Transcripts For CSPAN 10 Years Of The Roberts Court 20240622

For that kind of a system, or you price the cost of it into it. But if everything is at price and you are building an inefficient mechanism, there are two problems. One, that will come back in the price. And two, it is random. Because if you think of people similarly situated and similarly injured in that system, somebody thinks about going to a lawyer, another person doesnt think about going to a lawyer, you dont have social justice. It has kind of an administration, everybody is entitled and it is relatively easy. A lot of people fear the court. They dont want to waste their time. So that system is, in some way, a crapshoot. It is random. And i would say the greatest advantage of the jury system is the interim of fact. Everybody is scared of the jury and that is why you can settled more settle more cases. Having a big fear factor is not you keep messing around, you might have a nuclear holocaust. I think the jury trial, and maybe some of the myths around it, lead to that kind of behavior and maybe in their own way the cause of the fact that we dont have to trust because people do want to take that risk. Mr. Rosen now that bert has reminded us did you applied on the 9 11 commission . No. Feinberg we invite people voluntarily to come into a system, which does not affix blame, doesnt deter. It compensates. Thats all it does. It compensates individual victims. 9 11, 3 decided all it early not to come into my program. And i met with them and i said to each one, why are you coming into a program that will compensate you in 60 days within average award, taxfree, average award of 2 million . And some would say, no, i lost my wife at the world trade center, she would want me to sue to make the airlines safer. See . To make the airlines safer. I said to her, you are not going to make the airlines safer by suing to the airlines by suing. Going to be ase if without your lawsuit. But even if you believe in lawsuit will help, let the other 93 people sue. Water you come into the program . Litigate to make the airlines safer. Come in and get your money. Well, some did, some didnt. But that is how ken, without the threat of a civil jury trial, would bp or gm ever put up that kind of fund. Mr. Feinberg i doubt it. Mr. Susman so there you go. Mr. Feinberg i doubt that very, very much. And bert, tell me of the kind of case, any kind of civil case that you are aware of, or the biggest issue, the one that amounts to the most intent . S not i have never tried a case where intent is not the key issue. Just like it was the issue in the Obamacare Supreme Court case. Why didnt Congress Intent . Who better than a jury of your peers at ascertaining what people really mean and think and intent . If you are talking about intent, you should think about the patent case. Willfulness. Mr. Susman willfulness is not imperative. You have to prove it for certain additional awards, but all you have to prove is you infringe the claims of the patent. And if you infringe the claims, you are liable. Anyway. Intent is notrg the issue. Did they really intend to injure somebody . You know, if the warning was inadequate, was it inadequate because they really wanted to protect the junk sometimes . Intent is not necessary. In fact, it doesnt have to be proven. As the one exhibition are not sufficient . There is a great many places cases where intent is not element. Yes, it is often an, but we have certainly moved away from that for economic reasons. A lot of cases are absolute liability or strict liability. An intent has nothing to do with it. 9 11,se programs, like have nothing to do with liability. Nothing. They have nothing to do really, if you really think about it, they have nothing to do with justice. They have very little to do with fairness. These programs. What is just and fair if you are giving someone 2 million who lost a son in an airplane . They are all about mercy. Empathy. And they are very very rare. And you know whenever comes to me no one ever comes to me in these programs and says thank you, gratitude, appreciation, dont expect it. When i do this, brace yourself. Just brace yourself. It is debilitating. You do it, it is debilitating. But you get the money out the door and you move on and it is mercy because it really isnt. Mr. Rosen ladies and gentlemen [applause] the conversation, much like a Supreme Court argument, must end on time. And it is time for a vote. And the question on the floor is, if you were a delegate at the constitutional convention, would you vote and favor of the seventh amendment or not . Everyone who would vote in favor of the seventh amendment, please raise [indiscernible] mr. Rosen now. Who is in favor, raise your hand. And everyone who would vote against, please raise his or her hand. Please join me in thanking our panelists. [applause] [indistinct chatter] [captions Copyright National cable satellite corp. 2015] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] [indistinct chatter] [indistinct chatter] tomorrow, cspan will be live from new orleans where the atlantic magazine is hosting an allday Conference Marking the 10th anniversary of hurricane katrina. Speakers include the city possibly a are and citys mayor and the fema administrator. And later in the day, we will bring you a briefing from the pentagon with the air force secretary and general mark welsh. They will discuss the current state of the air force and its future starting at 3 30 p. M. Eastern. Well have that live coverage on cspan2. Monday night on the communicators, the summer marks the 25th anniversary of digital television. The author of television areas talks about the development of the medium in the early 1990s. And then in june of 1990, almost exactly 25 years ago, cbs convinced us we should submit it to the fcc for consideration as the next generation u. S. Terrestrial broadcast ended. We were not quite sure we wanted to do that because we really satellite and cable guys i didnt have a whole lot to do with the terrestrial broadcast network business. But we ended up doing that. All of a sudden in june of 1990, our cover was blown what we were doing. At first, everybody said it was impossible what we were claiming, but sure enough, a year or so later, all of our competitors were essentially following us and it became a real race. Announcer monday night at 8 00 eastern on cspan2. Announcer next, a look at the Supreme Courts last 10 years under chief Justice Roberts. This was part of the american bar Associations Annual meeting in chicago. It runs in our andahalf. Hour and a half. Well, good morning. And good early morning. It is nice to see all of you on this beautiful morning in chicago. Welcome to this Showcase Panel on 10 years of the Roberts Court. My name is ken in china man kannon shanmugam. I was at a College Football game with my father. The first game of the season, if memory serves. And we got to my folks house after the game and turn on the tv its other breaking news alerts on cnn that William Rehnquist had a died after a very short battle with cancer. And that triggered a very fastmoving series of of ads. That culminated of events that culminated in roberts as the next chief justice of the united states. Within a month, he was sitting in the chair of the Supreme Court hearing oral arguments. For me, it is