updated 10/1/2012 11:19:37 AM ET 2012-10-01T15:19:37

UP WITH CHRIS HAYES
September 30, 2012

Guests: Jeffrey Toobin, Akhil Amar, Elise Boddie, Barbara Arnwine, Nan Aron, Mona Eltahawy


CHRIS HAYES, MSNBC ANCHOR: Good morning from New York. I`m Chris Hayes.
An Afghan soldier killed a U.S. service member and a civilian contractor
overnight in Afghanistan. It`s the latest in a spade of insider attacks in
the country. And Arthur Sulzberger, former publisher and chairman of "The
New York Times" died last night. He took over the paper in 1963 and led it
for 34 years.

Joining me today, it`s my great pleasure to have Jeffrey Toobin, author of
the new book, "The Oath: The Obama White House and the Supreme Court."
Also, a senior legal analyst on an outfit called CNN and a staff writer at
"The New Yorker" magazine. Barbara Arnwine, president and executive
director of the Lawyers Committee for Civil Rights under the Law. Akhil
Amar, returning to the table, he`s got a new book out, it`s called
"America`s Unwritten Constitution: the Precedents and Principles We Live
By." He`s also a professor of law at the Yale Law School. And Nan Aron
returning to the table, president of the Alliance for Justice, which works
to ensure a fair justice system for all Americans. It is wonderful to have
you here.

All right, this week, we have two blockbuster political events on the
calendar. The first presidential debate and the return of the Supreme
Court to Washington. Tomorrow, the Supreme Court will hear arguments for
the first time since their ruling on the Affordable Care Act. A stark and
still extremely fresh reminder of the power of the court. That even as the
court returns with a docket already packed with high profile cases and
several others likely to be heard, the Supreme Court is strangely almost
entirely absent from the presidential campaign. Its absence becomes even
more alarming when one look at the age of several of the justices. Anthony
Kennedy is 76, Antonin Scalia is 76, Stephen Breyer is 74, and Ruth Bader
Ginsburg, the fifth vote to uphold Roe, I will just note, the oldest
justice, is 79 years old.

Let`s not forget that Ginsburg is -- as I said, the fifth vote upholding
the right to an abortion as decided in Roe v. Wade, a ruling Mitt Romney
has said he would like reversed.

(BEGIN VIDEO CLIP)

MITT ROMNEY, (R) PRESIDENTIAL CANDIDATE: I hope to appoint justices to the
Supreme Court that will follow the law and the Constitution. And it would
be my preference that they -- that they will reverse Row v. Wade.

(END VIDEO CLIP)

HAYES: The stakes are incredibly high, not only for the Supreme Court`s
current term, but for the next four years and a generation beyond. It`s
very likely the next president of the United States will appoint several
justices to the Supreme Court. That often is the most lasting legacy of an
entire presidency.

I find it strange, given the amount of coverage that Citizens United has
gotten, I mean, Citizens United it`s -- I found when I go around, if I`m
traveling or speaking to groups or reporting, particularly among
progressive folks, center left folks, citizens, everyone knows Citizens
United, everyone hates Citizens United. Everyone knows it was the court
that gave us Citizens United, everyone knows it was the court that upheld
the signature of domestic piece of legislation not just for this president,
but probably for Democrats of the last 30 or 40 years. And yet, the court
is nowhere in the election so far. Jeff, you wrote about this yesterday.
What is your take on why we are not hearing about the court on the campaign
trail right now?

JEFFREY TOOBIN, AUTHOR "THE OATH": Because, I have asked political
professionals this question repeatedly over the years. And Democrats and
Republicans by and large say the same thing. The professionals do, they
say the people who really care about the Supreme Court are committed to
their party anyway.

HAYES: Right.

TOOBIN: That the people who want Roe preserved are going to vote for the
Democrats, the people who want Roe overturned are going to vote for the
Republicans. And the swing voters to whom these campaigns are directed
don`t really care about the Supreme Court, even if they are pro-choice,
even if in some abstract way they are against Citizens United, they are not
motivated to vote based on Supreme Court appointments, so the candidates
don`t talk about it.

NAN ARON, PRESIDENT, ALLIANCE FOR JUSTICE: You know, it`s interesting. We
just completed a poll and found very different results. In fact, a wide
majority of people do care about the court, are interested in the court, I
think in part it`s because of Citizens United. Perhaps they paid more
attention around the decision of Obamacare. But not only is there greater
interest in the court, but there`s also growing concern about the corporate
tilt of the Supreme Court and the fact that this is a Supreme Court that
finds in case after case involving big corporations that they should retain
power at the expense of everyday people. So in fact there is quite a lot
of ...

HAYES: I actually think that`s an interesting angle. Because I think the
thing that gets -- the reason the court has been so -- has loomed so large
in our public and political life and the moments when it has been a big
election issue, is because of what we call social issues, right? It`s
because I think primarily because of Roe. I mean frankly, it`s because of
Roe. And in some ways, the arguments, the conservative arguments or even
the liberal arguments against Roe as a kind of bit of constitutional
jurisprudence is that by taking it out of the democratic process, it
creates this sort of high stakes battle over the court. Not an argument I
agree with, but an argument many people make. It`s strange -- I think one
of the reasons maybe the court`s a little absent from this campaign is
because of much of what the Roberts court jurisprudence has been about.
The most important cases, particularly Citizens United, have not been in
the social realm, they have been in the realm of the role of government,
they`ve been in the realm of -- the relationship between how much standing
plaintiffs can have against corporations, et cetera. And that doesn`t --
people -- it`s a harder point A to point B connection to make about how
that affects your life.

BARBARA ARNWINE, LAWYERS CMTE. FOR CIVIL RIGHTS UNDER LAW: Well, I can
also say that, you know, one of the other reasons why people in the past
paid attention to the court has been civil rights.

HAYES: Right.

ARNWINE: Because people care about their civil liberties, they care about
their civil rights. And there are many issues going on in state
legislatures and other places that impact these issues. And I think people
do -- I think one of the problems is that the court is so shrouded. It`s
hard to know what`s going on in the court. What cases ...

HAYES: You`ve got to read Jeffrey`s book.

TOOBIN: I did my best.

ARNWINE: I know, I know, I know.

(LAUGHTER)

ARNWINE: I know, but as the average person, just you know ...

TOOBIN: Oh, absolutely.

ARNWINE: It`s not in the news. You know, all the upcoming cases all the
time. And it`s just not a common, where you don`t see all these ads about
the court. So I think it`s a consequence people have not -- they just
don`t know what is up before the court. And then when a case is taken and
it becomes, you know, a big decision that affects people`s lives, that`s
when people really get concerned and say what is going on.

HAYES: We are going to rectify that today, by the way. Strap in.

(LAUGHTER)

HAYES: It`s going to be fun, actually. We`re really going to get into it.
Akhil.

AKHIL AMAR, PROFESSOR, YALE LAW SCHOOL: So, here is one thing that also
people -- that is shrouded. Even if you know what the court decisions are,
you don`t know which justice will retire ...

HAYES: Right.

AMAR: ... and how that might change, in which cases. Now, if we have, for
example, judicial independence, let`s say -- 18 years ...

HAYES: Term limits, you are saying.

AMAR: Which is what a lot of states do. A lot of countries around the
world, then we would know which seats would become open when, we won`t have
to speculate awkwardly about his health or her family situation.

HAYES: It isn`t awkward. We are in business. We are even -- we were
writing the scripts, and I was like, this is sort of awful.

AMAR: But if we knew which seats were coming open, and, you know, on which
issues that person was the swing justice, we could actually have a
conversation.

TOOBIN: The Supreme Court justices, when you say, oh, hi, how are you,
it`s a very (INAUDIBLE) question ...

(LAUGHTER)

(CROSSTALK)

TOOBIN: ... not a social -- but, but you know, the point Akhil made about
term limits or mandatory retirement, I hear it all the time. I mean ...

HAYES: From who?

TOOBIN: From everyone across the political spectrum. That, you know, the
idea -- you know, remember the Constitution was ratified -- written and
ratified in the 18th century.

HAYES: Right.

TOOBIN: People died in their 50s in the 18th century. So, the idea of
routine 30-year terms, which is sort of where we are headed now. And look,
you know, one of the big issues of the Supreme -- in the Obama White House
when they were deciding should we nominate Diane Wood or Elena Kagan for
that -- the John Paul Stevens seat on the court, is Diane Wood is 60, Elena
Kagan was 50 at the time. That had a big impact.

HAYES: Yeah, if things keep going the way they are going, we are going to
start scouting 30-s.

AKHIL: That`s true.

HAYES: Because, you know, no written record and 80 years on the court.
You know ...

TOOBIN: And look, Clarence Thomas was nominated in his 40s.

HAYES: Right.

TOOBIN: And that`s an arms race, too.

HAYES: Right. There`s no end to that.

ARON: (INAUDIBLE) has put up candidates for the federal bench that are
older than their counterparts were with the Bush and Reagan administration.

AMAR: So, that`s an advantage, that, you know, that if the other guy is --
they are going again.

ARON: So the fact of the matter is, there`s not as big a bench for
elevation to courts of appeal or Supreme Court. And I would say, though,
it is a guessing game. What I think there is the assumption that Ruth
Bader Ginsburg will probably step down. She said she`s going to step down,
over most likely indicated that she might in the next four years. That
will make a huge difference as to who the president is who is naming her
replacement.

AMAR: People step down in part depending on who is president.

HAYES: Right. Of course.

AMAR: At the time their resignation is up. They`d like to live forever.
But that`s not given to them, so they prefer to clone themselves by
stepping down on the watch of a like-minded president.

TOOBIN: Chief Justice Rehnquist was in his great sort of Wisconsin plain
spoken way, used to say, oh, yeah, we leave when we like the president.

HAYES: Right.

TOOBIN: I mean and that`s just ...

HAYES: Scalia ...

ARNWINE: Justice Scalia said.

