Transcripts For CSPAN Discussion On The 2014-2015 Supreme Court Term 20240622

Two more questions. In iraq, you recall off the top of your head granted the focus is about afghanistan the number of beds and desks built versus occupied . Do you have that number or is that something you can provide this committee . I think that is something we can provide. I hope its not a difficult ask. And i hope we can get it sooner than later. The last question on cyber security. Are you aware of any Network Disruptions or intrusions at the state department that have affected obo . Intrusions at the state we have had network intrusions. They have not affected any of our data bases. And o. B. O. Was not affected. They affected our emails but did not affect our data bases or systems. Is there any indication that any systems about embassies was compromised or hacked into . Im not aware of any information to that point. Nothing regarding your department . Not that i know of. We could go back and look and ask the appropriate people. But im not sure what youre referring to. Sir, through the years and im going back quite a ways there were incidents where some documents were improperly handled, security violations were handed out and procedures were improved. I dont believe theres been any cyber intrusions into this. Its just over the last 12 months obviously weve had a number of issues and incidents. And some very high profile intrusions where on a regular basis going to be asking departments and agencies if thats being affected them in any way shape or form. Its sort of a general question that were going to be asking. Its been a long hearing. Thank you for your time. We do appreciate it. A lot of good men and women do a lot of good service. They care about their country working hard please we know and appreciate this. This is part of the process in the United States of america. Its what makes our country great. Thats why our founders in their wisdom set this up this way. Thats our role and responsibility under the constitution and were going to fulfill it. We appreciate your doing your jobs and again we thank you again for your time. This committee stands adjourned. [captioning performed by national captioning institute] [captions Copyright National cable satellite corp. 2015] he has argued several cases in front of the high court including this past term kmplet v. Burwell. To his left is john. John argued two cases this past term. John is a partner at vincent and elkance where he specializes in pale lant litigation. Prior to joining them he served in a number of significant positions including an assistant solicitor general and deputy. While at dorge john received several awards. John also dorge john received several awards. John also clerked for judge Daniel Mahoney and Anthony Kennedy on the Supreme Court. To johns left is andy who argued the williams versus florida bar case. And his partner where he focuses on appellate litigation and advocacy for congress other regulatory ages regarding a variety of policy issues. During the Reagan Administration burwell. Served as a assis nt solicitor general and clinton as general counsel. Andy also a cofounder and codirector of the yale law schools Supreme Court advocacy clinic. Gentlemen, lets get right into it. John, let me start with you. Lets talk in 1993 as they frequently would ignore conflicts or try to paint them as consistent overrule. They frequently would ignore conflicts or try to paint them as consistent with the prior case law. But here they said is due process requires courts to require reasoned judgment and interest of the persons so fundamental to the state to accord them respect. I think this is one of the biggest things about it is that it really decoupled it from historical tradition or deemphasized that. Here is the new favorite paragraph of the living constitution crowd. The generations that wrote and ratified the bill of rights and the 14th amendment did not presume to know the extent of the freedom and all its dimensions so it entrusted protecting the right of all persons to enjoy liberty. And of course what we mean by learning its meaning, who is learning it matters is any five justices of the Supreme Court. Moving on, i think the third significant thing about it is that what does this mean for sort of religious liberty . And even though Justice Kennedy himself put some language in there suggesting that we would have to respect religious liberty and all that, you know, im sure most of you are aware that argument when the solicitor general was asked a question about that, and whabt say religious institutions that have that dont recognize same sex relationships what does it mean for tax purposes . He said there was a real question about that. So this is i think the next sort of battle groupped be very interesting to see what happens. Even though Justice Kennedy he feels like it is moored enough hes not worried about what this will be used for. Justice owe conner famously a fan of lucy goosey standards, has not been happy with what has happened with the application and she left the court. And Justice Kennedy i dont say the this through insider information, what hes written in cases has been displeased with the casey standard in this application that it was applied more liberally than he would have liked when he was working on that joint opinion in that case. So its a very interesting opinion. I think that it is significant ance in the future will be less for its immediate holding because the same sex marriage had wind at their backs. Anything to add . Well, i would just say a couple of things. May not be a coincidence that im on the left end of the panel. I do think i agree that i think the treatment and the paragraph he read are important parts of the opinion. And i think the boldest step that Justice Kennedy has taken in that direction. Whats interesting is that in that paragraph, in the parts of the opinion that preceded, he does try to root that a little bit whats interesting in originalism. And i think the opinion has amplified a conflict that was out there in the world of scholarship, which is what was original intent . The sort of classic view is original intent means what were the framers views that each of these rights were and the words they wrote. Sort of evolving, i would say on the more Progressive Side on the spectrum the view of original intent was actually the framers view was they were familiar with common law courts writing broad concept but saw this as a common law kind of authority would evolve with all of the many constraints in their time limited how the common law could evolve. So i think youre going to see a lot of an increased battle to sort of defend and attack the Justice Kennedy approach and now a majority of the courts approach on that originalism grounds. Well, andy, lets turn to a totally different area. So congress and the president faced off this past term in a case involving israel. Talk about that case. From an issue highly litigated in the courts same sex marriage and lgbt rights to issues that never get litigated in the courts, how the Foreign Affairs powers divided between the president and congress, you know, and john know from their times, this is an area of law where theres lots of learning based on opinions and the posturing of congress and the executive branch. But these debates very rarely get into court but this one did. Theres a federal statute passed during the george w. Bush administration that allows citizens to list israel. The Obama Administration refused to enforce that statute on the grounds that their constitutional power over Foreign Affairs rendered that statute null and void. Three years ago. So a young person born in jerusalem said he wanted israel on his pass port commenced litigate. It went to the court three years ago on whether this was a political question and the court said no. And directed the d. C. Circuit to decide it on the merits. Some people thought gee maybe the court was depriving itself of an escape valve if and when the merits issue came back and looked like it was going to be hard they wouldnt be able to use the political question if they concluded that it would have been desireable. And certainly if the argument there seems to be a lot of disconcerting noises that they were being forced to decide something that had a lot of Foreign Affairs and political visibility because obviously from the administration both administrations perspective taking sides on who owns jerusalem and who controls jerusalem is a loaded question. The court did address the merits and held that the administration was right 63. Justice kennedy again writing for the majority, Justice Thomas concurg separately for the most part, and the chief Justice Scalia and alito in dissent. Just to give a little background because i think people are less familiar than same sex marriage. The