cnn. >> i think roberts is very, very conservative and he's trying to push the court in a conservative direction across the board. this is a guy on a mission. and i think he's doing it in an honorable way, he's doing it -- with you know, within the rules -- but i don't think there is any mistaking what he's doing there. so -- so -- i mean -- that -- that suggests no disrespect for the institution, it just tells us what he's up to. >> so we're five years into the roberts court but a little a little bit of a misnomer to talk about the roberts court. before, thereof 11 straight years with no shifts in personnel, the second longest period in united states history with a constant, static court and now, boom, we have a new chief justice, chief justice roberts, followed by justice alito followed by justice sotomayor last year and today for the first time we saw justice kagan on the bench. that's a lot of change, mostly

not consequential change because the switches tended to be ideologically one for one with the one exception of justice alito for justice o'connor which did shift the court to the right. >> charlie: all about the supreme court. next. >> funding for "charlie rose" was provided by the following. ♪ >> charlie: additional funding provided by these funders. >> and by bloomberg. a provider of multimedia news and information services worldwide. captioning sponsored by rose communications from our studios in new york city, this is charlie rose.

>> charlie: the united states supreme court began its new term, today. for the first time in its history, three three women on the bench. all eyes will be on new member justice elena kagan but because she was president obama's solicitor general she will refuse herself from cases. those cases include support for religious schools, illegal immigration, violent video games and the role of d.n.a. evidence. almost half the cases devoted to business with implications for contractors and telecommunications companies. joining me is jeffrey toobin, senior legal analyst with cnn, also a staff writer for "the new yorker" magazine, from washington adam liptak, supreme court correspondent for "the new york times," writing a series of articles about the supreme court in "the new york times." i am delighted to have them this

evening. what happens between the end of one term and the beginning of another term, called the first monday? >> they take it easy. the supreme court, in addition to being a great job, is kind of a cushy job. they do about 70 or 80 cases a year. do the math. 70 cases divided by nine justices divided by four law clerks apiece, it's really, compared to many other judges in the country, not all that demanding in terms of time. it's very intellectually demanding. from when the court shuts down, basically the first week in july until september, that building is pretty close to empty of justices. you really don't see them there. a lot of them travel to europe. they teach. justice kennedy always teaches in salzburg. justice scalia is often in europe. justice ginsburg too. justice breyer was on a big book tour this year. >> charlie: more about that later. >> so they clear out, and it's -- it's -- >> charlie: when do the clerks

come in? >> it varies by chambers but usually, over the summer, they will overlap with the old clerks for several weeks so they can be trained and basically, what the summer is mostly preoccupied with is reviewing the petitions for certiorari -- the requests for the court to hear cases that stack up over the course of the summer, and basically, the clerks learn the system, because the court gets, i think, 7,000 cert petitions a year -- >> charlie: 7,000? >> and only grants about 70 or 80 so basically, it's learning how you identify the handful of cases that they will take. >> charlie: when will they hear the first one? >> today. >> charlie: today. >> that's the first monday in october, and that's -- what the first monday in october means is it's the day that oral arguments begin. >> charlie: oral arguments every monday? how often are oral arguments? >> they go a couple days a week. two, three days a week. adam can help us. adam -- >> charlie: adam, help us understand this. >> they go monday, tuesday,

wednesday, one week monday, tuesday, wednesday, the next week, then they take two weeks off so they work six days a month in terms of hearing arguments. >> that was different in the 1980's. in the 1980's, when i first followed the supreme court as a law student they were following 150 cases a year, now they only hear two arguments -- still two arguments a day, two hours in the morning with rare exceptions. >> a rare afternoon argument but not so uncommon a single argument, so as jeff is suggesting it's not a heavy lift. when chief justice roberts was still a young lawyer in the reagan administration he wrote a funny memo saying that only school children and supreme court justices get the summer off. >> and that's looking awfully good to him him -- awfully good to him now, the summer off. >> charlie: you have written articles about the roberts court. tell me the overview of the roberts court with the addition of the new associate justice. >> so we're five years into the roberts court but it's a little bit of a misnomer to talk about

the roberts court because it keeps changing. before chief justice roberts came on there were 11 years with no shifts in personnel -- the second longest period in united states history with a constant, static court, and now, boom, we have a new chief justice, chief justice roberts, followed by justice alito, followed by justice sotomayor last year and today for the first time we saw justice kagan on the bench, so that's a lot of change, mostly not consequential change because the switches tended to be ideologically one for one with the one exception of justice alito for justice o'connor which did shift the court to the right. >> charlie: do we still believe that justice kennedy is the crucial vote on most issues coming before the court? or is that more said than done? >> without question, it's -- in the contested cases, the advocates train all of their arguments on justice kennedy because he's going to be the deciding vote. >> we've had swing votes before. in the 1970's, it was lewis

powell. in the 1980's and 1990's it was justice o'connor to a certain extent but never in recent history has there been a justice as powerful today as anthony kennedy is -- the court is so polarized -- we don't know how kagan is going to vote although we assume she will vote similarly to stevens the and the other three. >> while justice o'connor was the swing justice, she would be very incremental, moderate, pragmatic. when justice kennedy is in, he's in all the way, so if he's on your team he will push the argument to the extreme, so he's instrumental in that sense too. >> charlie: what does that mean, "push the argument to the extreme"? >> justice o'connor would rule narrowly, would rule on this particular case and maybe not give the lower courts a lot of guidance, or give them a balancing test that different judges would apply differently.

