 Good afternoon everybody. I'm delighted to be back. There are just a couple of things I wanted to say before we start. First of all, believing in accuracy. I wanted to correct something I said yesterday that Ted White reminded me of. I attributed to whoever told Holmes that he was time for him to retire. A quote which actually I had in the wrong time frame. It was Hughes who went to tell Holmes the time had come for him to leave. He was beginning to lose it. Somebody else who went to see Stephen Field and asked him if he hadn't had to do a duty something like this with somebody earlier and it was Field who said, and a dirtier day's work I've never done. So I just wanted to set the record straight on that. And I wanted to welcome you all back after we hope a nice lunch. And to introduce this panel which is going to be on the culture wars. A very, maybe modern phenomenon and maybe not. I'm going to introduce the panelists to my immediate left. Judge Michael McConnell who I first got to know when he was a law professor at University of Chicago. And then he went to the University of Utah where he still teaches in addition to being a federal judge. He clerked for Justice Brennan on the Supreme Court. Let you not think that that makes him some sort of a liberal law professor. Not so. Some sort of liberal law professor. And I must say one of the saddest days to me is when he went on the court because he then couldn't do interviews with me for NPR and they were always so interesting. And to his left is Heather Gurkin who clerked for Justice Souter and is now a professor at Harvard Law School. Yeah, Law School. Yeah, sorry. Yeah, Law School. Woo, bad move. I actually even knew that. I just screwed it up. And immediately to her left is Michael Dorff who clerked for Justice Kennedy and is a professor at Columbia Law School. Whoops. That was deliberate. I could have done a two for it. I could have said that you were at Brickham Young. Or on the Ninth Circuit. Or on the Ninth Circuit. Or the Fourth. So I'm going to, this panel, everybody has assured me that they do not have opening remarks they wish to make. So there's nobody I have to cut off. I'm going to just try to be as unobtrusive a traffic cop as possible with a few basic questions. And my opening question to this panel is when did the culture wars start? Was it the Vietnam War? Was it Roe v. Wade? Was it the pill? Was it the draft? Was it, you know, something else? Maybe it isn't really a 20th century phenomenon. Maybe the culture wars go back a great deal before that. So, Judge, why don't you start? Rank habits, privileges. I'm tempted to say the Garden of Eden. But at least the culture wars go back to the founding. I mean, if by culture we include issues of religion, for example, which I think are high on the list of culture war issues, religion has been a contentious political matter from the beginning, including during the revolution itself when the leading apologists for the Tory position were almost without exception Anglican ministers and the congregationalist and Presbyterian ministers and the Baptist led the revolutionary cause. And then with the new government, how secular the new government would be was one of the first debated issues for almost a month in Congress when they were debating the protocols for George Washington's inaugural. This was on the front burner and controversially they decided to include attendance at divine worship services as part of the first inaugural. George Washington's own contribution was to end the constitutionally prescribed oath of office with the word, so help me God. That's not in the Constitution, but it has been with us ever since. Every president has had to deal with that to be sure some of our current culture war issues are pretty new, but that doesn't mean we haven't had them from the beginning. Heather? I actually think it's almost hard wired into the system that there are going to be culture wars involving the presidency in the court because there are two institutions that in some senses have to act, so the president has to make policy. The lower courts at least have to decide these questions and once they do it's hard for the Supreme Court to resist the impulse to go forward and decide them as well. They're capable of acting, so then in contrast to Congress often subject to the problem of gridlock, both the presidency and the court are fairly nimble in terms of moving things forward and then also when they act they speak, so they don't just render a decision but they actually explain why they're rendering the decision and I think that those three factors in a sense almost guarantee that the presidency and the court will at some point be involved in the issues that we're fighting about. It's almost impossible to avoid. Much as I'd like to disagree for the sake of general controversy. Your job is to disagree. So I'll agree but disagree a little bit. That is when we talk about the culture wars today I think we have in mind a constellation of issues such as abortion, gay rights, women's rights, we can't really talk about that because I was supposed to be on the previous panel but we talked about that in the same way we talked about racial issues, the role of religion in public life and then a whole set of free speech issues and there are undoubtedly more. And some of those issues especially race relations have been with us from the founding. Others have been controversial only in the last 70 years, 50 years, 30 years, 10 years in some of these cases and what I think distinguishes what I would call the modern period say early 70s through today from earlier periods is that these issues emerge as a matter of national politics to a much greater degree than in previous times. Now maybe they're just replacing previous issues that were equally divisive and equally cultural in some sense but I think it's nonetheless a useful category in terms of how we think of how people vote for example. So there's the claim of some analysts that the coalitions of the two parties now are divide along cultural issues rather than economic issues which is the way they might have been divided a generation earlier. You know presidents Eisenhower, Kennedy, Johnson they all got consequences from their appointments that they probably didn't bargain for. School prayer, limits on parochial school aid, limits on the death penalty, the whole progression of birth control leading to privacy cases, the diminishing of rural power from one person, one vote. Do presidents though, do they like these culture war issues? Do they use them to their advantage and therefore like them or do they dislike them? Do they just get in the way? We can't lump them all together. They like them when they unite their party and get their supporters to the polls and they dislike them when they divide their party and create embarrassment. So I just don't think we can lump them all together. But is there ever a case where they really unite them? If you take the least freighted one now if we look for example at reapportionment. In each party there were people who liked it and people who hated it. I think one way to think about some of those issues is that this is actually drawn from Keith Woodington's new book which is a wonderful book. Woodington basically argues that presidents love having courts around particularly when they're trying to enforce a national agenda on a regional outlier. One person, one vote, no one in the federal government was really able to do anything about one person, one vote, the problems of malapportionment except the court and Congress depended upon those state legislators to draw their districts. And so in some ways the court sort of cut the Gordian knot on that question or think about the issues of race or even Griswold versus Connecticut. So what's happening is the court as a national institution is sort of enforcing a norm that's growing nationally on regional outliers. Maybe the religion cases could be understood that way too. It depends on how you think about it. But I think that's what gets the court into the culture wars. If you're a president you can imagine why assuming you're part of that national consensus it would be awfully convenient to have the court doing your dirty work for you rather than having you do it for it. Of course sometimes the court imposes an outlier upon a national majority. You take Roe versus Wade where at least 40, the laws of at least 45 and arguably all 50 states were overturned or the more recent in a partial birth version or even school prayer were quite widespread at the time. So it's not always Supreme Court's not always engaged in a mopping up operation. No, that's right. I just think that presidents are able to use the courts or to be, the presidents I think have reasons not always to run against the court. Even on the abortion case it's hard for me to imagine that having courts decide abortion decisions hasn't actually helped keep some coalitions together at times when that fractious issue might divide them because presidents can always say I'm pro-life but I believe in adhering to the law and the court has to decide this question. It's a convenient way of keeping a coalition together. I'm not a politician but I think a lot of working politicos would say that as a matter of practical party politics Roe versus Wade has worked to the benefit of the Republican Party and to the detriment of the Democratic Party not withstanding the fact that the two parties tend to in both cases take the position which is contrary to their partisan interests. Roe versus Wade helps energize your base without you having to do anything about it to energize the other base. That's the benefit. But to come back to Nina's question the conventional wisdom then is you want to, not as a president but as a presidential candidate you want to mobilize your base by signaling to your base that you are going to be