NOT TELLING US. [LAUGHTER] >> MARGARET MARSHALL: ON THAT NOTE, MS. GREENHOUSE, WOULD YOU LIKE TO PROCEED WITH YOUR CASE? PARENTS INVOLVED. >> OKAY, I HAVE LESS OF A FORMAL ACADEMIC PRESENTATION THAN JOHN DID. BUT WHAT I'M GOING TO SAY IS NOT DISCONNECTED FROM HIS PRESENTATION. I'M NOT GOING TO GO THROUGH THE DETAILS OF THE CASE. I URGE YOU TO READ MY CAREFULLY WRITTEN LITTLE SUMMARY IN THIS BLUE BOOKLET. EXAMPLE OF JUDICIAL ACTIVISM IN ANOTHER FRAME. THIS WASN'T THE COURT AGAINST CONGRESS. THIS WAS THE COURT AGAINST LOCAL CONTROL OF THE PUBLIC SCHOOLS. THE ROBERTS COURT HAS HAD MAYBE 700 DECISIONS ON THE MERITS IN THE 10 YEARS. ADN THE WAY THIS PANEL WAS ORGANIZED WAS THAT CHIEF JUSTICE MARSHALL INVITED EACH OF US TO SELECT ONE CASE TO TALK ABOUT. SO WHY DID I CHOOSE PARENTS INVOLVED? I CHOSE IT BECAUSE I THINK IT'S VERY EMBLEMATIC OF A DISTURBING ASPECT OF THE ROBERTS COURT. I HATE TO USE THE CLICHED WORD ACTIVISM. IT WAS ASSERTION OF JURISDICTION BY THE COURT TO EVEN DECIDE THIS CASE. SO YOU KNOW THE BASIC METRIC THAT THE COURT APPLIES IN DECIDING WHETHER IT SHOULD EXERCISE ITS ALMOST COMPLETE DISCRETION ON WHAT TO DECIDE IS WHETHER THERE'S A CASE THAT PRESENTS A CONFLICT AMONG THE LOWER COURTS ON AN IMPORTANT MATTER OF FEDERAL LAW. THERE ACTUALLY WAS NO CONFLICT ON THE QUESTION OF WHETHER A SCHOOL BOARD SEEKING TO PRESERVE INTEGRATION, NOT TO PRESERVE SEGREGATION, TO PRESERVE THE HARD WON GAINS OF INTEGRATION ACHIEVED THROUGH STRUGGLE AND FEDERAL COURT SUPERVISION AND IN THESE CASES BUSING ORDERS AND SO ON. THEY FINALLY GET A MEASURE OF INTEGRATION AND THEY WANT TO KEEP IT. AND THERE ARE RESIDENTIAL HOUSING PATTERNS THAT MAKE IT VERY DIFFICULT TO KEEP IT. THERE ARE SOCIAL TRENDS THAT MAKE IT VERY DIFFICULT TO KEEP IT. SO IN THIS CASE, BOTH THE CITY, AND THE SCHOOL BOARD OF LOUISVILLE, KENTUCKY. OF COURSE ONCE A SEGREGATED CITY. AND THE SCHOOL BOARD OF SEATTLE, WASHINGTON. NEVER SEGREGATED. BUT HIGHLY RACIALLY ISOLATED SCHOOLS BECAUSE OF HOUSING PATTERNS HAD BEEN UNDER COURT ORDERS FOR MANY YEARS. DECIDED THAT IN MODEST WAYS IN TERMS OF STUDENTS DECIDING THAT THEY WANTED TO TRANSFER FROM ONE SCHOOL TO ANOTHER, OR CHOOSING ONE HIGH SCHOOL OR ANOTHER HIGH SCHOOL, THE SCHOOL BOARD WAS ENTITLED TO TAKE RACE INTO ACCOUNT TO PRESERVE, TO PREVENT A RETURN TO RACIALLY ISOLATED SCHOOLS AND CLASSROOMS. THIS ISSUE HAS COME UP AROUND THE COUNTRY, AND THE LOWER COURTS ALL AGREED THIS WAS SOMETHING THAT SCHOOL BOARDS COULD CHOOSE TO DO FOR THIS BENIGN PURPOSE. BEFORE JUSTICE O'CONNOR LEFT THE COURT IN LATE 2005, SUCH A CASE CAME UP TO THE COURT FROM THIS REGION TO THE FIRST CIRCUIT, AND THE COURT DECIDED NOT TO HEAR IT. BECAUSE IT DIDN'T MEET THE USUAL TESTS OF CONFLICT IN THE CIRCUIT. AS SOON AS O'CONNOR LEFT THE COURT, IN EARLY 2006, THESE TWO CASES MADE THEIR WAY ONTO THE COURT'S DOCKET. AND THE COURT DECIDED EVEN THOUGH IT DIDN'T MEET THE USUAL CHARACTERISTICS FOR A WORTHY CASE, THE COURT DECIDED TO TAKE IT. WHAT DID THEY DECIDE? IN AN OPINION FOR FOUR JUSTICES BY CHIEF JUSTICE ROBERTS THE COURT SAID THIS IS BASICALLY JUST BROWN VS. BOARD OF EDUCATION FROM THE OTHER SIDE. THIS IS GOVERNMENT COUNTING BY RACE. WE CAN'T DO THAT. THE CITIES OF LOUISVILLE AND SEATTLE HAD NO COMPELLING INTEREST. AND COMPELLING INTEREST IS THE TEST FOR UNDER THE 14TH AMENDMENT'S EQUAL PROTECTION GUARANTEE WHERE THE GOVERNMENT CAN JUSTIFY CLASSIFYING PEOPLE BY RACE. THERE'S NO COMPELLING INTEREST IN PRESERVING INTEGRATION. HE WROTE FOR ONLY 4 BECAUSE JUSTICE KENNEDY WHO AGREED WITH THE OUTCOME, AND IN FACT HAS NEVER VOTED TO UPHOLD ANY RACIAL CATEGORIZATION ON THE PART OF THE SUPREME COURT SAID ACTUALLY IT'S A LITTLE MORE COMPLICATED THAN THAT. YOU MAY REMEMBER THE LINE WITH WHICH CHIEF JUSTICE ROBERTS ENDED HIS OPINION. HE SAID THE WAY TO GET BEYOND RACIAL DISCRIMINATING ON THE BASIS OF RACE IS TO STOP DISCRIMINATING ON THE BASIS OF RACE. THAT'S VERY DEEP AND PROFOUND. [LAUGHTER] AND JUSTICE KENNEDY SAID IT'S A LITTLE MORE COMPLICATED THAN THAT. HE SAID OF COURSE THE CITIES OF LOUISVILLE AND SEATTLE HAVE A COMPELLING INTEREST IN PRESERVING INTEGRATION. OBVIOUSLY THEY DO. THE PROBLEM THAT JUSTICE KENNEDY FOUND WITH THESE PLANS IS HE SAID THEY WEREN'T SUFFICIENTLY NARROWLY TAILORED. NARROW TAILORING IS THE OTHER MAIN ASPECT OF THE 14TH AMENDMENT ANALYSIS. THEY WEREN'T SUFFICIENTLY NARROWLY TAILORED TO MEET THE EQUAL PROTECTION DEMANDS OF THE 14TH AMENDMENT. BY THAT HE MEANT THERE WERE OTHER THINGS THAT THE SCHOOL DISTRICTS MIGHT HAVE DONE OTHER THAN CATEGORIZING STUDENTS ON THE BASIS OF RACE. A QUESTION OF WHERE SCHOOL DISTRICT LINES WERE DRAWN OR SCHOOLS WITH SPECIAL PROGRAMS THAT COULD ATTRACT PEOPLE AND SO ON AND SO ON. WHETHER THAT'S AT ALL REALISTIC ON THE GROUND I'M NOT IN A POSITION TO SAY. BUT IT WAS VERY INTERESTING. SO THE OTHER THING THAT INTERESTS ME ABOUT THE CASE OTHER THAN THE SHEER ACTIVISM OF TAKING IT IS THAT THE CHIEF JUSTICE WAS SO DETERMINED TO SAY WHAT HE WANTED TO SAY. TO USE THE CASE FOR THE PURPOSE FOR WHICH HE WANTED TO USE IT AND SAY NO COMPELLING INTEREST. AND THIS IS JUST BACKWARD BROWN VS. BOARD OF EDUCATION, HE WASN'T WILLING TO MEET JUSTICE KENNEDY WHERE JUSTICE KENNEDY WAS. ALL HE WOULD HAVE HAD TO SAY WAS WE DON'T HAVE TO DECIDE IF THIS IS WHAT HE WANTED TO SAY IS WE DON'T HAVE TO DECIDE IF THERE IS A COMPELLING INTEREST. ALL WE HAVE TO FIND IS THAT THIS REMEDY IS NOT NARROWLY TAILORED TO SERVE THAT INTEREST. THAT WOULD HAVE LET HIM SPEAK FOR A MAJORITY. IT WOULD HAVE NOT DECIDED THE MOST PROFOUND ISSUE IN THE CASE. AND SO THIS WAS EARLY IN THE ROBERTS COURT. IT WAS A 2007 DECISION. AND I THINK IT WAS A RATHER DISTURBING EARLY INDICATION OF HOW HE SAW HIS ROLE IN BOTH CARRYING OUT WHAT I CALL A ROBERTS PROJECT ON RACE, ON GETTING THE GOVERNMENT OUT OF THE BUSINESS OF COUNTING BY RACE FOR ANY REASON. AND SHELBY COUNTY, THE VOTING RIGHTS ACT CASE IS NOT ONE OF OUR CASES. BUT THAT WAS A MAJOR ONE. IT DISABLED APPLICATION OF THE HEART OF THE VOTING RIGHTS ACT. BUT ALSO HIS UNWILLINGNESS TO BEND A LITTLE BIT TO MEET JUSTICE KENNEDY WHERE JUSTICE KENNEDY WAS. I'LL CONCLUDE BY SAYING THAT IN THE INTERVENING YEARS, IN 2015, BECAUSE THIS WAS ALL THE WAY BACK IN 2007, I'M NOT SURE WE WOULD SEE THE SAME BEHAVIOR FROM JOHN ROBERTS TODAY. THIS SOUNDS CONDESCENDING, AND I DON'T MEAN FOR IT TO SOUND CONDESCENDING, I RESPECT THE MAN. HE HAS MATURED IN HIS ROLE AS CHIEF JUSTICE AND I THINK SEES THE VIRTUE OF NOT HAVING TO WIN EVERY CASE THAT HE CAN WIN. OR IN THIS CASE HE DIDN'T WIN ON THE COMPELLING INTEREST POINT. BUT RATHER TRY TO WORK A BIT OF A COMPROMISE. I THINK WE HAVE SEEN THAT IN RECENT YEARS IN VERY FASCINATING WAYS. INCLUDING JUST LAST TERM, THE CASE THAT STRUCK DOWN THE BUBBLE ZONE AROUND THE ABORTION CLINICS IN MASSACHUSETTS LAW. HE WROTE A QUITE TEMPERED OPINION THAT ALLOWED JUSTICE GINSBURG AND OTHERS TO JOIN HIS OPINION. I DON'T THINK WE WOULD HAVE SEEN THAT FROM THE EARLIER CHIEF JUSTICE ROBERTS. THAT'S WHY I CHOSE PARENTS INVOLVED. THAT'S WHY IT'S A CASE WORTH THINKING ABOUT AND KEEPING IN MIND AS THE ROBERTS COURT GOES FORWARD. >> THANK YOU LINDA. [APPLAUSE] >> MARGARET MARSHALL: SO LINDA, JUST TO REASSURE YOU, I HOPE THAT ALL CHIEF JUSTICES MATURE AS THEY GO ALONG. [LAUGHTER] I WANT TO TELL YOU SOME OF MY EARLY OPINIONS, BUT I'M NOT GOING TO TELL YOU WHICH ONES. [LAUGHTER] ONE OF THE THINGS THE UNITED STATES SUPREME COURT DOES IS IT TELLS OTHER FEDERAL COURTS. I HATE TO USE THE TERM LOWER FEDERAL COURTS, BUT WE OFTEN CALL THEM LOWER FEDERAL COURTS, WHAT TO DO. HAVE THERE BEEN CASES WHERE YOU CAN SEE THE FEDERAL COURTS BECOMING MORE ACTIVE BASED ON PARENTS INVOLVED? >> LINDA GREENHOUSE: NO, I WONDERED. >> MARGARET MARSHALL: YOU MENTIONED THE VOTING CASE. BUT JUST WHAT'S HAPPENING IN EDUCATIONAL SYSTEMS? >> LINDA GREENHOUSE: YEAH. NO, I