HAYES: Scalia just had -- he just had been doing a book tour. And he just
said, he was like in a classic Scalia kind of, you know, combative way, so
one said are you, you know, would you wait until -- he said, are you asking
me, do I want someone to replace me who would get set to work undoing what
I spent 25 years doing? No, I don`t want to do that.

TOOBIN: Well, that`s -- and they all think that. But they don`t express
themselves this colorfully. And that`s why, and Ruth Ginsburg has said,
she wants to serve as long as Louis Brandeis, her idol, which would get her
to sort of the middle of the next term. If Mitt Romney is the president,
she`ll pick a different idol.

AMAR: And term limits, fixed term, like 18 years is actually more
independence from politics ...

HAYES: Right, because you can`t ...

AMAR: You are not timing your resignation in a political way. It`s
better.

ARNWINE: But also, you know, but also, there is this real question about
what`s the life experience of these judges, these justice who are appointed
to the court? You know, what is their background? What are they bringing,
what is their real life experience? You know, what is -- what have they
done besides, you know, sat on an appeals court or, you know, had a
solicitors background? You know, what is the other -- have they done trial
courts? Have they represented ...

HAYES: I want to talk about this.

ARNWINE: These are real questions about, you know, what`s the experience
...

HAYES: This gets us to the make up of the court, it also gets us to whom
we might see filling the court in the next term ...

ARNWINE: Yes.

HAYES: ... based on who wins. And I want to talk about that. I want to
talk about -- also about what the fallout from the Affordable Care Act is
going to look like. What the Roberts court legacy will be going forward.
All that after this break.

(COMMERCIAL BREAK)

HAYES: All right. We are talking about the Supreme Court which convenes
tomorrow morning for the -- I`m sorry, Monday morning for the new term,
tomorrow morning. Today is Sunday. And we are talking about what the
consequences of the election are. I mean we are waging a campaign right
now.

And one of the things that -- it has been absent from the campaign, despite
the fact that if you look the effect of say, George W. Bush on the federal
judiciary, it`s been enormous and it will last a long time, because of the
youthfulness of many of the nominees. If you look at what is happening at
the Supreme Court, there`s -- there`s two academics who put together
something called the Martin-Quinn score, which is a way of trying to come
up with empirical measure of the court`s ideology. And we have -- we have
a graphic here, showing how it`s moved over time.

You see, the court is very, very liberal during -- after the FDR sort of
gets over the impasse, famously, of the court striking down legislation.
He threatens it with court packing. That`s a political disaster, but it
ends up -- he ends up getting to appoint a lot of justices, and you get a
very liberal court during the new deal. And then the famous court in the
1960s that gets us Miranda and the whole host of other pieces of -- a whole
host of other decisions, very liberal court.

And then down, if you look at the bottom, 2010, it`s basically the argument
of Martin-Quinn scores. We have the most conservative court essentially
ever right now. And so, people should keep that in mind as they think
about this election and think about the possibility of opening up.
Barbara, we left with you saying, life experience matters on the court.
And that segues nicely to who would -- who can we imagine being on the
court if, say, Barack Obama is reelected and he has to replace the justice
and who would be imagine being on the court -- nominated to the court if
Mitt Romney were to be elected?

TOOBIN: Well, in terms of Obama, you know, the great question that
Democratic presidents have been asking for -- since -- certainly since
Clinton is, can you get a non-judge on the court? And Elena Kagan was not
technically a judge, but her background is dean of Harvard law school,
which is sort of judge-like.

(CROSSTALK)

TOOBIN: Right. We were discussing earlier, you know, the court that
decided Brown v. Board of Education, none of the justices, not one had ever
been a full-time judge before. When Alito replaced O`Connor, all nine
justices were former federal appeals court judges.

HAYES: Wow.

TOOBIN: That is a terrible lack of diversity. You know, Sandra Day
O`Connor among her many virtues was that she was a former politician. She
knew what it was like to raise money. You know, it`s one thing.

HAYES: She was also a former state legislator.

TOOBIN: Right.

HAYES: And a lot of what comes in front of the court are statutes that are
state statutes. And there is a lot of opining about what`s going in the
state houses that doesn`t necessarily match what`s actually going on.

(CROSSTALK)

TOOBIN: And Citizens United, you know, is a case that talks about fund-
raiser -- you know, giving money to campaigns as if it`s some First
Amendment speech driven lovely process, whereas a politician may say, can I
tell you what goes on, why people actually give money to the campaigns?

HAYES: Yeah.

ARON: I would think, that if this president is reelected, because there
are so few court of appeals judges and who are the right age, that he will
have to look outside the judiciary, which I agree, is a great thing. It`s
not only understanding how government works, but it`s understanding
people`s problems, trying to fix their problems, redress their problems,
hearing both sides and trying to meet out resolutions of problems. So I
think I would also like to see a justice who has been a civil rights
lawyer, a public interest lawyer.

TOOBIN: Deval Patrick, the governor of Massachusetts.

ARON: Beautiful.

TOOBIN: Kamala Harris, the attorney general of California.

HAYES: Did you -- wait, wait, wait a second. Can you imagine a union size
labor-- the background (INAUDIBLE), unions labor law, being confirmed to
the Supreme Court with the Senate that we have?

ARON: Yes. And we have to get away ...

HAYES: But you -- no ...

ARON: ... from this notion that we have to put only safe people up for
these seats. Yes, if a president is willing to fight, and we have seen
presidents fight for their nominees and if we, because we have to be the
heroes in this story, also. But, if we are able to gin up our
constituencies, I think we can do it. Yes, I do. It will be a fight. A
fight to end all fights but you can`t win a fight unless you start a fight.
And I think putting ...

HAYES: Interesting.

ARON: ... progressives is a possibility.

ARNWINE: And that was one of the advantages of, you know, the Sotomayor
nomination, was that she had had, you know, some live experiences working
with a public interest organization on its board, having been a judge. I
think that that is one of the challenges here, is to put up some people who
really are going to fight for the common man and woman. I also think that,
you know, there is this question that has been raised about the lack of an
African-American woman on the court. Never has been one.

HAYES: Right.

ARNWINE: You know, will this court actually -- will this president
actually look at that issue? Will there be, you know, more diversity? We
have got, you know, all kinds of issues around religion also, about more
religious diversity on the court. There`s all kinds of issues.

HAYES: The Protestants are an endangered species.

ARNWINE: It`s right. It`s an amazing factor.

TOOBIN: There are six Catholics, three Jews, zero Protestants first time
in history.

AMAR: And if you look at the four people at the top of the presidential,
vice presidential ticket, only one--

HAYES: Barack Obama.

(CROSSTALK)

AMAR: His father was a Muslim -- look at the head -- mainstream -- of
course, Mormons, and look at -- you look at Harry Reid and John Boehner,
Mormon, and Catholic -- which the founders, I think, would have loved the
idea that there aren`t religious tests.

HAYES: Well, I don`t know if the founders would have loved the idea ...

(CROSSTALK)

AMAR: Really, genuinely, open to talents of all sorts. But one thing on
(INAUDIBLE) it again matters who the vacancy is.

HAYES: Yes.

AMAR: For example, if Ruth Bader Ginsburg would have stepped down, there`s
probably more pressure to have a woman replace thing that than if Steve
Breyer would have stepped down.

HAYES: The other thing is, if there`s unexpected, that if Mitt Romney is
to win, because I think we are talking about as if Barack Obama. If Mitt
Romney is going to win, and there`s an unexpected vacancy from a justice
who was appointed by a Democrat ...

TOOBIN: Balance.

HAYES: ... this would be -- that would be the titanic fight of all time.
I mean, that if the fifth vote Roe, if the fifth vote to uphold Roe is the
vote that for some reason retires or leaves the court, right? And Mitt
Romney is the president of the United States, that`s the biggest fight and
probably ever in our lifetime.

(CROSSTALK)

HAYES: I want you to tell us what that`s going to look like after this
break.

(COMMERCIAL BREAK)

HAYES: All right ,we are back, we are talking about the Supreme Court,
which is going to begin its new tomorrow. Jeffrey Toobin, I painted for
you the picture of Mitt Romney being elected. The -- a justice who is one
of the five justices who would vote to uphold v. Roe should it come before
the court again, having to leave the court for whatever reason, what that
confirmation fight would look like?

TOOBIN: Well, why that matters so much is that for basically a generation,
the Supreme Court was dominated by moderate Republicans, whether it was
Lewis Powell, or Sandra Day O`Connor. Moderate Republicans have
disappeared from the Supreme Court, just like they have disappeared from
the Congress. The last three justices to leave, Sandra Day O`Connor, David
Souter, John Paul Stevens, all moderate Republicans, they are gone. They
have either gone over to the Democrats, Souter and Stevens gave their seats
to Obama. And the Republicans who have been appointed, John Roberts and
Samuel Alito reflect the modern Republican Party. And Mitt Romney, to be
sure, would nominate someone like Brett Kavanaugh, a young judge on the
D.C. circuit. Or Paul Clement, former solicitor general. Very
conservative. Not moderate Republicans. And that`s why one seat would
make such a difference.

ARON: And those two have very clear records as did John Roberts and Sam
Alito. We knew exactly who they were, we knew what they would do. And the
Senate wasn`t ready to really look at that record and make an issue.

HAYES: But let me -- can I ask you -- can I ask you a so much theoretical
question, which is, OK, say, we know -- there`s two ways of thinking about
this, OK? There should be some kind of deference to the executive in
naming nominees that comport with the president`s legal philosophy,
ideology. And the Senate should basically be -- applying the standard of
confidence, right, is this person qualified for the job and then there is
the kind of, this is politics, politics in a beanbag and a woman`s right to
choose them on the line ...

ARON: Right.

HAYES: This is a Hobbsian war of all against all, do whatever it takes.
Which is your -- which is your belief system?

ARON: Well, I believe you have got to be confident, have an exemplary
record. But we do need a candidate, Republican, Democratic who will accept
the progress that has been made in this country on behalf of women and
people of color and workers and be willing to advance that progress. That,
to me ...