very hard to believe that that was 10 years ago. And 10 years ago almost exactly from the date that we sit here today. We are going to talk today about a number of aspects of those last 10 years. And i will just very briefly introduce the panelists and then talk a little bit about the format. To my right today is miguel estrada, a partner at gibson dunn in washington. He is one of the bestknown and indeed one of the best advocates practicing before the Supreme Court. He has argued 22 cases between the court before the court. , no commentary on the positions of the new york times, is adam liptak, the Supreme Court correspondent since 2008. He has covered most of the Roberts Court and other legal issues before that for the times. Rather it like a former baseball player who turns into a color commentator, adam is, himself, a lawyer, having practiced in new york before going inhouse at the times. He brings the perspective of someone who knows of what he speaks. And to adams left is Nicole Saharsky, the honorable Nicole Saharsky according to her name tag. May be a regular person, but she is a an extra ordinary an extraordinary lawyer. She is an assistant to the solicitor general, so she serves and the Government Office that handles all the governments litigation before the Supreme Court. I believe you have been there since 2007 and is now the longestserving assistant in the office. Ofan say that is also one the finest advocates before the Supreme Court. And i know that from personal experience, having argued against her last fall in a very interesting securities case. So, in terms of the format for this morning, we have approximately 90 minutes. We are going to chat amongst ourselves for most of that time. But at the end, we will take questions from the audience and if you are too shy to ask, feel free to send me a tweet. I will be happy to read out your question if you dont want to vocalize it yourself and indeed i have a few questions that were submitted im twitter earlier this week on twitter earlier this week. But let me start with just a very general question of the members of the panel, and i think i was stuck with adam and then to miguel and then to nicole. We are going to talk about substantive areas of law. We and not going to get too deeply into doctrinal issues today. I want to start with just some general observations about the style and the overall approach of the roberts course. Adam, i guess i will put the question this way. If you had to think of and identified a distinctive characteristic quality of the Roberts Court, what would that be . Mr. Liptak i may start with you did, with the chief justice taking the spot of chief jeff is rank list chief justice rehnquist. He was originally nominated the associate justice to replace Justice Oconnor. And i think an associate Justice Robert might be a very different figure from a chief Justice Roberts. I think they chief justice may have voted differently because he has got an institutional perspective in addition to a jurors credential. Taking the chiefs spot, it led to Justice Alito taking justice a connors Justice Oconnors spot. After 11 unbroken years of the Rehnquist Court, all of a sudden, we have oconnor briefly, then alito. But the only switch that matters ideologically is alito for oconnor. And that is the distinctive characteristic that alito, in key cases of altering abortions involving abortions, probably voted differently than Justice Oconnor would have. And that is my best shorthand way of saying what is distinctive about the Roberts Court. Mr. Shanmugam and we will talk a little bit about the central role of Justice Kennedy now with the changes in the courts membership. But to pick up where adam left off, you have the i think originally unique perspective in terms of this panel in spending much of your professional career. N front of the request court you are as wellplaced as anyone to comment on the differences in style. Mr. Estrada that makes me old. The old chief would have interrupted you in the middle if your time is up. He might the new chief might give you more time. I think adam is right that the changes since 2005 have done a lot to define what we think of as the Roberts Court. Ink there are cases [indiscernible] the addition of Justice Sotomayor or, a former prosecutor, has shifted it back in ways that are not all that happy for Justice Scalia. Think you cant really think of a Court Without thinking of dealing with a sample of people because, yes, it is a Different Court because rehnquist is no longer there, but it is different course because sotomayor are very different. Nicole, ofam course, your argument have been in front of the Roberts Court. Ms. Saharsky when i think about the court and i think about what the chief said when he was going through the conjuration confirmation hearings, he pledged to be more of an empire. And take an incremental approach. I think it is sometimes hard for the public to see if that is happening or not because you see the big cases where it is not necessarily clear that the court is taking a very measured or incremental approach. But in the my read of cases, the Court Decides cases very narrowly. Not reaching very far to decide the case. And i think the chief himself is for a measured. I think the point you made is a good one in that chief Justice Roberts is probably different than a chief assistant roberts would have been. Chief Justice Roberts is very aware of the perceptions of america. For example, he in the gay marriage case writes his defense from the bench. We had never heard him read any kind of defense from the band. He just doesnt do that. He doesnt make waves in that kind of way. He is not a Justice Scalia or a Justice Alito. Could we remember any time that he had read a defense from the bench . We couldnt. You all might remember one, but he takes a very chiefly approach. That is really the only way i can describe it. That he really does see himself as that figure had who is going to take the court where it needs to go, but not be the one who is pressing the minds. I would like to talk a little bit about the chief justices style. His personal style, the way he connects himself, and that his agenda. Of course, he famously said after he was confirmed that he wanted the case to decide more cases unanimously. Runs, we are not going to in any particular order from here on out. On a bench full of very smart lawyers, he is among the very smartest. Quite charming and exceptional legal craftsman. Very good writer. Rightld say only he and opinions wherefrom offending start, you really understand what is going on because they have labored on it to make it crystal clear. And that is an exceptional quality. Mr. Estrada the old chief was tough and sometimes nasty and dismissive in a very charming way. [laughter] mr. Estrada you know, he would say, his daughter and one of those and your new he didnt give a dark. He was justjust yanking your chain. If you didnt like to position your arguing, he would cut you off really quickly. And there was one time where there was a case and his red light went on and he meant to save a minute for rebuttal. At the old chief says, well, you didnt. [laughter] mr. Estrada and that was that. I think the old chief has him more has a more congenial matter than the old chief. It sometimes you can get on his took ae, but