Shh. Good morning. Welcome to a. C. S. s annual Supreme Court preview. Im kara stein, Vice President of policy and program at a. C. S. Which most of you likely know is a National Network of lawyers, law students, judges and policymakers who believe that a law should be a force to improve peoples lives. So here we are again. After a Supreme Court term that many felt was lackluster, despite the muchdelayed addition to the ninth justice to the bench, we are looking at an upcoming term that promises the high stakes we had grown accustomed to in recent years. You need only look at the first two weeks of oral arguments to see what i mean. During just those five days, the court will continue the constitutionality of the president s travel ban, legitimacy of wisconsins redistricting scheme and whether American Workers can be forced to arbitrate their disputes with their employers as opposed to have a day in court. Some might say the stakes are perhaps too high. To lead us through the discussion today with our distinguished panel, we have the privilege of welcoming a newcomer to this annual event, steven schwinn. Steve is a professor of law at the John Marshall law school in chicago and is cofounder and coeditor of the constitutional law prof blog if you are like me a law junky. He regularly writes for the a. B. A. Preview on United States Supreme Court cases and directs the a. B. A. Media alert for the seventh circuit. Most importantly he serves on the board of advisors of the chicago chapter of the American Constitution Society. I had the pleasure of working with steve recently on the soon to be ever released the Supreme Court review journal which will be forthcoming october and there are fliers out there if you want more information. But now without further ado, please welcome steve schwinn. [applause] steve thank you, kara. On behalf of myself and the panel, i would like to thank the whole team at the American Constitution Society and wed really like to thank you all for attending. What a fantastic turnout. I am excited about this. What an important time to be talking about these issues. It seems like every time i open the paper theres a new constitutional issue coming up. Its a time we really need to be engaged in these things. And so im pleased you are part of this conversation today and i am really looking forward to hearing from our very distinguished panel. My job as moderator is basically to introduce the panelists and quickly get out of the way and so i think i am going to do that. What id like to do is just a give a short introduction for each of the panelists going to my left. Their full biographies are in your materials so you can take a look and well get onto the program. So immediately to my left is Claire Prestel who is associate general counsel at the Services Employees International Union where she focuses on the csiu s docket. She worked at public justice and shes authored and coauthored amicus briefs in Supreme Court cases on a full change of range of different topics. So we look forward to hearing from claire today. To claires left, anil kalhan, an associate professor of law at Drexel University and currently visiting associate professor of law at Washington University in st. Louis. He is very involved in new York City Bar Association and American Association law schools. He focuses on immigration law, criminal law, United States and comparative constitutional law, privacy and surveillance and human rights issues. That was quite a mouthful. To his left is marty lederman, associate professor of law at Georgetown University law center. Marty served as Deputy Assistant attorney general in the department of justices office of Legal Counsel from 2009 to 2010 and as attorney advisor from 1994 to 2002. He is an active contributor to media and blogs, regular contributor to balkanization, and slate, among his other very many activities. Were pleased to have marty on the panel with us today. And to martys left, dale ho. Dale is the director of the aclus Voting Rights project and supervises the aclus voting litigation and advocacy work nationwide. Hes litigated a number of cases under the Voting Rights act and National Voter registration act and is an adjunct professor at n. Y. U. And to dales left is erin murphy. Partner in the washington, d. C. Office of kirkland ellis. Her practice focuses on Supreme Court, appellate and constitutional litigation. Shes argued three cases before the United States Supreme Court and she has more awards and recognitions than i think we have time for today. But this is our wonderful panel. Would you please join me in welcoming them . [applause] steve thank you very much. With that i will say a brief word about ground rules and turn it over to anil to talk about one of the cases that were all waiting to hear about, the travel ban. So each of our speakers weve asked to speak for about 10 minutes. Weve asked that they consider intervening with each other as we go and that will leave us about 30 minutes at the end for questions and answers from the audience. So with that ill turn it over to anil. Anil great. Thank you so much and thanks for a. C. S. In including me and inviting me to participate in this event. Its interesting to be discussing immigration in the context of the Supreme Court because the Supreme Court doesnt typically grant a lot of grants for a lot of immigration cases. They are typically in the last 10 years, maybe one, two, maybe three. And not necessarily raising big constitutional questions. This year the court has already agreed to hear three cases. Of course, the one that was referred to arising from the muslim entry ban in two consolidated cases but also two cases that were heard last year and then scheduled for reargument in this term with the ninth justice being appointed. Jennings vs. Rodriguez and sessions vs. Dimaya. I will talk about the entry ban case although i will say about rodriguez as well and dimaya if there is time. Especially insofar as they raise similar issues. By way of context for those who are less familiar how constitutional issues arise in the immigration context, theres a long theres two oversimplify and say there are