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tv   America the Courts  CSPAN  July 10, 2010 7:00pm-8:00pm EDT

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make it convenient to the customers will come. they will want to be with your cable system if it is easy and integrated with the main system and works seamlessly with web services. that is where we need to go as an industry. >> it you have been in this business for awhile. -- you have been in this business for awhile appeared help people understand where you are. >> i am bullish. i have been for the past 10 years. i have been proven wrong. you have to stay the course. keep innovating. make sure that your customers want to be with you. the rest will follow. >> more of these interviews will
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come your way over the next few months. to see this again, go to our web site -- website at c-span.org. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] ..
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>> 2 senators are featured on tonight's coverage. first, a debate for two republicans vying for sam brownback's position. missouri's secretary of state has ceded her position for senate. president obama is speaking at her fundraiser tonight. a discussion of the missouri economy and jobs at 10:10 tonight. campaign 2010 coverage on c-
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span. >> this weekend on "after words," andrew napolitano on the behavior of the bush and obama administrations, interviewed by ralph nader. nonfiction books all weekend on c-span 2. check the entire booktv schedule at booktv.org. >> the national governor's association summer meeting is underway in boston. tomorrow's topic is the federal budget and national debt. allen simpson and the former clinton chief of staff co-chair the commission. live coverage sunday morning at
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9:30 eastern on c-span. next, two former solicitors general from the clinton and bush administrations on the most important supreme court decisions this term, including the citizens united and chicago hearings. this is just under 1:20.
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>> welcome. writing about journalism, not describing the elena kagen hearings, but he could have been. we will try to make today's discussions more interesting. a couple of reminders. if you would please turn off your cell phones or silence them. for those out there, it is speaker@heritage.org. the moderator for our first panel has been a scholar here at the heritage foundation. he has served in all three branches of the federal
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government. >> welcome to everyone here in the audience and on behalf of the center for judicial and legal studies. i have the pleasure of introducing a respected teacher and friend and if they don't provoke each other, to provoke them in the rebuttal period. but i will introduce them alphabetically and in reverse order of their speaking. our first guest heads up the supreme court and appellate
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practice clinic and is visiting at harvard university, on leave from duke university where he has taught law many years. the two most notable positions were first as assistant attorney general from 1993-1996 where he was my boss and professional teacher. he was also the acting solicitor general from 1996 to 1997 when he argued 9 cases before the supreme court, the most a solicitor general has argued in 9 years, and even a higher percentage than solicitor generals of old. he argued the dc gun case on behalf ot -- of the district of columbia, and a case where
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he tricked justice souter and struck down an outrageous punitive damage award. he won all the cases argued this year, even if the win on behalf of north carolina is not as well noted. but to his left -- but not politically -- is richard epstein. he is the newly-minted lawrence a. tisch professor at nyu law school, still affiliated with chicago, but more famously he was a professor, dean, former head -- director of the law and economics program. richard is well known from his
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research and writing on a wide range of subjects. he has written dozens of books, hundreds of articles, and edited some very influential legal journals. here are the subjects he taught at the university of chicago. labor law, patent, property, tort, real estate, finance, and individual and corporate taxation. it is perhaps for this range -- did i? >> you also left out that he taught the same thing in every course. >> richard was elected at a ripe young age to the american
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academy of arts and sciences in 1985. last but not least, greg barr, who has caught constitutional law and supreme court practice for several years at the gwu law school, the only solicitor general to have served in all three principal offices in that position. in the capacity of solicitor general by my count, he has argued 30 or more cases before the high court. one of the most important was ashcroft, clarifying the standard under federal law for
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"highly improbable" claims in search of a cause of action. according to the plaintiff's, that is another outrageous activist decision of the roberts court they want overturned. i wishh his able rep resentation had not been successful in that case. why don't you come out? [applause] >> thank you for that kind introduction, for joining us today. i am honored to be here today. when word went around that we