framework for deciding was set by Justice Jackson in the case in the 50s. He basically said there are three ways this can rise. When the president congress are on the same want the same thing the president s power is strongest. When the president is acting alone but congress hasnt done anything, the president has some authority. Sort of murky middle. When the president is acting contrary to a congressional enactment then its the hardest time for the president s power to be upheld. And only if the president s power is exclusive or conclusive. Will the president prevail over a contrary direction of congress. And it had been thought that in that third category the president would lose although some of this sort of llc and learn and history has the president facing down Congress Successfully in the political context. But the court said here its for the president alone to make the decisions of what foreign powers to recognize. And he cant be forced to contradict those decisions with some formal document. And the court said the passport is a formal government document. So saying jerusalem israel would contradict the president s determination that it was not appropriate for america to recognize either power. So a victory for the administration on the particular issue when this particular issue of recognition. But the administration also in the kennedy opinions at least suffered a bit of a defeat. Theres an old opinion that dealt with the context in which congress had authorized the president to do something. So the first category where the president s authority is strongest. But that opinion had some very Strong Language about the president s Foreign Affairs power that the Justice Department quoted in a lot of context to say that the president had broad power Even Without Congress enactment. And Justice Kennedy basically cuts the legs out that says there is that language but remember this was a case in category 1. So the administration, the future administrations ability to rely on that very broad language which just in case people are curious says the president is the sole organ of the nation on external relations and sole representative quoting chief the president is the Justice Marshall when he was in the house of representatives. So that whole argument goes away. Although the administration won this battle, one of its major weapons has been eliminated for future disputes with this battle, one of its major weapons has been eliminated for future disputes with congress. The other thing i would say about the opinion thats interesting is that it relies again on history. And to my mind its actually quite similar to last terms opinion in its structure which is to first start with the text and history of the constitutional provision but rely quite a bit on history and to see whether history dictated a different conclusion. Interestingly, although Justice Breyer joined in Justice Kennedys opinion he joined separately to say this was a political question. But you sort of wonder whether Justice Breyers sort of influence, which seemed to be there certainly in null canning was also at work in sort of moving the majority to the place they got. Justice thomas concurrence was even more pro executive. He basically said the way i interpret the constitution, then its the president. So very, very broad view of the executives authority. And surprisingly the dissenters, all three people who worked for quite a while in the executive branch either in the office of Legal Counsel or the White House Counsels Office or for some of them in two of those places, took a very harsh view of the majoritys role the chief justice said First Time Ever that the president has been permitted to defy a statute. And so you see a real division on the courts as in null canning on the scope of executive authority and how to reconcile these conflicting claims in the Foreign Affairs area. Again, we dont see a lot of cases so its hard to say this is going to spawn a lot of liltzpwation. It probably wont. But interesting to see how the alignments shake out. Mike, as you know, obamacare was before the court again this term. In our discussions leading up to this event you saw some connections between that case and the Texas Department of housing. I think what they have in common is a huge retrenchment on the notion that the judiciary is supposed to interpret statutes and not rewrite them. I want to discuss the case. But before i do that i want to talk to you about my experiences in law school in getting at this issue. A, because my favorite topic is talking about myself. But more importantly really i think what you saw is a huge step backwards and i think you need to understand the context. I started law school in 1979. There was a case back then called Steel Workers versus weber which involved the 1964 Civil Rights Act. Weber was subjected to a quota by his employer. He was a white person. And enforced on them by the department of labors office. So he went in to court and said look ive read the statute. It says you cant deny an Employment Opportunity to quote any individual because of race. Im an individual. Therefore, the claim meaning the statute means you cant discriminate against me because of my skin color. To which the majority of the court said, were not going to allow a couple of words in the statute to be interpreted literally to defeat the overall purpose of the statute. The overall purpose of the Civil Rights Act to help minorities. So were going to help and lets face it, quotas a discriminatory process so were going to ignore and look at the overall congressional purpose. So you lose. Justice rehnquist wrote a very famous dissent which started off by saying this decision was in 1979 but would have been more appropriately written in 1984 because the courts activity here is quite orwe willian. Big brother has told the pop lass that words have no meaning in fact they mean the opposite of what they say. So at that point i sort of got interested in this whole question of how youre supposed to go about interpreting statutes. I read another title 7 case called grigs which is directly relevant to the texas case. And there again, the operatives language of the statute is you cant discriminate against any individual because of race or sex or other prohibited criteria. And it was undisputed that the plaintiff on that case had not been treated any differently he had been treated precisely the same therefore not differently because of race. Again, a straightforward plain language meaning you have been discriminated against because of race you shouldnt have a claim. In fact, the Supreme Court uses the race because of race. When it tries to describe what they mean by intentional discrimination. They said theyve taken an adverse action because of the prohinted criteria. To which a Supreme Court unanimously ignored the plain language of the statute in fact it never cite it had statute except in a footnote and said again look the broader purpose of this statute is to help minorities. We want to help them even if theyve been treated the same if theres a statistical impact because of a neutral procedure so were going to outlaw those neutral procedures that have a statistical impact unless of course the employer can show a business necessity for pursuing this nondiscriminatory thing that has a statistical impact. The business necessity standard of course was made out of whole cloth because nobody in congress had ever thought of having a defense to treating people equally since they didnt think treating people equally would in any way cause a problem. And they certainly didnt think of disparate impact as discrimination because they wouldnt have said if you can show that discriminating is ok or necessary then well allow you to do it. So juss to sum up what i learned by reading those two cases, which is you had a seminal probably most important piece of legislation in American History necessary then well which said quite clearly you cant discriminate because of race. The eeoc in a very deliberate effort which is chronicled in the texas case, and some members of the Supreme Court, decided they didnt like the decision that they had made about banning discrimination against any people on the basis of race so they changed the statute to say you certainly can discriminate against nonminority individuals on the basis of race. And indeed under this test you must do it. An effect test is a quota. Theres no difference between saying you must hire in proportion to the availability of minorities in the work fors saying if you dont hire in proportion that has a prohibitive discriminatory effect. So what you see is in the course of two opinions changing the law that says all american citizens will be treated equallien into one that says only favored groups. And this right to individual equal treatment has now been turned into a group right of