HAYES: But not one, no Republican nominee will have that standard -- will
meet that standard.

ARON: Then we ...

HAYES: Then you`ll fight them.

ARON: OK.

AMAR: And here is why actually the Senate matters a lot on the ballot as
well as the president.

HAYES: Very good point. It`s a very good point.

AMAR: Because it could be a Republican-Republican in theory, it could be a
Democrat-Democrat. And just even in the last few weeks, we have seen in
places like Missouri and other places some interesting shifts. So, the
Senate is not going to be filibuster proof. It`s not going to be 60/40
either way. It`s going to be 52/48 or, you know, one way or the other.

HAYES: Somewhere.

AMAR: Something like that. And filibuster reform also becomes a possible
issue here.

HAYES: We haven`t seen a filibuster, yet in recent years. There were ...

TOOBIN: It was in the `60s, but it wasn`t a real filibuster.

HAYES: Yeah, we haven`t seen a filibuster in the current modern era, a
filibuster overuse against a Supreme Court judicial nominee, which is kind
of remarkable given the stakes, given how often the filibusters and vote --
but that may change, Barbara.

ARNWINE: Well, I think the all bets are off. I -- no, most -- seriously.

HAYES: No, no, I know. It would be a total war.

ARNWINE: After you watched this last year of the lack of confirmations of
judicial nominees from the Obama administration, if you look at the
politics that have been paid in the Senate, everything has changed. The
whole civility, deference, all of that is out the window. It`s just not
the same. I think that the next Supreme Court nomination, we are going to
see a whole level of animosity, a whole level of fight that is very new to
us.

HAYES: Let me quickly just put up this graphic which is the percentage of
confirmation of federal judicial nominees under Clinton, Bush and the
president. And George W. Bush got a very - astoundingly high, President
Obama, still high, but ten points -- ten percentage points lower. And to
me, it looks like a one way ratchet, right? Things only move in the
direction of obstruction, they don`t move back.

TOOBIN: Well, but also Republicans are more motivated on this issue than
Democrats.

HAYES: That`s the problem. That is the problem.

TOOBIN: The Democrats, for whatever reason, have not gotten motivated on
this issue. Plus, Obama deserves some responsibility here. Yes, only 78
have been confirmed, but he hasn`t even filled all the seats.

HAYES: Yes.

TOOBIN: He has not nominated enough judges to fill the vacancies there.
So, the Republicans can say, well, how can you blame us? You haven`t even
nominated enough people.

HAYES: And this asymmetry of motivation, I think, is so key and important.
We saw it when, remember when the Democratic Senate was filibustering
judicial nominees by President George W. Bush, the Republicans had this big
event called Justice Sunday, in which they simulcast rallies around the
country. That was when they threatened a nuclear option, they brought cops
in, all of this stuff, because their interest group cares about this issue
and exerts pressure more than, I think, that with the president coming
(INAUDIBLE), of course, you are doing -- you`re doing God`s work, Nan, but
I think more than the progressive base does.

And one of the reasons -- I just want people who are watching this, just if
you care about choice, and I don`t know if you do, but if you care about
choice, the fifth vote for Roe, upholding Roe, could very, very, very
plausibly retire or not be in the court in the next term. And that -- we
have seen in terms of abortion politics with the sustained assault on
choice at the state level, from the House Republican caucus. You know,
that`s not going anywhere.

ARNWINE: Would you care about civil rights?

ARON: I would say it`s abortion, but it`s civil rights.

HAYES: Right.

ARON: Workers right. Environmental protection.

TOOBIN: And why is it -- why is it that Republicans are more motivated on
this issue? Is it because Democrats are protecting the status quo on Roe,
and it`s easier to attack than to defend?

ARON: No, because ...

TOOBIN: Then why is it?

ARON: Years and years ago, after Brown v. Board was decided, this was
1954, remember we saw people in the South with bumper stickers saying
"impeach Earl Warren." And from that moment on, there`s been this growing
crescendo of activism from the right, Roe v. Wade. And a lot more soldiers
to this army.

HAYES: I think it also has ...

ARON: And it`s now become a huge fundraising tool for the Republican Party.
It`s a way for Republican candidates to nurture their base, rev up their
base.

HAYES: As a political reporter, let me say that I think a huge part of it
has to deal with the nature of the religious conservative base of the
Republican Party and the degree they care about abortion and also the
Chamber of Commerce and the degree they care about ...

(CROSSTALK)

ARNWINE: I just want to see one Democratic president say I am the
president who is devoted to the courts. That I want to see a good -- I`m
going to make that high priority.

HAYES: We don`t see that because of the interest groups. We don`t see
that because they don`t get --

(CROSSTALK)

ARNWINE: We didn`t see that in Clinton, we didn`t see that in Obama ...

AMAR: And because of what Tom Mann and Ornstein have identified this
asymmetric polarization.

HAYES: Absolutely.

AMAR: More generally, in the Republican Party having moving moved further
to the right. And so they threaten filibuster reform, the nuclear option
when they have a majority ...

HAYES: Exactly.

AMAR: The Democrats haven`t yet.

HAYES: Excellent point. One counter example -- we all thought it was ...

AMAR: Judicial nominations, younger than the Democrats. So there`s
asymmetry.

HAYES: A lot of people thought the Affordable Care Act was going to be the
ultimate example of this polarization, and it didn`t turn that way. Let`s
talk about that after this break.

(COMMERCIAL BREAK)

HAYES: All right. The Affordable Care Act. Now, when we talk about the
increasingly polarized atmosphere on the court, I thought, you know, as
everyone was looking, we were staring down the barrel of the ACA before the
court. We did shows about it, and it seemed to me, look, this is really --
this is kind of decision day, right? This is where it happens. Are we
going to have a decision in which the five justices appointed by
Republicans outvote the four justices who were appointed by Democrats?
Starkly across partisan lines on this partisan issue, on a very shaky in my
own lay opinion constitutional -- and my esteemed friend Akhil Amar. And
it didn`t work out that way because of John Roberts.

And this is what you say, Jeffrey Toobin in your new book, "The Oath,"
which is about John Roberts and Barack Obama. "For Roberts, personally and
the conservative cause generally, his vote to uphold the Affordable Care
Act and opinion on the health care case were acts of strategic genius.
Roberts at a minimum laid down a marker on the scope of the Commerce
Clause. In addition, Roberts bought enormous political space for himself
for future rulings."

If people don`t remember, Roberts found that the mandate of the Affordable
Care Act was constitutional under the taxing authority of the United States
Congress as found the Constitution, that the -- that as an exercise of the
Commerce Clause power of the Constitution, it exceeded the constitutional
limits, so he doffed (ph) his cap to the argument that Randy Barnett, who`d
been on the show with Akhil before, had made.

This is an ominous statement to me. This gets me scared, right? Because
then I think, well, he just -- he bought this down payment on credibility
that he`s now going to use for the next 20 years to gut whatever he wants.
He`d be like, remember the Affordable Care Act?

TOOBIN: Well, I think that`s right. Look, I think this case was the third
in a trilogy. Bush v. Gore 2000, Citizens United, 2010, Obamacare, 2012.
Five Republicans, you know, striking at the heart of what the Democrats
wanted. Roberts pulled back from that.

HAYES: Yes.

TOOBIN: And I think he cares about the institutional reputation of the
court, but, at the same time, he did not suddenly discover his inner
moderate. You know, he is a very conservative judge. When we start
talking about the civil rights cases this term, or when we start talking
about abortion, all the corporate agenda cases that have come before the
court and will come before the court, this is a very conservative justice.
And now, he is bulletproof for accusations of political hackdom.

AMAR: I agree with that, and it connects with what Nan and others have
said before. Jeff, you have a lovely line in your spectacular book, which
everyone should read, that he is able to play -- John Roberts -- the long
game. And part of the reason that he is, is he`s appointed as chief
justice at a very young age. And so he can be setting things up now for --
what he`s setting up is his personal credibility and the credibility of his
branch`s institution as not as completely partisan on every issue as maybe
the House and the Senate. It doesn`t always vote five-four on pure party
lines.

HAYES: Can I just make just one quick point about the Affordable Care Act,
which is not my own point, it was made by -- to me by a very, very smart
legal mind. But the reasoning on -- this person said to me, you know, if
you are figuring out whether something is constitutional or not, all you
need to do is find the reason it`s constitutional, and throw up your hand
and say, done. We`ve done it, so we found (INAUDIBLE). You don`t then go
out after you`ve already found that it crosses the threshold of
constitutionality and say, well, there is also this other thing, just FYI.
Not constitutional under Commerce Clause. It`s a very bizarre thing to do.

TOOBIN: That opinion was so strange in so many respects. I mean, you had
a jointly signed dissenting opinion by the four other Republicans on the
court. You had this very strange, as you point out, this was like John
Roberts` opinion about the Commerce Clause.

HAYES: Right.

TOOBIN: Totally irrelevant.

HAYES: Right. It`s like his op-ed, and appended to the Constitution.

(CROSSTALK)

TOOBIN: Relevant to the case.

ARON: Also, the other smart thing about this opinion is that it really
removed -- the Supreme Court as an issue during this campaign.

HAYES: That`s right.

(CROSSTALK)

ARON: None of us is going to give John Roberts a free ride now. None of
us.

HAYES: Well, you professionally can`t, Nan.

ARON: That language on the Commerce Clause, I mean, the Commerce Clause
sounds like the Commerce Clause, but it`s really the foundation for
progressive reform in this country ever since the New Deal. So, no, he
doesn`t have a free pass, and as Barbara and others will say, there are a
host of critically important issues coming up.

HAYES: Are you worried, Barbara, about I think there`s sort of split
opinions about what the Commerce Clause holding, if you can even call it a
holding, which is a little confusing, about whether it constitutes a
holding, what the Commerce Clause holding means for this sort of modern
progressive interventionist state going forward?