i think he better understanding for what it is to be on the other side of the bench because he was there so many times. And i think he is a little bit gentler with people that he is questioning, even when he does not agree with them. Mr. Liptak but not also always with the office. [laughter] mr. Estrada mr. Shanmugam is that why he is tough on you . Ms. Saharsky no. I dont think so. I think it is more that jumping ahead a little bit but there has been a few cases that he is not happy with. A lot of the things were he gives the government a hard time are not high profile or even overreaching cases. I had a case this past year that was about a judicial review. Not something that was getting a lot of people out of bed in the morning. Like this. [laughter] ms. Saharsky and he questioned me very aggressively for five minutes. Why should we trust you . Why should we trust the governments . Im thinking, i make like five dollars an hour. Why are you yelling at me . [laughter] and some of the times when he says Something Like i cant believe the government would say x, well, you work for the government. Mr. Shanmugam and just for the record, for anybody who may be watching, lawyers do get paid the minimum wage. Any doubt there to be about that. Adam, let me turn the discussion a little bit back to 2005. Obviously, the chief theliptak we didnt answer second but of your question. Does he have an agenda . I have written that he has, and im sure that he thinks he does not. Cases,re do seem to be particularly cases about race, that light up his his curiosity and his assertiveness. Im curious if other panelists have other things that they think this chief may care more about or less about than the old chief. Mr. Shanmugam lets take that for a minute because i do want to get to that and talk not only about where the court is on substantive issues, but what the court is interested in. Let me sort of ask one last question about can of personal style. We have a chief justice here who actually clerked for the last chief justice. He was one of the pallbearers at his very old. Curious to what extent he modeled himself early on on the late chief. As you pointed out, he came into this interesting situation where he was jetting a number of the members of the court who had been together for an unprecedented amount of time. Do think you started out being more like the late chief justice . Mr. Estrada i dont mr. Liptak i dont think i am the right person to answer that. I do think the fact that he clerked on the fact that he is so highly credentialed is characteristic of this court, which is all all lawyers who attended harvard and yell law school, but with the exception of kagan, no one who has run for elected office quite unlike Justice Oconnor who was a public person and served in all three branches of the arizona government that you do have an rabbit and the rest of them and the old chief talked about this there is a tendency in american judicial life to become more and more like the europeans. So you dont have what the brown court looked like of a former senator or former california governor, former attorney general, large public personalities making decisions. But rather highly credentialed lawyers who almost from the beginning of the career had one goal, which is to become a judge. As in europe, where being a judge is a lifelong career. Mr. Shanmugam is he is a oneman . Mr. Estrada absolutely. The most recent obamacare case he is definitely his own man. I think know, he runs adam is right. The court is a professional court. They are all very highly skilled, technical lawyers. Ourn theactually m passing of the war in court. Because [indiscernible] when you can make out what they are saying. Good to think it is have a professional, skilled court. I dont buy into the myth that we have to have a senator and a governor whose purpose is to bring something other than law to the law. I mean, i wish the Current Court would bring more law to the law. But that is where we are. Mr. Shanmugam lets take up adams invitation to kind of docket and courts look at some substantive areas of the law and pick up on the question that adam was trying to post to himself. Courtas the self changed in terms of its priorities in the cases it puts on the docket . One of the questions i got on twitter was, you know, can the panel talk about the courts ever shrinking docket . Is the docket to really shrinking . And the second, where is the court sort of focusing its energies now and how much of that can we attribute to the chief . Mr. Estrada i think some of that i dont think the docket is really shrinking. Back in the 1980s, the court heard about 150 care cases every year. In september, october 1988, government changed the law. It turned out that a lot of the cases that the court was hearing back then were challenges in state proceedings that really had no business being in the Supreme Court just because the constitutional question was raised and it was mandatory jurisdiction. All manner of things that are important to the parties, but not that much to the country. Congress change the law in 1988, you have seen a very sharp drop in cases, but i think it has stabilized in around in a year. And it has been there for several years. I dont think it is shrinking. I think the court is exercising a lot more care now that he has choice. And the chief justice, having come through the court from a business law background, has had some influence from what one can tell. Others may have cant really know. You have noticed that whereas whether the court used to take one case every three decades, another take several each term. The federalgh circuit. The federal circuit gets a return so often on having cases. Makes you think you should have a Specialized Court for those cases. [laughter] and, you know, at least with regards to this aspect of our discussion, the court does seem to be relatively deferential to the government when it comes to which case it cases it agrees to hear. Ms. Saharsky a lot of what said, ise, like miguel taking a lot of business cases. We dont necessarily have a dog places, but ihose think back to when i was in private practice, i remember the kinds of things the Business Community was up in arms about, like punitive damages. There was one case before the Supreme Court during the Roberts Court, but there was not a lot on the business agenda. But now there is the class action concerns, the walmart case, even in particular areas of law, like security fraud, the government has interest in those. There has been a pretty serious attempt to get some cutbacks there on the part of the Business Community. And with the union cases, even the cases that have been granted for next year. Those are probably cases the government has less of or as much of an interested. Some of those, the court has asked for our views. They have issued invitations to the government. The briefs, should we take it, should we not . I cant say they have different to us all that much, but it is interesting to see a lot more cases of that type. Mr. Shanmugam adam is our color commentator here. What is going on . Mr. Liptak i am persuaded, and reuters did a nice study on that coming in that the rise of the Supreme Court, which continues to dominate and increasingly so and the the increasing likelihood that a Business Group will find