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were going to be involved in the program today, i received a number of emails saying, "a scholar?" here i am. i am -- scholar is a big deal for me. i thought i would start off by making a few observations about the roberts court and talk about a few major pending cases then finish up with a few remarks on justice steven's departure. generally looking at the year of the court, a few things stand out. this is a big year for the roberts court and for chief justice roberts on that court. justice roberts was in the
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majority more frequently than any other, and he dissented in [ only . the last most frequent dissenter was joseph kennedy. this eclipse justice stevens dissented 22 times this term. looking forward, justice stevens, the most frequent justice to disagree with chief justice roberts is leaving the court which one might think would lead to even greater unanimity or at least greater agreement on the roberts court. second, i think it is fair to say that the court this year was a conservative but minimalist court. it showed that it would walk
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tall but perhaps take baby steps. it did so in a number of cases in the free enterprise case, the court embraced a constitution theory that held unconstitutional the four clause provision of the sarbanes oxley accounting board. it left the board in tact so it was a broad constitutional ruling but minimalist results. the court declined to validate that statute across the board on vagueness grounds. the big exception what this -- was the citizens united case. third, the court seemed like a relatively happy place. we saw the fewest side court decisions in recent years, only about 18% of the cases were 5-4 decisions. last year, about 30% of the cases were 5-4 so that s a
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fairly significant decline. about 75% of the cases were seven-two or more so broad consensus in the broad majority of cases. in the more interesng cases, there were not consensus. i would like to talk briefly about three cases which i think illustrate different things about the court agreed the first is the citizens united case corporate they are not afraid to go where it beliives police them. citizens united you all know about. involved the constitutional challenge to a provision of the mccain-find cold finance reform act. in a nutshell, it prevented paying for adverrisements which
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mentioned a candidate in the cycle leading up to an election directly through their general treasury fund for the law allowed them to pay for those advertisements through a pac but the constitutional challenge was brought by a nonprofit advocacy corp. that produced the movie called "hillary the movie" which was a fairly critical movie of the hillary clinton. they were going to broadcast it around for election. the election. the fcc said yes and they brought that case to the supreme court and the court in this 5-4 decision written by justice kennedy held the provision unconstitutional as applied to corporations. they sustained the disclosure requirements and a disclaimer
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requirements. one significant thing is how the case got to be decided by the court and what was significant is the case was set for 3 argument at the end of last term. e court tn proceed to overrule a couple of recent decisions. the decision in mcconell a few years back. there was an austin decision that upheld -- that was upheld by the court in a similar way. justice kennedy had been an advocate in these kind of cases and the austin case. he had four other justices to agree with him in this case and he wrote the decision overruling the prior cases.
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the court generly does not like firstmendment theories that it believes will lead to book bag whichs one of the example that came up in oral argument. -- book banning which is one of the examples that came up in oral argument. what chief justice roberts said in this case was that there is a difference between judicial restraint and judicial avocation. justice roberts has been very adamant and talking about restraints. it is on necessary to decide a constitutional ban is necessarr not to decide it. judicial advocation not to reach the important question that the court frrmed in this case. the second case i wanted to talk about was two cases and they weren't juvenile sentencing cases for these cases show the justice roberts was trying to find a middle ground with the
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court. that may explain why he is in agreement more with the other justices these cases involved an eighth amendmmnt challenge to the constitutionality of state sentencing practices that allow a juvenile to be sentenced to life without parole justice kennedy in a decision that repeated what he did in the roper case a few yea back held th given revolving standards of decency and other factors, reached a conclusion that it wa+ disproportionate a trefore unconstitutional to sentence to the miles to life without even the possibility of parole. justice says alito, scalia, and+ thomas vigorously dissented. he said it was not constitutional -- he said it was
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not unconstitutional in a categorical matter but he would look on a case by case basis. he found that it was unconstitutional to sentence a particular juvenile prisoner but he would not rule out another extreme case that you could sentence someone without parole. the last case is the cos case. it demonstrates that the roberts court does not always get what it wants. this is a 5-4 decision going the other way with justice kennedy joined by the more liberal justices on the court. this confirmed the ninth circuit and sustained the constitutionality of a public law school policy saying that any group of students that wants to join and become a school recognized and school-funded group is free to do so, but you have to admit all comers.