DON'T HAVE A GOOD ANSWER FOR THAT. I HAVEN'T SEEN OTHER PARENTS INVOLVED TYPE CASES MAKING THERE WAY THROUGH THE SYSTEM. MY IMPRESSION IS THAT THINGS ARE GETTING WORKED OUT AT THE LOCAL LEVEL WITHOUT NECCESARILY GOING TO COURT. BUT WE HAVEN'T SEEN THE FINAL WORD ON AT ALL IS THE GENERAL QUESTION OF AFFIRMATIVE ACTION. IN HIGHER EDUCATION THERE'S A CASE PENDING ON THE COURT'S DOCKET THAT WE'LL HEAR ABOUT ANY DAY. WHETHER THE COURT IS GOING TO GET INTO FISHER VS. UNIVERSITY OF TEXAS. THE UNIVERSITY OF TEXAS AFFIRMATIVE ACTION CASE, WHICH THEY COULDN'T QUITE DECIDE TWO YEARS AGO, SENT BACK TO THE LOWER COURT. THE LOWER COURT SAID YEAH WE KIND OF STANDBY WHAT WE SAID BEFORE. SO THAT'S A BIG OPEN QUESTION WHETHER THE COURT IS GOING TO GET BACK INTO THAT. >> MARGARET MARSHALL: SURE. YOU TALKED, YOU SELECTED THIS COURT AS A WAY OF INDICATING THAT AT LEAST THE CHIEF JUSTICE, IF NOT THE COURT, WILL SORT OF REACH OUT AND BEND SOME OF THE JURISDICTIONAL RULES PERHAPS OR NOT LOOK AT THE WAY THEY USUALLY TAKE CASES AS AN EXAMPLE OF AN ACTIVIST CASE. AND YOU MENTIONED THE CHIEF JUSTICE'S PROJECT ON RACE. ARE THERE OTHER CASES LAUREN OR MIKE WHERE YOU THINK SHOW ONE WAY OR THE OTHER WHAT HIS VIEW ON RACE IS? >> LAUREN SUDEALL LUCAS: NOT TO HIJACK YOUR QUESTION, BUT TO RESPOND TO THAT QUESTION ALSO ABOUT THE IMPACT, THERE'S THE PRESIDENTIAL IMPACT, BUT I THINK THERE'S ALSO THE QUESTION OF SYMBOLIC IMPACT. BROWN VS. THE BOARD OF EDUCATION IS ARGUABLY ONE OF THE MOST IMPORTANT CASE THAT THE SPREME COURT HAS DECIDED FROM A SYMBOLIC PERSPECTIVE. IN PARENTS INVOLVED, TO TAKE A CASE THAT IMPORTANT AND SORT OF REDEPLOY IT IN A WAY THAT'S VERY DIFFERENT FROM I THINK MANY WILL SEE THE INTENTION OF BROWN IS REALLY QUITE SOMETHING. AND THE INTERPLAY BETWEEN THE OTHER OPINIONS IN THAT CASE IS REALLY STARTLING, AS WELL. YOU HAVE JUSTICE THOMAS COMPARING WHAT THE SCHOOL DISTRICTS IN LOUISVILLE AND SEATTLE ARE DOING TO WHAT THE SEGREGATIONISTS DID IN 1954. TO MAKE THOSE COMPARISONS, ITS SORT OF DIVORCED FROM INTENTION AND HISTORICAL CONTEXT, IT'S REALLY HARD TO GET ONE'S MIND AROUND. AND THE LINE THAT LINDA MENTIONED, THE WAY TO STOP DISCRIMINATION ON THE BASIS OF RACE IS TO STOP DISCRIMINATING ON THE BASIS OF RACE. I THOUGHT JUSTICE SOTOMAYOR HAS SUCH AN ELOQUENT RESPONSE 7 YEARS LATER WHEN SHE SAID THE WAY TO STOP DISCRIMINATING ON THE BASIS OF RACE IS TO SPEAK OPENLY AND CANDIDLY ABOUT RACE AND TO APPLY THE CONSTITUTION WITH EYES OPEN TO THE UNFORTUNATE EFFECTS OF CENTURIES OF RACIAL DISCRIMINATION. [APPLAUSE] SO I THINK PARENTS INVOLVED HAD A VERY IMPORTANT SYMBOLIC IMPORTANCE. IT HASN'T BEEN CITED, IT STILL HAD AN INDIRECT INFLUENCE BOTH ON THE COURTS AND ALSO THE PUBLIC AND THE WAY WE THINK ABOUT RACE MORE BROADLY. >> MICHAEL KLARMAN: I AGREE WITH THAT. I WANT TO ADD SOMETHING. LINDA'S POINT IS IT PROCEDURALLY ACTIVIST FOR THE COURT TO RESOLVE THIS QUESTION WHEN THERE WAS NO PRESSING NEED. IT'S ALSO IMPORTANT TO UNDERSTAND ITS SUBSTANTIVELY ACTIVIST. THE CONSERVATIVE JUSTICES WHO ARE THE ONES WHO WOULD INSIST THAT THE CONSTITUTION SHOULD BE COLOR BLIND ARE THE ONES WHO WOULD CRITICIZE THE COURT IF IT STRUCK DOWN AN ABORTION RESTRICTION OR PERHAPS IF THE COURT RULES IN FAVOR OF GAY MARRIAGE, THEY WOULD ACCUSE THE COURT OF BEING ACTIVISTS FOR READING THE CONSTITUTION IN A WAY THAT INTENDED BY THE PEOPLE WHO WROTE IT. BUT IT TURNS OUT THAT THE 14TH AMENDMENT WAS NOT CLEARLY INTENDED TO EMBRACE COLOR BLINDNESS. THERE IS NO GOOD HISTORICAL ARGUMENT THAT THAT'S WHAT THE PEOPLE WHO WROTE THE 14TH AMENDMENT INTENDED. AND THERE'S NOTHING IN THE TEXT OF THE 14TH AMENDMENT THAT TALKS ABOUT RACE SOME HOW BEING OFF LIMITS TO GOVERNMENT CLASSIFICATION. THE PEOPLE WHO WROTE IT IRONICALLY WERE TOO RACIST TO ACTUALLY SUPPORT A BAN ON RACE CLASSIFICATIONS. THEY SAID REPEATEDLY WHEN THEY WERE ADOPTING THE AMENDMENT THAT THIS DOESN'T MANDATE THAT YOU ENFRANCHISE BLACKS OR MANDATE THAT YOU END SCHOOL SEGREGATION. FROM THE PERSPECTIVE OF THE CONSERVATIVE JUSTICES, IF THE TEXT OF THE CONSTITUTION DOESN'T RULE OUT ANY PARTICULAR POLICY, AND THE ORIGINAL UNDERSTANDING OF THAT TEXT DOESN'T CLEARLY RULE OUT A PARTICULAR POLICY THEN YOU'RE SUPPOSED TO DEFER TO DEMOCRACY AND DEFER TO LOCAL GOVERNMENT. AND AS LINDA WAS SAYING, THIS IS AS LOCAL AS IT GETS. THIS IS A LOCAL SCHOOL BOARD ADOPTING AN INTEGRATIONIST POLICY. THIS IS ACTIVISM NOT JUST PROCEDURALLY BUT ITS SUBSTANTIVE ACTIVISM FROM THE RIGHT. >> MARGARET MARSHALL: GOOD. OKAY. [APPLAUSE] LINDA, LAST WORD, OR YOU'VE HAD YOUR SAY? OKAY. LAUREN, SO AGAIN LINDA SAID WE ASKED EACH OF THEM TO SELECT ONE OPINION OF THE TEN YEARS THAT INDICATED SOMETHING IMPORTANT. LAUREN? >> LAUREN SUDEALL LUCAS: THANK YOU. AND THANK YOU AGAIN DEAN COHEN AND THE RADCLIFFE INSTITUTE FOR HAVING ME HERE TODAY. THE CASE THAT I CHOOSE TO DISCUSS FOR MY PORTION OF THE DISCUSSION IS ASHCROFT VS. IQBAL. TO MANY OF YOU THIS CASE MAY NOT BE AS FAMILIAR BECAUSE IT WASN'T ONE THAT RECEIVED A LOT OF ATTENTION FROM THE MEDIA. OR AT LEAST NOT AS MUCH AS SOME OF THE OTHER CASES. BUT IT IS REALY IMPORTANT IN PART BECAUSE IT REPRESENTS AN EMERGING THEME OF THE ROBERTS COURT WHICH IS DEFINING THE ROLE THE COURT PLAYS IN MUCH NARROWER TERMS AND RESTRICTING PLAINTIFFS ACCESS TO THE COURTS AND ACCESS TO JUSTICE, PARTICULARLY FOR INDIVIDUAL AND PRO SLAVE PLAINTIFFS. THE CASES THAT MY CO-PANELISTS TODAY HAVE DISCUSSED TODAY HIGHLIGHT FOR GOOD REASONS SOME OF THE LARGER SOCIAL AND POLITICAL ISSUES THAT THE COURT HAS CONFRONTED OVER THE LAST DECADE. A LOT OF THE CASES THAT THE COURT HEARS HOWEVER INVOLVE PROCEDURAL AND JURISDICTIONAL QUESTIONS THAT AREN'T PARTICULARLY EXCITING AND DON'T ATTRACT A LOT OF ATTENTION OUTSIDE LEGAL CIRCLES. BUT THEY GO TO THE DEEPER IMPORTANT QUESTION OF WHETHER A COURT CAN ENTERTAIN A CLAIM AND WHO CAN ASSERT SUCH A CLAIM. THESE QUESTIONS ARE PRECURSORS THAT WE HAVE TO ANSWER BEFORE WE CAN GET TO CASES LIKE SEBELIUS OR PARENTS INVOLVED. IN ADDRESSING THESE QUESTIONS, ALTHOUGH THERE HAVE BEEN SOME ANOMALIES, THE ROBERTS COURT HAS OFTEN ACTED TO RESTRICT ACCESS TO THE COURTS. TO PROVIDE A FEW EXAMPLES IN WHICH THE ROBERTS COURT HAS ALREADY HAD AN IMPACT. FIRST THE ROBERTS COURT HAS BROADLY INTERPRETED ARBITRATION AGREEMENTS TO PREVENT INJURED INDIVIDUALS FROM GOING TO COURT, INSTEAD CHANNELING THEM INTO ARBITRATION AND RESTRICTING THEIR ABILITY TO VINDICATE THEIR RIGHTS IN THAT CONTEXT. AND THE COURT HAS PREVENTED HABEUS PETITIONERS WHO PRESENTING NEW EVIDENCE IN FEDERAL COURT EVEN EVIDENCE REGARDING ACTUAL INNOCENCE OR PROSECUTORIAL MISCONDUCT HAS OCCURED. INSTEAD THEY'RE LIMITED TO THE RECORD AS IT EXISTED IN THE STATE COURT. THE COURT HAS LIMITED THE INSTANCES IN WHICH INDIVIDUALS CAN SUE STATES IN FEDERAL COURT TO CHALLENGE UNCONSTITUTIONAL STATE ACTION. THERE ARE OTHER EXAMPLES AND THE LAST THAT I'LL MENTION AND WE'RE FOCUSED ON TODAY IS THAT THE COURT HAS RAISED THE BAR FOR WHAT A PLAINTIFF HAS TO ALLEGE AT THE OUTSET OF LITIGATION IN ORDER TO AVOID BEING THROWN OUT OF COURT ALTOGETHER. IQBAL AS THE DESCRIPTION IN YOUR PROGRAM SAYS AROSE IN THE WAKE OF 911, IQBAL WAS CHALLENGING HIS TREATMENT BY THE UNITED STATES GOVERNMENT WHILE HE WAS BEING DETAINED. THE COURT NEVER REACHED THE QUESTION OF WHETHER HIS TREATMENT WAS ACTUALLY UNCONSTITUTIONAL. INSTEAD THE PRECURSOR QUESTION AND THE ONLY QUESTION THE COURT DID ANSWER WAS WHETHER HE HAD ALLEGED SUFFICIENT FACTS IN HIS COMPLAINT TO SURVIVE A MOTION TO DISMISS. FOR THOSE WHO AREN'T LAWYERS, WHEN A PLAINTIFF WISHES TO INITIATE A LAWSUIT IN FEDERAL COURT, INITIALLY SHE FILES A COMPLAINT. AND THEN YOU WOULD PROGRESS TO DISCOVERY WHERE THE TWO SIDES WOULD EXCHANGE INFORMATION, AND THEN, AT LEAST IN THEORY, LEAD POTENTIALLY TO TRIAL. THESE CASES ARE ABOUT THE TRANSITION FROM THAT FIRST TO THAT SECOND