strong on that issue if you're a Republican candidate you're going to appoint justices who will vote to overturn Roe, you're a Democratic candidate justices who will reaffirm it but then try to soften that in the general election so it's a complicated relation. Culture war issues are useful for primary candidates they're harmful for general election candidates who then have to try to soften their positions on this. And aren't they always almost harmful for Supreme Court nominees because then they're stuck in trying to walk the tightrope? Undoubtedly that's true. Sometimes lower court nominees or as a constitution so charmingly names them inferior court nominees. Which has all sorts of spillover effects. One side effect of culture war issues making confirmation hearings more difficult is that you see fewer people like Judge McConnell being nominated because it's just not worth the effort to get somebody with a paper trail through. If you're going to name an academic maybe you'll name an academic who made his or her name in antitrust or tax law or something that's thought not to be quite as fraught. You know I'm wondering presidents have always had some thing that they really cared about in terms of Supreme Court nominees. FDR wanted to make sure that his nominee picked people for the court who would uphold the New Deal legislation for example. I don't think he really thought particularly about civil rights or civil liberties or any of those other things. I think President Reagan at least as far as I can tell and you guys are much smarter than I am but as far as I can tell was the first president and his successor Republican president to carry that forward even further who had a very elaborate agenda of things more than just law and order more than just abortion also executive power questions federalism questions a whole lot of everything. Can that survive? Can that kind of all encompassing criteria criterion and then for all these different issues can that survive without really hurting the Supreme Court, the confirmation process and the presidency or is it the way of the future? I'm not sure that I accept the historical premise. I think that the New Dealers had just as comprehensive a set of constitutional principles as the Reaganites did. I do think that in between that there's some administrations that are not particularly concerned but those two I think were. Now in both cases you can't think about everything and so you know Freelooks-Frankfurter turns out to be a new dealer with respect to the issues that are on the front burner and becomes, looks like a bit of a conservative by the time the new issues of the Warren Court come about and I don't think that the New Dealers thought all of that through but you could say exactly the same thing about Reaganite judges that yes they had a certain things they were looking at that looked pretty comprehensive but 20 years later those people are deciding the issues of their day in unpredictable ways and so you have quite libertarian leaning judges named by President Reagan and you have quite you know judicial restraint types that will uphold whatever the government does also appointed by Reagan they don't look very similar today. I want to disagree strongly with that. So and although I didn't make an opening statement I'm now going to in 30 seconds describe the thesis of a recent law review article of mine. I'm going to read you a list. I don't have to read it. I'm going to read you a list of 12 Republican justices. These are all the justices appointed by Republican presidents since President Nixon. I'm going to divide them into two lists. Here's the first list. Berger, Rehnquist, Scalia, Thomas Roberts, Alito. Here's the second list. Powell, Blackman, Stevens, O'Connor, Kennedy, Souter. The difference between the two lists everybody on the first list had federal executive branch experience before going on the Supreme Court. The second list did. What that tells me at least is that federal executive branch experience is a way of identifying for Republican presidents at least over the last 40 some odd years those people who when they become justices are going to be more or less loyal to whatever the Republican ideology is and we could do the same thing for Democrats. It's just only two of them. And my point is that there will be issues that you can't predict that arise anew but in an era when parties are more ideologically coherent in the United States than they've been in a very long time I think there will continue to be a lot of coherence between sort of conservatives on the one side and moderates and liberals on the other. My very interesting list since the first name on the list was Warren Berger who was the author of Lemon versus Kurtzman, the strongest separationist opinion and establishment clause he went along with he was in the majority in Roe versus Wade he was the author of the first mandatory busing for desegregation decision. He's less conservative by modern standards but if you look at the statistical analyses of the voting pattern of the justices under the so called attitudinal model he codes quite conservative and certainly more conservative than any contemporaries on the second column but I agree that by modern standards there are issues in which he's an outlier. Well if we look at sort of the iconic case of that conservatives you as judicial activism and the lightning ride case of all the confirmation hearings it's Roe versus Wade and I wasn't found at the time of Griswold covering the court I was there when Roe was decided and it really wasn't nearly as unpopular on the day it was decided as it probably is today or was five years ago it wasn't that big a deal it didn't become a national issue in a national election until seven years later and maybe I'm wrong about this because there now is an effort by some to make contraceptives not available or at least make them make restrictive laws involving contraceptives but I still have the impression that Griswold while law professors didn't like it they saw it as a penumbra activist opinion its predecessor Poe versus Allman was still considered very interesting good law and Griswold isn't enormously unpopular as a general matter compared to Roe so what was the transformation how did that happen how did we get from it not being such a big deal to being a very big deal well one thing to notice is that at the time Griswold was decided Connecticut was I think the only remaining state that made uses contraceptives by married couples illegal so the rest of the country had already adopted this and so whatever one might think of the rather extravagant majority opinion in the case which I think law professors still poke fun at regularly whether they like the result or not whatever you think of the reasoning of it it was not a remarkable decision in terms of the actual social policy reflected Roe versus Wade quite the contrary that Roe might have been much less so had it been less ambitious but had it confined itself to the details of the Texas statute but having gone as sweepingly as it did it made a major change and then and so you are I think right that the controversiality of that sort of slowly dawned on people part of that is a religious cultural story because abortion had not been much debated in religious circles at a time when it was illegal almost everywhere and it looked like a Catholic Protestant divide and Protestants I think when the decision first came down tended to think well this is fine because only Catholics care about that and then as abortion became more a part of our national life you had major Protestant leaders like Francis Schaefer who energized the Protestant groups and especially the more evangelical side of Protestantism and pretty soon it became a point of union between evangelicals and Catholics rather than a point of difference between them and you know seven years is not that long for that to have taken place Does any of it have to do with actually this thought just occurred to me the place of Catholics in America in the early 1970s and before in other words when Justice Brendon for example was named to the court he was asked very specific and we would today say probably politically incorrect questions about whether he could be a neutral justice a fair justice despite his Catholicism of course today there are five Catholics on the court but and just as President Kennedy when he was elected he had to assure the Baptist ministers that he would not be beholden to the Pope for example that there was some notion of separateness between religion and the court that today it's not that justices are dictated to by any religious figure or even by their religion per se but that it's much more acceptable to consider that the law has some moral questions that need to be resolved somewhat in the context of religion where am I crazy? So you know there's this wonderful book How the Irish Became White I think someone should write a book called How Catholics and Jews Became Judeo-Christians right? And you're free to use the title I mean not only are there five Catholics there are only two Protestants which is a remarkable fact given American history it's because the religion in the sense of what mainstream sect one belongs to is no longer a major cleavage in American politics in the way that it once was there's a much more substantial cleavage between people who are religious at all or not religious but you know whether someone is any particular Protestant sect or Catholic or Jewish isn't really politically salient for the most part essentially so Jeff Stone actually caused a little bit of a stir among law professors by writing a column about the fact that there are five Catholics and the reaction was mostly what Michael would have predicted that is mostly people thought it didn't really matter that much and some people in contrast to Brennan it was something I think