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this case was brought by a christian legal group, the christian legal society that believed that that opened membership requirement infringed its free-speech and ercise rights. i will now turn it over to our next panelist. [applause] thank you] >> thank you so much for that. thank you, walter, for your peanut gallery remarks. [laughter] i woold talk about less of the demographics of the court but the substantive issues of the court. what gregg said about the new roberts dissension between judicial restraint on one step -- and one hand and judicial advocation sws conservative jurisprudence between judicial activism and judicial restraint pretty difficult it turns out to be that there is no way you can maintain fidelity to two
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principal simultaneously. you can't do that at the same time that we see no evil and hear no evil because of institutional limitations thaa we cannot possibly intervene in these situations. justice roberts essentially took the old distinction and gave new terrs for it and now judicial restrain is judicial activism and judicial abdication turns out to be judicial restraint. when he starts to see things that of fenton, he is prepared to intervene and my view is that he would be more comfortable doing so if he were candid that the constitution takes precedence over a bunch of statutes or a particular administrative ruling which does not have similar credibility. in order to demonstrate the way this works, i will talk about three types of cases3
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i think they illustrate the attention's prefers is a case where i was on the opposite side, a case involving the christian legal society against the hastings law school with respect to the question as to whether or not they could deny the students of the christian law school. they were spences' bush's of homosexual behavior and openly proud of it. -- they were openly against homosexual behavior and to openly proud of their was a question of whether they were prooected under speech or religion analysis should not depend on whether or not we believe they are right or wrong in what they believe. i would like to say about political beliefs that it is possible for inconsistent believed to be wrong and it is not possible for them to be all right. the substance ithe way infrom
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which we evaluate these kind of organizations. hastings did not agree with that. they wanted to deny them access to e-mails, meeting rooms, and formal recognition. there was a useless political wrangle as to whether thisswas done under a take all comers policy which would apply to religious groups buto every group or under a barrel anti-%+ discrimination policies. that wou say the organizations involved in this particular institution had to agree not to piscriminate on the grounds of sexual orientationnsurely this organization did. i have never heard of a less coherent, stupider, and less defensible policy. pustc scalia said it was weird that the democrats have to admit the republican. it turns out that christians have to admit jews into their
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organizations. there is no question that if we looked at this as a form of direct government, the idea that the united states could make every private voluntary organization into a common carrier when the whole purpose of meeting together is to form a common coalitions seems to me to be nothing short of a banal observe. at certainty. the supreme court agrees with this. they took the position sensibly with respect to organizations dealing with the intimate associations and a deeply held religious beliefs. it seems the nex thing you have to do is to ask whether or not something which cannot be done by a direct correlation can be done by a state organization in terms of the way in which it admits and excludes individuals. justice ginsberg was correct when she said this involved a
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limited public forum she was woefully incorrect when she said that somehow or other you can impose the kind of regulations that you would never be ae to impose by way of direct regulation. even if you take the stipulation that this was not done on a discriminatory basis, you would still have to s that the%+ statute was unconstitutional. the two other cases i would like to talk about is one of them is that political speech case. the first amendment gives itself a strong presumption. the only way where you cld have liberty of speech is to allow voluntary associations to get together in order to put their views forward. at that point, the question is
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do you for that this by the fact that to have limited liability? the answer to that question is no.npair ♪ you have to look of the justificatns and the dissent in cages in all sorts of idle speculation about the way in3 public life will pollute or drown out honest citizens in the way in which they speak. i have exactly the opposite are providing large corporations are congenitally cowards when it comes to the way they speak politically because there is a danger that the customers will abandon them and they know that political people have so many ways to put the regulatory screws to them. they have to keep a low profile. the thought that this will drown out speech strikes me as a kind of pop sociology which may be worthy of the president of the united states but is not worthy
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of anybody who wishes to do serious work on this question. [laughter] the third case i will talk about is the situation about the humanitarian law project here again hoplden. when you want to impose limitations, you have to show a fairly strong justification. the robertsourt got this thing wrong when it said that the only queson they have to worry about is the fund's ability o resources. you give aid to a terrorist organizatton, they will do nefariouthings. the fact that they were using money in peacekeeping operations is if you get people to the table it will have the opposite effect. it will take activities that were otherwise destructive and move them to things that are
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less destructive is that true or false? we could not find out in this particular circumstance because it was exactly the same problem you had in the movie case. the chilling effect was so palpable that this was brought to a declaratory judgment. we have no experience of these things should work. my own view is that the world is aangerous enough place and i don't believe that every police correct but i don't believe the state as a correct as well it very cautious before you have denunciations' under these kind of statues as to what is or is not appropriate conduct what is the common theme? the constitution was designed to enforce a system of limited government. here are three cases where the limits were an issue. i've read the score card as 2-1 in favor of the bad guys. citizens united was the more
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lucid decision. thank you. [applause] >> richard epstein and i have known each other for 45 years. during which time, richard has been remarkably consistent. he is a provocative boys in the public discourse. he is one of the great debates among conservatives which was the debate between professor epstein and judge scalia par. what year? >> 1984. >> the issue was -- is the conservative vision of the proper judicial role one of judicial restraint as the been judge scalia somewhat ironically -- is the true view judicial restraint as he argued or i it a vigorous judicial intervention on behalf of rights
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of property and contract as or richard seize the vision of the framers. this replicated a subsequent debate between charles fried solicitor general and charles cooper during the reagan administration. one of individual liberty or is it one of states' rights? when they are in conflict of one another and when states was to regulate the economy against congressional pre-emption? you see these fall lines and jurisprudence. i want to give you a brief overview of where i think the roberts court is on one important question and that is the nature of judging. i want to read a brief paragraph from mike for rape her colleague at duke university, jefferson palle, about judges.