a right case and the right lawyer too much a petition has aided the court, which is pushing on an open door, and increasing its business docket. We have talked about some of the kinds of cases. I also mentioned arbitration. The Business Community has done really well in this court. I think it is attributable to, at least in part, to the small number and some of them are not on the state are, but the ones in private practice the small number of lawyers who really dominate the docket. Mr. Shanmugam do you agree with that . Mr. Estrada no. I think you can always knock on the door, but they can always slam the door in your face. And think way back in the Rehnquist Court. There was an article bemoaning the fact that these crucial Business Issues that, you know, he tried to take to the Supreme Court to no avail, but it was that expensive private practice at the time that even though you have wellheeled lawyers, the Supreme Court was not all that interested. So i think it is maybe part of what adam said. I think this court is more receptive to believing that those issues are as important as the subordinate and to the [indiscernible] of which they take several year for reasons that completely mystify me. Ms. Saharsky but i think part of it is just organization on the part of the Business Community. Really thinking what kind of issues do we want to be addressing in the courts of appeals and the Supreme Court of united states. Just looking back, i was kind of paging through the kind of cases the court was deciding in the 2005 term as opposed to now. It seems like the Business Issues of the court has been brought up that to the court. The walmart case was a huge and attractive case from the business side. I think there are certain issues that the Business Community has been pushing better than if you look at the 2005 and 2006 terms, there were as some Business Issues there, but it was more scattershot. I dont know if you are to be that to the lawyers or to the court, but definitely it is definitely happening. Security fraud, class actions, etc. Mr. Liptak and to some extent, the court put a sign on the door saying, please knock. He made it very clear that he would love another case and he got one in short order about publicsector unions. Mr. Shanmugam and you read a very interesting piece, which i would recommend to everyone, and inviting future petitions for review. If the number of cases on the courts docket has remade relatively static, and if the court is taking more business cases, what is the court taking less of . Andll offer one possibility you guys can either disagree four agree, and that is cases involving federalism. When i was in law school of the heyday of the Rehnquist Court, the biggest cases with the lopez case which imposed limitations on congresss power and all the kisses of sovereign immunity. Ms. Saharsky that seems right. When perception i had of the course, and im not thinking of particular cases, but back in the Roberts Court, the court saw its role as we need to resolve circuit split. And now the court, i think, is taking cases more along the lines of we think the decision below is wrong. We are going to take this because it looks really fishy to us. I would just put that one on the table now. I think the court maybe it is a level of confidence. I think this is a very confident court in many respects. Doesnt seemce as random as it did during the Roberts Court. Kannon is federalism a low priority for the chief justice . Adam that is basically right. I dont think it was a high priority for the old chief but it was a high priority for Justice Oconnor. I do remember we had some cases and she would walk the halls and i saw her going down the hall, having Justice Scalia, talking to him about some Commerce Clause 11th amendment case. She would not be put off in those cases. The chief was congenial. I think it would not have been pushing as much if she had not been that engine for that. Kannon do you attribute that to her background . Miguel yes. Coming from the west, kannon the real west. Not california. Miguel as scalia would say. Having been a state official in the real west, she took these things seriously and took a slight when the government came in and looked over what state governments were doing. That is no longer there. The old chief was congenial with the interview but he was not pushing it. She was pushing it. Adam this chief justice, except when he was in practice, has worked for the federal government. Kannon as have many. That is a Common Thread with the members of court who have joined. Nicole the interesting thing about Justice Oconnor leaving is the rise of Justice Kennedy. One might have expected him to push the federalism agenda as much. He is sympathetic to it but not always. There are cases that could have gone off on federal base grounds that happened. Its interesting. He could have played that role. He did not have the same passion she did. Adam he pushed federalism in the first marriage case and then stopped wishing it. Kannon lets turn to substantive areas of the law. Let me pose one of these triedandtrue questions. Everyone talks about the Roberts Court. Is this the Kennedy Court . Adam in 54 decisions, it is kennedy plus liberals or kennedys with the conservatives. The chief is in the majority almost as much as kennedy. The chief justice in the majority gets to assign the majority opinion. That is not an insignificant power. In that sense it is also kannon that is not entirely accidental . Adam if it is a close thing, by voting with majority you can find a way to give rise to a narrow decision you may be tempted to do that. Nicole to give an example, there is one of the issues in which the Business Community have been pushing, securities fraud. There was a series of cases about this idea of fraud on the market. The way of proving reliance, which some on the defense side believe was to friendly to plaintiffs. There were two questions, one about a narrow question with the fifth circuit had said he met to prove a certain something to move forward. You could rely on this on the market theory. A second case address should this have this area at all . The first question was a narrow case. The chief justice wrote the opinion. The circuit was wrong to make you through this extra thing. That position prevailed. Then we had the bigger question, should you have this theory at all . I remember briefing the second case. Already won this. Im going to look at that and see what great things are in there. The chief justice wrote the opinion. This says nothing helpful to us. We won this case and it is written so narrowly, and with the knowledge that this other cases probably coming that it does not advance the ball at all. This say talented person who is deciding the case knowing this other cases coming, whether you say it is because he wants to decide cases narrowly or if he had no agenda, it was an example where it was a situation. Kannon does narrow decisionmaking love and exercise power to control the opinions more often . Adam yes. And the two Voting Rights act cases are a perfect example. The first time up, the chief justice writes a very narrow opinion as to which everybody . But tomas signs on. Shearer, he put in a couple of paragraphs that would come in handy. We already decided there is this principle called equal sovereignty