Tom Goldstein

  • Aired:  04/03/12
  •  | Views: 25,378

Law professor Thomas Goldstein believes that it takes a fair amount of humility to be a Supreme Court justice because, otherwise, one can get out of control. (6:30)

(CHEERS AND APPLAUSE)

>> Jon: WELCOME BACK.

MY GUEST TONIGHT, HE TEACHES SUPREME COURT LITIGATION AT STANFORD AND HARVARD LAW

SCHOOL-- SAFETY SCHOOLS-- AND HAS ARGUED 24 CASES BEFORE THE SUPREME COURT.

HE'S THE PUBLISHER OF SCOTUSBLOG.

WELCOME TO THE PROGRAM TOM GOLDSTEIN.

(CHEERS AND APPLAUSE)

>> Jon: THANK YOU FOR JOINING US.

YOU HAVE ARGUED 24 CASES IN FRONT OF THE SUPREME COURT.

>> YES.

>> Jon: YOU HAVE A BLOG DEDICATED-- SCOTUSBLOG-- SO YOU COULD TELL US WHICH WAY ARE THEY

GOING TO RULE IN HEALTH CARE DEFINITIVELY?

>> I WOULD SAY IT DOES NOT LOOK GREAT.

>> Jon: SO YES?

>> YES FOR WHICH?

>> Jon: SO NO?

>> NO.

(LAUGHTER)

>> I WOULD SAY THE ADMINISTRATION IS PROBABLY NOT GOING TO HAVE THE BEST JUNE.

>> Jon: THEY'RE NOT GOING TO HAVE THE BEST JUNE.

WERE YOU SURPRISED TO SEE PRESIDENT OBAMA COME OUT AND GIVE A SPEECH WHERE HE BASICALLY

SAID "I DON'T THINK THE JUSTICES WANT TO DO THAT." IS THAT AN UNUSUAL MOVE FOR A PRESIDENT?

BECAUSE I DON'T RECALL EVER SEEING THAT?

>> IT'S PRETTY UNUSUAL.

HE'S IN AN UNUSUAL SPOT WHEN YOU HAVE THE CENTERPIECE OF YOUR ENTIRE AGENDA THREATENED WITH

BEING STRUCK DOWN 5-4.

SO HE I THINK WAS TRYING TO HAVE IT BOTH WAYS IN A SENSE AND THAT

IS HE'D LOVE TO SEE A VICTORY IN THE SUPREME COURT AND IF HE LOSES I THINK HE'S SERIOUSLY

THINKING ABOUT RUNNING AGAINST THE SUPREME COURT.

SO HE'S RAISING THE STAKES.

>> Jon: SO YOU THINK THE SUPREME COURT COULD BE THE REPUBLICAN NOMINEE?

(LAUGHTER)

>> HE MAY MAKE THE SUPREME COURT THE REPUBLICAN NOMINEE.

>> IS IT THE TYPE OF THING...

WE'RE HEARING NOW THE PRESIDENT SAYING THIS JUDICIAL ACTIVISM WHERE THEY STRIKE DOWN A LAW

THAT THE CONGRESS HAS DULY PASSED.

IS THAT JUST A PHRASE THAT EVERYONE USES WHEN IT SUITS THEM LIKE AN UMBRELLA IN THE RAIN ON

BOTH SIDES?

>> ABSOLUTELY.

I THINK THAT NOBODY IS REALLY CONSISTENT ABOUT THIS.

REPUBLICANS WOULD LOVE TO SEE MORE CAMPAIGN FINANCE LAWS STRUCK DOWN AND THE LIBERALS

WOULD LOVE TO SEE MORE ABORTION RESTRICTIONS STRUCK DOWN.

THE CONSTITUTION IS A WONDERFUL THING UNLESS IT DOESN'T GO THE WAY YOU LIKE IT TO.

>> Jon: YOU KNOW THE JUSTICES.

YOU HAVE ARGUED IN FRONT OF THEM, YOU HAVE, I ASSUME,

PARTIED WITH THEM AFTERWARDS.

(LAUGHTER) DONE A LITTLE BIT OF "E" WITH THEM.

(LAUGHTER) DANCED SORRY.

(LAUGHTER) DO THEY FEEL THE PRESIDENT'S WORDS?

DO THEY NOW SAY "OOH, WE BETTER DECIDE THIS WAY BECAUSE THE PRESIDENT WILL BE MAD AT US"?

>> I DON'T THINK SO.

I DON'T THINK THEY PAY MUCH ATTENTION AT ALL.

THEY VOTED ALREADY RIGHT AFTER THE ORAL ARGUMENTS BUT TO EXTENT

THEY'RE PAYING ATTENTION I WOULD SAY THEY PROBABLY WOULD GET THEIR BACKS UP A BIT.

THEY THINK THIS IS THEIR JOB.

THIS IS WHAT THEY DO.

THEIR JOB IS TO KIND OF GUARD THE CONSTITUTION FOR THE REST OF US AND THEY WON'T BE TOLD WHAT

TO DO.

>> Jon: IS IT THEIR JOB.

>> WELL, IT'S NOT JUST THEIR JOB.

REMEMBER EVERY BRANCH OF GOVERNMENT IS SUPPOSED TO UPHOLD THE CONSTITUTION.

THE SUPREME COURT IS THE UNELECTED BRANCH THAT DOES IT BUT EVERYBODY'S SUPPOSED TO BE

PAYING ATTENTION.