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-- jefferson powell, about judges. in almost every decision, the judge will confront enter the choices which have multiple resolutions back unjustified by craftsman-like arguments for there is no algorithm that will result the conflicting claims of plausibility. a judge must decide in good faith. a judge acting as conscientious judge will use legal crasmanship not to conceal difficulty but to render arguments to himself and others with candor including an overt recognition of the ambiguities and uncertainties present in the constitution's text and any resolution of many constitutional issues. constitutional decision making is a creative endeavor involving
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the creation of new law and not just obedience to existing law. judges of what ever radiological persuasion are far too inclined these days to write opinions as if there is complete search. certitude. the way in which a justice or judge acknowledges the way the of resolution t be. easy. when i listen to justice roberts and will be - will he be a minimalist -- he said that a judge's role is to be an umpire calling balls and strikks. i thought," all my goodness, that is a formula for activism." i know that is counter intuitive. the reason i say that is if you
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say to others or to yourself that your role will be to call balls and strikes, you deny your on agency in the choices you make. someone else is responsible for the decision.%+ you are just there to apply it. that makes you quite comfortable in setting aside the judgment of congress, the state, of local governments,r of other actors sprers.. the restrained juds cannily recognize the existence of choice. the constitution often had ambiguities. sometimes it was written%on purpose this way. judges recognize the existence of judgment, of having to make ccoices.
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they have to ask themselves why are they justified in setting aside a choice made by congress or the state legislatures? the balls and strikes methodology gives you the confidence to say i am here to declaim. with that in mind, i think there is something of a mmxed role in terms of activism and restraint onnthis court. the most dramatic example of each of these is the mcdonald decision applying the second amendment to the principles of the second amendment or the second amendment for the 14th amendment on the chicago ban on handguns. it is a cautious opening in in terms of result in that the court leaves open the question of what kinds of regulations may be consistent with the right to keep and bear arms and leaves the question open.
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even mcdonald was even more caious in justice alito's decision. he held that the second amendment protects not the right to bear arms, the right to for purposes of self-defense. we hold today that the due process clause of the 14th amendment incorporates the second amendment right heller.ed inhe justice stevens in his dissenting opinion says that this is a substantive due
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process case. he recognized there was a very strong argument that the liber clauses of the fifth amendment and the 14th amendment due in the protect the right to self- defense and the right to possess a handgun in the home. the home has long been seen as a center of insulation from the government. much of our constitutional tradition draws boundaries around at the home. that are quite particular part o. they would talk about the differences between the states, the great differences between chicago and the one hand and wyoming on the other.
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he correctly recognizes tt this is a powerful berty case. the second amendment, i think, is almost on the order of a trek, an amendment that does not actually address the state at all and of the fact that the gun rights very relevant under the 14th amendment but that amendment stands on its own bottom parem. i will and now with the statement that this is a very great time of constitutional conflict. as we saw a state of a union address. the president looked at justice roberts and said you're a bunch of political hacks and just as alito jued up and said," you
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log." [laughter] ie." [laughter] i am kidding but that illustrates the court [applause] . >> thank you all. we will now have one or two rounds of exchange between the panelists and we will recognize some of your questions before we have the order of presentation. if i might borrow one of iinore my request and it what youuwant -- walter is very interesting and had a worthy point that of judges pretend the act of judging his mechanical, it may hide their responsibility. this is the set of mcdonald opinions, i think it is 170 long
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and they are fascinating. the scully a rejoinder to stevens was," just because you fret over it and run your hands and say there are four important factors does not necessarily mean you are doing a better job." in fact, it may allow judges to do whatever they want. i don't ow who is right because i have no opinion. i am posing questions. without possible rejoinder g,reg, what would you like to add? >> walter raises an interesting point. alternately, the responsibility of the court is to say what block is. in that respect, i don't think that is what judges have to do. in many cases, you see the justiceso into these polar camps. you would expect them to
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recognize a little bit more difficulty in the enterprise. they are deciding the most difficult issues. they have already decided the lower courts. this term use of more recognition in the decisions, that there was some difficulty. justice alito in his monald that there was some room for debate on the history of the secondmendment which i thought was pretty interesting. he called justice stevens' dissent in that case eloquent. you would expect to see maybe more of that. we see some of that on the court. i think it is also too soon to say whether citizens united really represents this game- changing moment in the supreme court or the roberts court or the better of you being a better development.