justice kennedy will say, for instance -- you know, in a full-throated way in citizens united, that corporations and unions have first amendment rights to spend in candidate elections. that could have been decided narrowly. it was decided broadly. >> i think citizens united in a classic example of what adam is talking about because the facts of citizens united were so peculiar and so narrow relating to this obscure nonprofit organization using this bizarre technology that's hardly used at all, you could have simply decided that case involving nonprofits using this one -- and instead, he wrote this opinion saying corporations can spend freely in any election, anytime, anywhere, and i think adam's right, that's the anthony kennedy way. >> charlie: on that particular point, it so bothered the president of the united states that he took note of it in a state of the union message. >> well, it's really one of the great moments in recent supreme

court history that didn't even take place at the supreme court. it took place at the state of the union where you had the president, in a very unusual move, criticizing the court directly to their faces. what he was really doing was talking about legislation to correct the supreme court opinion, but it actually -- it certainly came off as criticism of the court. >> charlie: and even raises a question as to whether the court should be there for the state of the union. >> john roberts -- >> justice alito made it more vivid by seeming to mouth the words "not true" and to preempt jeff's point, a few weeks later john roberts answering questions in a law school said that the whole occasion had turned into a political pep rally, making him wonder whether he should attend at all. >> charlie: do you expect a decision that the supreme court will no longer go to the state of the union? >> certainly not stephen breyer. stephen breyer makes a point of going every year, this was true even before this and not just because he's selling books, this is a longstanding principle of

his and suddenly it's going to be very interesting. there were six at the last one. how many show up this time? and frankly, i am somewhat sympathetic to roberts' position although i probably don't agree with it, it is awkward -- a lot of what goes on at the supreme court -- at a state of the union is political partisanship and you can see them squirming in their seats. if the president pays tribute to the troops, they all clap. but if the president says, "we need to cut taxes," they don't clap. so it's awkward -- >> they have to kind of coordinate. they look at each other to see if they're on the same page instantaneously to decide if something is nonpartisan enough that they can clap for it. it's tough. >> charlie: is the court opening up in terms of this sort of relationship between the justices and the public? >> i would say a little bit. going back to the 1950's, william o. douglas wrote a series of memoirs that were some

-- quite political, but after that the court was pretty quiet for a while, and chief justice rehnquist, he did write books. they were pretty careful to steer clear of contemporary political debates. >> charlie: but you could talk about either music or basketball forever. >> that's right. justice sotomayor is writing -- is writing a memoir. i think they are opening up a little bit. this week, they announced that they're going to release the audio of transcripts -- audio of oral arguments at the end of each week. that was sort of two steps forward and one step back, because they also said they weren't going to release same-day audio of the high-profile arguments the way they used to, so i think they're struggling with it, but when in doubt they restrict access. >> i would love to see a kind of lincoln-douglas thing between scalia and breyer. >> well, that show, they do take on the road once in a while. they'll go to a law school or historical society and they both have their talking points and each time, even though they know

woos coming they manage to drive each other crazy. -- what's coming, they manage to drive each other crazy. >> charlie: while we're talking about this behavioral business on the court, who are the friends on the court? who are the best buddies? who gets along with whom? >> one great pair, and a surprising one to many people is justice ginsburg and justice scalia, ideological opposites, very close friends. jeff, am i right that -- you wrote that the day after justice ginsburg's husband died, she was on the bench to announce -- no, it was at the end of the term, the chief justice said nice words about martin ginsburg. >> it was the day after he died, yes. >> and justice scalia was weeping. they spend their new year's eve together. they're very close. >> they're big opera fans. they are all very pol ielt. they don't spend a lot of times together. one of the big rehnquist things at the court is that good fences made good neighbors and more

often than not they do not spend a lot of time together off the bench. it's interesting sometimes to ask -- to ask them, "did you read breyer's book?" i don't think a lot of them are reading breyer's book. >> charlie: why not? >> you know, they -- >> charlie: have they heard it before? >> they are very respectful of each other's personal space, to use a term none of them would use, and i think justice breyer and justice o'connor had a real alliance on the court, but i don't think they did a lot of socializing off the court. i think the ginsburg-scalia relationship is much more the exception than the rule. >> people think that they roam the hallways and trade votes and back-slap and so on, and it's really not that kind of institution at all. it's really akin to nine little separate law offices, each with four clerks busily working on the cases. they communicate with each other by writing. to the extent they persuade each other, it's not through charm so elena kagan's famous ability to