proportional representation again absent some business necessity. So it struck me that that was a groveg grotesque law that doesnt reflect our notion of popular sovereignty and that words have meaning. And i thought with respect to statutes the court had gone a long way towards abandoning this sort of judicial revision of statutes to impose the judiciarys policy to views over that of enacted law. And that was true until june 25 of this year when we had these two companion decisions that came down. King is precisely exactly like weber. The majority opinion said look, you cant look at four words in isolation and give them their natural meaning because the broader purpose of the statute was to give subsidies to court. The precise facts in king were as follows. The statute in the only provision the statute dealing with sbidi said for purchases made off an exchange under section 1311 of the statute. The question was what if you made an exchange off of an exchange established by the federal government under 13 21 does that qualify . In other words does state mean state . Which is not a complicated question for the nonjudicial mind. But certainly was one that befuddled six members of the Supreme Court. And they analyzed it in precisely the way that they had done in weber. They had said well, listen, the broader purposes was to provide a lot of subsidies and were not going to be if you haddy dudies that worry about particular language or worry about what congress has done. Im not going to walk you through the ways the majority opinion violated the rule of law. No objective observer can read that dissent and think that what the majority was doing could possibly be interpretation. Ill make three general points in addition to what Justice Scalia pointed out. The first thing to notice is the majority did agree that this was not a case of chevron deference. The reason was because they hadnt delegated this issue to the i. R. S. Congress itself had spoken to this question itself. Press sicely it made a conscious decision on whether subsidies should be available on federal exchanges. So the premise of the statute the premise of the opinion is that congress made this decision. And congress made a conscious decision to say you will have subsidies on exchanges established by the federal government by writing the words you will have subsidies on exchanges established by the state. In other words, congress made a decision and said precisely the opposite of what it meant. You can review the majority opinion to get some sense of some explanation of why people intent on having subsidies on federal exchanges would have said precisely the opposite. The immediate explanation is this has been a big mistake and nobody knew it and we certainly didnt intend this. But nobody can explain well what did you intend when you wrote this language . And if you didnt intend to limit subsidies through exchanges established by the state why in the world would you use that formulation . The majority opinion is notably silent on that question. The next point is look theres ambiguity about the words exchanges established by the state. Theres no ambiguity in the relevant provision. They didnt pretend that there was any anomaly or incongrute about interpreting the language. But they went roaming through the Affordable Care act and they found some inartful language in this seamless web of legislative draftsmanship in an entirely different provision the qualified individuals provision. They said theres an an omly here and were going to transport this back to the issue in this case. The notion of having anomalies on the qualified individuals provision is in the famous words of Justice Scalia pure apple sauce but i dont care if there was an anomaly why would you transport it over to the subsidy provision which was at issue . That makes no sense. You dont have tobacco my word for that because the majority opinion dropped the footnote just because we said exchanges established by the state doesnt mean it in this provision. These dont really tell you that much. So what they were saying is you cant look at other provisions to figure out what it says in the opinion that were going to look at what it said. The net result of this is if you can find an anomaly anywhere in the Affordable Care act you can rewrite the specific provision at issue. Finding anomalies in the Affordable Care act is not a terribly daunting burden. So theyve taken this legislative masterpiece and now made it so the judiciary literally has free reinto do whatever they want. My final point is this is not a debate about people who think you should look at words in isolation take them out, and not understand the purpose of the statute. We couldnt have emphasized more that we absolutely positively want you to look at these words in the context of the statute because context makes it clear they mean precisely what they said. Context makes it clear that the only provision that dealt with subsidies for exchanges were the two provisions at issue. Which completely belies the majority opinion notion that this was a strange place to put this limitation in. Context makes clear section 1311 says in the strongest possible terms that Congress Wants states to run this exchange. So 36 b tells you what they did which is limit subsidies to the state exchange and 1311 tells you why they did it because they needed to invent veist to take this that they couldnt not force upon them. I could go on. The rest shows ithat they didnt mean states be synonym for federal because for territories they had a provision that said you will treat this as a state exchange which is not found in this provision. Not debate about whether you look at context. The purpose is debate about whether or not you created policy can trump the purpose that you find in the statute and thats clearly what the majority opinion did. Again, read the majority opinion and find out they said the broader purpose was subsidies. We will have subsidies wherever we want. That was a key decision that congress made and they wanted them on federal exchanges. Please read the opinion and see if you see anything in the statute that reflects this purchase, anything in the committee reports. Anything in the legislative history where somebody said yes we want subsidies on federal exchanges. You wont find it. They cite to a twloff of ameekcuss briefs but you wont see anything. The other thing you wont see is any explanation of how this doesnt completely defeat these textually stated purpose. Which again is that states will run the exchange. The majority opinion doesnt try and pretend that their view that subsidies will be available wont dramatically undermine congress effort to have states run the exchanges because there will absolutely be no incentives for states to undertake this thankless task. So again, we return full circle. And as Justice Rehnquist said, this is orwellian because what it is doing is using descriptions of congressional purposes to high level of generality that they dont really reflect anything other than the judicial policy choice which is going to trump the statute. And the key point in both cases of course is theres no such thing as a congressional purpose thats contrary to the text of the statute. Thats an oxymoron. The text is the purpose of the statute. If you look beyond the text, then youre not invoking anything that congress enacted through the constitutional process. Youre looking at the judges own views of what they think is good policy. We think its good policy to help minorities. Congress wanted to help minorities but they had decided to do it in a way where you didnt discriminate against nonminorities. So youve change it had congressional purpose. Congress did want subsidies for exchanges but it also wanted Something Else. It wanted states to run exchanges which is why it conditioned it. The majority said this would destroy the statute. They conditioned medicaid on the states doing something in the ac afrpblt nobody disputes that they really wanted medicaid to go to hopelessly poor people very much more than the ones receiving the subsidy for needed health care. But they conditioned it because they wanted to induce the states to take additional action. Precisely the same analysis applies here and the judicial override of the important compromise is reflected in king. So we have got to a stage where they are literally we had a revolution about no taxation without representation which of course meant were not going to subject ourselves to taxes or budgetary issues unless its done by people who the populous controls through elections and can have some accountedability for. Nonetheless they have imposed tax regime and employer mandate regime and theyve imposed tax credits which were never enacted by our representative government. I know ive been going on long. Ill discuss texas briefly because frankly