STEP. HAD THE PLAINTIFF DONE ENOUGH OF PRESENTED ENOUGH IN HER COMPLAINT TO JUSTIFY MOVING ONTO DISCOVERY. SO THE FEDERAL RULES OF OFFICIAL PROCEDURE STATE THAT A COMPLAINANT MUST PROVIDE A SHORT AND PLAIN STATEMENT OF THE CLAIM. SHOWING THAT THE PLEADER IS ENTITLED TO RELIEF. FOR DECADES THIS WAS UNDERSTOOD TO BE A FAIRLY LENIENT STANDARD, JUST PUTTING THE OTHER SIDE ON NOTICE OF THE CLAIM, WAS OFTEN REFERRED TO AS NOTICE PLEADING. JUST GIVING THEM A HEADS UP OF WHAT WOULD BE INVOLVED IN THE LITIGATION. TWO YEARS BEFORE IQBAL IN A CASE OF BELL ATLANTIC CORP. VS. TWOMBLY, THE COURT RAISED THAT STANDARD IN AN ANTITRUST CONTEXT BUT IT WASNT CLEAR IF IT WOULD BE APPLIED BEYOND THAT CONTEXT. IN TWOMBLY, THE COURT SAID THAT HAD THE JUDGE DETERMINED AT THE OUTSET OF THE CASE, WHETHER THERE'S A PLAUSIBLE CLAIM FOR RELEIF. SO INTERJECTING SOME JUDGMENT THERE, NOT JUST PUTTIN GHTE OTHER SIDE ON NOTICE, BUT ALLOWING THE JUDGE TO EXERCISE DISCRETION AS TO WHY THIS IS REALLY PLAUSIBLE. IQBAL TOOK A FURTHER STEP MAKING SURE THAT STANDARD WOULD APPLY TO ALL CIVIL CASES IN FEDERAL COURT. WHAT IS THE DIFFERENCE, BEFORE A PLAINTIFF'S ALLEGATIONS WERE PRESUMED TO BE TRUE AND A COMPLAINT WOULD BE DISMISSED ONLY IF THERE WERE NO SET OF FACTS THAT WOULD ENTITLE THE PLAINTIFF TO RELIEF. BUT IN IQBAL, THE STANDARD PROVIDES LOWER COURTS WITH MUCH GREATER JUDICIAL DISCRETION AND IT'S REALLY A VERY SUBJECTIVE DETERMINATION. THE COURT SUGGESTED THAT A REVIEWING COURT SHOULD DRAW ON THEIR JUDICIAL EXPERIENCE AND COMMON SENSE WHEN MAKING SUCH A DETERMINATION, AND I'LL TOUCH ON THAT LATER IN THE WAY IT'S ALLOWED BIAS TO FILTER INTO MAKING THE DETERMINATIONS WHETHER A COMPLAINT, WHETHER A CLAIM AND COMPLAINT IS PLAUSIBLE. THIS ALL MAY SEEM TECHNICAL. WE'RE TALKING ABOUT PLEADING STANDARDS AND COMPLAINTS. WHY DOES IT MATTER? IQBAL WAS CITED MORE THAN 500 TIMES IN THE 2 MONTHS FOLLOWING THE DECISION. JUST 8 MONTHS LATER, IN 8,000 LOWER COURT CASES. AT ONLY TWO YEARS OLD, TWOMBLY WAS ONE OF THE 5 MOST CITED COURT CASES IN LOWER FEDERAL COURTS IN ALL OF AMERICAN HISTORY. THEY REALLY GRASPED ON THIS AS IMPORTANT AND THEN IT'S OBVIOUSLY SOMETHING THAT THEY SHOULD BE FOLLOWING AND ACCESSING COMPLAINTS BEFORE THEM. ONE PROMINENT SUPREME COURT LITIGATOR SAID IQBAL WAS THE MOST SIGNIFICANT SUPREME COURT DECISION IN A DECADE FOR DAY TO DAY LITIGATION IN THE FEDERAL COURTS. THERE ARE A NUMBER OF STUDIES ACCESSING THE IMPACT THAT IT'S HAD IN TERMS OF CLAIMS BEING DISMISSED. JUST TO GIVE YOU A FEW NUMBERS. THE OVERALL RATE OF DISMISSAL WENT FROM 61% PRE TWOMBLY TO 72% IQBAL. AND AN IMPACT HAS BEEN FELT MORE STRONGLY AND DEEPLY IN CASES INVOLVED CIVIL RIGHTS DISCRIMINATION, EMPLOYMENT DISCRIMINATION, AND IN PRISON, AND IN CASES INVOLVING PRO SE PLAINTIFFS OR PLAINTIFFS THAT ARE SERVING AS THEIR OWN LAYWER. SO IN CIVIL RIGHTS CASES THAT ARE PRO SE, THE DISMISSAL RATE WENT FROM 85% TO 92%. IN PRISON CASES 67% TO 85% AND IN EMPLOYMENT DISCRIMINATION CASES WHERE THE PLAINTIFF WAS REPRESENTED BY COUNCIL FROM 47% TO 65%. ONE OF THE REASONS FOR THIS UP TICK IN DISMISSALS IS THAT OFTEN TO PROVE A CLAIM, THE PLAINTIFF NEEDS INFORMATION FROM THE OTHER SIDE. SO FOR EXAMPLE IN DISCRIMINATION CASES WHERE YOU HAVE TO PROVE A DISCRIMINATORY INTENT, IT'S VERY HARD TO DO THAT, PARTICULARLY FOR POOR OR PRO SE LITIGANTS WHO AREN'T RESOURCED AND DON'T HAVE ACCESS TO KNOW WHAT WAS IN THE MIND OF THE DISCRIMINATOR. SO BY PREVENTING THEM FROM GETTING TO THAT NEXT LEVEL OF DISCOVERY, YOU'RE REALLY DISABLING THEM FROM MAKING THEIR CLAIM AND THE CLAIM MAY NOT BE PLAUSIBLE BASED ON WHAT'S IN THE COMPLAINT. UNDER THE IQBAL STANDARDS INDIVIDUALS HAVE FARED WORSE THAN CORPORATIONS OR THE GOVERNMENT AND THAT ARGUABLY IS IN LINE WITH WHAT OTHERS HAVE SAID IS A TREND OF THE ROBERTS COURT TO BE PRO CORPORATE OR PRO BUSINESS. AND AS I MENTIONED EARLIER THIS IDEA OF RELYING ON JUDICIAL EXPERIENCE AND COMMON SENSE, THAT PROVIDES AN AVENUE FOR BIAS WHETHER CONSCIENCE OR SUBCONSCIENCE TO COLOR JUDGE'S CLAIMS OF WHETHER JUDGES ANALYSIS OF WHETHER PLAINTIFF'S CLAIMS ARE PLAUSIBLE. FOR BLACK PLAINTIFFS CLAIMING RACE DISCRIMINATION, THE DISMISSAL RATE INCREASED FROM 20% PRE TWOMBLY TO 54.6% AFTER IQBAL AND WHITE JUDGES WERE TWO TIMES AS LIKELY TO DISMISS THESE CLAIMS AS BLACK JUDGES. SO BY HAVING THIS MORE SUBJECTIVE STANDARD, YOU'RE REALLY ALLOWING THE JUDGES TO HAVE MUCH GREATER DISCRETION ABOUT WHETHER SOMEONE CAN EVEN PROCEED, NOT TO WHETHER THEY'LL WIN, BUT JUST TO PROCEED TO DISCOVERY. SOME OF ARGUES THAT THE TWOMBLY STANDARD WAS NEVER MEANT TO BE INTERPRETED IN THIS WAY. ONE INTERESTING POINT IS THAT JUSTICE SOUTER WHO WROTE THE OPINION ON TWOMBLY ACTUALLY DISSENTED IN IQBAL. OTHERS LIKE JUSTICE STEVENS AND JUSTICE GINSBURG HAVE PUSHED BACK ON THE IMPOSITION OF A HEIGHTENED PLEADING STANDARD SAYING THAT THE IDEA BEHIND THE FEDERAL RULES WAS NEVER TO KEEP LITIGANTS OUT OF COURT, BUT RATHER TO KEEP THEM IN. I'LL JUST END BY SAYING THAT ULTIMATELY AND PART OF THE REASON WHY I CHOSE TO HIGHLIGHT THIS CASE EVEN THOUGH IT HASN'T RECEIVED AS MUCH ATTENTION IS THAT DECISIONS LIKE IQBAL ARE EXTREMELY IMPORTANT AND IMPACTFUL BECAUSE THE RIGHTS IN THE CONSTITUTION HAVE LITTLE MEANING IF THE LITIGANTS LACK ACCESS IN THE COURTS TO VINDICATE THEM. [APPLAUSE] >> MARGARET MARSHALL: SO THANK YOU LAUREN. I WONDER HOW MANY OF US REMEMBER THAT ONE OF THE THINGS THAT MADE US A DIFFERENT NATION FROM ENGLAND IS WE HAVE A CONSTITUTIONAL RIGHT TO GO TO COURT. NOT SO IN ENGLAND. IT'S VERY, VERY DIFFICULT FOR PEOPLE TO GET ACCESS TO COURT. IT'S WRITTEN IN OUR CONSTITUTION THAT YOU HAVE A CONSTITUTIONAL RIGHT TO GO TO COURT. WHEN YOU THINK OF THAT IN THE CONTEXT OF THIS DECISION, IT'S PRETTY STUNNING. I HAVE TO SAY LAUREN, I DIDN'T KNOW THOSE STATS. IT TELLS YOU WHAT HAPPENS, IF YOU THINK OF THE QUESTION I ASKED TO LINDA, HOW MANY CASES FOLLOWED PARENTS UNITED AND YOU CAN SEE IMMEDIATELY THE IMPACT THTA IT'S HAD. IT IS NOT TRUE THAT THE JUDGES WOULD LIKE TO HAVE FEWER CASES. ACTUALLY, WE WOULD LIKE TO HAVE FEWER CASES. [LAUGHTER] I CAN'T BUT HELP TO TAKE A MOMENT NOW TO SAY SOMETHING THAT I SAY ALMOST EVERY GATHERING THAT I HAVE, WHICH IS WHY WE FOCUS APPROPRIATELY ON THE FEDERAL COURTS AND OF COURSE ON THE UNITED STATES SUPREME COURT. SO MANY CASES ARE DECIDED IN OUR STATE COURTS, WHICH ARE JUST OVERWHELMED BY THE NUMBER OF CASES. AND ALTHOUGH WE DON'T NECESSARILY HAVE TO FOLLOW THE UNITED STATES SUPREME COURT ON A DECISION LIKE THIS, IT HAS ENORMOUS INFLUENCE ON HOW WE DECIDE OUR CASES, WHETHER WE DECIDE TO ADMIT OR TO DISMISS A CASE. AND SO THAT EXTRAORDINARY ORTHOLOGY RIPPLED VERY QUICKLY ACROSS THE COUNTRY. MICHAEL OR LINDA? COMMENTS? YEAH, LINDA. >> LINDA GREENHOUSE: JUST ONE COMMENT, THE IQBAL CASE, UNLIKE PARENTS INVOLVED, IT'S NOT A CONSTITUTIONAL DECISION. IT'S AN INTERPRETATION OF THE FEDERAL RULES, AND IT'S WITHIN THE POWER OF CONGRESS TO CHANGE THAT. AND THERE HAVE BEEN EFFORTS TO PASS LEGISLATION THAT WOULD REVERSE IQBAL AND RETURN TO THE MORE LIBERAL PLEADING STANDARD. HOW MANY PEOPLE IN THIS ROOM HAVE EVER HEARD OF THIS CASE BEFORE YOU CAME HERE? >> MARGARET MARSHALL: THIS IS A VERY EDUCATED AUDIENCE LINDA. I WOULD HAVE PUT UP MY HAND WHETHER OR NOT I HAD HEARD OF THE CASE. [LAUGHTER] >> LINDA GREENHOUSE: YOU KNOW, IF PEOPLE REALLY DID GET ENERGIZED AND MADE IT SOME KIND OF ISSUE, WE DON'T HAVE TO LIVE WITH THIS. [APPLAUSE] >> MICHAEL KLARMAN: I WANT TO FOLLOW UP ON THAT. IT IS INTERESTING. WE SORT OF ASSUME THAT THE COURT IS GOING TO DIVIDE FIVE TO FOUR ON THESE BIG CONSTITUTIONAL ISSUES THAT CAPTURE THE HEADLINES IN THE NEWSPAPER. SO WE'RE NOT SURPRISED WHEN THE COURT DIVIDES FIVE TO FOUR ON AFFIRMATIVE ACTION CASES, ABORTION CASES, DEATH PENALTY CASES. BUT THERE ARE ACTUALLY A WHOLE SERIES OF CASES INVOLVING ACCESS TO