two lines of cases that are somewhat in tension with each other. On one hand going to cases dating back to the 19th century, the Supreme Court said the political branches have quite a bit of are afforded quite a bit of deference in their substantive issues on immigration with very limited judicial review. This line of cases dates back to the late 19th century, the era of chinese exclusion, and has never really been revisited predates the Constitutional Rights revolution. But on the other hand in more recent cases, even back then, procedural due process was still respected in limited extent and in more robust sense since then but the court has more recently indicated there are limits. In cases like ines vs. Chavez. Just because the case may the issue may involve immigration that doesnt mean what the political branches do is entirely immune from constitutional review. Those have never been fully reconciled. They are in somewhat in tension with each other. Often what the court has done is to use constitutional avoidance when possible or look to procedural surrogates for substantive adjudication to use to draw from the work of hiroshi. And they may be at issue in cases that arise this term. The entry ban the case, i am sure most of you are familiar with this because its in the news. I wont belabor a lot of details. Of course, there was the First Executive order that was issued soon after the new administration came to office that was widely understood to be effectuating Campaign Promise that initially was formulated as a total and complete shutdown of muslims entering the United States. That then evolved over time in how it was framed. And that First Executive order was joined and then rather than litigate it, the white house issued a new executive order in march even as it maintained that executive order was simply a watered down version of the first one in response to the ninth circuits decision, the various injunctions affirming the washington injunction. But really seeking to accomplish the same goals. So the cases that are before the Supreme Court, one, from the district of maryland, one from the district of hawaii. Our concern is the second executive order which has a number of different provisions that are at issue. The first one involves the suspension of entry of nationals from six muslim majority countries for a period of 90 days in order for various agencies to conduct a review to identify what additional vetting was necessary. And the order included the number of exemptions that were not in the First Executive order. For example, for lawful permanent residents, duo citizens of other countries and also authorized a waiver that was not authorized in the first order for them to exercise casebycase discretion. These review provisions provided an internal review was to be conducted within 20 days of the Effective Date of the order and also directed it on submission of that report that there would be that the secretary of state would then again to request other governments to provide Additional Information about what information the United States wanted from other countries about nationals seeking to be admitted to the United States. And that report that was supposed to happen within 50 days. So subsequently over the summer the Supreme Court modified its second executive order to change the Effective Date such that the Effective Date of each provision would be when any injunctions were lifted as to those particular provisions. What the ninth circuit lifted the injunction on june 12. So now all of those internal provisions will by now have run the review provisions in terms of the time period thats prescribed in the executive order. Section 6 of the executive order suspended the u. S. Refugee Admissions Program for 120 days and then also reduced the number of refugees that were authorized to be admitted for this fiscal year from 110,000 to 50,000. Also removed an express religious preference in the First Executive order. You have two cases working up. In the Fourth Circuit, the issue was resolved on constitutional grounds. The Fourth Circuit concluded in a divided embank opinion that the District Court enjoined section 2c of the entry ban provision didnt address the refugee provision but did so when the Fourth Circuit affirmed it affirmed on a constitutional ground under the establishment clause. The dissenting opinions in that case essentially took issue at the majority looking beyond the face of the executive order itself to reach its conclusion that religious animus was on the order. With one dissenting judge raising a concern that donald trump might, in his words, never be able to free himself from the stigma of bias that the District Court has enshrined with the preliminary fact finding. In the hawaii order by contrast, the District Court enjoined both the entry ban as well as the refugee curtailing of the refugee Admissions Program. Then when the ninth circuit affirmed that, the threejudge panel rested its decisions on two separate statutory grounds. That it wasnt an exercise of the delegated authority from congress and that it may have run afoul of the antidiscrimination provision in the immigration law. So the Supreme Court granted certiorari and the injunction allows the entry ban to go into effect as to individuals who cant creditably claim bonafide relations to persons or entities in the United States. Theres been a decent amount of litigation as to the scope of that. What the Supreme Court said. Which we can talk about in a q and a if folks are interested. There is a good chance by the time this case is argued next month that it will be regarded as moot. I should note that professor lederman has written quite a bit this issue on i think on just security and i would commend those pieces to you. Because presumably the period will have ended now that the states have been limited and by the stays have been limited and by the oral argument comes around, all of the time limits in the executive order even as modified will now in fact have run. Its also by then, presumably then a new executive order issued and the focal point of this issue will turn to that. Should it reach the merits, its