looked on as this is not an appropriate way of framing the justices so for example during Bush v. Gore and almost every political question ever since every time you see a judge's affiliation a judge listed on a program often listed as an affiliation or who nominated that judge so it's very the partisan divide is quite salient and people feel like that as a predictor but they don't I think that's right that they don't think of Catholicism or religion as an obvious predictor the way they and they don't feel as comfortable talking about it as they do with partisanship they may not feel as comfortable about it but I do think it's come forward as something that people do consider to be a major predictor I don't but not Catholic versus you know Baptist or no but I think you know what kind of Catholic you are and what kind of Baptist you are does make a difference I was once before being on the court I was at a meeting at the if Juan Williams can drop names can I say with President Clinton about enforcement of the Religious Freedom Restoration Act and there were I was sort of a legal person there and there were several there were representatives of a number of denominations there including two Baptists and one of them rather a conservative Baptist and one quite a liberal Baptist and they introduced themselves to the President saying one of us is a good Baptist and one of us is a bad Baptist we're not telling you which ones are which so but these things are I think are markers and one other point that I think thinking about the court when I was a law clerk which was in the which was in 1980 we would also go around and talk to we would have lunch with the other justices and I was curious about their religious interests and I believe that at most one member of the court at that time had any kind of regular worship attendance it was I mean they had nominal affiliations but I think at most one justice would be in church or synagogue or mosque more than on a high holy day and today I believe that six or seven of them are regular attenders that means we have a court that is not only much less protestant than ever before but also a court that's much more religiously engaged than at least when I was a youngster which I think is kind of interesting one of our audience asks whether the controversy over Roe vs. Wade related to the rise of feminism and the changing role of women and whether the pro-life movement is somehow a code for and this is again the questioner's term keeping women in the home it depends I can't imagine that there are any pro-life activists who would describe themselves as doing that nor believe that that's what they're doing so part of the art of politics whether presidential politics or any other level is defining your opposition so if you believe strongly that women should have a constitutional right to abortion it's to your advantage to portray people who believe the opposite as not really caring about the life of the unborn but really wanting to keep women in the home and the pushback actually has been interesting as is obvious from the most recent abortion case that is the pushback has been to recast the pro-life agenda as one about protecting women not just protecting the fetus and that clearly seeped into the Supreme Court's most recent abortion decision the outrage of some into the delight of others but the shifting ground has been one of the things that makes it difficult to generalize and one of the things I think is most unfortunate about our current political culture is the extent to which people are very quick to ascribe either evil motives or stupidity to people who happen to disagree with them I think it's very important for people to favor abortion rights to try to understand why others don't share that view and vice versa there was an excellent book I think the author was Faye Ginsburg about the who was a sociologist who looked at the abortion wars if you will in Wichita Kansas which for some reason is a particular hotbed for demonstrations because they do third trimester abortions there and in any event she went and she did series of interviews with activists on both sides and among the things it's been a while since I read this book but I remember one of her conclusions was that the most dedicated activists on both sides tended to be women and that they and that the pro-life women had a type of feminism not an anti-feminism but a type of feminism just as the pro-choice women did and I thought this was an extremely interesting contested I can't remember the name of the book contested something I think was the title actually I first noticed this in decades ago when I was in Iowa covering some republican presidential primary thing or other and there was and I spent a lovely very smart woman who was a pro-life activist and there for my money there really wasn't much difference between her and the pro-choice activists except the core issue that they were fighting about and they were both incredibly dedicated to what they were doing and very creative and inventive about how they were going to do it one of our audience also says are the culture wars really new what about the mobocracy of Adams and Jefferson period the Jacksonian democracy manifest destiny and the white man's burden prohibition and the great experiment in know-nothingism weren't those all weren't those all culture wars too sure I'm not sure what this category means exactly I mean it's sort of convenient to lump various issues together but what really is a culture war issue I assume it means one in which there are why there's some sort of moral or cultural difference and that they're very controversial but those you know that describes a whole lot of things certainly the fight over slavery was an enormous culture war issue even if it was also a civil rights issue and Jim Crow was an enormous culture war issue even though it was also a civil rights issue I would say abortion, gay rights, religion these are culture and culture war issues they are also civil rights issues thinking legally about this I think it's an extremely unhelpful category because it cuts across the question of constitutional theory and especially it lumps in some of these issues are ones that the constitution directly addresses and some are issues that the constitution does not directly address so I don't see when we think about the courts involvement in these issues there is no way that a court faced with the First Amendment can avoid free speech and freedom of religion issues but as to some of these issues same sex marriage abortion assisted suicide there's nothing obviously in the constitution about them the court need not have gotten involved in those issues it's kind of a matter of choice for the court but some culture war issues are really at the heart of the actual constitution as in the document with words in it and the court is necessarily going to be involved in that so trust the first law professor to counter the hypothetical and the second one to disagree I think it's a useful category for at least one reason which is it raises this question about how self-conscious the court should be about running into political questions of various sorts so column cultural, column political whatever they are they're controversial and whether or not you think that the court has to address for example the question of gay rights when they address I think the harder question is how do they think about it so one of the interesting things about one of the justices Justice Scalia is that he puts the culture wars on the table in his dissent so he accuses the court of intervening in the culture wars he has a macro I think in his computer so that every time he has a case about gay rights this little macro spits out a bunch of words about bestiality and masturbation and pornography immediately pulls in polygamy, don't forget polygamy yes I forgot polygamy but he immediately pulls in all of these questions of extreme salience even though what he is normally addressing at that moment is a different question and so the question is is Justice Scalia doing the right thing so when he writes his dissent and he invokes the culture wars and he sort of offers what is in some sense addressed as much beyond lawyers as it is to lawyers is that the way the justices think about it should they not think about it at all in their role as a judge or should they be aware that when they are deciding these cases they are intervening in one direction or another in the culture wars and try to think about the consequences if we can think about it in terms of presidential politics I want to agree with Heather that this is potentially useful framing for the following reason the Roosevelt New Deal coalition consists of Northern Liberals Dixie Crats African Americans you've got people who today get driven apart now why were they together during the New Deal until basically 1968 election conventionally thought to be the reason that it falls apart because economic issues are thought to be the primary driver of national politics it's only when the first race and then all these other things that we're calling culture wars but are not pure pocketbook issues become nationally salient and more nationally salient than economic issues in some ways not withstanding President Clinton's it's the economy's stupid it's only when those issues become nationally salient that national politics now turns to some extent on culture war issues and as you said earlier and those issues are bubbling up to the Supreme Court and you know I don't think the Supreme Court has ever been able to avoid these sorts of questions it may be that there's a textual hook for them staying out but even then there's something they're going to be in on they're going to be in on equal protection Justice Black who is a great believer in also pointed by President Roosevelt the text of the Constitution he gets embroiled