the point merits brief discussion. Again, this involves title 8 which is enacted in 196 four years after the 1964 Civil Rights Act and it says you cant in housing deni housing or discriminate because of race and the other prohibited criteria. And texas came in and the dissent said because of race means you need to treat these people differently because of their race. Thats the english language. The majoritys complete response to that was, yeah, but greek said different. And thats ok. Except grigs was done in 1971 so people in congress in 1968 probably didnt know that because it no longer meant because of grigs never discussed the words because of. And the notion the fact that they had somehow distorted title 7 to mean the opposite of what it said hardly provides a basis for distorting title 8g the Fair Housing Act to do precisely the same thing. So as i say in light of these two opinions weve rurpped full circle to an analysis that i really thought was a vestage of the 1970s which is judges will cite some madge steerl purposes redo the text of the statute and engage Justice Rehnquist said in a an or wellian enterprise to rewrite laws that went through the democratic process by people who were elect bid the people and therefore accountable to the people if they make mistakes. And im just going to spend a minute on this because i know when you talk about the rule of law oh youre just being a fuddy duddy and worried about statutory language and stuff. This is really the essence of popular sovereignty. If the judiciary undoes the legislative language and the commo promises eistuesurpped the legislative function and therefore made five unelected lawyers in washington, d. C. Establish National Policy in contra vention of what the elected representatives have done. And that of course as madison said the definition of tyranny. But i think the other thing that it does is not only uesurps the legislative role it completely per verts the judicial role. The judiciary in our system has to be the notion that if you play by the rules, you read the laws and you can form your behavior to those laws the state has no ability to come at you. But if the judiciary is just another policy making body where you have to reargue the therefore made five same policy that went into whatever legislation was enacted then you cant fight city hall. Then there is no way to get beyond the political system and be treated fairly and equally on the merits because the judiciary is just another stop along the legislative process and another group of people who are going to decide the case not on the merits of whether or not you have violated something thats in the law but whether or not they think youre a nice guy or too powerful a corporation. At the end going to decide the of the day, that of course converts the judiciary into something where they dont do the protections that they were entitled to do and become just another branch of the legislative arm. Not obble per verts the judicial role. It engenders complete disrespect of the court which is why whenever you hear debates about opinions or confirmation hearings the argument is solely about the policy results the justice will produce or not produce rather than whether or not his approach of the law is consistent with the separation of powers. Thats why june 25th 2015, was a very sad orwellian day in the Supreme Courts Juris Prudence. Will it happen Going Forward . I think theyll ignore it when its convenient and Pay Attention when this they want to do it. But the enshrined view is from now on the law is not were not a nation of laws. Were a nation of judges. This is a rule of judges. And you have to appeal to their policy preferences. Not to the legal materials that should form their judgment. So a gigantic step backwards in terms of the rule aflaw. I knew there was a risk that we would not get to all the cases i wanted to discuss but lets say we can get a couple more in and hopefully time for a couple of questions. So john, lets turn back to you. So the court decided in a number of significant criminal law cases this having to do with the Death Penalty and Fourth Amendment and cases having to do with mens rea requirements including one of the cases which you argued. Talk about that. Anthony alonice was a 27yearold working at a park when his wife of seven years dumped him and took their two kids. Being an american he thought this was something if theres something worth saying its worth sharing with everyone on earth. So every thought he had on the subject he posted to facebook. Some of the things were styled as rap music. And they were said enough bad things about his wife that she went out and got a protection from abuse letter, which is sort of a tro. And he kept it up although personally i could see that there was a slightly more restrained tone. Not everyone shares that view. And eventually he started talking about he covered every subject. He wrote a thing about shooting up a kindergarten which believe it or not he got a light on that. From which i took as an indication that people knew he meant it nonliterally. He said bad things about the local police. And eventually he said bad things about the f. B. I. Officer who came to arrest him. That is the one thing you must not do. So he was arrested. And tried for that. He was prosecuted under the prevailing view nine of the circuits had adopted a view that was as the court went on to recognize it, a negligent standard where if you Say Something that a reasonable person would view as a threat, that is a felony. And it doesnt matter whether you thought it was a threat or not. In fact, the prosecutor said in the closing statement it doesnt matter what he thinks. Which i was i made a point of saying that about 50 times in our brief and the chief justice who wrote the opinion voting finding for my client on an 81 basis he quoted back to us and i found it somewhat gratifying. So now im going to repeat everything 50 times in briefs. But the court, it was interesting. The case was lit gated on a constitutional basis in the District Court saying the Supreme Court read that the constitution required that it be a standard higher than intelligence. They argued you have to have an intent to do an intent under the pree code a very messy thing it can mean a purpose, and it can also mean you Say Something that you know the person will take as a threat and even if you dont mean it you say go ahead and say it anyway. And it was basically a constitutional issue whether its going to be an intent standard or negligent standard. And that because that was the only issue that had been based below that was petitioned on. As it happened on the yale clinic had petitioned earlier both on a constitutional basis and a statutory argument which was not strictly all that preserved in our case. And we didnt want to raise it because even though we desperately wanted to have the statutory argument because we figured that it wasnt preserved and used as a way to get our petition. But the court added the statutory argument to the questions presented. So we presented a constitutional argument. They add add statutory argument. We went to the oral argument. All the time was spent on the constitutional issue not a lot of time spent on the startry argument. So of course the court decided on a statutory basis. But the you know, all of the cases had always been choice between the existing negligence standard or the negligence standard and some form of intent. And we got like a couple of questions argument from Justice Kagen and maybe a followup question about a recklessness standard which really hadnt been developed much in the law. And so low and behold, all the court wound up doing was saying not negligence. The negligence standard isnt enough for purposes of the statute. You have to have some sort of intent. And they didnt say exactly what it was and wouldnt cross recklessness off the list. And this case took the third longest to decide. It was out and pending the third longest. And when its an 81 decision with kind of a longish concurrence from Justice Alito and a dissent from Justice Thomas, you figure that Something Else happened there. I presume that there was a danger of it being 441 on recklessness grounds. So among the things that i would like to live long enough to figure out whenever the papers of this court are released i will not live long enough to see justice suiters papers is i would be very interested to see what was going on because my prediction was that there was enough interest in a recklessness standard that the chief thought he couldnt get five votes for something. But there was at least eight votes for not negligence. And now it goes back down to the Third Circuit for additional additional harmless error analysis. And Justice Alito who i view as being hes kind of like the conservative Justice Ginsburg. Most of the justices