ARNWINE: Well, everyone in our office, when we read it, were very
concerned about the views that he expressed. This is, you know, it`s
somewhat the Roberts that people that know him talk about. The one who
likes to, every once in a while, shock and surprise people by taking a
position that is inconsistent with his general outlook. Because he did it
in the Arizona case.

(CROSSTALK)

ARNWINE: He did it in the Arizona case. He did it in this case.

TOOBIN: A little bit, you know, I--

ARNWINE: So the question is, will that Roberts surface more? Is he really
there?

(CROSSTALK)

TOOBIN: You know, I think this ticket was good for this train only.

(LAUGHTER)

(CROSSTALK)

AMAR: And here is one thing about his mentor, Chief Justice Rehnquist,
whom he clerked for when he was Justice Rehnquist. I don`t think there was
a single case in Chief Justice Rehnquist and previously Justice Rehnquist`s
tenure in which he was the fifth vote for any liberal outcome in an
important case, and that`s his mentor.

(CROSSTALK)

HAYES: Nan Aron of the Alliance for Justice, thank you so much for joining
us this morning.

ARON: Thank you.

HAYES: Great to have you at the table.

All right, now we are going to be getting into potentially landmark cases,
huge, huge, huge issues. Will the Voting Rights Act survive? Will
affirmative action and racial considerations in public academia anywhere
survive? All of that is coming up next.

(COMMERCIAL BREAK)

HAYES: Asking my guest how do you pronounce your name right before coming
back. Super professional move. Joining us now is Elise Boddie, director
of litigation at the NAACP Legal Defense Fund. Great to have you here.

ELISE BODDIE, NAACP LEGAL DEFENSE FUND: Thank you for having me.

HAYES: All right. Let`s talk about the future of affirmative action in
America, which is not just before the court, but is on the docket.
Certainly, arguments are scheduled. It`s probably the first big
blockbuster case I think the court will hear. The court is going to hear
an interesting case called Kiobel tomorrow, which is about corporate
personhood and this strange statute called the Alien Tort Act. We covered
that before. But we`re going to -- it`s a little in the legal weeds. So
we are going to go to Fisher, because basically what appears to be on the
table is whether the court will allow any kind -- any kind of consideration
of race as a factor in admission to higher education to promote diversity
in the sense of affirmative action.

Chief Justice John Roberts has shown through a variety of writings to be
incredibly hostile to this notion. And there`s this famous statement of
his from a case which was called Parents Involved, in which they struck --
the court struck down a mechanism for integrating public schools that was
quite popular. The parents were behind it. It was not bussing. It was --
and it still was struck down, and Chief Justice John Roberts, his famous
line is, "the way to stop discrimination on the basis of race is to stop
discriminating on the basis of race." Which is sort of like kind of a
freshman, undergraduate, like, level tautology, I think. But what is at
issue in Fisher? Elise, you want to lay out for us what`s at issue here.

BODDIE: Sure. So the question that the court is being asked to decide is
whether the limited consideration of race in undergraduate admissions at
the University of Texas is constitutional. And it`s important here to have
some sense of what the trajectory of the Supreme Court`s jurisprudence has
been in this area. This case is about revisiting a previous decision by
the Supreme Court, the 2003 case involving the University of Michigan, in
which the court resoundingly upheld the use of race in admissions, provided
that it`s one of many different factors and it`s used to promote the
educational benefits of diversity.

The Texas case is a little different, because it comes on the heels of a
law that was passed by the state of Texas back in 1997 following a decision
by the local court of appeals that banned the use of race in admissions.
The state legislature essentially said if you graduate in the top 10
percent of your class, you are automatically admitted to the flagship
institution. That worked, it turned out, because--

HAYES: American schools are super-segregated, as are Texas schools. So
this 10 percent, it`s this amazing run-around.

BODDIE: Exactly. And so the question here, so we have the 10 percent law,
which admits the overwhelming majority of students to the University of
Texas. And the question is whether this separate admissions policy that
considers race in an individualized way, whether that is constitutional.

HAYES: Yes. The facts here are a little complicated, because there`s this
kind of a two-tiered admission thing. If you are not in the 10 percent,
you obviously can still apply, you can still get in. And they use race as
a factor in considering -- the court had found that it`s a compelling state
interest, right, that the government has a compelling state interest of
promoting diversity. And the means of doing that is taking race into
consideration to ensure there`s a diverse classroom. The plaintiff in the
case, who is a white student who did not gain admission, and there`s a line
of cases, right, of white students who didn`t get admission starting with
Allan Bakke back in the `70s, suing and saying this is -- I`m being
discriminated against.

The big question, though, here is, there`s a lot of feeling I think that
they are going to just take -- use this as an opportunity to kind of do the
full Citizens United, which is just come down with a decision saying you
cannot use race at all.

TOOBIN: Well, certainly, Justice Scalia and Justice Thomas are on record
saying that, that`s what the Constitution required. Again, what`s so
interesting here is the political context. The establishment in this
country, Fortune 500 companies, are all behind diversity. The very
celebrated group of military veterans, including Norman Schwarzkopf and
Colin Powell, are saying we need affirmative action in the service
academies. So, you know, all the big Fortune 500 companies are saying,
look, we are competing in a global marketplace, we cannot have our flagship
universities all white. We draw our employees from these places.

But there -- that`s from the people who are filing briefs in that case.
But the conservative movement in this country has done a really good job in
communicating the idea that any use of race, as John Roberts has said, is
discrimination. And it`s a powerful argument.

HAYES: I want to hear your thoughts, but first I want to take a quick
break. More on that when we come back.

(COMMERCIAL BREAK)

HAYES: We are discussing the Supreme Court`s docket and whether the
Supreme Court is going to essentially -- I don`t think it`s too dramatic to
say it -- strike down affirmative action in arguments the court will hear
next Wednesday. Barbara, this is a case you have spent time thinking and
working on.

ARNWINE: Yes.

HAYES: What is your feeling about where this is going?

ARNWINE: Well, first of all, people have got to remember that this is a
case that is coming from the Fifth Circuit, of all circuits. This is not a
quote, liberal circuit. This is a very conservative circuit court that
upheld this plan. If there`s ever a plan that the court should like is
this plan.

(CROSSTALK)

HAYES: Let`s be clear. Texas, the Texas state legislature voted for the
plan. And then the very conservative appellate court that is in that
region of the country, in the South, upheld it.

(CROSSTALK)

ARNWINE: And when it was adopted, 79 percent of all classes at the
University of Texas Austin had either no African-Americans in the class or
had one. So it was really a question about academic diversity, academic
expression. It`s also very important to look at this plan. This plan has
no set-asides, no added points. It has individual consideration. It`s,
you know, race is just one of several, several factors. Languages that are
spoken at the house. Is your family a single-parent household? They
considered things like your awards, they considered your musical abilities.

HAYES: And these are lined up as equal considerations when you`re looking
at it.

ARNWINE: Absolutely. And in fact, there`s a great argument that even the
plaintiff in this case, that even if she -- there was no race at all used,
she still probably wouldn`t have been admitted. That`s important.

BODDIE: Let`s be clear. What is important to understand here is that race
is not an automatic consideration for any individual. In fact, race can
count for anyone. If you are a white student attending a majority Latino
high school, for example, and you have certain extracurricular activities,
you might be -- that might be a special circumstance that would warrant
additional consideration. Same with Asian-Americans. So it`s very
important to keep in mind that if this is a flexible consideration of race,
which really matters in this calculus.

ARNWINE: Very flexible.

BODDIE: The other I think important point to recognize here, and folks
like to focus on Chief Justice Roberts, but really Justice Kennedy is where
the game is here. And I think Kennedy, himself, has acknowledged in his
prior decision regarding k-12 integration that diversity matters. And he,
you know, favors diversity, he recognizes that as a country, we are still
struggling with persistent segregation. Colleges and universities are
uniquely situated to address this very problem. Right? We have persistent
segregation at the k-12 level. Where else are we going to learn to live
and work together but for higher education?

AMAR: We are talking possibly not just about our great flagship public
institutions, but also private institutions. They are not governed
directed by the Constitution, but there`s case law that says if the state
can`t do it under the Constitution, private schools can`t do it under anti-
discrimination law. And then we are talking about the possible prohibition
of affirmative action at Harvard, Yale, all the private institutions of the
country alongside the public ones. That would be dramatically different
than the status quo.

ARNWINE: It would be a huge mistake. Seriously, when you consider that
our nation is fighting for its economic advantage, is fighting to be
competitive. If you take out affirmative action and you give this, you
know, we just go back and we re-segregate all of our higher educational
institutions, what a disaster that is for the United States of America.
When you consider where our demographics are right now.

BODDIE: Just to go back to the plan itself. So the technical legal
question that the court is going to entertain is whether there was a need
to consider race in an individualized way on top of the 10 percent plan.
And going back to Justice Kennedy, I think what is important to understand
here is that the individualized consideration of race in this supplemental
policy, it appreciates that racial minorities are not fungible. That black
students who attend segregated high schools have a different experience
perhaps from black students who attend integrated high schools. And I
think Kennedy will like that, because he`s said in his previous cases that
he rejects this notion that everyone should be treated alike. That all
black students and Latino students should be lumped together. And so this
is consistent with this idea.

HAYES: Let me also say, this is not a particularly legal point, but I`m
always amazed by the idea of applying to a school and not getting in and
deciding you are going to sue. It`s like the plaintiff -- I don`t want to
cast aspersions on this individual, but as a legal matter, this is a court
that has shown itself incredibly -- has set a higher and higher bar for
standing. Right, can you bring a suit before this court? This has been one
of the jurisprudential themes of this court. And in this case, it`s just
unclear as the counterfactual whether she would have been admitted with or
without the plan. And yet that seems to be totally waved away.

TOOBIN: She`s also, as I understand it, already graduated from college.

(CROSSTALK)

TOOBIN: So why is this case even not moot.