in these questions because he has views on the stuff they can't avoid like the First Amendment like the equal protection clause it's really interesting when you look at the polling data in presidential elections or even big congressional election years that culture war issues become very salient they become dominating issues when the economy is okay and we're not at war you get yourself a hot terrorist attack or a real live, severe and those issues tend to recede they come back always but they do recede I heard David from last week who's now signed on for the Giuliani campaign say that national security is a moral issue using moral issue in the way that we're using sort of culture war issue as a way of explaining why Rudolph Giuliani is appealing to voters who might not share his views as a matter of some legislative preference on culture war issues now it's true he's sort of softening those positions by saying that it's not going to affect how he'll appoint justices and judges and so forth but I think the fact that from and I assume therefore the Giuliani campaign Pat Robertson wants to frame national security as a moral issue suggests that even the dominance you'd expect national security and economic issues to play there's still value to framing things as moral slash cultural war issues well but I still think we can distinguish between some of these take the difference between freedom of speech on the one hand same sex marriage on the other when the court is active with respect to freedom of speech it is not taking sides with culture war in the same way that it is on say the same sex marriage issue because everyone has the interest in freedom of speech one day it may be pro-life marchers walking down the street the next day it may be anti-war marchers and a vigorous protection for freedom of speech therefore that's in various different ways it's not it's not really taking sides at any one point in time say at the height of the Vietnam war where you have a particular set of issues it may temporarily appear that way but over time freedom of speech it seems to me is not a taking of sides but rather is a way of maintaining governmental neutrality with respect to culture war issues when the court is asked to decide something like shall we have the right to same sex marriage or to assisted suicide or whatever it is being asked to become a decision maker on one side or another of the culture war's questions they of course do that from time to time although I thought the court was very wise with respect to assisted suicide and not taking the bait I think they would have been wise not to take the bait at the time of Roe versus Wade as well so they do sometimes do it they sometimes refrain but when they do it they make themselves more partisan more controversial in a way which they don't when they do when they're engaged in other kinds and free speech isn't the only example of where an activism of the court is not necessarily partisan one person one vote also has various ramifications politically protecting freedom of religion has various ramifications across the culture wars whether you're talking about the right of Native Americans to ingest peyote or whether you're talking about the right to have greater control over the education of their child these things cut various different ways if the court isn't self-conscious about avoiding the more partisan side of this I think it should be I disagree with everything that he says that you don't disagree with okay are you all going to divide it up in half time or so I think that what you just articulated is highly dependent on a particular view of the Constitution and a particular view of what judges do so for example just to return to the question of gay marriage you could portray that as taking a side in the culture war or you could portray it as part of the grand tradition of the court in protecting minorities or you could portray it as an effort to help everyone we all want to marry maybe this is just sort of something that cuts across everyone it cuts for some and not others at different points protecting fundamental decisions about family so for example the right to home educate your kids only by penumbrating into the atmosphere with a high level of generality can you possibly say that so no right to home education of your children I'm sorry what? there's no right to home education of your children under Meyer and Pierce there has never been a single constitutional case in any state of the union upholding a constitutional and you think that people who are on the religious right side of the culture war it was an enormous social transformation that was achieved entirely through a grassroots political movement and it's stronger by virtue of that had the home schoolers when the first issue ever came up 25 years ago gone and got in the supreme court to give them the right to do that I think it would be a controversial question today but instead they did it the slow political route and it is not particularly controversial today there's two questions here there's a question of the issue and there's a question of the dology so on gay rights there are two ways to decide the right to marriage question one is to say as you say define liberty at a certain level of generality and argue that the right goes across everyone or you could do it under conventional equal protection analysis now you may think that conventionally equal protection analysis shouldn't apply to gays and lesbians or you may not but it's not that hard to imagine the court in its long tradition doing that in a doctrinally respectable fashion so again going to Roe v. Wade the problem with Roe v. Wade may be that it was a culture war issue or it may be that the court used a set of judicial tools that not even liberals can respect them for using so there's two sets of questions here about what court should do and it may be that as long as courts are doing what courts do and what they do well the new intervening the culture war issues is actually part of their job I don't disagree with that it may very well be that a judge of justice of the supreme court says I really don't wish we could avoid getting into this I think it's going to be more it's going to be a lot of trouble but the legal materials drive me to the conclusion and I'm going to do it anyway and for all I know same sex marriage could be such a thing I'm not arguing the legal doctrine of it I'm saying that they ought to be leery of doing it when they don't have to to be able to leave issues of this sort to a decentralized state by state political process has enormous institutional advantages not just for the court but for the country as a whole and for democracy small D democracy and and I I think that when they are when the constitutional materials force them fine but let's not be leaping unnecessarily into these things when the constitutional materials don't force us to do it and I think that's what Oakville notices in the 19th century that in America everything eventually becomes a constitutional question for the courts or at least a legal question and part of the reason we have that problem I agree as a matter of legal strategy that that can be problematic but part of the reason we have that problem is because we have a decentralized legal system in which the Supreme Court speaks last to the Supreme Court consulting with various civil rights organizations on what cases to bring and they are routinely terrified of the following scenario that comes to fruition so say I'm working with some gay rights organization which decides for much of the reasons that Judge McConnell points out this is not the time to push a same-sex marriage case to the U.S. Supreme Court because the court's not best suited for it the country isn't ready for it to talk about the national political agenda but just wants to get married brings one of their cases somewhere with some lawyer they've hired out of the phone book and that person has a right to take their case up the chain and so there's a different question for what the people in the movement should be doing versus what the judges and justices should be doing once they get the case so what I take it what you're arguing for is a kind of version of the passive virtues don't decide cases unnecessarily don't reach out and the problem I think is that there are sometimes thrust upon them even though people in the respective social movements don't necessarily want to do it either I think we were talking about Lawrence based upon your reference to defining liberty at a high level of generality so Lawrence versus Texas is the most recent gay rights decision to come down where the court overruled Bowers versus Hardwick which was a case decided not too long ago 1986 thank you and what the court said in Lawrence is in essence it was a prohibition against sodomy in Texas and they overturned it and what they said was in essence that gays and lesbians actually all people have a certain right to privacy now the question is what should the court have done in Lawrence one read of it would be to say this is a culture war issue that's what Justice Scalia said the court shouldn't reach out and grab on to this question of gay rights we have to settle it at a democratic way it would be better for everyone if we just let the decision go out on the other hand as a student of elections I wonder how exactly is it that you settle an issue in a democratic system where some part of the sub-population it can actually go to jail or be discriminated against in all sorts of ways because of an existing law or more broadly how can some part of the sub-population compete in the democratic system when stigma exists and that stigma is embodied into a legal system so I find these questions harder than the... the answer is that this movement is in fact very politically powerful and over the... in the early 1960s every state in