bring the harvard law school faculty together, no small thing, may not translate directly to this kind of thing where to the extent you're going to forge alliances it's not on the force of your personality it's the ability to say things that might attract someone else's vote. >> charlie: you know elena kagan well. >> i do. >> charlie: what should you expect of him? >> i think you should expect that her views will reflect the who appointed her. i think she's a conventional democrat. she is someone who was very proud to be the solicitor general in this administration. was proud to work in bill clinton's white house. i think -- you know, she will be pro-choice. she will be pro-affirmative action -- i say this assuming, because i have never had a discussion with her about it -- i think she will be -- she will believe that the government has the constitutional ability to try to solve problems, but she will also, i think, push back

against individual rights claims against the government. i wouldn't be shocked if she ruled in national security areas in favor of the government as opposed to individuals. but i am guessing to a certain extent. >> she was on the bench today, sat in the first argument, of recused from the second and that's the kind of pattern we'll see a lot of and it was, god knows, a boring and mundane if not trivial case but she was in the mix, and she was completely at ease, asked very smart, pointed questions both sides, didn't show her hands but knew the intricacies of the bankruptcy code on a question i'm sure was quite new to her and did a good job. >> charlie: justice sotomayor. wahave we seen so far about her, where she's -- what have we seen so far about her, where she's settling in and expectations? >> no surprises. she voted extremely consistently with two of the liberals, breyer

and ginsburg. the one area people feared she might have consistency from a position because she was a prosecutor, she was pro defense. her first major dissent was on a case on the miranda rights, so she is -- the story is not surprising, her writing is generally a little flat and uninspired and one hopes, perhaps, that justice kagan, who is an academic wrote in a more lively, conversational style might give us something better. >> charlie: whose writing is the most inspired? >> oh, i have a very clear opinion on that. john roberts. >> charlie: really. >> john roberts is a great writer. i think he is an elegant stylist. i think if he keeps going he's going to be the best writer on that court since robert jackson who to me is the best writer in the history of the court. >> charlie: same robert jackson who was a prosecutor at nuremberg. >> who served on the court in the 1940's and 1950's, i am a big fan in my recent article

about stephen breyer in "the new yorker" i quote a sentence that roberts wrote in a fairly obscure case, but it was so elegant and turned so well that i won't botch it by trying to quote it but i'll just say it was awfully good. >> he went on to quote justice breyer in juxtaposition and it was not flattering. >> i did do it on purpose because breyer is -- perhaps this is a little nasty -- i said he writes in a sort of judicial powerpoint, "ifrt first, second, third" he's -- "first, second, third" he's a bright guy but he's not a stylist. >> charlie: who other than justice roberts would be second place for you, adam? >> justice scalia, very lively, entertaining writer, particularly good in dissent, if he writes a consent you are going to be confident he has not overlooked any shortcomings of the majority opinion and he's got a kind of pricklier, more

polemical way of writing than roberts does. i agree with jeff that roberts is a very fine writer. then the list stops. i couldn't point to anybody else. >> it's pretty -- >> charlie: somebody once said there is nobody in second place. >> it's a tough race for second, yeah. >> charlie: how is justice roberts doing as a chief justice? >> remember that he's got just the one vote. >> charlie: right. >> and he doesn't have a lot of power beyond some power to assign opinions. i think he's well liked inside the court as an administrator. that he's fair. that he assigns things in a sensible way. i think what we saw last term, he turns out to be in the majority more than any other justice, he takes that away from kennedy because he's trying hard, i think, to find exon ground with people, that there is a category of case that is he really cares about -- campaign finance. gun rights. the exclusionary rule. and on those he will push very hard. but in a whole variety of other cases i think he's trying to find common ground. he's trying to avoid 5-4's, and

he does care about the institution probably more than any other justice. he very much wants the institution to be held in high regard. >> charlie: ok. not suggesting that justices think about personal ambition, but following up on what you said, if you want to be a powerful justice, look at anthony kennedy. that's where you want to go. >> yes, but these are principled people and these are really big issues, and i think they -- they all stand for something -- i mean, i would differ a little with adam on -- on roberts, but i think roberts is very, very conservative, and he's trying to push the court in a conservative direction across the board. >> charlie: ok. >> this is a guy on a mission. and i think he's doing it in an honorable way, he's doing it -- you know, within the rules, but i don't think there is any mistaking what he's doing there. so -- so -- i mean -- and that -- that suggests no disrespect for the institution, it just tells us what he's up to. >> charlie: yeah. >> others have done the same

thing. >> he may be right, and time will tell, these are the kinds of things when you make a point someone comes up with three cases that may push the other way but the chief justice did join with the liberals plus kennedy a decision on juvenile life without parole -- striking it down. although his decision -- his opinion was on narrow grounds -- he joins a case on federal power involving sex offenders where he joins justice breyer. he was the only justice to join every part of justice ginsburg's opinion casting doubt on the convictions of jeffrey skilling and conrad black, so but i don't fundamentally disagree with jeff. very conservative but also he's a young man, and this is a long-term play. >> charlie: in general, give us a sense of what is the basic debate between the members of this court. >> well, i guess -- >> charlie: as blocs. >> if you want to talk about individual rights, which is i suppose what people care about the most, whether it's abortion, affirmative action -- what we mean by conservative, what

conservative means in a legal context is applying the bill of rights in a narrow way. saying that -- since there is no such -- there is no reference to the word "privacy" in the constitution, there is no right to privacy in the constitution. liberals feel that the terms should be defined expansively and that they should be defined differently over time. that the constitution was designed to reflect modern conditions, so if school segregation was legal around the end of the civil war when the 14th amendment was passed, brown vs. board of education was still right in 1954 because the world had changed. >> charlie: beyond that, how does the division reflect itself in federalism? in federal-state questions?