HAYES: Another huge case that could have profound implication, probably
would be the biggest, might make the ACA actually look small, I would even
say, is whether the Voting Rights Act can survive the Roberts court. Let`s
talk about that right after this break.

(COMMERCIAL BREAK)

HAYES: Hello from New York. I`m Chris Hayes. With me this morning, I
have Jeffrey Toobin, author of "The Oath: The Obama White House and the
Supreme Court." Barbara Arnwine from the Lawyers Committee for Civil
Rights Under the Law. Yale law professor Akhil Amar and Elise Boddie from
the NAACP Legal Defense Fund.

We are talking about the Supreme Court, which will be hearing oral
arguments for the first day of the term tomorrow. And there is a lot that
is on its docket or will be on its docket, we are assuming.

We just talked about affirmative action, whether that -- what its fate will
be. And an even bigger issue, particularly in the context of what has been
going on in this election. With outright attempts, in my humble opinion,
at voter suppression being pushed at the state level, restrictions put on
who can vote that clearly have a disproportionate impact, if not the intent
to disenfranchise certain minority groups, but have that disproportionate
impact. The Voting Rights Act, signature piece of American legislation,
famous, obviously, a huge towering achievement of the civil rights
movement, signed in 1965 under LBJ, extended for 25 years in 2006 by the
Congress.

Section V of the Voting Rights Act requires that certain states with a
history of discrimination and barring voting, largely in the states of the
old Confederacy, but also other districts and other places -- the Bronx I
think and Brooklyn are actually covered districts under Section V have
preclearance. And preclearance means you can`t go about changing the way
that you are going to redistrict or go about changing voting rules without
going to the Department of Justice first and saying, is this OK? Because
the history of these jurisdictions is using those mechanisms explicitly to
disenfranchise people. There`s a long, gruesome history of that, since the
days of Reconstruction. That`s what`s on the table, right?

UNIDENTIFIED FEMALE: Yes.

HAYES: State of Alabama brought an official challenge to the Section V
saying this is ridiculous, times have changed, stop it. The state of Texas
went around the preclearance process, said we`ll be redistricting the way
that we want, we`re not going to go through the preclearance. It came
before a panel in the federal District -- in the District of Columbia. It
was struck down, 2-1. So, the court has not said that they are going to
hear the Voting Rights Act, but it looks very likely, I think, right? Is
the general prevailing wisdom, they are.

And let me just say, in previous, in 2009, they had a case before them on
the Voting Rights Act, they basically punted on. They said we are not
going to find whether the Voting Rights Act is, you know, still should be
enforced.

But here is what John Roberts said in the plurality opinion in that.
"Things have changed in the South. Voter turnout and registration rates
now approach parity. Blatantly discriminatory evasions of federal decrees
are rare, and minority candidates hold office at unprecedented levels."
Indicating that, you know, the time for all this heavy-handed, telling
Georgia what it can do is over.

This would be pretty big if they took the Voting Rights Act, Section V.
Barbara?

ARNWINE: Well, the first thing that we have to think about is the Texas
redistricting case. The court has to do something with that case. It
either has to, you know, it either has to accept it and review it, or it
has to summarily affirm or reverse. So that is the first case that is
really before them. And then, you have the Shelby County case, which is
the (INAUDIBLE) too, as they say, which is, once again, the question of the
constitutionality of the Section V of the Voting Rights Act. So this
question comes in two ways before the court. The question is, what are
they going to do?

I think it`s very important for people to know that this is history, past
history we are talking about. That in 2006, the record that we, that civil
rights organizations, the Lawyers Committee for Civil Rights and others
have put before the Congress showed that between 1980 and today, that there
has been over 423 objections by the Department of Justice because of
purposeful discrimination. This is not accidental.

(CROSSTALK)

ARNWINE: But purposeful discrimination. So we are living in an age where
even though the Voting Rights Act has been transformative to our nation,
it`s still -- people are still doing everything they can to dilute, to take
away the power of the black and the Latino voter.

TOOBIN: But doesn`t Roberts have something of a point when he says the
South has changed? And also -- you are so concerned about voter
suppression. Understandably. But where is that taking place? Ohio,
Pennsylvania, Wisconsin, Michigan. All these states that went public in
2010.

(CROSSTALK)

TOOBIN: But isn`t the rest of the country just as racist and just as
discriminating as the South?

HAYES: Here is my response to that. I think Crawford, which is the
Supreme Court case which actually Justice Stevens signed on to the majority
opinion, which allowed voter ID in Indiana, was a bad decision. So I
actually think -- and let`s extend -- I actually think the Voting Rights
Act gets it right. I think the Voting Rights Act should be applied
everywhere, which is --

(CROSSTALK)

TOOBIN: But that`s not what the Voting Rights Act says.

HAYES: I know that. That`s my personal Voting Rights Act.

BODDIE: So here is the point. Your observation about the past, you know,
it`s the William Faulkner saying the past is not dead, it`s not even past.

ARNWINE: It`s prologue.

BODDIE: And I think, so here`s the deal. Shelby County, Alabama, there`s
a cert petition to the Supreme Court, in our view not clear that the court
should take the case, because the court has affirmed this provision of the
Voting Rights Act four times. There is a very substantial record, 16,000
pages before Congress when it reauthorized the Voting Rights Act, this
provision in 2006.

But here is the key, again, Justice Kennedy is the swing vote here.
There`s always been a gap in coverage, as it turns out. The state of Texas
wasn`t covered by the initial 1965 act. It was added in 1975. It`s always
been the case. The question is, are we going to defer to the judgment of
Congress that this act is still necessary? Is Congress` judgment
reasonable?

HAYES: But the argument -- but respond to Jeff`s argument. Which is to
say, the way, the strangeness of the Voting Rights Act, right, is the
strangeness of American politics, which is the strangeness of slavery, the
Civil War, Reconstruction and everything else, which is that there`s one
region of the country, and different specific geographic regions where we
have a certain process for, and other regions we have another process for.
And the argument that Jeff is making, is hey, look at those regions we
don`t have the special process for. They seem to be doing the same stuff.
What is the justification for treating them differently?

BODDIE: Well, there`s been a particularly pernicious history in the
covered jurisdictions. And that was the judgment of Congress. And so
therefore, are we going to second-guess Congress` legislative judgment
about the need for this provision going forward?

ARNWINE: Well, in the Shelby County case, the court actually found, the
circuit court, that when you looked at Section II enforcement in
particular, that over 50 percent of all those cases came from the South
still. And so you have got to really look at where are the -- where is
this active discrimination in the works? Because think about it. 57
percent of all African-Americans live in the South. You know, the Latino
population is growing rapidly in the South. So is the Asian-American
population. So these are really great issues. And that history cannot be
just discarded.

HAYES: Let me just note that Florida is one place where they have -- the
Venn diagram, right, they have pushed (ph) it. And it is a covered
district. And I think the federal court struck it down.

(CROSSTALK)

HAYES: I want to get your thoughts on this right after we take a quick
break.

(COMMERCIAL BREAK)

HAYES: We are discussing the fate of the Voting Rights Act, which many
observers feel will come before the court in this term, which begins
tomorrow. Akhil, you had something you wanted to say?

AMAR: This landmark congressional statute coming out of the second
Reconstruction in the 1960s is of course an echo of the original
Reconstruction, in which some states were singled out for special
treatment. In fact, they weren`t allowed back into Congress unless they
promised to vote for the 14th Amendment.

HAYES: Under arms. You know, with the army occupying--

AMAR: This actually, you know, there is a history here, and it goes all
the way back now.

One argument is, but that`s all long ago. If a jurisdiction has kept its
nose clean and hasn`t actually violated voting rights recently, it can
actually bail out. And some jurisdictions that haven`t been covered, have
bad recent histories, they actually get thrown in. And so -- but that`s--

HAYES: So, this is actually based on what is happening. It`s not locked
in.

UNIDENTIFIED FEMALE: Exactly.

AMAR: This is in a way the perfect storm. We talked about the Obamacare
case. What was that about? Deference to Congress or not. And this
actually is in the Constitution, Section V, not of the statute, but of the
14th Amendment, it says Congress shall have the power to enforce this.
It`s about deferring to Congress. And on the other side, you know, the
states rights argument, and the claim here is this isn`t fair to states.
What else did we talk about? We talked about Texas` affirmative action.
One objection to the Voting Rights Act is in order to avoid a finding that
you have actually discriminated against minorities, sometimes jurisdictions
might have to take race into account, might have to do a certain kind of
racial affirmative action, and that is what gets some conservatives upset
about this.

So this is kind of a perfect storm in a way--

HAYES: Of the different--

(CROSSTALK)

AMAR: -- of affirmative action, deferring to Congress, states rights.

BODDIE: And can I jump in here? To Akhil`s point, I mean, it`s
interesting, we have this powerful narrative in this country that progress
is inevitable. You know, with the march of time, things will always get
better. And with respect to race, I think what we see is that progress is
more episodic, it`s more fitful. We have significant progress marked by
retrenchment, which we are seeing in the wake of the 2008 elections.

And so Section V sits in that space, right? It recognizes we have a past
of historical discrimination, and that Congress made a predictive judgment
that that problem is likely to continue, which is why the covered
jurisdictions need to seek preclearance before changing.

The separate point that I want to make is that, you know, this coverage gap
issue, you know, where some states are protected and some aren`t, I find it
deeply ironic. Because if you look at the jurisprudence, the Supreme
Court`s jurisprudence on race, the core fundamental premise that it rests
on is that intervention, race-conscious intervention, should be targeted,
should be narrow. And so we should only focus on areas that have the most
pernicious problems. And that`s what Section V does, the reauthorization
did in 2006. It`s focused on the states with the most difficult history.

ARNWINE: And that`s the beauty of Section V of the VRA, is that it really
-- when Congress re-authorized it, they made one important statement to
everybody in this country. They said the right to vote is critical. That
this is fundamental to being an American. That it should be protected.