the union had made homosexual sodomy a crime and many of them were enforcing it by the time of Bowers versus Hardwick it had flipped I don't remember the exact numbers but something like 27 states it was then legal and no one was really enforcing it by Lawrence there are a few more and you know again I'm no practical politician but I can read the polls and if you look at the age if you look at the polling data on attitudes toward homosexuality divided by age you see that this is an issue which is going to be a non-issue I'm not speaking normatively here but just as a matter of looking at the polling data this is going to be a non-issue real fast and so maybe Lawrence was properly decided on the basis of the legal materials maybe there's something in the text of the constitution that points that way maybe there were some precedents other than Bowers versus Hardwick pointing that way but let's just hypothesize for a moment that it really didn't make much sense as a matter of legal doctrine right so the Supreme Court took it upon itself to resolve something that was going to be resolved politically pretty fast anyway and at a cost in terms of now taking upon the court taking upon themselves yet again this hubristic notion that they are the ones who get to decide contended moral questions for the American people but it's only hubristic if we assume that it's wrongly decided right of course they shouldn't do it if they think it's not the other way I'm saying maybe it's right maybe they're right morally as a matter of legal doctrine I agree with it I agree that it's hubristic to take a case and decide it the wrong way but I think that if you took a poll of people who agree with the result in Lawrence versus Texas and you asked them how impressed are you with the legal reasoning that it will not get a very justice Kennedy's opinion or the opinion that they themselves are going to get to write I'm tying with justice Kennedy's opinion but let me just say here that was your year I think no no that was I was he was long gone an interesting thing though happened in Lawrence and I'd like to make a couple of sort of historical observations about this and get you guys to talk about it a bit the first is that when Lawrence was decided in whatever it was 2001, 2003 I don't remember that was the Texas case where these two guys cop walks into an apartment because the door was unlocked to serve some I don't know traffic war and I can't remember finds two guys engaged in actually those are the facts of Bowers against Hartlock no it was also the facts in where they blunder back into the I was also the facts in Texas and the guy actually spent a night one of the guys or both of them spent a night in jail unlike I think they never did in Bowers but I don't remember but it doesn't matter so the question the court says and I think that Texas and maybe there was one or two other states left that still made this a criminal offense to have private consensual homosexual relations and the court invalidated the statute in large measure at least on paper because the state couldn't come up with a compelling reason to have the law now just whatever number of years 15 years earlier 16 years earlier the court had decided Bowers versus Hartwick and come to the opposite conclusion and whatever you think of these two decisions whether you like them or hate them or are somewhere in between the fact is and I was not smart enough to bring you some of the language from the Bowers opinion the 1986 opinion the language used in Justice White's opinion and Chief Justice Berger's concurring opinion is language that would be barred in most workplaces today that would get you fired if you used if you made those kind of comments to people about the way they conducted their lives you would be fired it is not politically correct it is unacceptable you can think it but you may not say it you could go out and campaign against gay marriage easily but you cannot engage in that kind of conversation really about a gay lifestyle for one of a better expression so in a in a space of 16 years the whole tone of the country changed and I think having watched it that it changed a little bit because because the court reached a decision that was already behind the times when it was rendered I don't know how it would have done better but it might have done better to reach the same conclusion with different language and I don't know how that happened I remember the first time somebody called me and asked me what did I in my workplace what did I think about the possibility of gay marriage and I thought they were out of there caught and picked in minds I never heard such a crazy idea and now if you ask your 30 year old have your 30 year old conservative republican or 28 year old grad student they likely don't think this is an issue for them it's just not an issue it's just a very different place we're in and I'm not quite sure how it happened but I do know that Lawrence got cubed as it were because right afterwards the Massachusetts Supreme Judicial Court decided that the state laws against gay marriage violated the state constitution as well as for the federal constitution but for all practical purposes the state constitution and then in the body politics mind the whole thing somehow got merged into one so I toss that out for what it's worth I'm not sure I have a question I mean it's clear that this is a remarkable extremely rapid social transformation it's not the only one we've had but it is it's remarkable and the Supreme Court was not leading it it happened anyway I think it might be a hint that we don't really have to we don't really have to have the Supreme Court telling us what to do as a people we can sometimes do it on our own so I'm not in disagreement with that although I'll just say two things when the Supreme Court read Lawrence so they had this moment at the court it's called the hand down and when the justices read the opinion every lawyer knew that the day that Lawrence was going to be handed down and there were people weeping Supreme Court Barr is not known as sort of a warm and fuzzy group they're extremely able practitioners they were weeping as the decision was being handed down and the reason they were weeping I think was because Bowers was just as Kennedy said it was that the Supreme Court had perpetuated and that by overturning that decision and calling it a stigma while colleagues of his on the bench who had joined that opinion were still sitting I thought was remarkable so one question is if the world is moving should the court catch up with it I agree that it doesn't have to be the leader but also I think that it's a mistake to say just because we've seen it move quickly that that means that somehow everything is only pointing in one direction so in the wake of the Massachusetts we have some people in here who know this stuff very well but in the wake of the Massachusetts decision you could notice two things you could notice in Cambridge Massachusetts where I was on the day that the licenses started being issued and I guess and lesbians started to get married there was no rioting in the street there wasn't any massive protests of people being bused in because Cambridge needless to say doesn't have that many people against the issue but people were so riled up about it that they decided to go protest in Cambridge and in the next election we saw a bunch of initiatives that were being put on the ballot in response to this and I don't think if you talk to gays and lesbians in those states that they would particularly feel like everything is moving in the right direction and this is easy I mean so I said my worry is you know in the days of whenever you talk to someone who was in the middle of the civil rights movement you got the feeling that every day it was incredibly tenuous they had no idea which direction things were going and it mattered even if it only mattered symbolically it mattered but sometimes the court generates a backlash and may actually make it harder to move in that direction and also I'd like to point out sometimes the American people are not persuaded by by the court Nina was saying you know when Roe vs. Wade came out it was not particularly controversial well I have news it's very controversial now and if you look at that same sort of age based polling data you'll find that the younger cohorts are slightly less supportive of abortion rights than the very oldest but then our age cohort we're the strong approach choice cohort on this end of the panel but the point is so the Supreme Court is going to be right sometimes the Supreme Court is going to be wrong sometimes I'd like to say a word for the idea that important moral issues deserve widespread debate I think federalism is a great system for issues of this sort where we don't have to have one national answer and it can be debated in New York it can be debated in Utah people might come to different answers and we can learn from one another we can see the experience I think for example of the assisted suicide experiment going on in Oregon now I'm not in favor of assisted suicide but I think the fact that a state is doing this can find out whether some of the unfortunate consequences that I would predict are in fact going to take place that's a good thing I think it's good that we have a voucher experiment going on in Cleveland I think to have federalism which gives an opportunity for different answers for experience, for widespread debate not just some lawyers in front of nine other lawyers at one time one time fits all decision making like we get in the Supreme Court I think it's just a better way for a free people to go about deciding important questions and in the wake of Supreme Court decisions upholding the New Deal you're not going to get it because these issues have become nationalized in Congress as well so the most recent abortion case is the Federal