JUSTICE, WHICH INVOLVE STATUTORY INTERPRETATION ISSUES, INTERPRETING THE FEDERAL RULES, AND THE COURT TENDS TO DIVIDE FIVE TO FOUR ON THOSE, AS WELL. AND THEY TEND TO BE CONSISTENT FIVE TO FOUR DIVISIONS. IT'S NOT A RANDON FIVE TO FOUR. THERE TEND TO BE FOUR CONSERVATIVES AND FOUR LIBERALS, AND EVERYTHING DEPENDS ON WHERE JUSTICE KENNEDY COMES OUT, WITH UNUSUAL EXCEPTIONS LIKE THE HEALTHCARE CASE. I THINK WHAT THIS TELLS YOU IS THERE'S A LOT OF ROOM IN LAW FOR THE VALUE OF THE JUDGES TO INFLUENCE THEIR INTERPRETATIONS. IT'S NOT TO SAY THAT LEGAL INTERPRETATION IS NOTHING BUT POLITICS, BUT IT IS TO SAY IT HAS A LOT TO DO WITH HOW THESE THINGS ARE INTERPRETED. AND THERE ARE STUDIES SHOWING, AND THIS IS FOLLOWING UP ON WHAT LAUREN SAID THAT ONE OF THE CONSISTENT TAKEAWAY LINES FROM THE ROBERTS COURT. YOU CAN'T CHARACTERIZE IT CONSTITUTIONALLY BECAUSE JUSTICE KENNEDY GOES BACK AND FORTH. HE'S A LIBERAL ON GAY RIGHTS ISSUES. HE SOMETIMES A LIBERAL ON ISSUES INVOLVING THE DEATH PENALTY, SCHOOL PRAYER. BUT HE'S CONSERVATIVE ON CAMPAIGN FINANCE AND RACE ISSUES. BUT ON ISSUES INVOLVING ACCESS TO JUSTICE AND SPECIFICALLY ON THE ISSUES WHERE THE CHAMBER OF COMMERCE HAS EXPRESSED AN INTEREST. THIS IS THE MOST PRO CHAMBER OF COMMERCE COURT IN HISTORY. AND THERE'S A STUDY BY JUDGE POSNER AND A COUPLE OF ACADEMICS SHOWING THAT THE FIVE CONSERVATIVE JUSTICES ARE FIVE OUT OF THE TOP TEN MOST PRO CHAMBER OF COMMERCE JUSTICES IN HISTORY. AND ROBERTS AND ALITO ARE ONE AND TWO. THESE DON'T GET A LOT OF ATTENTION BUT THESE ARE REALLY IMPORTANT ISSUES. THE COURTS DECIMATING ACCESS TO CLASS ACTION. IT'S CUTBACK ON ACCESS TO CONVENTIONAL CIVIL LITIGATION. IT'S CONTRACTED ANTITRUST LIABILITY. THESE ARE A REALLY BIG DEAL AND THEY JUST DON'T GET THE SAME HEADLINES, AND THE OUTCOMES TEND TO BE ALONG THE SAME POLITICAL LINES THAT YOU WOULD FIND IN CONSTITUTIONAL CASES. [APPLAUSE] >> MARGARET MARSHALL: SO ONE REASON WHY THEY MAY NOT BE GETTING THE SAME ATTENTION, MICHAEL, IS BECAUSE LINDA GREENHOUSE ISN'T WRITING REGULARLY FOR THE "NEW YORK TIMES." IF THEY GET ANOTHER RADCLIFFE GRADUATE DOING THAT, THAT WOULD BE GREAT. ALTHOUGH I LOVE HER SUCCESSORS. LAUREN, I'VE HAD WONDERFUL QUESTIONS FROM THE AUDIENCE BUT THIS ONE HAS COME UP SUFFICIENTLY EARLY FOR ME TO BE ABLE TO ASK YOU WHILE YOU'RE HERE. GIVEN THE SORT OF TOUGHER STANDARDS FOR BRINGING THE CASE, WILL THAT HAVE ANY IMPACT ON THE PEOPLE WHO ARE OPPOSED TO THE AFFORDABLE CARE ACT AND HAVE BROUGHT CASES CHALLENGING IT? IS IT GOING TO MEAN THAT THEY TOO ARE GOING TO BE CUT OUT OF BEING ABLE TO BRING THEIR CASES? >> LAUREN SUDEALL LUCAS: I SUPPOSE THAT IS ASKING ABOUT THE STANDING QUESTION IN THE CASE BEFORE THE COURT. I ACTUALLY DIDN'T LIST STANDING ON MY LIST OF AREAS, BECAUSE I THINK THE ROBERTS COURT HAS HAD MORE OF A MIXED RECORD ON STANDING. IN SOME CASES THEY HAVE RESTRICTED STANDING, IN THE CONTEXT OF TAXPAYER STANDING AND THE ESTABLISHMENT CLAUSE. IN OTHER CONTEXTS THE COURT HAS FOUND STANDING. THE MORE CYNICAL MIGHT SAY THE COURT FINDS STANDING WHEN IT WANTS TO GET THE MERITS OF THE CASE, AND DOESN'T FIND STANDING WHEN IT DOESN'T WANT TO, OR AT LEAST WHEN FIVE MEMBERS OF THE COURT DON'T WANT TO. I'M NOT ONE TO PREDICT OR FORECAST. SO I DON'T REALLY KNOW WHAT WILL HAPPEN. BUT I SUSPECT THAT THAT CYNICAL VIEW MIGHT HAVE ONE RESPONSE TO WHAT HAPPENS IN THE CASE. >> MARGARET MARSHALL: GREAT. LINDA. >> LINDA GREENHOUSE: JUST TO PICK UP ON THAT. A COUPLE OF THE HOT BUTTON ISSUES BEFORE THE COURT RECENTLY HAVE PLAINTIFFS WHOSE STANDING BY CONVENTIONAL CONSERVATIVE METRICS IS VERY SKETCHY TO SAY THE LEAST. FOR INSTANCE, IN THE FISHER AGAINST UNIVERSITY OF TEXAS CASE, MISS FISHER HAD BY THE TIME CASE CAME UP ALREADY GRADUATED FROM ANOTHER UNIVERSITY. SO THERE WAS NO REMEDY THAT A COURT COULD AWARD HER. THE CASE FAILED WHAT IS CALLED THE REDRESS ABILITY PRONG OF STANDING. THAT WAS AN ISSUE, BUT THE COURT JUST PROCEEDED, BECAUSE AS LAUREN SAID THEY WANTED TO AT LEAST TRY TO REACH THE MERITS. THERE'S BEEN CHALLENGES TO THE STANDARDS OF THE CURRENT REALLY SKETCHY PLAINTIFFS IN THE CURRENT AFFORDABLE CARE ACT CASE. THE CASE BEING TOTALLY PHONY FROM THE GET GO, BUT ALSO PHONY IN RECRUITING THESE PLAINTIFFS WHO REALLY DIDN'T UNDERSTAND ANYTHING ABOUT THE CASE IT TURNS OUT. AND ACTUALLY FAILED THE BASIC PRONG OF THE STANDING DOCTRINE, WHICH IS INJURY. INJURY IN FACT BECAUSE THE FACT OF THE MATTER IS NOBODY IS INJURED BY THE EXISTENCE OF THE AFFORDABLE CARE ACT. THEY HAVE AN IDEOLOGICAL INJURY, BECAUSE THEY DON'T LIKE THE LAW. BUT THEY CANNOT ACTUALLY PROVE A FINANCIAL INJURY. BUT YET THE COURT, LET'S ASSUME IS GOING TO PRECEDE TO THE MERITS ONE WAY OR THE OTHER. >> MARGARET MARSHALL: SO THAT LEADS TO A COUPLE OF QUESTIONS THAT I'VE HAD AND I'M GOING TO TRY AND COMBINE THEM WHICH HAVE TO DO WITH JUDICIAL ACTIVISM. SORT REACHING AT WHATEVER IT IS. ONE WAY OF SAYING THIS IS THERE A WAY TO DIFFERENTIATE THE ROBERTS COURT QUOTE JUDICIAL ACTIVISM FROM THE EARLIER CRITICISM OF LIBERAL JUDGES, ESPECIALLY IN THE WARREN COURT, OR IS THIS ONLY A QUESTION OF OX GORING? OR IS THERE SOMETHING ELSE AT WORK? AND ANOTHER QUESTION IS SAYING THE WARREN COURT WAS WIDELY SEEN AS ACTIVIST FROM A POSITION ON THE LEFT, ON THE BASIS OF THE PRINCIPLES OF EQUALITY AND LIBERTY. THIS PANEL HAS CRITICIZED THE ACTIVISM OF THE ROBERTS COURT. WHAT PRINCIPLE DEFENSE OF ITS ACTIVISM WOULD BE MADE BY CONSERVATIVE SUPPORTERS OF THE ROBERTS COURT? UNFORTUNATELY I SHOULD TELL YOU THAT PROFESSOR MANNING, A SITUATION AROSE EARLIER THIS WEEK THAT HE HAD TO LEAVE FOR PERSONAL REASONS. SO LINDA, LAUREN, MICHAEL, PUT ON YOUR CONSERVATIVE HATS, WHICH YOU DO WHEN YOU TEACH YOUR LAW STUDENTS. AND WHAT IS THE BEST ARTICULATION FOR WHAT THE ROBERTS COURT IS DOING? >> LINDA GREENHOUSE: NOT TO CHANNEL JOHN MANNING. BUT FROM THE CONSERVATIVE PERSPECTIVE, THE WORD THAT THEY USE NOW IS JUDICIAL ENGAGEMENT. THAT JUDGES SHOULD BE ENGAGED, SHOULD NOT STEP BACK FROM THE FRAY. SHOULD NOT USE BARRIERS TOO, STANDING AND SO ON. TO BRING THE COURT BACK. BRING CONSTITUTIONAL DOCTRINE AND DOCTRINES OF STATUTORY INTERPRETATION BACK TO WHERE THEY SHOULD ALWAYS HAVE BEEN. SO FOR INSTANCE IN THE TYPE OF CASES THAT LAUREN WAS TALKING ABOUT, THERE HAS BEEN A GREAT CONCERN ON THE SIDE OF BUSINESS THAT A LOT OF QUOTE FRIVOLOUS LAWSUITS ARE MAKING THEIR WAY INTO COURT. AND EVEN THOUGH MANY OF THEM HAVE GOTTEN DISMISSED ULTIMATELY, THAT'S ONLY AFTER THE DEFENDANT CORPORATION HAS HAD TO SPEND TONS OF TIME AND MONEY IN DISCOVERY AND ALL THE PRE TRIAL STUFF. SO IF THE BARRIERS TO ENTRY ARE HIGHER AND THESE CASES ARE GOTTEN RID OF AT THE ENTRY POINT, IT JUST SAVES EVERYBODY A LOT OF TIME AND TROUBLE. THAT'S CERTAINLY ONE ARGUMENT. ON THE CONSTITUTIONAL SIDE. SO JUSTICE KENNEDY WOULD SAY I THINK AND JUST AS PEOPLE KNOW, JUSTICE KENNEDY'S BYWORD IS DIGNITY. HE VIEWS IT AS AN AFFRONT TO HUMAN DIGNITY TO BE CLASSIFIED BY ONES GOVERNMENT ON THE BASIS OF ONES RACE. THOSE OF US WHO HAVE DOUBTS ABOUT THAT KIND OF JURISPRUDENCE WOULD SAY THAT'S TRUE AS FAR AS IT GOES. BUT IT DOESN'T GO FAR ENOUGH BECAUSE IT DOESN'T PUT IT IN THE CONTEXT OF WHAT'S THE PURPOSE FOR THE CLASSIFICATION. WHAT'S THE REMEDIAL PURPOSE, OR WHAT'S THE EVEN LARGER DIGNITARY PURPOSE. I THINK HE FEELS THAT VERY STRONGLY, AND LIKEMINDED PEOPLE FEEL THAT VERY STRONGLY THAT IT'S SIMPLY INAPPROPRIATE, AND EVEN DANGEROUS FOR THE GOVERNMENT TO BE IN THAT BUSINESS. I MAYBE HAVEN'T DONE A VERY GOOD JOB OF CHANNELING CONSERVATIVES BUT I THINK THAT'S WHAT HE WAS GOING TO SAY. >> LAUREN SUDEALL LUCAS: IT'S INTERESTING THAT THE COURT SEEMS SO WORRIED ABOUT LOWER COURTS BEING FLOODED WITH FRIVOLOUS CLAIMS AND THAT SORT OF PRACTICAL ASPECT OF LITIGATION. AND AS AN ASIDE ONE FACT THAT I DIDN'T MENTION IS THAT THERE'S A STUDY THAT SAYS THAT THE HEIGHTENED PLEADING