are happy to answer the question in front of them and ignore the case from then on. But Justice Ginsburg would like to say congress ought to overrule this and alito likes to write the brief for the u. S. Attorney on remand. He did a very good job about how this issue essentially wasnt preserved and how it wasnt harmless error and all that stuff. So it will be very interesting to see what happens on remand. Thanks. I do think john that between the cases that the court was at least sending a signal that intent does matter. It can be enough serious crime that it does matter. And congratulations on that win. Andy, you also argued a very important First Amendment case involving judicial elections the williams case. Could you talk about that . Sure. Many states, and sflea is one, elected judges have a rule that says that candidates, whether incumbents or not, cant personally solicit Campaign Contributions even though they need Campaign Contributions to run campaigns. They have to find a committee of people who are the solicit Campaign Contributions even though they need Campaign Contributions to run campaigns. They have to find a committee of people who are the solicitors and they can solicit. However, in florida, the judge can be the treasurer of his or her committee. And therefore know who gives. And can write thank you notes actually to contributors. But you cant ask. And florida and many other states contrue this no solicitation rule not just to ban personal in person one to one or similar solicitations but in this plash case my client was sanctioned for sending a mass mailing that asked for contributions in addition to explaining why she was running for Judicial Office and for then posting that letter on her campaign website. That both of those things were personal solicitation according to the florida bar. There was a conflict among the lower courts based on the Supreme Courts Campaign Finance Juris Prudence which im sure people are familiar with about whether that ban on speech was constitutional. And the Court Granted the case and in a tough, i would say, 54 opinion, tough for my client but also sort of sharply split the court the chief justice wrote an opinion saying well yes this is limitation on speech and it is a contentbased limitation on speech because the ban relates to the content whether youre asking for money, but this is the rare limit on speech that satisfies strict scrutiny. And i think most impartial observers of which im not one who have read the opinion concluded that this was a variant of strict scrutiny that people havent seen before. Call it not very strict scrutiny. And i think what was clear is that the four justices who have generally been in dissent at almost all of the Campaign Finance decisions and therefore were happy to join the chief justice joined him in saying essentially judges are different. And we have to worry about the integrity of the judiciary and it would be very demeaning and bad for judges to have to actually ask for contributions from their supporters. And this other system is much better. Theres an important state interest. And the fact that the judges are actually going to know about that contributions and judicial can thank people doesnt matter. My view and we said this in oral argument, that in addition to sort of technical First Amendment reasons there were two Important Reasons why it didnt stand up. One was it sort of a sham. I mean the state is basically saying were going to trick people into thinking that judges arent involve in the contribution solicitation system but they know all about it. Were just going to make it appear that they dont. And the second thing which Justice Scalia mentioned in his dissent was that this is actually a rule that favors establishment judge candidates. Fw youre a member of the establishment in your town its not going to be hard to find some prominent lawyers that will be on your committee and can effectively go out and get contributions for you. But if youre an upstart and you dont youre not that well connected, you may need the personal touch to actually get people to understand why youre running and why your campaign is important. And so this is a rule which by the way was prop gated by the american bar association, is really a rule about the judicial establishment as much as anything else. What this case shows and the two other First Amendment cases, that also which were 54, is that context increasingly matters in the courts First Amendment Juris Prudence. Which were the other two . One was the confederate license plate walker in which the First Amendment side also lost. Also 54. And i think many people believe that the argument was on the license plate is that government speech or the speech of the person whose car it is . And which box you put it in was dispositive. Many people believe this is probably a hybrid but the court put it in the government speech box because that gave the government a lot of power over what messages they could be and not. And then the third case, the town of i was going to say gilbert or town of reed case was the case about municipal signs. Thats the First Amendment side won 54. And again contentbased speech. There, the court did apply strict scrutiny and struck down a signed ordinance that had all kinds of duration and size whether it was an ideological sign or political sign or commercial sign or directional sign and the court said that strict scrutiny applies and failed. And there, the context was a church that it was pretty clear from the record was being persecuted by this town. As soon as the church would find a way to get its signs up miraculously the ordinance would change and the churchs signs would become eillicit. So in all three cases worrying about government power to regulate signs regulate license plate programs, and sort of sign ordinance where analysis came later. Just very quickly. I fully agree it is all about context. In your case i would prefer what you just said judges are different. How can you possibly have a compelling interest. I assume that will get sorted out somewhere. But this is a situation where i wish the court had been a little more candid about its nots really strict scrutiny because some naive lower federal courts might actually apply it. Although the d. C. Circuit case is sharply limited to the contributions to the campaign committeings and party committeings and doesnt address what the First Amendment rules. A case about banning contributions which was upheld. But the court which takes great pains to say we have no issue before us about independent expenditures or even contributions which i think would almost certainly have a different outcome because the Legal Standard that the d. C. Circuit applied was not strict scrutiny it was sort of watered down scrutiny that had been applied. I would certainly risk incurring the wrath of our audience. Lets take a question. Here. Here. Thank you. Third year law student at university of chicago. Im curious about the texas license plate case and implications of that. Yesterday a District Court held that trademark registration process was also government speech. And what kinds of expansions of things that we think should be maybe content neutral become government speech that was a case about the red skins trademark being stripped away because it sort of offensive to some people. And im curious about your thoughts on that. I think theres a key distinction between government speaking and government giving its i am premat tour or editing. In the trademark context the public billboard context, if you have things on Public Transportation i thought the law was pretty clear before that recent decision that look if the governments not speaking, if its editing private voices it can engage in viewpoint discrimination. Theres no way to think, they were renting out space on these public license plate for you to invoke your own message. Justice alito made clear flt therefore they were acting as an etor. If an editor is sense rg it could have serious ram ifications in these other contexts. I think the law frankly has been a bit all over the place to begin with. I think it will be used by those who dont really like the notion that people can complain about viewpoint discrimination invoking their principals theyll use this case to uphold those kinds of restrictions. There was a recent case out of new york that essentially did the same thing. The tricky part about viewpoint discrimination that gets people upset is obviously if the viewpoint discrimination is both vote for republicans but say you cant vote for democrats thats not a problem. Where people get wrapped around a bit is say gee dont do drugs would it be viewpoint discrimination to ban thing that is advocate the use of drugs outside of colorado that would probably not be viewed as strong bubba policy so people get worried about the