HAYES: Not according to Justice Scalia.

ARNWINE: That we will not allow this fundamental right to be infringed.
(INAUDIBLE), repeatedly, that these jurisdictions have to learn to be
truly, you know, American and fair to all of their citizens.

HAYES: One of the things also, I mean, if you are looking at the history
of it going forward, is what`s happening, I mean, one of the current
(INAUDIBLE) concerns now is that in the South, as the white Democrat
essentially dies off -- Barack Obama got 10 percent of the white vote in
Alabama, I want to say, 11 percent in Mississippi, right? As of the 2010
midterms, you have this situation now where you have majority Republican
state houses that are essentially -- that are all white, more or less, and
then minority Democratic state houses that are majority black, in many
cases. And this fear that you are going to have this permanent kind of
racial majority-minority politics in the South.

TOOBIN: I just had an interesting conversation with Jason Carter, who is a
state senator in Georgia, who is Jimmy Carter`s grandson. 36-year-old
state senator. And he was saying, you know, I`m for the Voting Rights Act.
I`m a Democrat, I love the Voting Rights Act. But one of the problems is,
it has encouraged exclusively minority district. I want to have an
integrated district. I want to have a district where I appeal to both
white voters and black voters, and especially in the earlier days of the
Voting Rights Act, there was sort of what was sometimes called the unholy
alliance between African-American politicians and white Republican
legislatures--

HAYES: To concentrate, right.

TOOBIN: Which was they were basically like, throw all the African-
Americans into one district. It will be represented by a Democratic
African-American forever.

HAYES: Right.

TOOBIN: And then everything else will be--

(CROSSTALK)

TOOBIN: That`s a problem.

ARNWINE: I always say to that argument, I always say, well, why don`t we
have the governors? Why do you lose these statewide offices? I mean, that
has nothing to do with any redistricting. It has nothing to do with the
Voting Rights Act. I mean, the fact is, is that the Democrats have been
losing for different reasons. And I don`t want to get into all those
reasons why they are not real popular with white Americans in general.

TOOBIN: In the South, particularly.

ARNWINE: In the South. I just want to point out that it`s -- it`s not all
the law says anything--

(CROSSTALK)

BODDIE: But it`s also important to recognize, for all the reasons that
we`ve been discussing, that it matters for African-Americans to have the
opportunity to elect candidates of their choice. We have certainly seen
the rise of influence districts. But it`s important for there to be, you
know, African-American and Latino representation in the halls of power.

HAYES: And that`s been one of the principles of the Voting Rights Act.
Barbara Arnwine from the Lawyers Committee for Civil Rights Under the Law,
Elise Boddie from the NAACP Legal Defense Fund, great discussion. Thank
you so much.

ARNWINE: Thank you.

HAYES: Should we accept insults as an exercise of free speech? Journalist
Mona Eltahawy, who was arrested for spray painting an offensive ad, joins
us next.

(COMMERCIAL BREAK)

HAYES: President Obama had to perform a balancing act of sorts while
speaking to the United Nation General Assembly on Tuesday. He wanted to
appeal both to the domestic audience that wants its president to advocate
forthrightly for American values, while also showing respect to leaders and
citizens of nations in the Muslim world angered by an American anti-Muslim
film clip posted on Youtube, all while trying to quell some of the
criticism from Mitt Romney and other Republicans that he`s looked weak on
foreign policy.

So in his last big speech on a global stage before the November election,
President Obama said this.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: As president of our country,
and commander in chief of our military, I accept that people are going to
call me awful things every day. And I will always defend their right to do
so. We do so because in a diverse society, efforts to restrict speech can
quickly become a tool to silence critics and oppress minorities. We do so
because given the power of faith in our lives and the passion, that
religious differences can inflame. The strongest weapon against hateful
speech is not repression, it is more speech. The voices of tolerance that
rally against bigotry and blasphemy and lift up the values of understanding
and mutual respect.

(END VIDEO CLIP)

HAYES: Meanwhile, we`ve seen another controversy erupt over offensive
speech. Inside subway terminals not too far from the United Nations
building here in New York, the MTA is running this ad. It reads "in any
war between the civilized man and the savage, support the civilized man,
support Israel, defeat jihad." The ads come from Pamela Geller, executive
director of the American Freedom Defense Initiative. Geller is the co-
founder of an organization called Stop Islamization of America with a long
history of anti-Muslim paranoia and scaremongering. The MTA rejected the
ads initially. Then Geller sued and won a federal court ruling on First
Amendment grounds. The ad went up last week in ten subway stations. On
Thursday, the MTA approved new guidelines for ads, which will include a
disclaimer implying that the MTA does not endorse such views.

Right now, I`m joined by Mona Eltahawy, an Egyptian-American journalist,
who was arrested Tuesday for spray-painting one of the ads. Mona, it`s
good to have you, first time at the table. You`ve been on the program
before from Cairo, but it`s wonderful to have you here.

MONA ELTAHAWY, JOURNALIST: Thanks for having me, Chris.

HAYES: Let`s show this video of what happened. You went out as an act of
dissent, civil disobedience, with a pink spray paint canister, and this is
what transpired. And there was a New York Post reporter who was camped out
around the ad I think to catch whatever might happen, as well as an
associate ally of Pam Geller. Take a look.

(BEGIN VIDEO CLIP)

PAMELA HALL: Tell me, Mona, what right do you have to violate free speech?

ELTAHAWY: I`m not violating it. I`m making an expression of free speech.

(CROSSTALK)

HALL: You do not have the right.

ELTAHAWY: I do, actually. And I`m doing it right now.

HALL: You have a lot of nerve, Mona.

ELTAHAWY: No, I don`t have nerve. You know what I have? I have an
understanding of racism.

HALL: You`re violating free speech.

ELTAHAWY: I`m not, it`s clear, I`m not violating. I am expressing myself
freely against hate and racism.

HALL: This was an approved ad, Mona.

ELTAHAWY: I really don`t care.

I need to know what you`re arresting me for. It`s my right to know what
you`re arresting me for.

(END VIDEO CLIP)

HAYES: All right. You were arrested, you spent a little time in a holding
cell. All right. There`s two things we got to talk about here. The sort
of the principle of free speech, tolerance, incitement, all those things.
But first, can we just talk tactics? I mean, here is my deal with this
incident. There`s a great Internet phrase, called don`t feed the trolls.
And this is great wisdom that I try to take in my life, which is when
someone tries to basically get a rise out of you with idiocy, just don`t
rise to the bait. And this seemed to me like this was like an exercise in
feeding the trolls. So why did you decide to do this?

ELTAHAWY: First of all, because this ad is more than idiocy. This ad
wasn`t, like, you know that film? That was idiocy. It was a film that no
one had seen on Youtube, until someone pulled it out, but this is an ad
that is seen by the millions of people who ride the subway, including
myself, every day in New York. This is an ad that comes 11 years into
Muslims and Arabs, because this isn`t just about Islam here. There is
racism and bigotry involved -- 11 years after 9/11. A horrendous terrorist
attack that no Muslim I know has ever condoned. And 11 years after the
Muslim and Arab citizens of New York, New Yorkers here constantly being
called upon to apologize over and over again for something we didn`t do.
And again, this is an ad that conflates being Arab and Muslim with being
against Israel and being with jihad. This choice is a false choice. So
it`s more than idiocy.

HAYES: OK. Stipulate all of that, agree with all of that. But then it`s
like, not to get too meta, but like you went and spray-painted it, so now
I`m showing the ad on my television show. So what is the statement there?
Like, when you say I`m not, is this an act of civil disobedience? You
recognize that OK, I`m violating some law in spray-painting it, and I want
to make some statement?

ELTAHAWY: Yes, I`m standing up to racism and hate, as I was saying in the
video constantly. I don`t think we should be quiet or silent or be bullied
into silence in the face of racism and hate. And this country, I`m a U.S.
citizen. This country has a long and proud history of civil disobedience.
I was prepared to be arrested. I wrote to many of my friends and said,
look, I might be arrested, so if I go offline for a few hours, be prepared.
I was arrested. I`m proud I was arrested, I would do it again in a second.
Because we should not be bullied into silence by racism. And Pamela Geller
is a known bigot and racist, who has a lot of money, and thinks that her
money can silence us. This isn`t the first time an ad--

(CROSSTALK)

HAYES: How is she silencing you by putting an ad on a bus?

ELTAHAWY: No, this was an ad in the subway.

TOOBIN: The subway.

ELTAHAWY: Because now someone like Chris is saying, why did you just feed
the trolls? And -- this ad has to be responded to. I believe this ad must
be responded to.

TOOBIN: But she didn`t silence you.

ELTAHAWY: Look, attempts to tell me that you`re doing this as a publicity
stunt was -- was what people were telling me--

(CROSSTALK)

HAYES: I`m not trying to silence you. I want to hear from you. That`s
why you are sitting here.

ELTAHAWY: OK, fine, you make a legitimate point. What she`s doing then is
bullying, not silencing. The silencing is coming from other corners. And
I refuse to be bullied. That`s my point.

AMAR: So there`s one alternative, which is just ignore the troll. But
there`s another possibility, too, which is a counter speech that doesn`t
deface private property. But takes that ad, creates and photo shops it,
creates your own spoof of it.

HAYES: And other people have done that.

AMAR: Put that on the Internet. And that`s what President Obama was
calling for when he said more speech.

HAYES: Right.

AMAR: And that was another alternative.

HAYES: I want to ask about that.

ELTAHAWY: That`s a great point. And I (INAUDIBLE) your point. But as I
was telling you on the video as well, two hours before I did what I did, I
saw a man on 49th Street, the NQR (ph), actually rip a poster and say this
is beep, you know, filthy, this is unacceptable. I did not want to rip
that poster. You know what I wanted to do? I wanted to write "racist" in
pink, because pink is the least nonviolent color there is. But I`m not
good at tagging, OK?