STANDARD THAT COMES OUT OF IQBAL HASN'TACTUALLY RESULTED IN HIGHER QUALITY CLAIMS BASED ON ULTIMATE OUTCOME. YOU SEE THIS INTERPLAY A LOT BETWEEN THE MAJORITY AND THE DISSENT, NOT VERY CONCERNED WITH THE PRACTICAL EFFECTS OF RESTRICTING RIHGTS SO WHETHER ITS CASES INVOLVING VOTER IDENTIFICATION LAWS, ABORTION, YOU OFTEN SEE THE DISSENTERS SAYING, HEY, BUT LOOK AT HOW THIS ACTUALLY AFFECTS PEOPLE IN THEIR DAY TO DAY LIVES, LOOK AT HOW THIS AFFECTS POOR PEOPLE, LOOK AT HOW THIS AFFECTS MARGINALIZED PEOPLE. AND THE COURT SEEMS GENERALLY UNCONCERNED ABOUT THAT. IF YOU'RE OPERATING IN A VACUUM, PERHAPS THIS SEEMS LIKE A PURIST INTERPRETATION. BUT IF YOU THINK ABOUT HOW THESE DECISIONS ARE AFFECTING PEOPLE, YOU SEE A LOT OF OPINIONS WHERE THE DISSENT JUST CANNOT BELIEVE THAT THE MAJORITY IS NOT TAKING THAT INTO ACCOUNT. >> MARGARET MARSHALL: THANK YOU. I WAS GOING TO LET THEM JUST TALK ABOUT THE CASES THAT THEY WANTED TO TALK ABOUT. BUT IT TURNS OUT A LOT OF YOU WANT TO TALK ABOUT ANOTHER CASE. NOT THE ONE THAT HASN'T BEEN DECIDED YET. WE'LL TALK ABOUT THAT LATER. BUT CITIZENS UNITED. [APPLAUSE] I DON'T KNOW WHETHER THEY JUST AVOIDED TALKING ABOUT IT. BUT THEY DIDN'T. BUT ANY WAY. JUST A TON OF QUESTIONS UP HERE. DO YOU THINK ANY OF THE JUSTICES IN THE MAJORITY IN CITIZENS UNITED SEE IT AS NOW A DISASTER FOR AMERICAN DEMOCRACY? WILL THE PANEL PLEASE COMMENT ON CITIZENS UNITED? OR I WANT TO HEAR ABOUT CITIZENS UNITED. OR CAN YOU PLEASE? AND SO ON. [LAUGHTER] OKAY, MICHAEL. PLEASE COMMENT ON CITIZENS UNITED. >> MICHAEL KLARMAN: SO THIS ACTUALLY TIES IN REALLY WELL WITH THE LAST QUESTION ABOUT ACTIVISM. AGAIN, IF YOU TAKE AS AN EXAMPLE ABORTION REGULATION, WHEN THE COURT STRIKES DOWN AN ABORTION REGULATION, JUSTICE SCALIA AND THOMAS WOULD SAY, THE ORIGINAL UNDERSTANDING OF THE 14TH AMENDMENT HAS NOTHING TO DO WITH ABORTION. THIS SHOULD BE LEFT UP TO LEGISLATIVE REGULATION. SO THE QUESTION IS, HOW DID THE FIVE CONSERVATIVE JUSTICES JUSTIFY STRIKING DOWN A BAN ON CORPORATIONS, MAKING INDEPENDENT SPEECH STATEMENTS IN ELECTIONS? AND THIS GETS BACK TO MARGIE'S LAST QUESTION WHICH IS HOW WOULD THEY DEFEND THEMSELVES AGAINST THE CHARGES OF ACTIVISM. AND THE ANSWER IS THEY'LL JUST SAY THE TEXT OF THE FIRST AMENDMENT TELLS YOU THAT SPEECH IS SUPPOSED TO BE PROTECTED AND IT DOESN'T SAY ANYTHING ABOUT WHO THE SPEAKER IS. BUT THIS IS ANOTHER EXAMPLE, WELL FIRST OF ALL THE FACT THAT THE FIRST AMENDMENT TALKS ABOUT THE FREEDOM OF SPEECH DOESN'T SAY ANYTHING ABOUT SPENDING MONEY. THE PEOPLE WHO WROTE THE FIRST AMENDMENT HAD AN INCREDIBLY NARROW UNDERSTANDING OF WHAT WAS PROTECTED. NONE OF THEM WOULD HAVE DREAMED THAT THE IDEA OF SPENDING MONEY ON ELECTIONS WAS PROTECTED SPEECH. WHEN CONGRESS PASSED A SEDITION ACT IN THE FIRST DECADE OF THE COUNTRY'S HISTORY, WHICH PUT PEOPLE IN JAIL FOR CRITICIZING JOHN ADAMS TOO HARSHLY AS PRESIDENT. NOT A SINGLE FEDERAL JUDGE IN THE COUNTRY THOUGHT THAT LAW WAS UNCONSTITUTIONAL BECAUSE THEY HAD SUCH A NARROW VIEW OF THE FIRST AMENDMENT. BUT THE CONSERVATIVE JUSTICES WON'T TALK ABOUT THE ORIGINAL UNDERSTANDING OF THE 1ST AMENDMENT BECAUSE IT'S SO STRONGLY AGAINST THEIR POSITION, THEY JUST SAY THAT WE WON'T GET TO THE ORIGINAL UNDERSTANDING, BECAUSE THE FIRST AMENDMENT TALKS ABOUT SPEECH AND SPENDING MONEY IS SPEECH. I THINK IT'S A LITTLE BIT OUTRAGEOUS BECAUSE THEY'RE THE ONES THAT SAY WE OUGHT TO LOOK AT ORIGINAL UNDERSTANDING AND THERE'S REALLY NOT A SHRED OF EVIDENCE ON THEIR SIDE ON THAT ISSUE. [APPLAUSE] >> MARGARET MARSHALL: LAUREN, LINDA? >> LINDA GREENHOUSE: WELL YOUR QUESTION ABOUT WHETHER ANY OF THE CURRENT CITIZENS UNITED MAJORITY ARE ABOUT TO RECALIBRATE THEIR UNDERSTANDING. THEY HAD THAT CHANCE QUITE SOON AFTER THE DECISION. A CASE CAME UP FROM MONTANA WHERE THE MONTANA SUPREME COURT IN THE KIND OF DEFIANCE OF CITIZENS UNITED HAD UPHELD STATE CORPORATE CAMPAIGN SPENDING LIMITS UNDER THE STATE CONSTITUTION. AND MONTANA HAD A VERY INTERESTING HISTORY WHERE CORPORATIONS HAD BASICALLY BOUGHT U.S. SENATORS BACK IN THE DAY WHEN SENATORS WERE APPOINTED BY STATE LEGISLATURES. SO THE MONTANA SUPREME COURT SAID YOU KNOW WE'RE ACTING OUT OF OUR OWN SPECIAL HISTORY. AND WE HAVE THESE LAWS. AND WE THINK WE CAN MAKE THE CASE THAT THE NOTION OF CORRUPTION WHICH IS AT THE HEART OF CITIZENS UNITED, A VERY NARROW VIEW. A QUID PRO QUO BASICALLY BRIBERY, CORRUPTION. THAT WE UNDERSTAND CORRUPTION MORE DEEPLY AND THIS IS WHAT WE THINK. THE COURT OVERTURNED IT EVEN WITHOUT AN OPINION. OVERTURNED THE MONTANA SUPREME COURT AND SAID THAT STATE LAW WAS UNCONSTITUTIONAL. SO THAT WAS A CHANCE TO EXPRESS A LITTLE BIT OF BUYER'S REMORSE. AND I DON'T SEE THAT ANYTHING HAS COME THEIR WAY SINCE THAT'S GOING TO, IF ANYTHING, THEY'RE DRILLING DOWN BECAUSE LAST TERM IN THE CASE CALLED McCUTCHEON, THE CHEIF JUSTICE WROTE THE MAJORITY OPINION ERASE THE LIMITS ON AGGREGATE INDIVIDUAL POLITICAL CONTRIBUTIONS. IT SEEMS THAT EVERY TIME THEY GET A NEW CHANCE WHERE THEY MIGHT PULL BACK A LITTLE, INSTEAD THEY GO FURTHER. >> LAUREN SUDEALL LUCAS: AND CORPORATIONS NOT ONLY HAVE FREE SPEECH RIGHTS, BUT THEY NOW HAVE RELIGIOUS BELIEFS TOO. SO THEY'RE BECOMING MORE AND MORE LIKE PEOPLE. >> MARGARET MARSHALL: OKAY. I THINK THAT TOOK CARE OF CITIZENS UNITED. [LAUGHTER] THIS IS REALLY NOT ON POINT, EXCEPT IT IS ON POINT. QUITE OFTEN WHEN I'VE HAD WITH JUSTICE SCALIA ON THIS POINT HE SAYS I WOULD LIKE TO SEE THE NEW YORK TIMES, KNOWING VERY WELL THAT I WAS MARRIED TO SOMEONE WHO WROTE TO THE NEW YORK TIMES FOR 50 YEARS. HE SAID I'D LIKE TO SEE THE NEW YORK TIMES SAYI THAT THEY DIDN'T HAVE THE FREE SPEECH RIGHT TO CHARGE MONEY FOR THE THEIR EDITORIALS, WAS ESSENTIALLY HIS POSITION. MY VIEW WAS THERE'S PROTECTION OF THE PRESS, AS WELL. IT'S NEVER BEEN A VERY ENGAGED DISCUSSION, I HAVE TO SAY. [LAUGHTER] I DO WANT TO SAY ONE ADDITIONAL THING. ALMOST EVERYBODY WHO THINKS ABOUT CITIZENS UNITED THINKS ABOUT IT FROM THE CONTEXT OF THE EXECUTIVE BRANCH AND ESPECIALLY CONGRESSIONAL RACES, OR LEGISLATIVE RACES IN THE STATES. THERE ARE MANY STATES THAT HAVE ELECTED JUDGES. 37 STATES THAT HAVE ELECTED JUDGES. AND CITIZENS UNITED APPLIES TO THOSE, AS WELL. AND SOMETHING REALLY TERRIBLE IS GOING ON IN OUR JUDICIAL SYSTEM IN THE UNITED STATES. IT'S NOW COSTING HUGE AMOUNTS OF MONEY IN SOME OF THOSE RACES. AND SOME OF THE BEST JUDGES ARE SIMPLY NOT AGREEING TO BECOME JUDGES OR STEPPING AWAY FROM THE COURT. MY MONTANA COLLEAGUES FELT VERY, VERY STRONGLY ABOUT THAT CASE. AND I THINK IN MONTANA, THERE MAY HAVE BEEN AN AMICUS BRIEF FILED BY FORMER CHIEF JUSTICES OF THE MONTANA SUPREME COURT IN THAT CASE. THEY KNOW VERY WELL WHAT HAPPENS. IT'S BAD ENOUGH PUTTING MONEY INTO CONGRESSIONAL AND PRESIDENTIAL RACES, BUT IT HAS A VERY POWERFUL, NEGATIVE IMPACT WHEN YOU PUT IT INTO JUDICIAL RACES, AS WELL. THAT'S CERTAINLY SOMETHING TO KEEP IN MIND. [APPLAUSE] PERHAPS AS A FINAL QUESTION BEFORE WE TURN TO MICHAEL, THERE'S A MOVEMENT UNDER WAY NOW KIND OF. LET'S SEE IF WE CAN PERSUADE THEM TO HAVE NEW JUSTICES THAT ARE APPOINTED TO THE COURT TO AGREE THAT THEY WILL STEP ASIDE AFTER A PARTICULAR PERIOD OF TIME. IN OTHER WORDS IT GOES TO THE LENGTH OF TENURE. FEDERAL JUDGES, AS YOU KNOW, SERVE FOR LIFE. AT THE TIME THE CONSTITUTION WAS WRITTEN. THE APPROXIMATE LIFE SPAN WAS 50. SO MANY OF US ARE VERY HAPPY THAT THERE'S BEEN MEDICAL PROGRESS SINCE THAT TIME. BUT IT HAS MEANT THAT OUR JUSTICES ARE SERVING FOR LONGER AND LONGER AND LONGER PERIODS OF TIME. THAT IS TRUE BY THE WAY FOR THE ENTIRE FEDERAL SYSTEM, NOT JUST FOR THE NINE JUSTICES ON THE UNITED STATES SUPREME COURT. BUT CONGRESS HAS CREATED A MECHANISM WHICH MAKES IT POSSIBLE FOR FEDERAL JUDGES ON THE CIRCUIT COURTS AND THE DISTRICT COURTS TO TAKE WHAT'S CALLED SENIOR STATUS. IT'S A LITTLE BIT ABOUT WHAT WE DO AT UNIVERSITIES NOW AFTER