implications from that perspective. I think the trademark context its hard to tell at least the license plate is a physical government thing that the government produces. I think it will be awfully hard to transfer that principal over to the trademark context, which its true, gives you Legal Protection for something but its not something thats really embodied in any government anything. [captioning performed by national captioning institute] [captions Copyright National cable satellite corp. 2015] captioning performed by the national captioning institute, which is responsible for its caption contents and accuracy. Visit ncicap. Org were fortunate to have with us today and thank them for joining us. I will keep their spro introductions very brief. Jeff covers the Supreme Court for the wall street journal after early postings as United Nations correspondent. He is the author the book terror court an Award Winning book about courts at guantanamo. Wrote for Washington Post Harpers Bazaar evaluated scripts for hollywood talent agencies. Taught at the university of california Washington Center and held the senior memral lectureship in law at the university of new mexico. Graduate of Harvard College and university of california berkeley law school. Adam is the Supreme Court correspondent for the New York Times began covering the court in 2008 and also written a column side bar on developments in the law since 2007. Adam joined the New York Times as a copy boy after graduating from yale. He returned to receive his law degree and practiced at one of the premier First Amendment law firms. He returned and spent a decade obdefamation. He taught media law at the Columbia University school ouf journalism and ucla and yale law school. His work has appeared in new yorker van tier fair, Rolling Stone and leading law reviews. Mark has covered since 2006, a tenure coin sided with big changes in the courts membership and lark decisions on gay marriage, health care, gun rights and Campaign Finance. He has previously written about the Justice Department in more than 25 years as a reporter. Before joining the ap marked worked for the Atlanta Journal constitution a graduate of prince ton university. First i want to start with you picking up on the discussion at the end of the last panel about the First Amendment. Looking at the Confederate Flag case and sign regulation out of arizona why the judgment was unanimous whereas the court was split 54 in the other and what trends do you see . You see a couple things broad level of generality. One is that free speech these days is a conservative value. The other is that the liberals on the court in these and other cases tend to vote as a block. And when they can pick off one of the members of the more conservative side they achief a victory about the Confederate Flag case i guess you can say this. It came out the morning after the charleston shootings. It would have put the court in an awkward position had it come out the other way. But its also a very blunt instrument to categorize 300 different texas license plates that say things like i would rather be golfing or that advertise burger joints as government speech. And its got a Justice Breyer quality of were going to declare this government speech and move along theres notsing to see here. I dont know how pernicious the consequences are but as a matter of First Amendment doctrine its a little troubling. The other two cases simultaneously expand the rem of strict scrutiny and then as andy was saying cheapen the brand by making strict scrutiny something other than strict. It was unanimous as to the result as elizabeth said but three of the liberal justices led by Justice Kagen who has written a lot about content discrimination including an influential article objected to what she perceived to be a very sweeping statement from Justice Thomas saying that all content regulation immediately triggers strict scrutiny. She was of the view that this was an easy case. If youre going to treat church signs differently from political signs you dont need strict scrutiny. You need the laugh test. It doesnt pass the laugh test you dont need to make these. But these could be part of a project and you see this as the citation that everything gets all content based regulation gets strict scrutiny as Justice Thomas project to expand from the realm of political speech to commercial speech. And citation for the proposition was the pharmaceutical marketing case. So on the one hand we have a decision which very aggressively expands the realm of strict scrutiny but then you see it in action as andy was saying where under no conceiveable rational system can this be this particular regulation, whatever compelling interest or not, can this be said to be narrowly tailored to advance that interest its have very opposite. And yet up you have the four liberals picking up the vote and the pen of the chief justice who writes this opinion has only been i think one other majority opinion where under First Amendment strict scrutiny law was struck down. It does seem to be when Justice Thomas still spoke some comments he made about cross burning from the bench that he might in this particular case join the four liberals which is not a configuration you see very often. I think i wasnt here when we had the crossburning case either but i do think it would have been helpful if Justice Thomas had written a concurrence given us some insight as why he saw this being different from many of the other free speech cases that he has taken positions on. Were seeing the same thing across the street at the capital which is a much broader skepticism of the tough on crime approach that the states and the Congress Took in the 1980s whose ramifications particularly with very long sentences and three strikes youre out lifetime sentences are being felt now. I mean, on capitol hill we see bipartisan efforts to reexamine some of those policies. And at the court were seeing particularly when they have to judge for instance which sorts of offenses trigger a sentence enhancement, which sorts of offenses trigger automatic deportation, the court has been more and more siding with the individual against the government and against prosecutors. The dog sniff case falls into a general pattern of mild resurrection of the Fourth Amendment weve seen in a number of cases around where the court has been willing to establish somewhat greater standards after essentially paying very low regard to its requirement in particular in vehicular police encounters. Not always, as we saw with the brake light case earlier in the year, where there was a mistake of law issue from north carolina, whether a car needed one or two working brake lights to qualify. And the court agreed with the police thalt law was sufficiently ambiguous that the policemans mistake that one broken brake light was enough to juss if i a stop that mistake of law was not fatal to the traffic stop. So its not always that theyre ruling for the defendant. But it does seem that we are seeing it in the patel case the hotel registry case its interesting this has never come up before. A case from los angeles saying that a condition of having an innkeeper license everyone knows the signs old inns of los angeles where you ride your horse and see if they have a room. The inkeepers license requires maintaining a Hotel Register in which every guest has to identify themselves and put in certain information. And most significantly, that register is available at any time for inspection by Police Officer for any or no reason. The police tended to use that to go for what they called parking meter hotels, you know, hotels that might be renting rooms by the hour, for short periods, in South Central l. A. And the they said they were using this power to deter crime and fight Human Trafficking and other things that might that shady people might want to use. These low rent hotels for hotel owners, mainly family owned type Small Businesses complained the police were harassing them. And maybe they had good crime controls reason bus these were not big places with a lot of staff. And the police showing up and waking up the owner to look at the registry without any specific suspicion was just too much. Anyway, the court agreed that in order to get access to those registers the police need something. They dont nevadaly need a full search warrent by a subpoena something other than a whim. Something that allows a the innkeeper to fight the request if he wants to and get a neutral hearing. So the court again pushing back lail bit. I dont know if that is directly a look at the directly a critique of the general criminal justice system, but it does reflect a renewed interest in Fourth Amendment i think protections. Thats one of those cases though, where a couple of terms ago we had the maryland v. King case. Fourth amendment case about whether