of the states. Miguel i think that is right. Im not sure to what extent there is a contrast in decision to write narrowly for instrument of purposes. If you think about it, he would have thought about it, it is not relatively unlikely that we are going to have Hillary Clinton administration in 2016. His colleagues are not going to get congenial as time passes. If he were instrumental, he would be writing more broadly to cement things while he has the vote. In fact he is not. You would think he is writing these things narrowly because he thinks that is the appropriate role of the court, not because he is doing it for instrumental reasons. Kannon is one side effect that issues come back to the court in short order . Halliburton, that is one such case. The other cases section five of the Voting Rights act, and the affirmativeaction case that got sent back on narrow grounds and is back to terms later. Nicole the chief may see some benefit to that. Lets get the arguments out. Lets see what people are thinking. Lets plant some seeds. I understand that. In the halliburton case that is essentially what happened. The broad rule prevailed. A lot of people thought that rule was going down and it did not. Kannon with the chief justice in the majority. Nicole there are decisions from the 1970s and 1980s, written in a different way than the court does things now. Written in broader strokes with not as much citation or reasoning or things the Current Court would like to see. They are giving the stink eye to these decisions, not sure if these are good decisions or not. If you can say there is a basis for these decisions lets stick with it. They are willing to look at it again. Kannon that raises the question of this courts attitude may be different from that. Predecessors. Adam there is a lot of discussion of the difference between upholding earlier decisions and the statutory context where congress is available to come back and change the decision. There is a lot of talk of that. The data suggests on the usual metrics of activism, is this a court that overturns earlier decisions, is this a court that strikes down laws . It is in keeping with earlier courts. When it does do those things it does them in a conservative direction. Miguel you think . Samesex marriage, juvenile Death Penalty, where kennedy is voting opposite cases he joined in the 80s, where the people are left of the court . Adam those are exceptions to prove the rule. Nicole there have been high profile cases like Voting Rights, they are Big Decisions. We have not talk about campaign finance. It has been huge. If you told me 10 years ago a corporation is a person and has exercise of religion rights and speech rights i would have been surprised by that. Adam and the Second Amendment rights. Miguel i thought you were going to say corporations [inaudible] adam just you wait. Kannon lets start with the first. The bill of rights for the First Amendment. Is that an area in which the changes in the courts membership have made a difference. Miguel speech or religion . Kannon lets start with speech. Miguel the court almost to a person is a prospeech court than the Rehnquist Court was. There was a case dealing with sign ordinances in arizona. The whole thing was about the ninth circuit upheld it. It said if you have any articles to sign you can have this. They have decided that was not [inaudible] you had Justice Kagan saying why do we have this case . This is not pass scrutiny. You have a lot more cases where you see everybody in the court going you clearly cant do this. I dont think you have that in the Rehnquist Court. Adam and as skeptical about speech rights as any member of the court. That person is justice breyer. The read case is very bold. It makes the point that i think is new that if something is contentbased it triggers strict scrutiny. Justice tomas cited a pharmaceutical case. It may be part of the agenda to make sure that all speech restrictions in a commercial setting are subject to scrutiny. On the other side of that expansion of scrutiny is the only 2 decisions that i know upholding laws challenge under strict scrutiny come from the robbers court. Humanitarian law project. We have a simultaneously broadening of strict scrutiny and a cheapening of its bite. Kannon i want to raise the question of the standards of review and approach of the Roberts Court. Has there been an erosion of the importance of standards of review . Nicole that may be right. Even thinking outside the First Amendment context, i do criminal cases. The court is very confident it can look at something and decide right or wrong, reasonable or not reasonable. If it needs to explain that it can do that but for a lot of it it is the court just looking at it and what makes sense and making their own decision. The interesting thing, it is the thing that is interesting to me, it is not just that they are proFirst Amendment, in context where you could see them going the other way. Some distasteful speech. Stevens print a dogfighting case. You have people protesting military funerals. That is not a nice thing to do. You have the stolen valor act. People who were impersonating they had purple hearts. Miguel half of congress. [laughter] nicole in the 1980s you have the flag burning case. This is a hard speech to protect, a tough thing to watch someone do. This, what value does it have to make an animal crush video, or a dogfighting video, people who have served in the armed forces . Miguel with the exception of the lido. He was offended by both of them and he was the lone vote on both of them. Kannon what about the courts approach in criminal cases . They are more friendly to criminal defendants. Nicole there were some things happening in the criminal law before the chief justice took over with the trendy line of cases. The cases, the fact that increase the punishment beyond the statutory maximum need to be proven beyond a doubt. The sentencing guidelines were invalidated. That was a huge deal to have sentencing guidelines be discretionary. When i was in law school we learned ohio versus roberts about the confrontation clause. You have reliability for outofcourt statements and improve them in court. Over years, a they could determine which statements were good and which statements were bad. Crawford put that out the door and now we did not know what out of court statements could come in. That causes problems with 911 calls, or lab statements, whether they need to testify. I dont know how much is attributable to the Roberts Court. Miguel scalia mostly. One of the things that has happened in crawford, his colleagues have scared him down. He is not happy about it. He was the one pushing those for criminal defendants. In some ways, Justice Sotomayor has dialed back. It is getting back to the ohio versus roberts paradigm. You had cases involving child abuse where the opinion of the court started out by talking favorability about ohio versus roberts. Scalia could not bring himself to even name Justice Alito in his opinion. The author of todays opinion. He was angry about it. Adam the furious concurrence. Kannon lets hold off on questions. I want to make sure we cover the entirety of this topic. The government has a hard time whenever it is dealing with the construction of a criminal statute. Cases seem to be going to the defendant these