THEY PUT AN END TO 70 YEARS A MANDATORY AGE RETIREMENT, WHERE YOU CAN REMAIN FULL TIME ACTING JUDGE OR PART TIME. BUT YOU AUTOMATICALLY GET ANOTHER JUDICIAL POSITION IN YOUR COURT, THAT OF COURSE WE CAN'T DO IN THE UNITED STATES SUPREME COURT, BECAUSE WE HAVE THE NINE JUSTICES. ANY VIEWS FROM ANY OF YOU ABOUT WHETHER THAT'S A GOOD OR BAD IDEA AND WHAT'S THE LIKELIHOOD OF IT SUCCEEDING? AND MICHAEL, YOU NEED NOT ANSWER, BECAUSE YOUR JUSTICE IS SITTING RIGHT HERE. OR MAYBE YOU HAVE A VERY STRONG VIEW. [LAUGHTER] >> MICHAEL KLARMAN: I HAD A COUPLE STUDENTS WHO WROTE A NOTE YEARS AGO AND THEIR PROPOSAL WAS LIMITED TO THE SUPREME COURT, BUT IT WOULD BE 18 YEAR STAGGERED TERMS. AND I THOUGHT IT WAS A BRILLIANT PROPOSAL. I DON'T THINK IT HAS ANY PRACTICAL CHANCE OF BEING ADOPTED, BUT IT WAS BRILLIANT PROPOSAL BECAUSE IT SOLVES ALL OF THE PROBLEMS THAT EXIST WITH THE CURRENT SYSTEMS. SO THERE'S A PROBLEM WITH STRATEGIC APPOINTMENTS. PRESIDENTS WILL APPOINT PEOPLE YOUNGER AND YOUNGER, BECAUSE THEY UNDERSTAND IT'S IMPORTANT TO HAVE A PARTICULAR VIEW REPRESENTED AS LONG AS YOU CAN. THERE ARE STRATEGIC RETIREMENTS. JUSTICES WILL LEAVE THE COURT WHEN THERE'S A PRESIDENT SITTING WHO THEY BELIEVE ROUGHLY REPRESENTS THE VIEWS THEY WANT WRITTEN INTO LAW. THERE'S THE PROBLEM OF FORTUITY. WILLIAM HOWARD TAFT HAD 5 OR 6 APPOINTMENTS IN ONE 4 YEAR PERIOD. JIMMY CARTER HAD NONE DURING HIS 4 YEAR TERN IN OFFICE. AND IT'S A MANDATORY RETIREMENT, WHICH WE HAVE IN MOST AREAS OF LIFE, AND IT SEEMS LIKE IT WOULD PROBABLY BE A PRETTY GOOD IDEA IN THAT CONTEXT. >> NOT IN ACADEMIA, MICHAEL. [LAUGHTER] >> MARGARET MARSHALL: I THINK I CAN SPEAK FOR MICHAEL. YOU WOULD SUPPORT MANDATORY RETIREMENT FOR PROFESSORS. >> MICHAEL KLARMAN: I WOULD. >> LINDA GREENHOUSE: I THINK THE 18 YEAR TERM. I THINK I READ THAT STUDENT NOTE. IT'S WORTH DISCUSSING FOR THE REASONS THAT MICHAEL SAID. THE NOTION THAT SUPREME COURT NOMINEES SHOULD VOLUNTARILY PLEDGE THAT THEY WOULD DO IT STRIKES ME AS KIND OF NUTTY. IT'S INTERESTING THAT DEMOCRACY, OR WHAT PASSES AS DEMOCRACY HAS SPREAD AROUND THE WORLD AND DIFFERENT COUNTRIES HAVE ADOPTED ASPECTS OF OUR SYSTEM, INCLUDING CONSTITUTIONAL COURTS. NOT A SINGLE COUNTRY HAS ADOPTED LIFE TENURE. THEY EITHER HAVE AGE LIMITS, THEY HAVE TERM LIMITS. OF THE 50 STATES, ONLY RHODE ISLAND HAS LIFE TENURE FOR ITS JUDGES. EVERY OTHER STATE HAS EITHER TERM LIMIT OR AGE LIMITS. SO THESE SYSTEMS ARE VOTING WITH THEIR FEET THAT THERE IS SOMETHING A LITTLE PROBLEMATIC ABOUT IT. AND IT CERTAINLY DOES ELEVATE THE KIND OF DRAMA AROUND ANY SUPREME COURT VACANCY BECAUSE YOU'RE LOOKING OUT AT SUCH A LONG TIMELINE. AND AS MICHAEL SAID, JUSTICES ARE GETTING APPOINTED AT YOUNGER AND YOUNGER AGES. JOHN ROBERTS AT 50 WAS THE YOUNGEST CHIEF JUSTICE TO BE APPOINTED SINCE JOHN MARSHALL. SO THERE'S STUFF TO DISCUSS ABOUT THIS. IT'S A WORTHWHILE CONVERSATION, BUT IT'S A VERY LONG TERM ONE. AND EXTRACTING PROMISES FROM NOMINEES IS NOT THE ANSWER, I'M PRETTY SURE OF THAT. >> LAUREN SUDEALL LUCAS: I WOULD JUST ADD THAT I DON'T KNOW IF IMPLEMENTING THESE TYPES OF PROPOSALS WOULD HELP. BUT I THINK THERE'S A REAL NEED AND PERHAPS HAVING MORE FREQUENT TURNOVER WOULD HELP WITH THIS, HAVING A DIVERSITY OF EXPERIENCE NOT JUST TALK ABOUT DIVERSITY OF RACE AND GENDER IN TERMS OF WHO'S ON THE COURT. BUT ALSO DIVERSITY OF EXPERIENCE AND HAVING A RELATIVELY RECENT EXPERIENCE WITH HOW CASES ARE LITIGATED IN PRACTICE, PARTICULARLY IN OTHER PARTS OF THE COUNTRY. I LIVE IN A STATE WHERE PEOPLE ARE ROUTINELY UNREPRESENTED BY COUNSEL. THE CASES ARE RESOLVED WITHOUT A DEFENDANT EVEN SPEAKING TO A LAWYER. AND PEOPLE WHO HAVE PROSECUTORIAL EXPERIENCE, OR PUBLIC DEFENDER EXPERIENCE AND ACTUALLY KNOWING HOW THESE THINGS WORK ON THE GROUND AND PRACTICE OBSERVING INTERACTIONS BETWEEN CITIZENS AND POLICE WOULD REALLY HELP WITH HELPING THE COURT GRAPPLE WITH THESE ISSUES AS THEY TRY TO DECIDE HOW TO DEAL WITH IT AT THIS LEVEL, IT WOULD BE HELPFUL TO UNDERSTAND HOW THINGS OPERATE ON THE GROUND. [APPLAUSE] >> MARGARET MARSHALL: I WOULD ADD ONE LAST THING. I THINK I'M CORRECT, MAYBE I'M NOT. BUT I THINK THIS IS THE FIRST COURT EVER WHERE THERE'S BEEN NOBODY WITH ANY STATE EXPERIENCE. AND I DON'T MEAN JUST STATE, JUDICIAL. BUT JUSTICE SOUTER HAD OF COURSE BEEN A STATE COURT JUDGE, AND CHIEF JUSTICE WARREN, GOVERNOR. PEOPLE HAVE HAD STATE EXPERIENCE. I THINK IT'S ALSO IMPORTANT THAT WE ARE BECOMING AN INCREASINGLY FEDERALIZED COURT. MICHAEL, I DON'T KNOW IF IT WAS YOU OR JOHN WHO TOLD ME THIS YEAR THE COURT HAS TAKEN A VERY FEW NUMBER OF CASES FROM STATE COURTS. AND THAT'S WHERE MOST OF THE JUSTICE GETS DONE. I FOR ONE HAVE A PROPOSAL THAT IF WE HAVE LIMITED TENURE, EITHER BY AGE LIMITATION, OR BY NUMBERS OF YEARS SERVED, THAT IT NOT BE IMPLEMENTED UNTIL AFTER THE LAST SITTING JUDGE HAS NO LONGER APPLIED TO THEM, BECAUSE I THINK IT'S VERY PROBLEMATIC WHEN YOU TRY TO DO IT WITH A SITTING COURT. AND IN ANY EVENT, I WOULD LIKE TO THANK JOHN ADAMS IN THE MASSACHUSETTS CONSTITUTION FOR TELLING US THAT WE HAD LIFETIME TENURE. BECAUSE IF WE DIDN'T, WE WOULDN'T HAVE THIS EXTRAORDINARY, BRILLIANT, WONDERFUL, AMAZING WOMAN THAT WE HAVE TO CELEBRATE HERE TODAY. [CHEERS AND APPLAUSE] SO IF YOU ARE A LAWYER, ESPECIALLY ONE WHO'S JUST BEGINNING THEIR CAREER, WHAT IS THE VERY, VERY, VERY BEST JOB IN THE WORLD THAT YOU COULD POSSIBLY HAVE? IT IS NO DOUBT TO BE A LAW CLERK FOR JUSTICE RUTH BADER GINSBURG. AND MICHAEL KLARMAN IS GOING TO GIVE US A LITTLE PERSPECTIVE OF WHAT IT IS LIKE TO HAVE THAT BEAUTIFUL POSITION. MICHAEL? [APPLAUSE] >> MICHAEL KLARMAN: THANK YOU. WHEN PRESIDENT CLINTON NOMINATED RUTH BADER GINSBURG TO THE SUPREME COURT IN 1993, HE SAID QUOTE MANY ADMIRERS OF HER WORK SAID THAT SHE IS TO THE WOMEN'S MOVEMENT WHAT FORMER SUPREME COURT JUSTICE THURGOOD MARSHALL WAS TO MOVEMENT OF THE RIGHTS OF AFRICAN AMERICANS. CLINTON WHO WAS A GRADUATE OF A LAW SCHOOL OTHER THAN HARVARD THAT SHALL NOT BE NAMED, EXPLAINED THAT HE COULD THINK OF NO GREATER COMPLIMENT TO BESTOW ON AN AMERICAN LAWYER. INDEED JUSTICE GINSBURG IS ONE OF THE FEW JUSTICES IN AMERICAN HISTORY WHO WOULD BE A DESERVED FAMOUS AMERICAN IF SHE HAD NEVER SERVED ON THE SUPREME COURT. I AM GOING TO TELL YOU A FEW STORIES ABOUT JUSTICE GINSBURG AND HER BIOGRAPHY AND HER ROLE AS A TRAILBLAZING LITIGATOR FOR SOCIAL REFORM. AS MARGIE SAID, I HAD THE GOOD FORTUNATE TO CLERK FOR HER 30 YEARS AGO. SO I KNOW SOME OF THESE STORIES AS A RESULT OF HAVING WRITTEN SOME ABOUT HER IN THE PAST. GINSBURG'S PERSONAL STORY ILLUSTRATES WHAT THE PROFESSIONAL WORLD WAS LIKE FOR WOMEN HALF A CENTURY AGO. HOW MUCH IT'S CHANGED SINCE THEN, AND HOW THE EFFORTS OF A TALENTED AND HARD WORKING LAWYER CAN CONTRIBUTE TO PROGRESSIVE SOCIAL REFORM. WHEN GINSBURG ENTERED HARVARD LAW SCHOOL IN 1956, SHE WAS ONE OF ONLY NINE WOMEN IN A CLASS OF OVER 500. HARVARD LAW SCHOOL HAD NOT ADMITTED WOMAN AT ALL UNTIL 1950. AT THE TIME THAT GINSBURG WAS MATRICULATED AT HLS, WOMEN WERE NOT PERMITTED TO LIVE IN LAW SCHOOL DORMITORIES, AND THEY WERE DENIED ACCESS TO DINING TABLES AT THE FACULTY CLUB. AND THE ANNUAL LAW REVIEW BANQUET ENCOURAGED MEMBERS TO BRING WITH THEM THEIR FATHERS, BUT NOT THEIR MOTHERS OR THEIR WIVES. EARLY IN THE SCHOOL YEAR THE LAW SCHOOL'S DEAN INVITED THE NINE WOMEN IN THE CLASS TO HIS HOUSE FOR DINNER AND DURING THE COURSE OF THE EVENING'S CONVERSATION, HE ASKED THEM WHY THEY WANTED TO ATTEND HARVARD LAW SCHOOL, TAKING UP A SPACE THAT A MAN COULD PRESUMEDLY PUT TO BETTER USE. GINS BURG REPORTS BEING UNPREPARED FOR THE QUESTION. NOW AS YOU MAY KNOW HER SPOUSE, MARTY GINSBURG WAS A YEAR AHEAD OF HER AT HARVARD LAW SCHOOL. AND AS SHE LATER RECOUNTS HER REJOINDER TO THE DEAN, ALL I COULD THINK TO SAY WAS THAT MY HUSBAND WAS IN THE SECOND YEAR CLASS, AND IT WAS IMPORTANT FOR A WIFE TO