police could basically take a dna samplele from people they arrested not just people that hadnt been convicted. And the court there said that was ok. Justice kagen said thats what the majority is upset about. Im upset. I dont think i can rewrite the statute. But theres a dissent there. Also i think on two different occasions the chief justice asked the question along these lines. A 20year sentence for what . The power that gives to prosecutors to force a plea bargain from an innocent person is unacceptable. And the language doesnt turn up in the opinion but you can see its on their minds. Thats a very remarkable turn around for the chief justice personally. Because in 1993, after he left his job as a Principal Deputy solicitor general he actually wrote an op ed for my newspaper warning or at least discussing the very aggressive position the First Bush Administration took in helping states fight off criminal defendants who had these incredibly highpowered attorneys and how he was concerned that the incoming Clinton Administration might not as aggressively support states trying to defend criminal convictions and trying to keep this aclu onslaught from completely overwhelming the criminal defend criminal convictions and trying to keep this aclu onslaught from completely overwhelming the criminal justice system. It seems like his opinion was sort of may have changed or maybe the world has changed around him. I dont know. But it did strike me those comments that he made this term in particular going more far beyond i think what weve seen him express regarding criminal defense rights. It wasnt clear that she was wearing her head scarf for religious reasons and she never said thats why she was wearing it but the person who interviewed her had a pretty good idea that she was wearing it for religious reasons and she wasnt hired by aber crom by and fitch because at the time the company had a no caps policy. It said that that these caps or head scarves or head covering werent part of the companys look. Both these cases were easily decided by the court. If you look at the briefing in the case, with the exception of some business groups and the eeoc case, the briefing was really onesided. Its not many cases as holt v has produced. In the arkansas case 40 prizz ners grew beards. Theres been no instances of inmates hiding contra band in their beards. The sort of purported security interest was hard to see. And the court, maybe along the same way wasnt really prepared to defer to authorities in that case. And if a Company Thinks or has a reasonable idea that somebody should need a religious accommodation they should give it. There were a couple of justices who said maybe this leads to awkward conversations up front but better than the situation that resulted. If you have religious freedom restoration act provisions you can rely on, i i think i suppose the scalia stuff about job discrimination helps you a little bit. But you have a fairly significant defense in the all over the country. I think thats going to be a very messy situation because despite the marriage ruling, federal law doesnt protect Sexual Orientation as a class. Its really at the moment a state by state issue. We know about half the states have some form of antidiscrimination protection based on Sexual Orientation. And also about half have some kind of different type law on the books. And i think were going to see as currently happening in this oregon sweet cakes case state judiciary applying their statutes and constitution in these instances. In much of the country same sex couple can get married in the afternoon and then fired that evening for being gay. That its a funny sequence of events, surprising really, that you establish a constitutional right to same sex marriage in a society where in much perhaps majority of the nation theres no job discrimination or housing discrimination protection for gay people. Some antidiscrimination laws do make marital status a protected class. Im just wondering if marital status now means now includes the sex of the spouse. If that is i wonder if those protections will now also encompass same sex marriages specifically. So if youre giving advice to that bigot that wants to discriminate somebody make sure its on the basis of somebody being gay not part of them being a same sex married couple. Its not that theyre married. If youre singy gay. Its been disappointing for conservatives. Unlike the conservatives who didnt always agree even when they voted together do you think this signals a shift or was this term an outliar . Voted together political scientists cite ideological conditions and is a surprisingly large number of cases. Thats also true. But theres been lots of pushback that theres a theory this is a liberal court. There are people who say that it was a consequence of conservatives bringing ambitious cases to the court and falling short. And the status quo staying constant. I think theres probably something to that argument. I think this is phenomenon of liberal and conservative views is something weve seen now for many years on this court. Even when the conservatives win, they usually cant agree why they won. As we saw in the marriage case when they lose they cant agree on why they lost. We had four different dissents. None of which got all four to agree on the reasons why they objected to the majority. You actually found six justice on the court agreed that the majority outcome made no sense. You had the four dissenters plus two in the majority agreing with that but they came out in a different direction. So the same thing happened throughout this term. Its also true that weve seen really since the 90s when Justice Stevens was the senior liberal justice i dont know if thats even a title. Justice ginsburg once referred to herself as the senior liberal justice. But steevepes made a big point in trying to draw them together. Justice ginsburg has said she tried to do the same thing and is cautious and careful in assigning dissenting opinions when necessary. Thai seem to exert a kind of discipline and cohesion that stereo typically we would maybe expect more of the conservatives. For instance, when you saw in the marriage case Justice Kennedys an opinion that no one would mistake for having been written by anyone else all four of the liberal justices who joined him they saw it exactly the same way because none of them wrote a concurring opinion. None of them saw a sinkle punksuation mark with that view that Justice Kennedy put forward. So they have that unity that conservatives seem to have, as adam said, sometimes significantly sometimes minorly different ways of wanting to get off into the same place. But theres also i think one other thing going on which is that theres a generational divide that sometimes shows between the chief justice and Justice Scalia. And i think its born mostly of the fact that Justice Scalia see it is five votes to do something and hopets to get it done now. And the chief justice doesnt necessarily see that sense of urgency. And one good example is from a few years ago the wisconsin right to life case where the Campaign Finance case where Justice Scalia raged in a concurrence to do something and hopets to get it done now. And the that the chief justice wouldnt go far enough and go all the way and the same thing happened in the bond case last year where again in an with somehere termed an angry concurrence scalia complained that the court wasnt willing to do what the court should have done. You see him making the point in a footnote where he says and some force to this, because the four liberals who signed on to Justice Kennedys opinion had they had the assignment, they would have written it very differently and there would have been some more doctrine in it. You might be sake sable to sauce out the constitutional provision involved. The level of scrutiny where equal protection fits in. But they like to speak with one voice. And Justice Scalia said that even if he were inclined to voted in that direction he would sooner hide his head in a paper bag than provide the fifth vote for that particular opinion. Its funny on the following monday you saw four justices wearing paper bags when they took the bench. Mark, in the lethal injection case, Justice Breyer said in his dissent that the court should review the constitutionality of the Death Penalty. There are already a few cases next term. Do you think the court is likely to take up the constitutional issue in an appropriate case . I guess im skept cases Justice Breyer joined by Justice Ginsburg said he very likely that the Death Penalty itself is unconstitutional and he said this is a product of his 20 years of reviewing these cases on the bench for a variety of reasons including how long it takes to carry out sentences, how many exonerations there have been and other factors as well. Whats curious to me is