adam. >> there it gets complicated because you get some splits on the right. we lost two big states-rights opponents when rehnquist and o'connor left the court, scalia and thomas still are generally in that direction. you don't have as much sympathy for states rights from roberts and alito, who basically are creatures of the executive branch. so on some of those questions, the clean divisions start to fall away a little bit. >> i think that's right. >> charlie: ok. there is also this question about this court. too many of them came from the same schools. >> it's unbelievable. it's crazy. six harvard and three yale. i'm proud to have gone to harvard law school, but it's just ridiculous. how can you have a court like that in the united states? >> i'm a little disappointed that we only have the three. >> it's not right. they're very heavily centered toward the east coast and they come from a very narrow band of lawyers. we used to have supreme court justices who were governors,

attorneys general, a kind of bureaucratized judiciary who come up very much through the very highly credentialed ranks without the judicial world or the world of real people so we don't have diversity of the kind we had a century ago. >> in 1954, brown vs. board, eight of the nine justices had never been justices before, that was the first time that all nine justices were federals appeals justices. i'm not saying eight of the nine should be, but there should be senators like hugo black, people who have broader experience. >> if the best we can say is that elena kagan hasn't been a judge, although nominated to the d.c. circuit, she basically might as well have been because she very much lives in the world. >> charlie: she was a part of the system that leads to appellate decisions. >> correct. >> charlie: all right.

so let's talk about -- first, one -- justice alito. where would you -- i mean, any surprises from him? i'm only taking the three most recent. >> we should listen to what presidents say when they talk about the supreme court. president bush said, "i want to appoint justices in the mold of scalia and thomas." that's what he did. and yes, there are a handful of opinions where justice alito differs from thomas and justice scalia but just a handful. he's very conservative across the board. >> charlie: adam? >> i would even say that he -- you wouldn't think this was possible, but he occasionally finds territory to the right of roberts, scalia and thomas and he will not follow them when occasionally there are parts of the constitution that scalia and thomas really think help defendants and they may not like the result but it's in the constitution, the confrontation clause, for instance, they're going to follow that theory even if it results in something that might not comport with their policy preferences, alito is not in that mold.

he will take -- >> adam is married to a great veterinarian. another peculiarity of justice alito's view is that he appears to love cats a great deal because there was a case last year, a very rare case that was decided 8-1 about these horrible films on the internet and elsewhere where they kill cats and torture animals, and the justices decided 8-1 that those films were actually protected by the first amendment, but justice alito said no. he was too pro-cat. >> charlie: what was his argument? >> that this conduct was illegal. that portraying illegal conduct -- and the others were saying that's ok. prosecute the illegal conduct, don't prosecute the expression about it. >> charlie: justice -- >> right, but a very pro-congress has the power, he said, to outlaw some kinds of speech even when it's pure speech, even when it's a video of something that the person making it didn't participate in, maybe it's a bull fight that's

illegal to do in spain, the sale of that bull fight, because bull fighting is illegal here in the states would violate this law and justice alito could live with that. >> charlie: it was my impression that the conservative wing of the court always basically said if it's not in the constitution then it's -- it may be unconstitutional. some piece of legislation. but my understanding was their argument was frequently that the legislature went too far, point one. point two, justice breyer, at this table and others, have shown a certain deference to what the congress does and respect. are those two ideas in conflict? >> well, i think -- >> charlie: not my words but -- >> the words that get to what you are talking about are judicial activism. >> charlie: right. >> because that was a traditional epithet flung at liberals. >> with some justification -- >> charlie: and at the warren court. >> and at the warren court. telling police what to do, telling states they can't ban abortion, telling states they

have to integrate their schools. but what we have seen in recent years is conservative judicial activism. telling congress, "you can't ban -- you can't regulate campaign finance the way you thought. you can't -- state legislatures, city councils -- city councils, you can't ban gun control." you have the conservative wing telling democratically elected branches what to do. >> judicial activism is often in the eye of the beholder but one way of looking at it is did the court overturn legislation, is it stepping into the shoes of the congress or state legislature, did it overturn its own precedent and what we're seeing with the roberts court is they're not doing it any more than earlier courts did but when they do it, they do it almost uniformly in a conservative direction. >> charlie: what's the court going to hear? >> we have a couple of good first amendment cases coming up and they follow in a way about