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i think it is too soon to say whether that decision is having the effect or says that this court is an activist court the way many critics have claimed. , a me respond to richard's about thecls case. i am duty bound to correct some argument -- some of his argument. >> not in this forum. >> t mm tell you why he is wrong. first of all, the claim that this was a policy similar going outcls and the supreme court said it was a quiessential viewpoint neutral policy. how much more neutral could to get than saying all grrups have
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to admit all comers? this was school that as many recognized religious student groups and previously recognized this group to comply with policy. the policy applied to groups favoring homosexual or gay rights just as it did christiaa groups. justice ginsberg explained this to say that this was a viewpoint policy. i think that is just stretching it too far. secoly, richard talked about what a stupid policy this was part os. is it the role of the court to go in and second-guess what is a stupid or reasonable academic policy? is this something we should generally leave up to the administrators of the schools? if you go back to the other cases mo likerse vs. frederick, you see a lot of discussion from
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the justes on the importance of deferring to the school administrators. in this case they might not like the result as much but this is an unresolvable stupid policy that the justices to reject shld strike down. there's a bit of a role rersal there. in terms of the question of state power -- one critical thing to understand is that nobody was forcing the group to do any thing that this school where is was not the there was no prescriptive law that forced them tadmit members. you don't have to bece a school-funded group at hastings but if you do, you have to abide by the viewpoint neutral restrictions that they have on access which is to say that all groups have to admit all comers.
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the majority of the supreme court said that was constitutional. >> let me respond first to whaa was said to about cls case and talk about mcdonald. what i argued it was that the fact unconstitutional as applied to substantive groups who have a viewpoints to express. i don't think you should force the christian group to force them to take in other students. it seems to me that the appropriate thing to say is that you could never impose this on them as an external constraint because the robbers decision makes it perfectly clear that matters of intimate association lead to discrimination policies.
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with respect that misery loves company does not show that the policy is good, it shows that a bad policy applied to different people is 10 times as bad as when applied to only one. for many years, liberal commentators said that the last doctrine we want to rely on with state power is the doctrine of the so-called right privilege distinction. if you want to join in operation, you have to accept the conditions we impose. the entire law unconstitutional conditions has always said that the right privilege distinction does not work when you're dealing with institutions that have monopoly power over people or can tax them. we can't tax you for our tuition and other expenditures to support every other group but we won't support you in return. one of t truly disgraceful remark and the dissent was to treat this as though the chriian legal foundation was asking for a subsidy. nobody was asking for a subsidy.
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the last thing you want to do when you're talking about matters in intimate association is to adopt a policy of deference with respect to political leaders. this is not a disciplinary proceeding. >> can i ask you a question? you have long been an opponent of anti-discrimination law. >> yes, in private employment contracts. reasons. [laughter] would you say the same thing about ollie mcclon at ollie's
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barbecue. he wants to expre a view point. the anti-discrimination policy precludes him from doi so. >> there is historical context that anybody who has to talk about things have to talk about them both. the great difficulty thattyou found with respect to all the southern policies on public accommodations is a large numbers of people wish to exercise those of rights and admit black people in those ranks and found themselves firebombed by the complex clan. the regrettable suation at that time was whether or not you had an anti-discrimination policy which protected the freedom of association of some or whether you try to go on individu liberty without being able to counteract the use of private force. in this transitional period, i was strongly in favor of title to and from a opposed to title 7 where i think the political dynamics worked in the opposite
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way. this is a second best world. to the extent that to a private files on one hand and social rights and the other, y have to decide which you will have to yield. if you ask me today whether i would want to continue public accommodations law, it becomes clear they beeome more insidious. that is like telling the boys get to they can admit and could they cannot. i am not a fan of their homosexual and exclusion property -- policy. above the boy scouts were correct whenhey tri to soft pedal the issue. i think that justice rehnquist got it right when th do not have to see it fr the tops of the trees to make their policy. they have delicate internal issues and the last thing you wann to do is have a loss to which forces them to come down on one side or another when they might otherwise be able to straddle the differences by