UNDERSTAND HER HUSBAND'S WORK. [LAUGHTER] FEW PEOPLE AT THAT POINT COULD HAVE CONFIDENTLY PREDICTED THERE WOULD EVER BE A WOMAN ON THE UNITED STATES SUPREME COURT AND INDEED THERE WAS NOT FOR ANOTHER 25 YEARS. GINSBURG TRANSFERRED TO COLUMBIA LAW SCHOOL AFTER TWO YEARS AT HARVARD WHEN MARTY GRADUATED AND TOOK A JOB WITH A NEW YORK LAW FIRM. THEY WERE RAISING A YOUNG DAUGHTER AT THE TIME. GINSBURG GRADUATED IN 1959. SHE WAS TIED FOR FIRST IN HER CLASS AT COLUMBIA, AND SHE HAD BEEN ON THE LAW REVIEW BOTH AT COLUMBIA AND AT HARVARD. YET HER PROFESSORS HAD TROUBLE FINDING HER A FEDERAL CLERK COURTSHIP, EVEN THOUGH SHE WAS EMINENTLY QUALIFIED FOR IT. NO FEDERAL JUDGE IN THE NEW YORK CITY AREA WOULD HIRE A YOUNG MOTHER AS A LAW CLERK. FINALLY ONE OF HER PROFESSORS, GERALD GUNTHER, PREVAILED UPON A FEDERAL DISTRICT COURT JUDGE EDMOND PALMIERI TO HIRE GINSBURG BY OFFERING A PERSONAL GUARANTEE THAT IF SHE DID NOT WORK OUT HE WOULD FIND A MALE REPLACEMENT. SHE WORKED OUT SO WELL THAT IN THE FUTURE PALMIERI COULD NOT GET ENOUGH FEMALE CLERKS. AS MOST OF YOU KNOW JUSTICE GINSBURG WAS THE LEADING WOMENS RIGHTS LAWYER IN THE UNITED STATES IN THE 1970S. SHE ARGUED 6 LANDMARK CASES IN THE UNITED STATES SUPREME COURT, WINNING 5 OF THEM. NOW ONE FAIRLY UNIQUE OBSTACLE CONFRONTED BY LAWYERS FOR SOCIAL REFORM IS EVEN HAVING THEIR ARGUMENTS TAKEN SERIOUSLY. IN 1938 CHARLES HAMILTON HOUSTON, ONE OF THE LEADING BLACK CIVIL RIGHTS LITIGATORS IN THE COUNTRY AND A GRADUATE OF HARVARD LAW SCHOOL LITERALLY HAD ONE OF THE JUSTICES TURN HIS BACK ON HIM IN DURING ORAL ARGUMENT IN A LANDMARK RACE DISCRIMINATION CASE IN ORDER TO INDICATE HIS PROFOUND DISRESPECT FOR A BLACK MAN. 40 YEARS LATER, ORAL ADVOCATE RUTH BADER GINSBURG HAD TO CONFRONT CONDESCENDING HUMOR FROM THE BENCH AS SHE CHALLENGED THE EXCLUSION OF WOMEN FROM JURIES IN THE STATE OF MISSOURI. AFTER GINSBURG HAS CONCLUDED HER ORAL ARGUMENT IN THE CASE, ONE OF THE JUSTICES LEANED OVER FROM THE BENCH TO ASK ONE FINAL QUESTION. YOU WON'T SETTLE FOR PUTTING SUSAN B. ANTHONY ON THE DOLLAR THEN I TAKE IT? IN ANOTHER LANDMARK CASE ONE OF THE JUSTICES PRIVATELY CRITISIZED GINSBURG'S BRIEF AS BEING EMOTIONAL, INVOKING ONE OF THE TRADITIONAL GENDER PUTDOWNS OF THE ERA. IN ADDITION TO THE CHALLENGE OF BEING TAKEN SERIOUSLY, ONE OF THE PRINCIPLE DIFFICULTIES THAT SOCIAL REFORM LITIGATORS FACE IS CONVINCING JUSTICES OF THE UNFAIRNESS OF A SYSTEM, UNDER WHICH THEY THEMSELVES HAD BENEFITED AND WHICH HAD BECOME GROUNDED IN AN IDEOLOGY SO PERVASIVE THAT THEY HAD TROUBLE EVEN NOTICING THAT IT'S ASSUMPTIONS ARE CONTROVERSIAL. GINSBURG CONFRONTED EXACTLY THAT PROBLEM TRYING TO CONVINCE ELDERLY MALE JUSTICES IN THE 1970S OF THE INSIDIOUS CONSEQUENCES OF SEX CLASSIFICATIONS. VIRTUALLY ALL SEX CLASSIFICATIONS ARE AS JUSTICE GINSBURG LIKES TO SAY A DOUBLE EDGED SWORD. MANY SUCH STATUTES TANGIBLY DISADVANTAGE MALES AND NOT FEMALES, THAT THEY INTANGIBLY HARM WOMEN BY PERPETUATING STEREOTYPES OF FEMALE DEPENDENCY, PASSIVITY, AND LACK OF BUSINESS ABILITY. GINSBURG NEEDED TO CONVINCE THESE JUSTICES THAT WOMEN WERE HARMED FOR EXAMPLE BY STATUTES THAT REQUIRED MEN BUT NOT WOMEN TO PAY ALIMONY OR THAT PERMITTED WOMEN, BUT NOT MEN THE CHOICE OF WHETHER TO SERVE ON A JURY. IN A TELLING CONVERSATION WITH HARVARD LAW SCHOOL STUDENTS EARLY IN 1973, ONE OF THE MALE JUSTICES AND THERE WERE ONLY MALE JUSTICES IN 1973 EXPRESSED BEWILDERMENT AS TO WHY WOMEN WANTED AN EQUAL RIGHTS AMENDMENT. IN HIS VIEW, THE FEMALE OF THE SPECIES HAS THE BEST OF BOTH WORLDS. SHE CAN ATTACK LAWS THAT UNREASONABLY DISCRIMINATE AGAINST HER, WHILE PRESERVING THOSE THAT FAVOR HER. GINSBURG REPORTED BEING DEPRESSED WHEN SHE HEARD THE ACCOUNT OF THAT SPEECH. A LENGTHY EXCHANGE BETWEEN GINSBURG AND TWO OF THE JUSTICES AT ORAL ARGUMENT, IN THE CASE OF CALIFANO V. GOLDFARB IN 1976 REVEALS HOW DIFFICULT IT WAS TO CONVINCE ELDERLY MALE JUSTICES THAT ALL SEX CLASSIFICATIONS ADVERSELY AFFECTED WOMEN BECAUSE OF THIS DOUBLE EDGED NATURE. THE SOCIAL SECURITY PROVISION THAT WAS AT ISSUE IN GOLDFARB AUTOMATICALLY PROVIDED SURVIVORS BENEFITS FOR THE WIDOWS OF COVERED MALE EMPLOYEES, BUT REQUIRED THAT THE WIDOWERS OF COVERED FEMALE EMPLOYEES DEMONSTRATE ACTUAL ECONOMIC DEPENDENCY ON THEIR SPOUSES. TO GINSBURG SUCH A PROVISION HAD THREE DIFFERENT FLAWS. FIRST OF ALL IT DISCRIMINATED AGAINST FEMALE WAGE EARNERS, SECOND IT DISCRIMINATED AGAINST THE MALE BENEFICIARIES, AND THIRD IT PROPETUATED THE PERFIDIOUS SEX STEREOTYPE THAT MALES WERE PRIMARILY BREAD WINNERS AND WOMEN WERE PREDOMINANTLY HOMEMAKERS. SOME OF THE JUSTICES HAD DIFFICULTY SEEING THESE POINTS. THE FIRST QUESTION THAT WAS DIRECTED TO GINSBURG FROM THE BENCH WAS WHETHER THE PROVISION AT ISSUE DISCRIMINATED AGAINST MALES OR FEMALES, WHETHER IT COULD NOT BE CAST IN EITHER WAY, AND WHY SHE HAD CHOSEN TO TREAT IT AS AN ANTI FEMALE DISCRIMINATION. IF THE SEXES WERE SWITCHED, AND ONLY FEMALE BENEFICIARIES, WHERE WE'RE REQUIRED TO ESTABLISH ACTUAL FINANCIAL DEPENDENCY, ONE JUSTICE WONDERED WOULD THAT MAKE A CONSTITUTIONAL DIFFERENCE? GINSBURG'S RESPONSE WAS THE LINE DRAWN HERE LIKE VIRTUALLY EVERY GENDER DISCRIMINATION IS A TWO EDGE SWORD. HER INTERLOCUTOR PERSISTED. SOME RECENT COURT DECISIONS HAD FOCUSED ON THE HISTORY OF DISCRIMINATION AGAINST WOMEN, BUT HE DOUBTED THAT ANY ANALOGOUS HISTORY OF DISCRIMINATION AGAINST MEN EXISTED. GINS BURG RESPONDED THAT MOST ANTI-FEMALE DISCRIMINATION WAS DRESSED UP AS DISCRIMINATION FAVORING THE WOMEN. THE JUSTICE REPLIED IMPATIENTLY, I KNOW THAT. I KNOW THAT BUT THE COURTS THROUGH HELP OF ADVOCATES SUCH AS YOU HAVE BEEN ABLE TO SEE THAT, HAVENT THEY? THAT COMMENT ELICITED LAUGHTER IN THE COURTROOM. GINS BURG GAMELY REITERATED THAT SEX CLASSIFICATIONS ALMOST INEVITABLEY HARMED WOMEN. PERSISTING THIS JUSTICE ASKED HER TO IMAGINE AN INSTANCE OF DISCRIMINATION AGAINST MALES. WOULD HER CONSTITUTIONAL ARGUMENT BE EQUALLY STRONG? GINSBURG REPLIED THAT HER ARGUMENT WOULD REMAIN UNCHANGED BECAUSE I DON'T KNOW OF ANY PURELY ANTI-MALE DISCRIMINATION. IN THE END, THE WOMEN ARE THE ONES WHO END UP HURTING. IN A MOMENT LATER, ANOTHER OF THE JUSTICES TOOK UP THE SAME LINE OF QUESTIONING. SHOULD DISCRIMINATION AGAINST MALES BE SUBJECTED TO THE SAME STANDARD AS DISCRIMINATION AGAINST FEMALES OR TO A DIFFERENT ONE? GINSBURG REPEATED HER PREVIOUS ANSWER. ALMOST EVERY DISCRIMINATION THAT OPERATES AGAINST MALES OPERATES AGAINST FEMALES, AS WELL. BEWILDERED AND APPARENTLY ANNOYED, THE JUSTICE RESPONDED IS THAT A YES OR A NO ANSWER? I JUST DON'T UNDERSTAND YOU. ARE YOU TRYING TO AVOID THE QUESTION? GINSBURG INSISTED SHE WAS TRYING TO CLARIFY, NOT EVADE. SHE WAS AWARE OF NO SEX CLASSIFICATIONS THAT DID NOT OPERATE AS A DOUBLE EDGED SWORD. THE EXCHANGE WENT ON TO SIMLAR EFFECT FOR A WHILE LONGER THEN CAME THE FOLLOWING QUESTION FROM THE BENCH. BUT YOUR ANSWER ALWAYS DEPENDS ON THERE FINDING SOME DISCRIMINATION AGAINST FEMALES. YOU SEEM TO PUT THAT IN EVERY ANSWER TO THIS QUESTION. YES. GINSBURG WHO MUST HAVE BEEN GROWING EXASPERATED AT THIS POINT REITERATED THAT QUOTE. I HAVE NOT YET COME ACROSS A STATUTE THAT DOESN'T HAVE THAT AFFECT. HER QUESTIONER PERSISTED. I'M NOT MAKING THIS UP. BUT IF THERE WERE ONE, THEN WOULD YOU SAY IT WOULD BE TREATED UNDER A DIFFERENT STANDARD I TAKE IT? NOT WISHING TO ALIENATE A POTENTIAL ALLY, OR TO MAKE A CONCESION THAT COULD HARM HER CASE, GINSBURG RELENTED. IF THERE WERE SUCH A STATUTE, SHE WOULD RESERVE JUDGMENT ON WHAT THE STANDARD WOULD BE. BUT SHE REPEATED SHE HAD YET TO COME ACROSS SUCH A STATUTE. THE JUSTICES WHO WERE ASKING THESE QUESTIONS WERE VERY SMART MEN. THEIR INABILITY TO COMPREHEND WHAT WOULD STRIKE MOST OF US TODAY AS A FAIRLY SELF EVIDENT POINT SPEAKS VOLUMES ABOUT THE CHALLENGES THAT SOCIAL REFORM LAWYERS FACE IN CONFRONTING THE DEEPLY ROOTED IDEOLOGIES THAT MAKE A SYSTEM