this animal-cruelty case jeff was talking about. one of them involves protests at military funerals and whether the father of a fallen marine who is having the worst day of his life now has to live with protesters saying really crazy things. this is a small church from topeka, kansas, that has the view that god hates homosexuals, god hates american tolerance of homosexuality and therefore, god is killing our soldiers abroad. and they're protesting with this kind of stuff around a funeral. this case reaches the supreme court -- >> the technical term is they are wack jobs. it's horrible, anyway. i'm sorry, adam, i didn't mean to interrupt. >> no problem. and i think lunatic might be another word to cross the mind but nevertheless a free speech issue because i don't think anybody seriously disputes that you could draw a buffer zone around this kind of really sacred moment and not allow anybody within that zone, and these guys did follow all the local laws. what happens here is the father of the fallen marine sues, wins

$11 million for intentional infliction of emotional distress and that gets thrown out by an appeals court on first amendment grounds saying, "listen, we can't let jurors decide which speech is so bad, so unpopular that we're going to allow it to be punished. maybe you can do this neutrally through a law, through a generally applicable law but you really want to allow people to sue over the intense grief -- i don't doubt that this father had, so that's a case that's really going to be lively at the court and better yet, the pastor's daughter is arguing the curch's side of the case in the court so that has all the makings of the train wreck. >> charlie: is she a great appellate lawyer? >> we'll see. >> charlie: well said. thought i would check. >> there is no evidence so far that she is, but you know -- rookie appearances are sometimes very impressive. >> charlie: it's her moment, isn't it. >> one of the problems i

remember lewis powell used to say that the thing about argument in the supreme court is, like, a lot of people just want their day in court and they're going to come up there and argue no matter what even if they're not qualified to do it, and sadly, one of the things in recent years that has gone on is there is sort of a professional supreme court bar, now, where there are a lot of -- john roberts was sort of the king of it when he was in private practice -- but it has limited the number of absolute train wrecks which were entertaining to watch, if not very edifying. >> at the argument this morning, i talked about for a second justice scalia got a little frustrated with the lawyer in front of him. he was asking friendly questions but the lawyer wasn't getting it. he didn't realize these were questions meant to help him. he finally said, "counsel, i'm trying to help you." >> charlie: help you clarify your position for god's sake. what else should we be looking for in the upcoming term? >> i have to say -- i'm going to disagree with adam. i think these are not -- there are not a lot of real big --

there are two issues hanging out there that are huge, that are immense, that are going to define this court and they're not there yet to the court. >> charlie: they are? >> they are whether health care reform is unconstitutional or not. and same-sex marriage. those cases are both heading to the supreme court and they will be career-defining cases for all the people up there. >> charlie: in other words, how you -- being almost -- >> go to the court every day. >> that's true. >> if you do this for a living, you find yourself interested in a lot of the other stuff. >> i'm sorry, adam, but -- i plead guilty to that. >> you're right. over the horizon, there are for sure huge groundbreaking cases. you may or may not be interested if california can stop video game stores from selling violent video games to minors but to the likes of me that's a pretty good case. >> charlie: why is that a good case? hold on. we'll come back to same-sex

marriage. why is that a good case for you? >> because it's another great first-amendment issue. the court has really, so far, said that it will allow the government to ban or restrict sexual materials. it's never taken that concept and applied it to violent materials, and if it's going to make that significant shivent, that really has a lot -- significant shift, that really has implications for movies and books and all kinds of stuff and also the image of tease justices, not all of whom are young trying to figure out what a video game is or works like is also not -- >> charlie: i'm voting with adam on this. he's right. >> also, one of the fun cases last year was when they were all trying to figure out what a text message was because that was -- "what is that, like near the internet? what is that?" they eventually got it, i think. >> charlie: we need a new nomenclature here. >> that's right. >> charlie: what else. the third case. even though you don't find them startling. adam? >> let me sort of follow jeff's thought a little bit, because

sometimes, the cases they hear now will tell you stuff about cases they'll hear later. and they're looking at one arizona immigration law now. >> charlie: ah. >> that will almost certainly tell us something about that arizona immigration law everybody knows about, about what police can do when they stop people they suspect of being illegal immigrants. this case is about whether businesses can be subject to extreme penalties if they hire illegal immigrants, and the same clash between federal immigration law and policy and state law in the same state of arizona is in play there, so that case will be interesting in itself, but will also give us some pretty good guidance about what happens when that very controversial arizona law reaches the court. >> and i think another thing that's interesting about that arizona case is that it puts two conservative goals in conflict with each other. because this -- this is a court in a range of cases is very sympathetic to businesses. they don't like to see businesses sued. they are highly unsympathetic to

plaintiffs' lawyers and personal-injury lawyers but here you have a law -- but it also is a court that believes in government power and believes in police power, so here you have a law aimed at policing companies for hiring illegal immigrants, so it will be interesting to see where the conservatives go in that case, because several -- they're in a conflicting situation there. >> it's also one of the cases you mentioned at the outset, charlie, where elefa kagan will be sitting it out which gives -- elena kagan will be sit it out which gives rice rise to the possibility of a 4-4 split. we're going to have about 25 instances this year where people can go to a lot of effort, the court will spend a lot of time reading briefs, hearing arguments and if there is a 4-4 split, we're basically done. >> charlie: there seem to be a lot of businesses cases coming up this time. or is that usual and i didn't -- >> that's always the case. if you look at who has the money to sue and take a case all the