>> HOW OFTEN DO THEY THROW THAT MARBURY V. MADISON THING OUT THERE WHEN THEY'RE ARGUING?

IF SOMEBODY ARGUES WITH THEM...

JOHN IF YOU NOMAR BURY.

V.

MADISON BUT IT'S WHAT WE DO.

>> Jon: IF YOU HAD THAT POWER I THINK YOU'D BRING IT OUT AS WELL.

>> Jon: I WOULD ALWAYS INTERPRET LAWS.

>> IF THERE WAS A LAW YOU DIDN'T THINK WAS CONSTITUTIONAL AND YOU

COULD GET RID OF IT IT WOULD BE A GREAT THING.

SO IT TAKES A FAIR AMOUNT OF HUMILITY TO BE A SUPREME COURTUS BECAUSE OTHERWISE YOU CAN GET

OUT OF CONTROL.

>> Jon: THAT'S INTERESTING.

BECAUSE THEY ARE... HAVE YOU SEEN ANY OF THEM GET OUT OF CONTROL?

HAVE YOU BEEN TO A PARTY WHERE A GUY PULLS YOU OUT ASIDE AND GOES "I AM ALL POWERFUL.

I CAN STRIKE DOWN LAWS WITH..." YOU KNOW, ESPECIALLY KENNEDY

WHO'S THE SWING JUSTICE HE'S GOT TO BE FEELING IT THESE DAYS.

>> JUSTICE KENNEDY IS...

>> Jon: THAT'S WHAT I MEANT JUSTICE KENNEDY.

WHAT DID I SAY?

>> "THAT GUY." (LAUGHTER) I THINK JUSTICE KENNEDY SWEAT IT IS DETAILS.

HE KNOWS ON A LOT OF THESE 5-4 YOU HAVE THE STRIP SEARCH CASE YOU WERE TALKING ABOUT.

HE REALLY KIND OF AGOIZE IFS A LOT ABOUT THESE SORTS OF THINGS.

>> IT'S INTERESTING YOU BRING UP THE STRIP SEARCH CASE.

HERE'S A LITTLE SIDE FACT YOU MAY NOT BE AWARE OF.

THE GENTLEMAN WHO ARGUED THAT CASE.

>> AND LOST IT.

>> Jon: AND LOST IN FRONT OF THE SUPREME COURT...

>> YEAH.

>> Jon: YOU.

>> YEAH.

(LAUGHTER) I'M REALLY SORRY ABOUT THAT.

(LAUGHTER).

>> Jon: WHAT WAS YOUR... I MEAN, IT'S FORTUITOUS YOU'RE HERE ON THAT DAY.

WHAT WAS THAT LIKE?

THAT SEEMS LIKE AN INCREDIBLY EXTREME AUTHORITARIAN MEASURE AND POWER TO GRANT THE POLICE.

WHAT WENT DOWN IN THE COURTROOM?

>> THE JUSTICES ON THE RIGHT ARE WORRIED ABOUT JAIL SECURITY SO

THEY'RE THINKING... LET ME TELL THE STORY OF THE CASE.

A MAN IS DRIVING DOWN A JERSEY TURNPIKE IS ARRESTED FOR BEING BLACK AND IS...

(LAUGHTER).

>> Jon: AND, BY THE WAY, WAS NOT ACTUALLY DRIVING.

>> RIGHT, HE WAS WITH HIS WIFE,

HIS WIFE WAS DRIVING.

THEY'RE GOING TO THE MOTHERS-IN-LAW HOUSE FOR DINNER.

THEY JUST BOUGHT A HOUSE.

HE'S PULLED OVER.

THEY SAY "SIR, YOU ARE WANTED FOR ARREST." HE'S SO USED TO BEING PULLED

OVER HE CARRIES A PIECE OF PAIN WE ARE HIM SHOWING A WARRANT HAS BEEN QUASHED.

THEY'RE UNIMPRESSED.

THEY TAKE HIM TO JAIL, THEY STRIP SEARCH HIM, THEY FIND HE WAS NOT GOING TO HIS

MOTHER-IN-LAW'S HOUSE WITH DRUGS STRAPPED TO HIS GENITALS.

HE IS HELD FOR DAYS, TRANSFERRED TO ANOTHER JAIL, STRIP SEARCHED AGAIN WHERE THEY DISCOVERED HE

STILL DOES NOT HAVE DRUGS STRAPPED TO HIS GENITALS.

>> Jon: (LAUGHS)

>> MY TAKE ON IT IS IS THAT THIS IS HARD CORE THAT PEOPLE GET ARRESTED ALL THE TIME, HUNDREDS

OF THOUSANDS OF PEOPLE FOR RELATIVELY MINOR OFFENSES AND IT'S UNFORTUNATE THAT WE HAVE TO

HAVE THE LEAST COMMON DENOMINATOR THAT SAYS SOMEBODY MIGHT BE SMUGGLING SOMETHING

INTO JAIL SO I WISH WE WOULD HAVE WON BUT HE DIDN'T.

>> Jon: CAN YOU SAY?

I WANT TO ASK YOU ABOUT HOW THE CONSERVATIVE JUSTICES THAT ARE GUARDING CIVIL LIBBER TREES THE

ONES THAT COULD GIVE AND GRANT THE POLICE THAT AUTHORITY.

THAT'S THE PART THAT REALLY BLEW MY MIND ON IT.

BUT WE'LL BE RIGHT BACK.

MORE WITH TOM GOLDSTEIN'S SCOTUSBLOG RIGHT AFTER THIS.

(CHEERS AND APPL

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