days. Miguel the Court Struggles with two things. It hates criminals and hates the government. Sometimes the government looks less empathetic. Nicole there have been cases in recent years, there have been vocal members of the court who are unhappy with government overreaching. Bond was one of those cases. A lady whose husband cheated and she worked at a chemical factory. She tried to poison a lady. Kannon she smeared this chemical on a mailbox. You did not have to prosecute her for a violation of the Chemical Warfare treaty, which set off the court. [laughter] if you prosecuted her for tampering with a mailbox the case would not have made it to the Supreme Court twice and you would have gotten one out of 18 votes. It was 180. Nicole im glad you have had your caffeine. [laughter] kannon you may have had fewer prosecutorial options. Of course we are using you, the government. Nicole those have gotten a lot of press that there are criminal cases and other cases the government wins. Statutory cases are harder because those are ones in which someone prosecuted something that the court did not think fell into the statute. The government is doing pretty well, maryland versus king, about collection of dna samples. Kannon i do dimly recall that case. [laughter] [indiscernible] kannon thank you adam. The Fourth Amendment cases are interesting. These are cases where the court as a whole is struggling with the question of how do we apply Fourth Amendment technologies. Nicole that stuff is interesting. It started with jones, the gps case. The court had had president that if you are in public and putting stuff in public, your trash, and the police are looking at what you are doing there is nothing wrong with that. What if the police had a gps and could track everywhere you went and they tracked you for a month, was that a problem . And the court said yes. It is not surprising the court said yes. There was a question asked, could you put a gps on one of our cars and track as for a month . Kannon without a warrant. Nicole she did not immediately answer yes. She said a justice of this court . Who would do such a thing that it was unprecedented. The implication was yes. Then maryland versus king, a Technology Case in which the government one and then swum back the other way with the cell phone cases. Looking at the data on a cell phone is asking a lot in the court. Kannon these are not cases that breakdown in traditional ideological ways. Nicole a lot of it breaks. It breaks down based on what the justices think may happen to them. If they think it could happen to them, as ordinary citizens, that is a problem. Things that happened to people who are arrested, like the folks in maryland versus king have been arrested, or put in jail and there was a question of whether they could be stripsearched. A justice isnt going to be arrested but it was a case of a car stop lasting too long. What if they were in their cars and someone stop them and they had to wait . Miguel there was some article, very funny and entertaining. There was some case in 2005 where there was somebody who was supplying cocaine and flush it down the toilet. The question of whether the cops waited too long or too short to going to the apartment to bustin. This could happen to you argument. She had this line, saying this could happen to you, rarely works of the Supreme Court mostly because justices so rarely stock large amounts of cocaine in their own bathroom. So rarely was the key phrase. That is untrue with these other cases. Gps case, cell phone. They all have a cell phone. You can do that to me. That is a different feeling. Nicole it is them standing in for an ordinary lawabiding citizen. Miguel a reasonable expectation of privacy. Nicole the dog sniff cases, there were cases a few years back out of florida, one was about the reliability of drug sniffing dogs. Could you come back later and try to have a mini hearing about what was the dogs track record, this whole question. There was a separate question, if a Police Officer was coming to your front door and you had a dog with him and it alerted, is there Fourth Amendment problem with that. The dogs are reliable, and that makes sense because they rely on dogs. We all do in the government. Dogs i mean they do an amazing amount as i have learned. The court was not happy with the idea of a dog sniffing at someones front door and that is not something a reasonable person would expect. The prior case law favor the other view. They felt comfortable they can make their own decision that was not a reasonable thing. Kannon this brings up another subject, the court attitude towards the government more generally. You are the obvious person to ask about this as our representative of the government. You have talked about skepticism but do you think there is a greater degree of distrust of the government generally, of cases . Has that change with the Roberts Court . Nicole i dont think that is true. The court calls for the use of the solicitor general a lot. The court has High Expectations of us. If there is a 50 state survey that may be relevant they expect us to have done it. The ascus those russians and oral arguments. The justices are happy with those answers. You read decisions where the government made prevails and the decision reads like the government. There have been a few cases in which some member of the court, may be a few, thought there was prosecutorial overreaching, like the fish case, the bond chemical weapons case, various members of the court were upset about. Kannon the win loss record has gone down some. Is that attributable to changes in administration . Miguel probably not. What the court gets is a ramble random sample. Today was a big win for the liberal and prayed liberal end. You get a little snapshot of what the docket brings and you make a conclusion waste on what is a random assortment of cases. You cant draw any conclusion. Nicole is right. I was in the office in the 1990s. 45 years it was my job, i would get angry. I am not a lawyer for the clinton administration. I had to go there and argue the position of the clinton administration. The Rehnquist Court was equally skeptical. Kannon you watch a lot of oral arguments. Do you have observations on the federal government . Adam there are cases in which the sgs office probably partly as a consequence of the high quality of their work and how much the court leans on them. If the are aspects of the argument, unavoidable aspects, that displeased roberts in particular, the chief is likely to make a point to make it [indiscernible] nicole this is attributable to this chief justices style. He is gentle and oral argument. Maybe he will give you extra time. If there is an advocate who was not getting it, he will not give that person a past that help move the argument along so that it is not a painful situation. The flip side, when he thinks he has people out there who do get it and are prepared and can take it, he gives it to them. That does not always work in our favor. Kannon one other aspect, the issue of deference to the government when it is interpreting statutes, the chevron deference. Hope everyone is fully caffeinated and we talk about the role of chevron in this court. Is the court moving on that issue, away from fullfledged deference . Nicole i dont know i can say there is a trend but there