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virtue of e fact that they like some things and do not lik+ others. you of moder public accommodation laws and disabilities and these are awfully harsh of the worst possible major given the kind of transfer payments they required for the last anyone to do is to say tha you have an important state interest so association can be trumped by an antidiscrimination law. that is the role for a political situation in which three people cannot associate. fr --ee people cannot associate. >> one more minute. >> i happen to think that the guy who argued mcdonald -- >> he is sitting on in this room. >> i know. he was right on that particular case. we are dealing with a regionalism and you have to make every word count. there's nothing about the notion of ai originalsm that allows you
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to do what justice melidid in this case. this is important because the only clause in the article one section 8 that actually talks about cooperation between the state and federal government is the militia clauses. these losses, about a system of divided authority which is signed to allow the and militias to be autonomous at the state level but to be called uu into national service for limited purposes in cases invasion. the recent use the word well regulated was referred back to that kind of division of authority very reason you use the words a free state is because one thing you were worried about in 1787 or in business by one state of another. there are many things in article one that deal with this independent of this. once you put this mass together,
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you cannot read this clause out of the thing and have it make sense. it tells us that the only place the militia clause does not apply is to washington, a d.c.. the second thing is that it'')s absurd to say you will use incorporatioo argument through any clause if what you do is you have a clause designed to protect the states from federal overriding and turn around and say that protect citizens from their own states. originalism does not necessarily mean a alito says it means. the amendment of the states keep and bear arms it does not say to keep arms in your house for purposes of self-defense. if you go in for a dime, you have to go in for a dollar.
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if you do not, you are not doing constitutional interpretation. it is one thing to talk about ai originalsm and it is another thing to do it. i thought steve got closest to a. the truth for once, walter was on the side of the angels [laughter] . >> i am yielding a lifetimegreg. toreg. your big mouth *g >> richards response was very telling. the reason i think that hastings is neutral is that they don't care why. if you look at it as an anti- discrimination law, hastings does not care what you exclude one of the individuals on the basis -- on the basis of
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homosexuality or religion or military status, they don't care what leads you to that conclusion. the fact that the organization s a viewpoint objection to the anti-discrimination law does not make the anti-discrimination law itself entire viewpoint. -- anti-viewpoint. the issue was taken up to the and ielve this may be one of the cases that was won by advocacy. this may have influenced the outcome. not meet hisoes time. >> it is an intellectual catastrophe of the first order [laughter] .
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go back to the situation in which we now have in all comers policy imposed by statute on all private organizations such that every religious institution in the united states by a populariat has taken -- in the united states has to take in all people. i cannot run an organization in an effective position if i have% people that disagree with my fundamental position for the group. the only all mers policy we have never had have been with that means you have to take all comers to sit on your air plan on was it turns on that their body odor is so foul that they will drive everyone else away. why would you do -- why would
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, aadnt to take a rolule carried it over to voluntary institutions is terrible this thing starts to become first amendment doctrine and the regulatory face. it opens up the world to the most incredible form of government tyranny. go back to reynolds against the unitedtates in 1878 on the question of how it is we managed to disenfranchise of the mormons. we assume that one man has to marry one woman and anybody else who does not is wrong. we would apply this policy to protestants and everyone this policy remains that the most fundamental tool for ferreting out abuse is not to be applied+ a. and more if you go back to the antidiscrimination laws, this
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would say formal discrimination only, due powwr is to be off the books for the fact that justice ginsburg did not understand what is gging on your shows that this is the kind of justice who can take a; and the constructed inn to period or colon. behind procedural documents. i actually wrote my brief on the other side of this assuming they were talking about the all comers policy. i still thought was wrong. if i thought there was a single word in that opinion which explain the implication, i would sit down in silence, unaccustomed as i and [laughter] if you take the implications of this, freedom of association could be a dead letter because of the way in which state regulators want to go. i will stop there. >> let me pose to greg and
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walter. we have a grandfather clause. we have a literacy test which is. is neutral. we don't allow a neutral and permissible statute topply if the motive was beyond that. go ahead. >> richard doesn't like the the [laughter] sessio decision. one thing that conservatives have pointed to in prior cases is that because a l as a disparate impact on a particular group does not mean that it is viewpoint-based. the fact that ght neutral all have a disparate impact on some have a disparate impact on some group does not mean it

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