that hes not the first justice to come rather late in his career to this conclusion. Justice blackmon did at the very end of his time on the court. Justice stevens did near the end of his time on the court. And its curious to me that it would take in reality Justice Breyer 20 years to come to a conclusion that was sitting there in 1994, when he joined the court. After all he had just seen Justice Blackmon seen those very words that he would no longer timpinger with the machinery of death. And the same reasons that breyer is applying today have existed for some time. So the reason i dont think this is necessarily going to get a full airing before the court any time soon is it seems unlikely that even if the other two liberal justices were inclined to take this on that they would do it without knowing where Justice Kennedy would come out. After all, i dont think they would want to take on a case that would end with the court reaffirming the that the Death Penalty constitutionality of the Death Penalty. I dont think any indication in Justice Kennedys writings on the Death Penalty that he is willing to take that final step. He has talked in the hall case the case about intellectual stability. He talked about the importance of the eighth amendment the dignity that reflects the nation weve been, the nation we are, and the nation we aspire to be and some people have seen that as maybe an indication he could be open to that kind of challenge. Justice kennedy did invite a different kind of challenge, which if i were a litigator so inclind i would promently bring apropoe absolutely nothing in a case involving jury selection he invited a challenge to indefinite solttri confinement. If Justice Kennedy says bring me a case, the people in that business should get on the ball. I guess it cant be said in the process of being nominated and confirmed to the Supreme Court people if they come to the bench with doubts about the Death Penalty i think they keep them quiet. And theres a certain i guess freedom that comes with the approach of retirement that of allowing him to say this now. I imagine if they do reach the constitutional issue that the chief justices dissent complaining that looking at all the states recorrectly repealed the Death Penalty how come the condemned community would not wait for the democratic process to play out just as the wind was freshning at their back. This was interesting. Obama has gotten attention not all flattering for his comments on court cases particularly before they are decided. And as well as after. Where i think its perhaps a bit more typical for president s to speak after decisions are made. But it did seem interesting that he actually went as far as to criticize the even the sert stage. He said in mid june that the court shouldnt have even taken this case. I have president ial comments since 1954. Lds not completely unheard of for president s to comment when they had cases of which they took some interest before the Supreme Court i dont think it is going to be a very difficult thing. I think this is as one fact that the study itself observed president s most likely to comment on pending cases tend to be lawyers who think they know a lot about the law and are in a position to discuss it. And so president clinton actually commented on a pending case in a signing statement once where he sort of predicted that the court would side with him in the census statisticalcal sampleling case. So it has happened before. I dont think it is going to be very common. I think this president believes he knows a lot about the law and is in a good position to explain it not so much to the justices. I dont think he has any alutions about that. Hinge hes trying to lay out his legal position to the public and to either assure them that his legal position is wise and sustainable, or sort of lay the groundwork for a response should he lose. So i dont think its going to be that common. I dont think that obama has actually planned most of these remarks when he has made them. I think, as they did in that case, it came up in a press assure them that his legal position is wise and sustainable, or sort of lay the groundwork conference where he was asked a question. He immediately responded because it was on his mind. So my guess is that it wont be something we see very typically although he has had more i think significant pieces of legislation or before the court than the typical president does. The idea that its going to become a salient issue in the president ial campaign i think is unlikely. I think that the Supreme Court, it is the unusual Public Office in which the holder becomes less well known the longer he or she serves than any other office because and theyre known when theyre on tv for their confirmation and then disappear. So that we found that chief Justice Roberts is known by fewer americans today than he was ten years ago. So in a recent poll that we had. I think that the courts importance is going to be right now its important for donors. And this this sort of invisible part of the election there are hardcore people who are super concerned about the direction of the court. Probably theres a disproportionate number of those watching today. And they will be making their preferences known not so much at the ballot box but in which candidates they support and how they support them and so on. So i think its important to some constituencies and individuals, a small number but outside in influence. Had the court ruled differently, the marriage case or the health care case, it might have been a bigger political issue. But i do think that in terms of becoming a very major popular issue, that would only happen if we end up for some reason with a vacancy close to election day where it crystalizes the stakes immediately for the typical voter. Looking at the flip side. Do you think any of the justices fear looking political will shy away from taking up any particularly controversial issues in the next term because of the upcoming election . Weve seen no evidence of that. Ok. So this question is for all three of you. Based on something mark wrote that its virtstullly impossible to get anything done without roberts or kennedy on your side. Even though kennedy was in the majority of more decision this is term do you think roberts is increasingly going to become the pivotal vote . I think i wrote that just to point out the oddity of that there was that one decision this term where both kennedy and roberts were in dissent, which almost never happens. It was the license plate case. I think its only happened one other time on the court there was a forgettable case a few years ago where the five junior justices were the majority. So that said you know, the chief justice is seems like hes going to play that role where questions are present about the courts the institutional integrity of the court or the courts reputation. I think hes more likely a vote to perhaps when those cases are otherwise split to where he worried that a decision that looks too much like a decision by five republican appointed justices would damage the court ds reputation that in those cases he finds a way to the other side. Unless im mistaken there are exactly two decisions where the chief joins the liberals. Congratulations, guys. One final question. Is there a particular concurrence or dissent that you found particularly striking this term that youd commend to our audience . I liked the brief Clarence Thomas dissent. There were many, many long dissents about the vagaries of the Administrative State which i will read this summer. But i liked maybe against my better judgment that after Justice Kennedy called for a look at solitary confinement Justice Thomas wrote back in a separate concurrence that he thought that the death row inmate in particular had much more spacious quarters than the ones occupied by his victims. I would agree that those two concurrences are great set. Mark . Just the one phrase after another in the scalia dissent. Its certainly like a greatest hits. You really have to put yourself youre either an arguele bargle guy or a jigry poker guy. Or pure apple sauce. With that well open up to the audience. Please identify yourself and ask a brief question. Paul. On the criminal docket you talked about the patel case and yates. Would you care to comment on the alonice case and how that might impact lower courts and prosecutors requiring a high mens rea and specific intense . I mean, we had a good discussion of that from john. As he pointed out, the court said very little other than not negligence. Not clear whether recklessness works or not. And i imagine people will be trying to make sense of that across a whole spectrum of criminal laws and where mens rea fits in. Its likely, a possibility that the 2016 election will continue divided government that exists today with the executive being of a differe