way to the supreme court, it's very -- it's very expensive business to litigate in a district court, in the court of appeals and then file a cert petition, so -- you know, businesses have -- you know, big stakes in a lot of these cases including a lot of the non-high-profile cases about what can be -- what material is subject to discovery -- stuff that's not very sexy, but very important. >> and they go to the specialists jeff was talking about -- the dozen or so, 15, lawyers who really turn up at the court all the time are very good at persuading the court to take a case which is the bigger battle -- as you were saying at the outset, 7,000, 8,000 petitions a year, they take 70 of them, you have one in a hundred chance but if you go to one of the leading members of the supreme court bar and your business can pay for that, your chances go up significantliment we have a couple of good business cases coming up -- significantly. we have a couple of good

business cases coming up. whether corporations have personal privacy rights under the freedom of information act. it's not quite as scary as some people might think because the statute itself says persons include corporations and yet saying that at&t in that case has personal privacy rights is going to drive the same people who don't like citizens united nuts. >> charlie: just for the benefit, since you have opened that, what -- i'm remembering my training in law school as well -- what's the characterization of a corporation as a person? >> well, a lot of the right -- a corporation is a legal entity that has a lot of rights like an individual does. just speaking of freedom of the press. a lot of the people were so outraged about citizens united. all of us agree that "the new york times" has the right to protect itself in the first amendment. that cnn does. so corporations have always been given certain rights.

the question is how similar -- but no one suggests that corporations can vote. >> charlie: right. >> they can't be sent to prison. they can be fined. they can receive service or process so they can be sued. for hundreds of years, corporations have had some rights like citizens, and some rights not. so the idea of treating them like individuals is not totally novel. >> charlie: the other business case -- i'm not sure which you were referring to as nasa vs. nelson, which is contractors and whether the government can ask potential employees about past drug use. adam, what's that about? >> so these are -- these are scientists and engineers at the jet propulsion labs at caltech who are not -- they don't work on military projects, they work under contract with nasa, they don't have security clearances and they were going about their business when, in 2004, the bush administration thought post-9/11 they would extend background checks that federal employees have to go through to contractors like these folks,

and remembering oppenheimer and what went on in the mccarthy era, this is not something they wanted any part of. they didn't want to answer questions about drug use, about counseling, they didn't want to sign forms that would allow the government to visit their landlords and former employers and so on, but that said, the level of background checks that's contemplated here is something that lots and lots of public and private employees put up with and i have a feeling that this is one of those cases coming out of the ninth circuit that the court took to reverse and i have a feeling that these scientists and engineers are probably going to have to make a choice between their jobs and being subjected to those searches. >> charlie: and how about siracusano? >> i think matrix is the case where the question is in a pharmaceutical setting you get enough reports of adverse

impact, at some point does that become so material to shareholders who might buy and sell shares in your company that you have to report it to them? the idea being that no individual report is important enough but does there come a point where, in the aggregate, it becomes important enough? then there is a great state-secrets case they took the other day. they have been turning back state-secrets cases who say they have been sent abroad to be tortured. when they get to the supreme court, the supreme court is not interested. but two military contractors who don't want to give back to the government $3 billion said "we would have built your stealth aircraft except you wouldn't give us the classified information." the government says, "that's not right but we can't tell you why. state secret." that case, the court has taken. that interesting state-secrets case reaches the court in a corporate setting. >> charlie: you once said on this show you thought that hillary clinton would be the president of the united states and her first supreme court appointment would be barack obama. >> i did say that.

so sue me, ok? no, i still think it's a good idea. >> charlie: the point here. >> i'm sorry. >> charlie: the point is, does president obama think like a judge? does he think like a law professor? is that something that is a defining quality of him? >> you know what? i think one of the complaints that the left has about him is that he is not as interested in legal issues as they thought he was. >> charlie: ah. >> for example. one of the great mysteries of the obama administration is why they have been so slow to fill judicial vacancies. there have been two vacancies on the d.c. circuit -- the second most important court in the country -- for the entire obama presidency. he is just now -- hasn't done it but he's announced his intention to fill one of those appointments. also -- and he wrote this in his book -- he is someone who believes that political change comes from politics.