are cases i have argued in which i thought we had a good claim of chevron deference. We had a good argument that the statute meant what we think it meant. We had agency decisions, good, reasoned the citizens that one would think would be entitled to chevron deference. Good chevron deference cases. The court have the option, doesnt want to go the statutory route. In the cases i am thinking of, we prevailed. The statute means what the government says but they were interested in the chevron deference. I have been thinking about that. Should i think of that as a problem we are doing something wrong . A lot of it is exhibited to the confidence to resolve cases. The court says we are looking at this statute, we can look at the text, we can figure it out. We dont need your deference. It is not that you are wrong. King versus burwell. The chief justice seemed interested in the possibility of giving the irs deference but he wrote an opinion that disparage the idea of deference. Adam he said this is too big a deal for the irs to decide. It is for the Supreme Court to decide. Nicole we have that case where there was not a huge deference argument made but the fcc issued decisions along these lines, i dont think the court mentioned it in its opinion. We are not interested. Adam that is true. Kannon i want to make sure we have questions from the audience. We have questions we have received over the internet. The last 15 minutes or so, lets talk about where the Roberts Court is now and where the Roberts Court is going. Weve had 10 years of the Roberts Court. What you guys think is the most significant decisions . Adam Citizens United, and marriage. Miguel you were clearly ready for that one. I think juvenile Death Penalty. The juvenile Death Penalty and the rulings on whether you can execute somebody who may not be technically retarded, but is challenged. Adam and cutting back on the Death Penalty in cases not involving murder, cutting back on juvenile life without parole. The court has narrowed harsh punishments across a number of dimensions. Kannon what is the significance of the first Affordable Care act decision . Miguel none i would imagine. Adam except for the Medicaid Expansion of it. Miguel and is a ruling of the average adult. [indiscernible] nicole the interesting thing about the Big Decisions about Citizens United is not because of what the court held add a legal matter, but some sense of public outrage about the decision and Public Engagement and interest. I dont know how many people know this. The court has had over the past few years public protests in the core about Citizens United. A couple of groups were people are standing up making comments about we want to take the country back, we are unhappy about Citizens United. I cant think of any other issue. There was a lone person the gay marriage case where someone did that. That is not cool at court. I dont know what the old court would have done . One of them rot in this pen camera. Citizens united is interesting because there has been reaction that is almost like the reaction to bush versus gore other cases that have gotten people up in arms and concerned about the legitimacy of the court. Miguel all of that is a function of the coverage. Adam you dont think people read the underlying decisions . Kannon are you blaming adam . Miguel i am blaming his editorial. Theyre all of these things that get turned into cause calabres. The president [indiscernible] when you have that politicization by the president of a decision you shouldnt be shocked people who are his followers and to agree philosophically with him think this is a big deal. Adam i agree the decision has been blamed for a lot of stuff that they cannot be blamed for but it does seem salient. Justice ginsburg was asked about the most disappointing thing the court did in her 22 years. You may have thought bush the gore. She said Citizens United. It is a shorthand, undeserved shorthand for the way money in elections in general is unsatisfying to many people, and people like to blame Citizens United first many things that it cannot be blamed for. If there is a problem in our elections that may be the blame to it. Citizens united endorsed the disclosure claims. If there is not enough disclosure it is not Citizens Uniteds a fall. Kannon do you think she cited it because of back and forth but how broadly the court was going to write that opinion . Adam im sure she was not crazy about what happened there. I think she cited it because it is a way to speak to an audience. You say Citizens United and the left side of the audiences head explodes. Kannon let me throw the floor open for the remainder of our time. Weve had 10 years of the Roberts Court. What do the next 10 years look like . Nicole Justice Kagan and what role she will play. She is talented. I worked for her when she was solicitor general. It is shocking how quickly she gets issues. There are some arcane immigration things, false claims act, Something Like that. You explain the issue and she gets it so quickly. Her questions are so good. When you look at the first five years she has been there and the decisions she has written and how she has performed, she started out measured. Im going to get my bearings and asked some good questions and look around. Im going to see what is going on. She has not made a strong stand in a lot of places like Justice Sotomayor has. It will be interesting to see what she does. Kannon is the direction of the court going to be decided by the next election . Nicole yes. Miguel yes. I should urge you not to vote. Kannon miguel. [laughter] one of the things i thought was interesting is we think about the court, we named it after the chief justice. [indiscernible] kannon the gloves are off. Im going to leave. The court is named after chief justices. The chief justice doesnt control the corporate with the Obama Administration the president runs the executive branch. The Roberts Court, he could be in dissent of the president ial election comes out in a particular direction. Adam it is a we are to attribute a name to a court where the person in question has one vote and where the personnel of the event, i have lost track of my syntax. The personal of the court changes. Kannon to what extent do you think a dramatic change in the direction of the court has influenced the chiefs thinking . Miguel i dont think it has. I was making the point if he were instrumental he would write broadly on the areas but he isnt. Either he has a lot of [indiscernible] or he thinks this is the appropriate role for the court. Kannon there is a lot to be said for that. He may have a longer time horizon than the cruz administration. Miguel that is low. Why not the Trump Administration . Nicole it is a long game for those two. In terms of the issues the court has on the docket, what is left for the court . It feels the court will have touched on the highest profile issues of constitutional law and Public Office . Miguel [indiscernible] foreign relations. War. Kannon they did have the case last year. Adam next time we have one person, one vote, we have affirmative action, we have a publicsector unions. We likely have abortion. The right side of the court is ahead in the voting in most cases. The texture of the next term looks different. Kannon and important business cases. Adam of course. Miguel