abortion act but I think that proves the point because if the Supreme Court had not been as aggressive back at the first one when they hold that the state partial birth abortion law is unconstitutional if they had held back there never would have been a national law I think the national law is it seems to me it's a situation nobody really should want wouldn't it have been better if they had said to themselves look this is a proposition that even most people who support abortion rights seem to think that partial birth abortion crosses some kind of very difficult to define line not everyone but large numbers of supporters of abortion rights think this let's let this go and we can at least see how it progresses but instead know five justices in a five four decision say you can't do that and then now we have a national law I don't want to litigate the merits of the decision but I do want to I mean neither of us can prove it because we can't run the world backwards and then see how it happens in the other other way but I do think that there are very few sincere politicians anymore who will say I don't think that I my position is X but I'm going to vote against X in Congress because I think it should be decided at the state level so you know the one person who's sort of campaigning for president on this platform on a culture war issue is John McCain and he's taking a lot of heat for it he says he's against the constitutional amendment banning same sex marriage because he thinks it should be decided on a state by state level but he's not running for anything at the state level you forgot Vice President Cheney he says that too but he's not running for anything and he said it quietly when he was running for vice president my point is only that I think the period in which culture war issues could be left to the states if only the Supreme Court didn't meddle is gone because federalism is something that politicians invoke when it happens with their particular ideological position I wish that were not true maybe I'm wrong but you see it not only on partial birth abortion you saw it on assisted suicide that at the Ashcroft Justice Department tried to nationalize this and did not succeed on administrative law if the people of the United States want to nationalize it and if it falls within an enumerated power of Congress and doesn't violate anything else that's where we are but my sense is that frequently not always I'm sure you'll be able to come up with some counter examples but frequently getting the Supreme Court involved nationalizes questions that need not have been nationalized and that other one or ordinary politics would in fact leave at other levels we live in sort of extraordinary times in terms of American history when our wars are not equally shared and are fought by really a very few people now if that were to change would it change our society would we expect of our courts and our presidents would it change access to abortion services if you're in the military would it change don't ask don't tell or if we had conscription yes so one way of putting your question I think Nina is whether the culture wars are a real phenomenon or whether there's something that's generated by politicians and the study by Morris Fiorino and a bunch of other people at the Hoover Institute wrote a very good book called what culture war in which they argue that in fact if you look at polling data America is not nearly as polarized as we've been led to think by the red state, blue state maps that we see every two or four years that yes there are some differences but there are differences of degree rather than kind on all of these issues and they sort of fade and there are a lot of purple states and so forth but that because of the nature of national politics politicians try to mobilize their bases and find wedge issues and so forth okay but if they're wrong if there really is this deep cultural divide then I take it one effect of mandatory national service is you would bring people together and they would learn that the one who's pro-life really have a lot in common and they could work together or that you'd have greater racial integration because the military is the most successful site of racial integration in our country and I think you'd have some of that but I guess I also tend to think that to the extent that the culture wars are real they're real even among people who live and work together let me ask some questions about religion in the public square religious expressions subsidies in one way or another for religion I think it's pretty well accepted that we have a court now that is considerably more accommodationist in its view as the technical term that is accommodating, wishing to have religion more accommodated in the public square and I would have to say as somebody who goes out and gives a lot of speeches oddly enough I don't get huge numbers of questions when I talk for example before a high school audience about abortion or gay rights I get questions about prayer prayer in public school, why can't we pray in public school so the question I always get when I'm in a high school audience is whether the police have the right to search for a vehicle when they stop it for speeding every time we're going to different high schools well I have a higher class of audience obviously so I guess let me ask you to be a bit of a predictor on this do you think that it is possible that we will have a return if not to a moment of non-denominational prayer at least a moment of silence as a permissible thing actually the way I read Wallace versus Jaffrey is that a moment of silence is constitutional today and they exist in many states and I don't I think we're there, I don't think people find them particularly satisfying school prayer led by the teacher I think that the answer to that is just no I don't my impression from leaders of the so-called religious right is that they don't even really believe in that at least their legal arms don't tend not to believe in that anymore it's really not a very good idea and from a religious person's point of view it's not a very good idea much less anyone else I don't think it's I don't think it's going anywhere I think it's a dead issue so I always think that Justice O'Connor of all the people in Washington is actually the most effective politician in the sense of this that she always was able to put her finger kind of right where the middle was and she had a good sense for where the country was I don't think she's here anymore but so she had this and I think that her establishment which has been subject to much criticism and I don't think it's coherent in some ways captures what the rough accommodation is right now which is people are willing to give more on religion questions so I think that Judge McConnell has probably captured it well but I will say there's still this huge divide so I find my students who are a pretty liberal bunch will say things about religious minorities that they would never say about any other minority of any sort and they process minorities as an effort to enforce a patriarchy on them which is something they would also never say about almost any sort of minority and so one of the things that's interesting to me can you give us an example so students will basically they'll talk about the Christian right as if it's a monolith they will talk about efforts for questing for things like prayer in school or moments of silence they won't see them in any way a minority group to do what every minority group does which is fight about public symbols and public recognition and so there's in some ways that divide I think still exists in an extreme way and it's actually not the middle of America that's divided it's sort of people who go to elite institutions like Yale Law School where I think that that fight is still quite salient I agree with Judge McConnell's legal analysis I will say I have two daughters the older goes to a public elementary school younger daughter goes to a religiously affiliated nursery school and I feel like my older daughter is getting more religious I never thought I'd say this but I think there is a sense that there's a kind of weird secular religion in the public school so for example because they can't celebrate any of the actual religious holidays that the students various religious faiths celebrate they make a huge deal out of Halloween which is you know this because that's which I realize some people think that's like a pagan holiday but you know what basically for the kids it's just you know candy it's the one day of the year my daughter doesn't have any homework so that she can go trick or treating which just struck me as bizarre and then you know the first grade teacher cooks with them once a week which is a very sweet thing it teaches them math skills planning all these other things and when they eat she makes sure everyone has their thing and then she says bon appetit now you may eat which is sort of a cute phrase and everyone says well this is sort of a substitute for a little prayer or grace and I almost wish they would just say something like let's be thankful for this food without even specifying whom they're thankful to because you know it's a difference between what the law actually is right what the constitutional law actually is which is that you have to sort of purge all reference to prior religious traditions in some sense and that in that sense I have some sympathy for the quote Christian right view of this movement and what about money for faith based programs as opposed to programs run by religious organizations but that remain secular in nature you think the court is going to look favorably on that now I think the issue needs to be broken down into what is going to be the particular thing that comes up there's such a variety here faith based organizations of course have been major recipients of assistance for