(CROSSTALK)

ELTAHAWY: But I chose pink for many reasons. One of which is it does not
actually remove the words. I did not want to remove the words. I could
have chosen black.

HAYES: I want to talk about "The Innocence of Muslims," the other big
provocation, and what kind of free speech and incitement and where those
two might rub up against each other right after the break.

(COMMERCIAL BREAK)

HAYES: So we are all dealing with the fallout from this -- these protests
that happened across much of the I would say the Muslim world, not just the
Middle East and Arab world, right? They also happened in Bangladesh and
Pakistan and some in Indonesia. About this film that was uploaded to
Youtube, which is a ridiculous, ridiculous enterprise.

What was your sense, what was your reaction to what happened in Egypt,
which is where you spend a lot of your time, in reaction to this?

ELTAHAWY: I was there when it actually all started outside the U.S.
embassy on the 9/11 anniversary. My position all along has been that it
was the right wing provoking the right wing, which is, again, why I did
what I did in the subway, because clearly I`m not the right wing, even
though the right wing calls me an anti-speech IslamoNazi, but that`s
another thing.

So the way I saw it is that Egypt is going through a lot of change right
now, and we have an extreme right wing, the Salafists, who initiated these
demonstrations, because they are panicking. They are clearly panicking
because they don`t know where they fit into Egypt as it moves on.

And you have the right wing here in this country, but she`s clearly also on
the lunatic fringe of the right, which is also panicking because this
country is also changing, and we have an election coming. So you`re
talking about two right wings addressing each other. Both of them pissing
each other off, and we`re stuck in the middle.

And my position all along with that, this is like the dying cry of the
right wing. I truly believe in the right to offend. I don`t believe
anyone should be protected from offense. But I believe that I also have a
right to peacefully protest that offense. Which is what I did.

HAYES: So what do you think, Jeff?

TOOBIN: Well, it`s not just the right wing that is angry at what`s going
on in the Islamic world that is the extremist part of the Islamic movement.
I guess I`m just a little -- there`s a little equivalence in what you are
saying that seems a little false to me.

I mean, the fact that, you know, people were attacking the embassy and
going back to the Danish cartoons about Mohammed where people died in those
riots, it`s not just the right wing that is upset about that. That is our
whole -- I would think across our political spectrum that is horrified by
that.

ELTAHAWY: It was the right wing -- you mean here in this country or in
Egypt? But I`m talking about who initiated these protests. The protests
were initiated in--

HAYES: In Egyptian politics.

ELTAHAWY: And also across various Muslim countries. It was the right wing
there. And the man who made the film in this country also belongs to a
right wing that wants to provoke.

Now, you`re talking about the great majority who are horrified, of course,
at the acts of violence, and at least 14 people were killed during those
weeks that I was in Cairo. But at the same time, you have a large
population in the so-called Islamic world that is very angry with the
United States for the invasion of Iraq, the war in Afghanistan, the drone
attacks, for so many things. So you`re talking, yes, you are talking about
a lot of political anger that was manipulated into offense and used to get
people into the street.

HAYES: So Mohammed Morsi, who is, I guess he is the president of Egypt?
Is that the term, he is president of Egypt?

ELTAHAWY: Yes.

HAYES: Duly elected in the first election since the fall of Mubarak and
the revolution, has been proposing some kinds of blasphemy laws. And these
blasphemy laws are now very popular among some of the new, post-
revolutionary governments. In Tunisia, they are being considered. There
are proposals in front of the U.N. General Assembly, that basically, you
can`t do certain things, certain kinds of speech, you know, that are
derogatory to the Prophet Mohammed, for instance. What is your feeling
about a law like that in Egypt?

ELTAHAWY: I`m horrified. I absolutely reject. I mean, this is why,
again, I said I believe in the right to offend. Blasphemy laws, across the
world, whether you look at Pakistan or any other country, but especially
Pakistan, because it comes up there a lot, are often used as political
tools against opponents and minorities of any kind. So I absolutely
reject.

That`s why I was telling the woman in the video, I`m using speech. I want
to discuss, what is protected speech? If you have the right to be racist
and bigoted, where does my right then end to respond to your racism and
bigotry? But I don`t want a blasphemy law that is going to silence, again,
minorities and people who don`t agree with the government.

HAYES: One of the arguments I`ve heard interestingly, in the fallout from
this, right, is that our conception of free speech as embodied in the First
Amendment and First Amendment jurisprudence, particularly in the last 30 or
40 years, because there`s a lot of First Amendment jurisprudence before
that, during periods of communist scares that was pretty tolerant of some
fairly severe limitations.

You hear people, and I heard a great NPR reporter just talking to folks in
Tunisia, that said, look, in Europe, they say you cannot deny the
Holocaust. And you know, there`s all kinds of restrictions. Why can`t we,
our democratically elected government, draw these red lines?

AMAR: And you heard earlier from President Obama a wonderful defense of
American style democracy, American exceptionalism, if you will. Because
democracy isn`t just about voting. It`s not one person, one vote, one
time. It`s a culture. It has to involve free speech, part of which will
be the right to voice opinions that other folks won`t like. And I thought
that the government should not be in the business of suppressing opinion.
And you heard that very emphatically from a constitutional law professor,
American exceptionalism, because we have the most robust tradition of free
speech thing. If you don`t like it, speak up against it, but don`t have
the government repress it.

And here is the most amazing thing. Even before we had the First
Amendment, I just got to work in that this month is the 225th anniversary
of the year when the Constitution actually was presented to the people.
This audacious continental-wide vote, but not just vote, but an amazing
free speech experience. For one year, up and down a continent, the most
raucous, wide open, robust, uninhibited free speech, burnings in effigy,
pretty intense opinions, no one dies. The whole year. You compare that to
the French Revolution or the American Revolution, raucous free speech pro
and against, and that is the tradition that Barack Obama, I think
wonderfully defended at the U.N. American exceptionalism. Our robust
vision of free speech.

HAYES: I want to ask whether that exceptionalism, whether us being an
outlier means that we lose sight of the fact that free speech can exist in
places that don`t have the First Amendment. Right after this.

(COMMERCIAL BREAK)

HAYES: We are talking about -- the president made a speech before the U.N.
General Assembly defending the First Amendment, defending the principle of
free speech, embodied in the First Amendment. And Akhil, you just made
this really important point that I think we don`t -- because we don`t spend
a lot of time thinking comparatively in American politics particularly,
lose sight of, which is that other liberal democracies have much more
routine curtailments on speech than we have here as enjoyed in the First
Amendment. But are not tyrannical dictatorships. It`s compatible to have
a liberal democracy that has free speech in principle but has more
curtailments.

And I wonder if we, you know, why should we have our system? I guess, why
should we have this First Amendment that is so blanket, that allows so much
that, you know, allows for the kind of incitement that gets uploaded to
Youtube?

AMAR: And President Obama gave a couple of reasons. One that I kind of
read into what he said, at least we should have it because it`s ours and
it`s our tradition and it has worked well for us. And he said, if you are
skeptical of government, the folks that government is going to oppress
first, in the name of protecting against offense, actually might be
minorities of a certain sort. That blasphemy laws in America, anti-
blasphemy, have a very bad history, and if you are a little suspicious of
government, as -- which is part of our American DNA, and if you have had a
tradition in which free speech has worked very robustly, where did we get
the First Amendment? We got it from the exercise of free speech in that
year, the 225th anniversary this month where we actually spoke. The
freedom of speech came in the text by the unwritten constitution of the
practice, so our practice of free speech has been actually really a great
one.

And the abolitionists were offensive, and people tried to shut them down.
And the civil rights movement folks, people were saying they were just
stirring things up. And so there`s a history of government power
suppressing movements.

TOOBIN: And also, I think it taps into a libertarian tendency that is a
real part of the American DNA, which is not necessarily politically
liberal. Free speech tends to be an argument that unites liberals and
conservatives sometimes in surprising ways. Remember Citizens United.

AMAR: Exactly. That`s right.

TOOBIN: We started this morning talking about Citizens United.

AMAR: This is a really point.

TOOBIN: It`s about a conception of free speech that extends to
corporations, that extends to spending money. Concepts that are very
foreign overseas, and certainly very controversial within this country as
well. But again, comes from the same idea, that when it comes to speech,
we don`t want the government interfering at all.

HAYES: Well, it`s interesting, because the people that defend Citizens
United decision, is done (INAUDIBLE) from Mitch McConnell and others on the
right who are working to just essentially obliterate any kind of campaign
finance reform, all of their arguments are made explicitly in speech terms.
That`s the argument they are using.

And the question I have for you, Mona, is one of the things that`s happened
-- you have been spending time in Egypt and spending time here. And I
think there was a mass of people who were the core of the folks helping to
bring down the Mubarak regime, right? A coalition of very diverse
interests. You had people who were very devout, very orthodox Muslims, you
had essentially secular liberals. And then once the elections happened, I
think there was this concern about whether people who are essentially
secular liberals like yourself are going to have any purchase on the new
Egypt, whether a vision of, say, fighting for something like a First
Amendment or protected speech, is there any constituency for that in Egypt,
or would this essentially be a kind of small, vanguard minority that now
that the big boys are in charge, the Muslim Brotherhood has to pay no
attention to?

ELTAHAWY: No, they must pay attention to it. Because the Muslim
Brotherhood understands -- and I was on your show on the day that election
results were announced -- the Muslim Brotherhood understands very well that
their candidate only got 25 percent of the vote when he had to run against
several candidates. So that`s really their base support.