OF OPPRESSION SEEM JUST AND NATURAL. I'VE BEEN TALKING ABOUT SOME OF THE CHALLENGES THAT GINSBURG FACED IN COURT OF CONVINCING MALE JUSTICES AS WHY SEX CLASSIFICATIONS WERE HARMFUL TO WOMEN AND AS SHE WOULD WANT ME TO ADD TO MEN AS WELL. BUT NOW I WANT TO TURN TO ANOTHER ASPECT OF THE JOB OF SOCIAL REFORM LITIGATORS. WE TEND TO THINK OF LAWYERS AS PEOPLE WHO GO INTO COURT IN PURSUANCE OF A LEGAL CLAIM. BUT IN SOME WAYS THE MOST IMPORTANT JOB OF THE SOCIAL REFORM LITIGATOR DOES NOT TAKE PLACE IN THE COURTROOM AT ALL. THE STRATEGY OF THE WOMEN'S RIGHTS PROJECT, WHICH GINSBURG HEAD IN THE 1970S INCLUDED NOT JUST LITIGATING CASES, BUT ALSO LOBBYING LEGISLATURES, TRAINING LAWYERS, AND EDUCATING THE GENERAL PUBLIC ABOUT ISSUES OF SEX DISCRIMINATION. GINSBURG AND THE WRP OFFERED ASSISTANCE TO ACLU AFFILIATES THROUGHOUT THE COUNTRY WHO WERE ENGAGING IN SEX DISCRIMINATION LITIGATTION. SHE ADVISED THEM ON PRIORITIES AND THE WRP SERVED AS A CLEARINGHOUSE FOR INFORMATION, BOTH ABOUT PENDING SEX DISCRIMINATION CASES AND ABOUT LAWYERS WHO WERE WILLING TO HELP OUT WITH THEM. AFTER HER LEGAL VICTORIES, GINSBURG WOULD WRITE MEMOS TO ACLU AFFILIATES INSTRUCTING THEM ON HOW TO PURSUE FOLLOW UP LITIGATION AND LEGISLATIVE LOBBYING. GINSBURG DEVOTED AT LEAST AS MUCH OF HER TIME TO EDUCATING PEOPLE ABOUT SEX DISCRIMINATION AS SHE DID LITIGATING SEX EQUALITY CASES. WHEN HER FEMALE STUDENTS AT RUTGERS LAW SCHOOL IN THE 1960S ASKED FOR A SEMINAR ON WOMEN AND THE LAW, GINSBURG SPENT A MONTH IN THE LIBRARY READING EVERY COURT DECISION AND LAW REVIEW ARTICLE ON THE SUBJECT SHE COULD FIND, WHICH SHE REPORTS WAS NOT A VERY TAXING ENDEAVOR, GIVEN HOW LITTLE THERE WAS. THEN SHE INITIATED SUCH A COURSE AND WITH TWO OF HER COLLEAGUES SHE PUT TOGETHER ONE OF THE NATION'S FIRST CASE BOOKS ON WOMEN AND THE LAW. SHE ALSO WROTE NUMEROUS LAW REVIEW ARTICLES ON SEX DISCRIMINATION LITIGATION, AND SHE MAINTAINED A STEADY STREAM OF CORRESPONDENCE, WHICH STUDENT LAW REVIEW EDITORS, URGING THEM TO WRITE ABOUT RACE AND SEX DISCRIMINATION CASES, EDUCATING THEM ABOUT THE ISSUES, AND PROVIDING THEM WITH BRIEFS AND OTHER MATERIALS TO ENHANCE THEIR SCHOLARSHIP. AND SHE TRAVELED AROUND THE COUNTRY TESTIFYING BEFORE LEGISLATURES IN SUPPORT OF THE EQUAL RIGHTS AMENDMENT AND SPEAKING TO ACLU AFFILIATES AND UNIVERSITY AUDIENCES ABOUT ISSUES OF SEX EQUALITY. SHE WAS AN ORGANIZER, A MOBILIZER, A PUBLICIST AND AN EDUCATOR FOR THE SEX EQUALITY MOVEMENT, MUCH AS THURGOOD MARSHALL HAD BEEN FOR THE CIVIL RIGHTS MOVEMENT A GENERATION EARLIER. WHLE DOING ALL THESE THINGS THE SOCIAL REFORM LITIGATOR ALSO HAS TO FACE THE DAY TO DAY CHALLENGES POSED BY AN UNJUST STATUS QUO THAT THEY'RE LITIGATING AGAINST. WHEN ARGUING RACE DISCRIMINATION CASES IN THE SUPREME COURT IN THE 1930S AND 1940S, THURGOOD MARSHALL HAD A HARD TIME FINDING A RESTAURANT TO EAT AT IN THE THOROUGHLY SEGREGATED DISTRICT OF COLUMBIA. GINS BURG FACED A SIMILAR CHALLENGE AS CAPTURED IN A STORY SHE TELLS FROM THIS TIME PERIOD. NOW REMEMBER, SHE'S A TENURED PROFESSOR AT COLUMBIA LAW SCHOOL, SHE'S HEAD OF THE WOMEN'S RIGHTS PROJECT, SHE'S A SUPREME COURT LITIGATOR AND A FREQUENT WITNESS ACRSS THE COUNTRY ON BEHALF OF THE ERA. BUT SHE'S ALSO RECEIVING REPEATED PHONE CALLS AT HER OFFICE ABOUT HER SON JAMES WHO IS THEN TEN YEARS OLD WHO IS ACTING UP AT SCHOOL IN THE WAY 10 YEAR OLDS ARE WANT TO DO. FINALY EXASPERATED AT THE REPEATED PHONE CALLS GINSBURG RESPONDED TO ONE OF THEM AS FOLLOWS. THIS CHILD HAS TWO PARENTS. I SUGGEST FROM NOW ON YOU ALTERNATE BETWEEN THEM WHEN YOU NEED TO SPEAK TO SOMEONE ABOUT JAMES. [CHEERS AND APPLAUSE] GINSBURG REPORTS THAT EVEN THOUGH JAMES' BEHAVIOR DID NOT MATERIALLY IMPROVE, THE PHONE CALL CEASED BECAUSE THE SCHOOL WOULD NOT DREAM OF BOTHERING A BUSY MALE TAX ATTORNEY AT HIS OFFICE DURING WORKING HOURS. SOCIAL REFORM LAWYERS NOT ONLY MOBILIZED PROTESTS, THEY ALSO PROVIDE, I'M ALMOST DONE, VALUABLE ROLE MODELS FOR MEMBERS OF TRADITIONALLY SUBORDINATED GROUPS. IN 1960 OF COURSE, THERE HAD NEVER BEEN A WOMAN ON THE UNITED STATES SUPREME COURT. THERE HAD BEEN ONLY TWO OR THREE FEDERAL FEMALE JUDGES IN THE HISTORY OF THE COUNTRY. IN THE LATE 1940S, PRESIDENT HARRY TRUMAN APPARENTLY BRIEFLY CONSIDERED APPOINTING A WOMAN TO THE SUPREME COURT, FLORENCE ALAN, WHO WAS SITTING ON THE 6TH CIRCUIT COURT OF APPEALS, BUT WHEN HE CONSULTED WITH THE SITTING JUSTICES, APPARENTLY THAT WAS A MISTAKE, THEY URGED AGAINST DOING SO, APPARENTLY THEIR CONCERN WAS THAT HER PRESENCE WOULD INHIBIT THEM FROM TAKING OFF THEIR TIES AND KICKING UP THEIR FEET AT CONFERENCE. IN THE MID 1960S, WOMEN WERE ONLY ABOUT 1% OF SUPREME COURT LITIGATORS. LESS THAN 2% OF THE NATION'S LAW PROFESSORS. JUSTICE GINSBURG DID NOT HAVE A SINGLE FEMALE PROFESSOR DURING HER THREE YEARS OF LAW SCHOOL. NOT UNTIL 1970, IF YOU CAN BELIEVE THIS, DID THE AMERICAN ASSOCIATION OF LAW SCHOOLS AMMEND ITS RULES TO BAR SEX DISCRIMINATION AT MEMBER INSTITUTIONS AND AS OF THAT YEAR WOMEN WERE ONLY ABOUT 10% OF LAW SCHOOL STUDENT BODIES. GINSBURG APPRECIATED THE IMPORTANCE OF FEMALE LAWYERS PARTICIPATING IN SEX EQUALITY CASES. WHEN SHE LEARNED OF THE ACLU'S INVOLVEMENT AND WHAT TURNED OUT TO BE THE SUPREME COURT'S LANDMARK SEX EQUALITY DECISION IN 1971. SHE ASKED THE ORGANIZATION'S LEGAL DIRECTOR WHETHER A WOMAN OUGHT NOT TO BE INVOLVED AS CO-COUNCIL IN THE CASE. HE AGREED AND OFFERED HER TO JOIN HIM. IN WRP LITIGATION WOMEN'S RIGHTS PROJECTS LITIGATION GINSBURG LATER NOTED, PARTICULAR ATTENTION WAS GIVEN TO ENCOURAGING PARTICIPATION BY WOMEN LAWYERS WHO SEEK ASSISTANCE IN MAINTAINING THEIR SKILLS DURING PERIODS WHEN FAMILY RESPONSIBILITIES PREVENT THEM FROM WORKING FULL TIME. GINSBURG'S LEADERSHIP OF THE WRP AND HER ORAL ADVOCACY IN THE UNITED STATES SUPREME COURT WERE INSPIRATIONAL TO COUNTLESS WOMEN. SHE HERSELF NEVER FAILED TO HIGHLIGHT THE COUNTLESS CONTRIBUTIONS OF PAST GENERATIONS OF FEMINISTS TO HER OWN WORK. IN HER BRIEF IN THE COURT'S LANDMARK SEX DISCRIMINATION CASE, SHE PLACED THE NAMES OF TRAILBLAZING FEMINISTS DOROTHY KENYON AND PAULI MURRAY ON THE TITLE PAGE AS A SYMBOLIC ACKNOWLEDGMENT OF THE INTELLECTUAL DEBT OWED TO THEM BY CONTEMPORARY FEMINISTS. AND LATER AS A SUPREME COURT JUSTICE SHE WROTE NUMEROUS ARTICLES DESCRIBING THE CONTRIBUTION OF PIONEERING FEMINIST LAWYERS AND JUDGES, AS WELL AS THE WIVES OF SUPREME COURT JUSTICES. MANY SOCIAL REFORM ACTIVISTS DO NOT LIVE TO SEE THE DAY THAT THEIR DREAMS ARE REALIZED. MANY OF THE FIRST GENERATION OF ABOLITIONISTS DID NOT SURVIVE TO SEE THE ENACTMENT OF THE 13TH AMENDMENT ENDING OF SLAVERY. AND SUSAN B. ANTHONY AND ELIZABETH CADY STANTON DID NOT LIVE TO SEE THE ENACTMENT OF THE 19TH AMENDMENT ENFRANCHISING WOMEN. JUSTICE GINSBURG, OF COURSE, HAS NOT ONLY LIVED TO SEE THE ENORMOUS CHANGES IN SEX EQUALITY, BUT HAS HELPED TO BRING THEM ABOUT AS A SUPREME COURT JUSTICE AS IN HER LANDMARK DECISION 20 YEARS AGO REQUIRING VIRGINIA MILITARY INSTITUTE TO ADMIT WOMEN. JUSTICE GINSBURG, WE'RE SO HAPPY YOU'VE AFFORDED US THIS OCCASION TODAY. IN CELEBRATING YOUR EXTRAORDINARY CONTRIBUTIONS BOTH TO SEX EQUALITY AND MORE GENERALLY MAKING OURS A MORE JUST SOCIETY. WE'RE ALL IN YOUR DEBT. THANK YOU VERY MUCH. [APPLAUSE] >> THANK YOU SO MUCH MICHAEL. AND DID I TELL YOU THAT WAS THE VERY BEST JOB TO HAVE IN THE WORLD. LIZ, ARE YOU GOING TO THANK OUR PANELISTS? >> TWO THINGS I'M GOING TO SAY. >> ARE YOU GOING TO THANK THEM? >> I AM. AND YOU! I WILL JUST TIE THINGS UP HERE QUICKLY. I WANT TO THANK MARGIE AND THE PANELISTS. YOU'VE TAUGHT US A GREAT DEAL ABOUT THE FIRST DECADE OF THE ROBERTS COURT. AND I THINK YOU HAVE EQUIPPED US, YOU HAVE EQUIPPED US WELL FOR A FUTURE OF COURT WATCHING. I WANT TO THANK THE AUDIENCE FOR JOINING US THIS MORNING. IN CAMBRIDGE AND THE MANY PEOPLE WHO ARE ONLINE TO HONOR JUSTICE RUTH BADER GINSBURG. [MUSIC]