On Friday September 15, students packed into room 120, filling the classroom to capacity, to hear a discussion between Paul Smith, a noted lawyer, Supreme Court advocate and counsel in Lawrence v. Texas, and John Yoo, a professor of law at UC Berkeley, who authored the Bush administration’s torture memo while working for the Department of Justice.

After brief introductions, Smith began the talk by explaining how the change from the Rehnquist Court to the Roberts Court was not a major change; rather the change from O’Conner to Alito would make the most significant difference and signify where the court will head in the future. Before, Smith stated, an advocate trying to convince the court knew there was always two justices that might contribute the necessary fifth vote: O’Conner and Kennedy. That number is now one, and the question about where Kennedy will fall on critical cases now becomes a concern to any lawyer hoping to win a case on a major issue.

Turning to the topic of progressive views on the law, Smith explained that the major factor always centered upon individual rights, with the major point of difference being how aggressively to read and enforce the rights articulated in the Constitution. This encompasses ideas such as the evolutionary nature of the Constitution and individual rights, as well as the use of substantive due process to expand and articulate individual rights. Substantive due process, said Smith, is law not based on the text of the Constitution; rather, substantive rights are read into the constitution.