from elections. he is not someone who believes that political change should come from the courts in a way that sort of the heroic liberals brennan and marshall did. so in that respect, i don't think he thinks like a liberal lawyer -- at least like a lot of liberal lawyers. >> charlie: the argument goes, adam, jump on this because it's an interesting and comes out in bob woodward's book. >> a year ago jeff wrote an astute piece that he doesn't go to the courts for change. he thinks he's going to get change through congress and through executive action and that -- that -- that is not unusual in the modern left. that the left doesn't want to lose the gains that they achieved in the warren court years but is no longer looking to the courts to advance its agenda. >> charlie: there is also this, though, that many people say that there has been a delay because he takes such a hands-on interest in judicial nominees because he cares about the court

system. >> i -- >> charlie: you don't buy that at all, do you? >> i don't buy that. yes, i have heard something like that as well but no nominees to the d.c. circuit in almost two years, that's not because he's just sitting there reading their briefs. it's baffling. it's baffling. i think you had a change at the top -- at the white house counsel's office. >> charlie: right. >> i am -- i -- maybe adam has a theory. i have no idea. >> charlie: i don't know why he made that change. what was it about greg -- >> it's clear that greg craig and rahm emanuel did not get along at all and i think rahm blamed craig for the way the whole guantanamo situation had gone, and i think that was the heart of graig craig's departure but i also think graig craig's failure to keep up with nominations was not a feather in his cap and bob bower, his

successor has picked up the pace somewhat on nominations though not what a lot of obama supporters would like to see. >> charlie: another thing, i've got about eight minutes, the whole question because of guantanamo and all those civil -- those issues of human rights. where do we stand on that? what's happening in that arena? >> i think they have kicked the can down the road till after the midterm elections -- i mean, you know -- as someone who has been covering this issue for a long time, and went to guantanamo a couple of times during the bush administration, one of the things that was very clear was that if you promise to close guantanamo, that was only the beginning of the questions you had to answer, because there is a category of prisoner there for -- who our military thought was dangerous but didn't have enough evidence to prosecute in a traditional criminal court. and what to do about those people is just an issue that has been -- you know, not resolved.

>> charlie: but has the president changed his mind? >> i don't think he's changed his mind in the sense that he wants to close down guantanamo -- >> charlie: but has he changed his mind when all of a sudden he realized what the issues were, he was, "not so fast here"? >> certainly, he said "not so fast here" he made a very specific promise to close it within a year and we are well more than a year into the obama administration and it is nowhere near being closed, it has fewer people in it than in the past, they have tried to return a number of people, which they have done to various countries, but it's -- a lot of these countries -- they don't want -- people don't want them. >> charlie: indeed. there is this about the president and the reason people say there is something about -- the way he conducts his white house. of a lawyer in him. bob woodward's book about the review of afghanistan and pakistan. much of it has to do with the way the president would go back

and forth and wants all the opinions. it suggested a lawyerly frame of mind, number one. number two, he would write -- and bob talks about a memo that they now include in the book in which he sort of went down and approached things -- a decisional process that sounds like a lawyer's mind. >> absolutely. i mean, i think certainly in terms of -- >> i'mar, adam, the temperament is that way, one -- >> i'm sorry, adam, the temperament is that way, one of the accusations against the bush administration is that he good precooked briefings that pointed him in one direction and obama has gone out of his way, woodward talks about this and other journalists have as well he wants a devil's advocate in the room, he wants the process in front of him so he has all the information before he makes a decision, that's lawyer-like. >> charlie: if you don't participate he will call on you because if you have something to say, he will call on you because he wants it part of the mix. you're excused. let me just take a -- you need

to go. >> i do, i apologize. >> charlie: thank you very much for coming. great to see you, this has been an interesting way to look at the first monday in october. thank you. go ahead, adam. >> so i'm guessing some people think that lawyerly is a bad quality, but there is something to be said for the sober, methodical, weighing both sides of an issue and making a decision after you fully submerged yourself in those facts, so it's not necessarily a bad thing. >> charlie: talk about a bit covering the supreme court from -- in a sense, as a beat. >> it can be a very -- very rewarding beat. it turns on preparation more than access. you get a little bit of access, but on the whole, the court speaks through arguments and through decisions, and the more you get on top of the briefs and the more you understand exactly what's going on and the more you see patterns between the cases and over the years, the better job you do in trying to

translate this sometimes difficult technical jargon-laden material but very important material into something you hope is accessible to the general reader. >> charlie: in the end, it's about human beings in conflict. >> human beings in conflict but also ideas colliding. so i wouldn't -- i wouldn't sell short the idea that there are people who like the other guy a lot but just don't agree with him, but almost -- almost always, the justices manage to disagree with each other, sometimes quite sharply with -- in a civil way, and that's not a bad thing to see either. >> charlie: do you have an opportunity to talk with them? i don't want you to tell me things that you can't tell me, but is it part of covering the supreme court that a justice will say, "why don't you just come in and let's talk about that"? >> i would say it's a minor part. justice stevens gave an exit interview to a few of us, including me. justice breyer will give a public interview with me in philadelphia later this month. you run into the justices here

and there. but it's not a bob woodward beat. it's not an access beat. to the extent you have interactions with the justices, it is quite often not on matters of substance and you even wonder sometimes whether even that level of access is something that might influence your coverage a little bit because you might not want to write something a little bit mean about somebody who has just had coffee with you. >> charlie: so at the end of the day, covering the court, what questions are unanswered for you? >> oh, i would love to -- they have a private conference in which they make the decisions. nobody, even their clerks, is allowed in there, and just to see how they go down the row by seniority first, and the chief justice sets out the facts of the case, and then in order of seniority going to the most junior justice they chime in, that would be -- even once, even in the most mundane case available, to be a fly on the wall there and just to get a sense of how they comport themselves would be fascinating.