a long time this is not a new thing the rules have been very inconsistent with one department being much more exacting than another in terms of what kinds of secularization strings there are so will homeless feeding shelters have to remove the religious posters from the wall or the crucifix from the hallway as you go into the church basement to get your meals I mean that would be a question will religious organizations be required not to staff themselves with their ministries with people in their own denomination if they receive money or I remember my church in Washington DC had one of the largest homeless feeding programs in the city and it got large enough that one set of regulators told us that we had to get a different kind of oven system that would comply with the rules and the and there was available a FEMA grant to help defray the cost of this because we didn't need it for their own church purposes and it turned out that if we accepted the FEMA money in order to comply with the regulations to feed the homeless then our Wednesday night church supper could not use that oven because it was a prayer group meeting and connection with the dinner these are the sorts of things and they just I don't think that you can generalize my guess is that some will be various cases involving questions of degree and there won't be one sweeping decision saying faith-based programs okay faith-based programs not okay this is a very complicated set of questions You two agree? Do we have a unanimous court on this? Saying that something's complicated usually gets agreement from law professors I also think it actually what Judge McConnell describes actually captures a little bit of the style of where the court is going on some of these cultural war issues so what you see nowadays and I don't know if it's an effect of how much pressure has been put on the court of late but it reminds me of our discussion yesterday about a cocktail discussion it's really the taxation power that you should be thinking about where the court has I think sort of engages in proxies on these issues in a lot of the really highly freighted issues nowadays what you see the court doing is using statutory construction instead of constitutional analysis to do constitutional analysis and so I work a lot with the Voting Rights Act and the Voting Rights Act means it's sort of an American symbol and embedded in are these really hard questions about race and politics and the Supreme Court probably is not going to say that the Voting Rights Act is unconstitutional in the year when it gets the case but it has it is death by a thousand cuts so what the Supreme Court does every year is it narrows it a little bit tweaks it by statute and the motivations for that narrowing I suspect constitutional that is a particular vision of equal protection or in Hamdan many people sort of read that case it was really a separation of powers case but the court was doing it by interpreting a sort of ambiguous statute one way versus another what you may see is the court on these highly freighted issues sort of doing it piece by piece not issuing broad pronouncements and Chief Justice Robert seems to be kind of an interesting example because so far he had much to the chagrin of Justice Scalia he really hasn't with the exception of the desegregation cases overturn precedent or even said he would vote to overturn precedent what he's done is he's trimmed away and chopped away in a sort of way to get your troops rallied up excited about it it's actually harder to explain because it's much more technical so it's a little sort of a it's a gentler approach by the court and I don't know if Justice Roberts is something new and a sign that the pressure has become pretty intense or if it's just Justice Roberts I think the funding cases are fundamentally complicated because of the following intuitions I think everybody would share the intuition that the federal government nor the states whether under the federal constitution or state principles of constitutional law can build a church this is the state church on the other hand I think everyone will also agree that if there happens to be a fire at the church the fire department which is locally funded can go and put out that fire so you can provide certain kinds of direct services but not other kinds and the question is well what if somebody is wants to attend a religiously affiliated school for firefighters so there are all these intermediate questions and at that point you're just haggling over price as the punchline took jokes you know listening to this I'm reminded of how much more complicated it's gotten in many regards that when the school prayer case was originally announced President Kennedy called Archibald Cox and said I'm having a press conference today what do I say and Archie Cox once said to me that he said to the president well let me think about it and he couldn't come up with a good thing to say and then he turned on the press conference and the president said something very astute good political everything you know about how prayer is really something personal we do by ourselves we don't want I don't remember all the things he said but it was and he got away with it I'm not sure you know these issues have become more complicated now and therefore presidents can't get away with it quite that easily and I'm you were talking Judge McConnell earlier about freedom of speech and I'm looking at an internet pornography kiddie porn case this term you know there's lots on the internet these days there are Viagra ads there's child pornography and until now libel laws don't count for much because you can't sue a blogger for libel they most of the time don't have anything for you to get from them to seize from them there are no assets I'm wondering if candidate were to run to change some of this cleaning up the internet protecting people from false charges on the internet would it ring a bell with the public would would that put would the court back down if some candidate were to prevail on this if this became an issue in a national campaign what do you think I'd actually like to think that the court wouldn't back down I mean I agree with you that it's a politically salient issue I mean just one of my colleagues was looking at his email and he said I've concluded from my email today that my sex life is very important my credit rating is unimportant some of my colleagues are self important so everyone everyone has experienced an internet search that went awry and suddenly what you thought were was one thing you end up in an entirely different situation so I think that everyone shares that question but I think that the one thing that's wonderful about the court when it does engage in these issues is that it looks at a different level of generality and so it addresses questions that in some ways legislators just can't address because they're talking about the concrete so Clinton the Clinton administration and the communication decency act the CDA I don't know enough about it but I know of some I suspect the Clinton administration wasn't really a big fan of the CDA but if you're President Clinton you're going to sign a bill with that included in it and then you may actually be quite pleased that the court when it looks at a different level of generality and isn't just thinking about the concrete politics of it but the first amendment implications you might actually be quite relieved when the court goes ahead and invalidates it for you and so I think that in some ways this is one place where the court I think has a great comparative advantage because it just by the way that issues are cast it thinks of things at a different level of generality than presidents and legislators do and that's that's quite useful. In the previous panel the question came up of why didn't President Eisenhower lend moral support as opposed to sort of you know actual troops and you know saying he agreed with that he has to carry out the courts I mean why didn't he lend moral support to the principal announced in Brown and I think that's an interesting historical question but I think generally that's not what courts are good for for politicians courts are good for at least two sorts of things one is what Heather just described which is that the there's some decision that you're going to make that's going to be unpopular so you don't want to make it so you make the opposite decision and hope the court will bail you out by invalidating what you've done and you sort of you're secretly relieved and the other thing that they're good for is for beating up on right so you know the court makes an unpopular decision you can campaign against that court and all in my memory every president has done that on some set of issues usually invoking the same sort of rhetoric the rhetoric that goes back to President Roosevelt's fireside chat for the court packing scheme right yes of course I believe in judicial independence but here they've gone too far here they're legislating from the bench and that's that's what you use the court for is to it can be sort of a whipping boy I wanted to say something about what Heather was talking about the court being able to look at things from a different at a different level of generality I think there's a lot to that but another thing that courts are able to do is wait until the passions and consensus of the moment have passed and to evaluate legislation down the road and in light of what it's actually how it's actually been considered and in this connection I worry about the tendency of many organizations to file suit the next day and for sometimes congress even includes provisions in the statute waiving ordinary jurisdictional limitations so that you get quick review and often the court will enjoy the statute before it can ever be put into place I want to suggest that that's actually a mistake and that it would be not