there is a lot of nicole you look at what the court has granted. It looks like it is going to be a boring term. Think of where we were this time last year. They hadnt decided to hear a lot of it and it shipped to be an insanely busy term. We already have high profile stuff. Kannon decisions will come down in the midst of the president ial campaign. Kannon we have covered a lot of ground. I want to leave time for questions. Because we are being filmed i will repeat the questions even though i suspect everyone will be able to hear them. The was a lady waiting with a question from earlier. Public employee speech seems to be an area of turmoil for the court. Kannon the question was about the garcetti case and Public Employee speech. Anyone want to tackle it . Miguel it has always been on popular. You remember the case where there was somebody in Law Enforcement who had been fired because when president reagan was shot she said i hope they go after him again and they get him. The court upheld the view that she could not be fired for that statement, prompting Justice Scalia to have one of the most memorable case. The question this case is whether she can write ride with the cops injured for the robbers. Yes you can. Theyre members of the court to have been very skeptical for a long time, being a relative relic of the 1960s. The court gives a fisheye two. Ok. But. On the other hand we will see whether they have a consistent view of the case next term. Kannon do you want to say in little bit about the abud case . Adam in a case which the court agreed to hear, the court has now for the third time, it has been tinkering around the margins, it will address the following First Amendment question of whether if you work in a unionized shop for the government, you dont have to join the union but you have to pay fees to the union for collective bargaining. Does it violate your First Amendment rights to be made to be compelled such fees if you do not think you deserve more money, you dont think the government should spend money on your pensions . [laughter] kannon adam was making sure that miguel was still awake. Adam i dont think it is crazy. Collective bargaining has a speech aspect to it. You cannot be compelled to pay fees for political activity. The question is that negotiation with the government feels like lobbying, and feels a little stinky sometimes. Does it pilot your First Amendment rights . Whatever the legal answer is, the consequences of a decision against such a range of mens, the ability of people to opt out of being members of Public Sector unions and taking a free ride would really devastate publicsector unions. Miguel and in the democratic party. Kannon that is one of the cases where the court invited the challenge by Justice Alito. Adam yes. Inheritance v. Quinn. Kannon Justice Kagan defended the principal. Adam clearly alito did not have five votes. The vote he didnt have was scalias vote. Hero a decision saying boy, is it a horrible decision. He went on about how horrible it was. Today we are not going to overrule it. Kagan says they couldnt stop saying, and saying how much they hated abud, but not today. Kannon other questions . I found it striking. You talk about how this is a legal court. They talk in legal terms. The public seems to regard it as a politicized court. The public regards in that fashion. You talked about how they dont look at the standards but they will fit them to the standards. Maybe talking about corporations as persons. I dont want you to overstate Citizens Union but what is the disconnect between the court that is practicing and the perception of the court as a politicized, party driven court . Adam there are two things going on. Most cases before the court involve strictly legal questions in which smart lawyers are making inferences from eagle materials. The ordinary argument looks it doesnt look like politics. It looks like law. The cases on the first page of my newspaper are controversial cases and they look more like politics and law. The other thing, that is distinctive, this is the first court ever that has closely divided in which the party of the appointing president perfectly predicts the ideology of the voting. Think back. Stevens, souter, warren, brennan, blackmun. The fact that a president appointed you wouldnt automatically tell you where you are in the array read here all five are to the right, and that cannot help but influence public perception. Kannon do you think that bothers the chief justice . He often is trying to fight the perception. Adam he hates it. I wonder if it played a role in the first Affordable Care act place. Had it gone the other way and the five republican appointees struck down the signature legislative achievement of a democratic president maybe that would have affected the perception of the court. Miguel that cannot be right. They wrote respectable opinions upholding the act. If the chief are looking for a way to uphold this for material purpose then to write an opinion. Kannon so why did he do that . Adam you can talk to two audiences at once. Chief justice upholds Affordable Care act for the legal audience, at least he gave us medicaid and did what he could. Miguel maybe. The fact is, i do think that if you were looking to do that, he would have done a simpler opinion. The fact is it would have been a lot more plausible than what he wrote. There is a decent argument. It doesnt matter to the opinion. Im not sure what he gave anyway. Kannon other questions . Any predictions in newman . Kannon will the Supreme Court take newman . Miguel they just filed two days ago. Possibly yes. Kannon say what the case is. Miguel this is coming out of the Second Circuit court of appeals for insider trading. I have a particular view of this you should take into account. For many years, the Southern District of new york has been pushing this question of liability. The question in this case is whether somebody who had a tip, claims the government from an untoward source should be prosecuted and sent to jail. It is complicated by the fact that there is a lot of people in the chain who are stock analysts. There is a Certain School of view that says if you are in that calling you benefit the market by getting information into the market. The law says of course that you cannot go out and bribe somebody to get a tip. At the core of this case is whether if you had information leakage that appeared to be in the social context and was not obviously in a quid pro quo and down to the financial benefit, the person who got prosecuted did not know there had been any financial benefit, whether that is enough to prosecute somebody criminally. The Second Circuit, and what was viewed at the time as a change in that courts attitude toward these cases said no. The Second Circuit is concerned by some of the factors that motivated the other services case. The government they benefited by being liked by the person. These sorts of social relationships are enough of a tangible benefit to put somebody in jail for 20 years. Having said that, it is an important area of law. Therefore you have to take seriously the possibility the court will look at it a very serious way. Kannon is there any chance the government could win it . Miguel the left side of the court is proenforcement. You view these people as polluting the market and you