>> charlie: is there any evidence it's changed over the years or is it pretty much the same it's always been? >> no, it comes and goes. there is a new book out called "scorpions" about the court in the roosevelt era where they wereally going at each other very viciously. there is no sense of this now -- at each other -- where they were really going at each other viciously. they get along pretty well. >> charlie: do we look at america today and say there is this institution called a court of a certain bent and there is a congress of a certain bent and there is a president who is trying to move his agenda along? that's where we are? >> i would say a couple of things. whatever you think of the court, its approval ratings compared to everybody else are sky-high. compared to congress, the president, lawyers, journalists -- people respect the court. they may not know it very well, they may not understand it very well but they'll believe in it, they'll do what it says even if they don't like what it says and the other thing i would say is the court is probably slightly

to the right of earlier courts -- already fairly conservative ones -- but it's not clear to me that it's fundamentally out of step with the american public. american public opinion, on the big, controversial issues of the day and where the court comes out tends to be pretty closely aligned. >> charlie: and are we past the age of these huge confrontational confirmation processes? >> well, yes and no. we've had -- the last couple of nominees, by most standards, certainly by the wishes of the left were relative moderates and yet they got a pretty good going over and they didn't pick up a lot of votes from the other party, so maybe not bruising in the sense of clarence thomas or robert bork, who really, really had a hard fight but arguably there was more to fight about -- but nonetheless, the voting patterns these days are suggestive that if either side nominates somebody who is even a little bit extreme you're really going to see a battle royale.

>> charlie: who will be the next justice to retire? >> i would say -- and maybe i'll wake up tomorrow and be quite wrong about this -- in the short term, nobody. i don't think obama gets another nominee. i think justice ginsburg, about whom people talk sometimes, wants to stay on the court, is in good spirits and good health. i don't see any signs of anybody else wanting to go -- of course, only the justices themselves know, but i think having gone through four justices in very quick succession we might just settle down now and have a period of stability or maybe as with jeff's prediction of having appointed barack obama, i will turn out to be wrong. >> charlie: as i said in the introduction, we have more women on the court than wife hear. what does that mean, if anything -- than we've ever had. what does that mean if anything? >> she does tnk that's important. maybe there is a symbolic critical mass that goes on when you have a sufficient number of people, you have kind of a

generational thing going on where it no longer seems surprising, it's no longer huge news -- she did talk a few years ago when she was the only woman on the court that she would speak at this conference where i mentioned where they go around and say how they're going to vote, she would say something and people would move on, a justice would later make exactly the same point and she would say all of a sudden people would say, "that's a really good point" having ignored her, so the suggestion there from her was that even in the supreme court there might be a little bit of sexism going on. >> charlie: with that note, let me thank jeffrey toobin, who writes, as i said, for "the new yorker" magazine and also reports for cnn and wrote a book about the court called "the nine, inside the secret world of the supreme court" which is now in paperback. adam liptak covers the supreme court for "the new york times." thank you. we had i think a primer on the sport in this hour and i -- on the supreme court. thank you for joining us. see you next time.

later this week on "charlie rose. >> you have performed in almost every kind of venue or even places where it wouldn't be called a venue. >> right. >> charlie: standing on barstools. >> right. >> charlie: trying to make them -- trying to turn down the tv so you can hear me and all this great comedy i'm doing. >> really great mix when you try to get the guys at the local sports bar to turn down the hockey playoffs so you can tell your stupid jokes. >> charlie: trying to make these people laugh. >> it's a desperate arm form to try to get into. -- it's i desperate art form to try to get into. you perform anywhere you can. old folks homes. churches. even a bus. i was doing stand-up as much as i could, wherever i could. >> charlie: talk about that in a serious way. if you want to be good, you've got to go out -- >> you have to do it, you have to get on stage, and you have to bomb, and fail, and try new things, and you have to fight disencouragement, i think is the biggest hurdle.

>> charlie: is there some point where -- you didn't face this, but is there a certain -- can you say to most people "you will make it"? most people, somehow there are lucks and breaks and all that kind of stuff? >> it depends on what you consider making it. making a living at it is -- but to be like a big -- you know -- >> charlie: like you? >> and still have -- yes, to make it into -- to be in -- >> charlie: to be on the cover of "g.q." for god sake. "laugh out loud funny the comedy issue starring zack -- below you supporting players. >> i don't know how i got on the front of "g.q." magazine besides my looks. but to go from performing in the back of a hamburger restaurant to being in the front of "g.q." magazine takes a lot of lying to yourself that you can make it. and hard work.

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tavis: good evening. smiley. americans will head to the polls in an election that could change the balance of power in washington and set the table for contentious presidential race in 2012. a prw