What`s happening in Egypt now is the kind of intense discussions that
exactly led to your First Amendment. But my concern, the Egyptian side of
me now, the American side of me loves the First Amendment. The right to
free speech, the right to protest free speech, the right to freedom of
worship. The Egyptian side of me questions again and again, and I`ve said
this every time I`ve been on your show, why the U.S. administration would
supports dictators? And I urge them not to support any move by the current
president that would deny us the freedoms of the First Amendment here. I
want those kind of freedoms. I want a Bill of Rights that protects the
minorities in Egypt in the way that minorities here exactly should not be
attacked by--

(CROSSTALK)

HAYES: But this is where the rubber hits the road, right? This is exactly
where the rubber hits the road. Because you are sitting in the White House
and you are trying to negotiate this incredibly difficult, incredibly
unmapped relationship with the new elected leader of the largest Arab
country in the world in Egypt, Mohammed Morsi, and he says, hey, we are
passing -- we`re going to have a blasphemy law. And what are you going to
say? Hey, it`s your country. Do you want to sever or imperil that
relationship over something like that? The same argument of sort of
Western imperialism seems like it could imply there if they condemn it.

ELTAHAWY: How about just saying, why don`t you listen to the calls of your
people for freedom and dignity, because that`s what they wanted? And the
goals of the revolution, which is -- breed liberty and social justice. But
one last point. Mohammed Morsi, who right now in Egypt, we have at least
two young men, one of them is an atheist and one of them is a Christian
from the Coptic community in Egypt, who are standing trial for blasphemy,
atheism, offending Islam and offending the president. This same president,
Mohammed Morsi, actually says I have instructed the consulate in New York
to look into Mona Eltahawy`s case, because it`s very important. So my
freedom of speech in the U.S. is very important for my president, but in
Egypt, these two young men`s freedom of speech is being violated.

HAYES: And they are being tried by the current government.

ELTAHAWY: By the current government.

TOOBIN: So the problem is, what happens when the people in the Muslim
world want the oppression of women, want stuff that is so offensive to us -
-

ELTAHAWY: Who says they want it, Jeffrey? The people out on the streets
demonstrating outside the U.S. embassy were 200, 200 people of a--

(CROSSTALK)

HAYES: It seems plausible to me. Let`s forget about (INAUDIBLE) women.
It seems plausible to me that something like a blasphemy law, could, if you
put it to a referendum in Egypt, could pass, right? That`s not
implausible, is it?

ELTAHAWY: Let`s see what blasphemy laws have done in Pakistan, whether
they have been put to a poll or not. They have just been used -- and
people recognize this -- to target minorities and political opponents. So
you know, we have got to get beyond this idea that the majority of people
support this oppression of people`s rights. That`s not what it`s about.
Is this what America is about? You have a Bill of Rights that opposes the
tyranny of the majority, correct?

HAYES: Yes, exactly right.

ELTAHAWY: I don`t want the majority, whether--

(CROSSTALK)

HAYES: That`s the point. Majoritarian curtailments is part of erecting
what, you know--

(CROSSTALK)

ELTAHAWY: But just to say that the majority of people don`t believe in
women`s rights or Christian rights in Egypt? I would say--

TOOBIN: They don`t? Really? I don`t know, I`m asking as a question.

ELTAHAWY: I don`t even want to know. What I want put into law--

(CROSSTALK)

ELTAHAWY: I want to put into law is that everyone`s right is guaranteed,
just as it is here.

HAYES: You don`t want to know. That in some ways is the principle of
something like the First Amendment.

What you should know for the news week ahead, coming up next.

(COMMERCIAL BREAK)

HAYES: So, what should you know for the week coming up? You should know
that Pennsylvania Judge Robert Simpson has until this Tuesday to decide
whether to block implementation of the new Republican law requiring
citizens to show photo ID`s before they vote. You should know the standard
Simpson has been ordered to apply by the state supreme court is whether the
state has, in fact, made it both free and easy for citizens to get such
ID`s. At a hearing on Thursday, citizens testified they had, in fact, not
been able to get their ID`s freely and easily. And you should know that,
A, that the people disproportionately disenfranchised by these Republicans
laws are disproportionately Democratic, and that, B, the voter fraud these
laws ostensibly prevent does not exist in any significant way.

You should know that campaigning in Ohio this week, Mitt Romney held a
roundtable on the economy, listening to local business owners, presidents
and treasurers. Romney spokesman Rich Gorka told "The Washington Post" the
campaign did not invite workers or even middle managers because they are
not the ones who have to make payroll or hiring decisions.

You may already know that Romney`s biggest claim to leadership is the
office supply company Staples, but you should also know that Romney
originally passed on investing in Staples after getting badly misstated
estimates of how much money is spent on office supplies from business
accountants, lawyers and others.

You should know that when you vote six weeks from now, that some
politicians asking for your vote consider this a transactional exchange.
If you want to be able to even just to contact the person who is supposed
to represent everyone in the district, some of them want you to give them
money first. One of those Republicans is Congressman Todd Akin, now
running against incumbent Missouri Senator Claire McCaskill. Here`s his
recommendation for how constituents can reach him.

(BEGIN VIDEO CLIP)

QUESTIONER: What is the best way to get in touch with a congressman?

REP. TODD AKIN, R-MO.: It sounds a little self-serving to say it, but if
you go out and somebody is working on a campaign and you find out that you
like them, you think they`re a good person, you go help them in their
campaign, that gets their attention. I`ve gone to people and asked for
their support, their help or their endorsement, and, you know, some people
say yes. They write me a decent check. And then oh, I remember that.

(END VIDEO CLIP)

HAYES: You write me a decent check, oh, I remember that. Fact check,
correct, they do remember that.

Finally, you should know the first presidential debate of 2012 is this
Wednesday night. I hope you`ll watch me and the rest of the MSNBC team as
we bring you special coverage of the debate anchored by Rachel Maddow,
starting at 8:00 p.m. Eastern time. But you should also know that for what
appears to be the first time, the Republican and Democratic Parties
Commission on Presidential Debates has told the candidates ahead of time
what the topics will be, including the economy, health care, and the role
of government. But is refusing to tell the public the terms of the debate
as negotiated by the two campaigns in secret. You should know that no
matter how polarized elections are, some things both parties will always
agree on.

Barbara Arnwine from the Lawyers Committee for Civil Rights Under Law is
back with us at the table. I want to find out what my guests think you
should know this week. Jeffrey Toobin, you are up first.

TOOBIN: Every state that has voted on same-sex marriage, had referendums,
has voted it down so far. This year four states will have slightly
different but all essentially referendum on same-sex marriage. Washington
state, Maryland, Minnesota and Maine. And all of them, according to the
polls, could actually pass same-sex marriage, which may have a bigger
impact on the debate than any court decision.

HAYES: We didn`t get to it today, but there`s the very likelihood of the
Defense of Marriage Act coming before the Supreme Court. It`s already been
struck down by an appellate court in Boston as unconstitutional. We may
also get Proposition 8, which has been struck down in California coming
before the Supreme Court as well. So we have possibility of huge gay
marriage judicial issues as well.

TOOBIN: Indeed.

HAYES: Barbara?

ARNWINE: Yes, the Lawyers Committee and the Election Protection Coalition
wants to make sure that voters know that they need to register to vote, and
that voter registration deadlines are going to start closing in at least 10
states on October the 6th. And then the 7th, 8th, 9th, all the way through
October 16th. So people need to get serious right now and make sure to
registered to vote. If you have any questions, call the election
protection hotline. That`s 866-687-8683.

HAYES: We`ll put that up on our website.

ARNWINE: Thank you.

HAYES: Akhil Amar.

AMAR: What you should know is that the conventional wisdom that no one
ever pays any attention to the bottom of the presidential ticket is a
little overstated. This week, we saw some interesting evidence that was
actually featured on your show yesterday that seniors are beginning to move
dramatically toward Obama. There`s a possibility that this is because of
Ryan in a whole bunch of ways. Obama has never been able to close the deal
for seniors. Maybe he looks like a whipper-snapper to them compared to
John McCain or Mitt Romney. But now, with Ryan, who is even younger, and
maybe doesn`t understand the concerns of elder Americans more, we`ve seen
sort of movement. And if so, I think maybe since 1992, actually, the party
-- if Obama were to go on to win, since `92, the party with more sober and
serious vice presidential candidate actually will have maybe prevailed.

HAYES: Very interesting. Mona Eltahawy.

ELTAHAWY: Well, October is Breast Cancer Awareness Month, and seeing that
I`ve become associated with pink now, I encourage everyone watching to
self-exam, self-examine, and get mammograms. And also, seeing that I`ve
somehow been associated with the rabidly anti-Muslim, right-wing "New York
Post," I plan on calling them up and saying, will you come outside, come to
a subway station with me where I will take off my blouse and bare-breasted
demonstration in support of Breast Cancer Awareness Month and in support of
my tattoo of a bare-breasted Egyptian goddess.

HAYES: "New York Post," I hope you`re watching.

(CROSSTALK)

HAYES: I want to thank my guests today, Jeffrey Toobin, author of "The
Oath: The Obama White House and the Supreme Court," you want to definitely
pick that up. Barbara Arnwine from the Lawyers Committee for Civil Rights
Under the Law. Yale law professor Akhil Amar, and Egyptian-American
journalist, Mona Eltahawy. Thank you all. It was a really great
conversation. Thank you for joining us. We`ll be back next weekend.
Saturday and Sunday at 8:00 Eastern time. Our guests will include Joseph
Stiglitz, professor of economics, Columbia University and Nobel laureate
and author of the book, "The Price of Inequality." Coming up next is of
course Melissa Harris-Perry. On today`s "MHP," the big club preview
edition. Melissa`s 10-year-old daughter Parker will make a very special
appearance. You will not want to miss it. That`s "MELISSA HARRIS-PERRY"
coming up next.

Don`t forget, MSNBC`s coverage of the first 2012 presidential debate this
Wednesday, starting with a special edition of "HARDBALL" live from the site
of the debate, Denver, Colorado, at 5:00 Eastern, continuing at 8:00
Eastern with MSNBC`s team coverage, led by Rachel Maddow, along with Chris
Matthews, the Reverend Al Sharpton, Ed Schultz, Lawrence O`Donnell, Steve
Schmidt and yours truly. We`ll see you next weekend with our own coverage
of the debate. You don`t want to miss that, right here on UP.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY
BE UPDATED.
END

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