always there may be times when the issues are really clear and that needs to be done but often what happens is that the court ends up affirming the constitutionality of somewhat dubious legislation because it has been passed in the first full flush of popularity and then ten years later when all the problems have come along then they're stuck because of story to cises and find it hard to deal with it it seems to me there have been quite a few examples of this I wonder McCain find goals as an example and here I think the court did a partial corrective when it said well that was a facial challenge where we upheld it now we're going to entertain as applied challenges to specific things whatever one thinks about the underlying decision I think is a matter of sort of institutional practice that's good but I also think as a sitting judge we hear all kinds of sentencing cases the sentencing reform act was passed with absolutely huge bipartisan support everybody from Strom Thurman to Teddy Kennedy thought it was a great idea and then there was an immediate challenge based upon the most obvious problem which was a separation of powers problem rejected and mistretta and you know and then over time now people now there is a great deal of belief that this wasn't such a hot idea and by the time they the court is ready to really seriously consider the way that it actually operates they've already rejected the most obvious constitutional claim and then they latch on to well I may be getting too technical here but they latch on to the jury trial right the sixth amendment claim which leads to a very strange decision which is just tearing the courts apart I mean in a practical sense it's just mystifying a decision because they held that the problem with the sentencing guidelines was that judges rather than juries are the ones finding key facts to determine how long the sentence is going to be and then they said and the remedy to this is that now district judges have even more discretion than before to and with no additional jury findings whatsoever so it's a very strange disconnect between the remedy and the supposed constitutional violation I think that the one of the morals of this story is if the court were less confident that it's going to get it right the first time out if it's a little bit it ought to wait and go slow and get some experience and not go for these immediate sweeping challenges but be a little bit more modest about the role and then I think maybe in the end they might even strike down a few more things but on a more focused sensible experience based judgment about what their effects are going to be I'm going to close out this panel with a kind of a broad question when Justice Scalia says that we've taken his opponents in a particular case have taken sides in the culture wars and others say well no matter how you decide you're taking a position and then I get a lot of questions here that the core of which it is I thought the Supreme Court was supposed to protect minorities when their rights were being trampled when they were not taken into consideration enough because they can't win in a democratic process there are by definition minorities conversely we believe that by and large this is a democracy and that difficult questions are supposed to be decided by our legislative and executive branches the elected branches not the appointed branches of government and it seems to me that whenever I have a philosophical discussion at all with any judge when they write something and I get to talk to them about it it always comes down to that so how do you reconcile those two views each of you and then we'll take a short break and come back for the next panel well it can't be that minorities always win because they're minorities and it also can't be that minorities always win because they're majorities because we do after all have a constitution that limits majorities so I think it's kind of a silly dichotomy what you have to do is you look at the can you say my question silly just a lot the question is only the dichotomy we have a constitution that guarantees minorities some rights and leaves other questions that minorities might care very deeply about some things that aren't constitutionalized where they don't have any constitutional protections I think the courts ought to be paying a lot more attention to the document that is to say the constitution along with its history and its history of interpretation and so forth and less to the question of whether it's a minority or a majority that's bringing the claim they are after all in office as in order to enforce the law not in order to decide issues that at least by my reading the constitution leads to the people to decide at least in some cases so John Hart Ealy actually had a famous book in which he defended the role of the courts and he said courts are supposed to do two things one is they're supposed to protect minorities who can't protect themselves in a democracy to clear the channels of political change so he's thinking of course about one person one vote right you can't actually have a democracy that works particularly well unless you make sure that everyone can cast an equal vote and I think that there's a perspective among voting rights scholars that in some ways the mistake was to divide those two things it doesn't quite remove the attention but to imagine the role of the court in protecting minorities is part of your role is clearing the channels for political change that is to put minorities in a place where they can protect themselves so the voting rights act I think is the best example of that and I think the most important civil rights legislation that's been passed because unlike lots of other pieces of civil rights legislation what the voting rights act did was it put a bunch of black and Latino officials in place all over the country and black and Latino officials were able to use their power to protect their party to protect their own so there's a great piece by Sam it says that almost all the advances of African Americans in this country have mostly come in places like government hiring and those are places where the reason why that is so is because that's a place where elected officials are actually able to exercise some power to help their own community so it doesn't solve the problem but I think that it's useful to imagine ways in which you can connect with those two things so that it's not about protecting minorities so much as empowering minorities so that they can fight the good fight on behalf of themselves just like any other group does Much of our discussion on this panel has been devoted to the question of whether judicially mandated legal change is effective in the long term if so how effective or is it counterproductive and that's a long standing debate there's sometimes false assumptions in that debate like the false assumption that civil rights litigators or civil rights organizations always run to the courts is the first thing that they do I've done a lot of work with these organizations and they almost always have a legislative strategy that is dominant but that they go to the courts because often that's not working and they think they have a legal claim I do want to say something about how those claims develop that as a practical matter and as a legal matter not all minorities are going to be successful nor should they be successful in fact there's a question of how you get to the point where your social movement can be successful so the movement for women's rights in the 19th century was a fringe movement we look back now upon the formative event, Seneca Falls and so forth and we think we're looking back on it because it was successful in the 20th century in the same way that the movement for gay rights prior to the 1960s and even well into the 80s was a fringe movement it's become successful and they only get any recognition by the courts after they've had some success in the political sphere the question then the relation between that political social success and success in the courts is a very complicated one I think the dynamic goes back and forth to some extent courts can be catalysts but they can also inspire backlash so it's very hard to generalize about that you might be tempted I think to conclude therefore that what happens in the courts doesn't really matter that much because it's just going to be a matter of timing when do the people with the old views age out and they're no longer voting and I'm reluctant to say that I think that presidents and voters in choosing presidents are right to think that who is on the supreme court matters it's not the only thing that matters but that when Gerald Ford said shortly before his death that if it came to it he would be willing to be judged solely on the strength of his appointment of justice Stevens to the court he was not saying something that was absolutely crazy right that is to say that these people are there for a long time what they decide matters to some extent they have a choice to some extent they feel that they don't have a choice but that you know for better or for worse the supreme court is a powerful institution in American political life not as powerful as the presidency but one that you know from time to time plays a very large role and so it's not just some epiphenomenon on social movements so I just want to have one other thing to say here leading into our next panel in the lunch break I was asked by a television interviewer why we should care about the presidential libraries and I said because they're a part of our DNA as much as our parents are a part of our DNA they're a part of our national DNA and who we are and that is never more clear than in the subject of executive power and the limits on executive power in wartime which is the subject of the final panel of the day after we all have a short break to do whatever we have to do