not by any means it will be ultimately be decided on constitutional grounds because there are statutory issues and so it may well be either by avoidance grounds or straightforward statutory interpretation the court doesnt reach these constitutional questions. Let me with just a couple minutes left Say Something about jennings because i think especially if the court doesnt reach these issues in this litigation and does in fact conclude that the case is moot, some of the issues in jennings might become relevant. So jennings involves presents the court with a challenge how to navigate between two two decisions that were intentional with each other. For 2003. Sus kim they held indefinite, permanent detention of an individual who has no foreseeable likelihood of being reinvolved doesnt raise the due process clause and in light of those constitutional concerns, the corporate interpreted those provisions to not authorize indefinite detention, but rather to require periodic review of the need for detention. On the other side, moore vs. Kim decided a couple years later sustained against constitutional challenge, statutory provision that categorically mandates detention for individuals based solely on their being deportable due to prior criminal convictions as opposed to having an individualized determination of their whether theyre a flight risk or a danger to public safety. And unlike the individuals, those are individuals who dont have final orders of removal and so it again in rodriguez there may be it may be that this case will be decided on statutory grounds if the court wishes to invalidate this policy. That is how the ninth circuit did so. At oral argument last year, there was some discussion about how to apply the avoidance cannon and that is something to the extent theres a different approach taken in rodriguez, then that could affect how the avoidance cannon is applied in other context. Theres also the issue involving the strength of the power and also each set of issues theres a concurring opinion in the past from Justice Kennedy that might bear upon how to how the court might act in this case. So ill stop there. We can leave sessions vs. Dimaya and leave that in the q a if folks are interested. Steven ok. Thank you very much. Next up, well hear from Claire Prestel about arbitration cases and possibly about a case that may be on the courts docket dealing with labor issues. Claire yeah. So as mentioned i work for the Service Employees union. So im handling the cases about workers. These two cases are linked to each other because they are about employment. In my mind connected because they have a real chance of being a onetwo punch against Worker Rights that we havent seen a chance of since the 2013 term. And what i mean by that, in 2013 we had a case called mulhall which fortunately in my view was ultimately dismissed as improperly granted. That was an attack on private sector employees ability to ban together and organize. At the same time there was a case called harris vs. Quinn which went after the ability of Public Employees in particular home care workers who are paid with public moneys to organize. And so, in this term we have sort of the same situation where you have the first set of cases i am going to talk about, its three consolidated cases. The lead one i think is called nlrb v. Murphy oil and thats an attack on private sector employees ability to ban together. And then the second case in which cert has not been granted is called janice vs. Ask me and thats an attempt to make every state in the country right to work for all Public Sector employees. So first, with respect to murphy oil, i think the relevant legal background to help understand the case is that the National Labor relations act and another statute thats less commonly talked about, the north la guardia act, those two statutes from the early 20th century both sort of provide one core protection for workers. And the core protection in both statutes and the core right they guarantee is right for workers to ban together and, you know, Work Together to defend their rights or advocate for themselves. Whether its in litigation, testifying before a legislature, you know, more traditional things you think of like strikes and both statutes protect both Union Members and also nonUnion Members. It doesnt matter if you are in a union. You just have this right. At the Time Congress enacted both of those statutes, it was very well aware of the possibility that employers might try to get workers to waive their rights. And that was forefront in congress mind because part of what motivated the statutes is yellow dog contracts which is a requirement you your employer would say, ill hire you, but only if you sign here saying you will never, ever try to form a union. And so congress that was one of the practices that congress wanted to get rid of when it passed the nlra and nlga. The other thing thats interesting about both cases sorry those statutes, at the time they were thought of as the more sort of free Market Solution to the problem of income inequality and workers rights, because the point of both statutes is to facilitate a private ordering of labor relations, facilitate private negotiation as opposed to imposing, you know, set requirements like minimum wage or, you know, leave, stuff like that. The idea was if you just give workers the ability to ban together, they can negotiate to a fair deal themselves and you dont need as much of the topdown regulation. So both statutes prohibit employers from requiring employees to waive their rights. The nlga strips course of jurisdiction to enforce such waivers. The nlra goes a step further and makes an employers requiring of such a waiver an unfairly labor practice. The north la guardia act also includes a provision that says refers particularly to workers rights to support each other in litigation. So the issue in these cases called murphy oil and the related cases is whether employers can require their employees to waive their right to participate in collective action, to ban together with other workers. If they embed that collective action ban in an arbitration agreement. And just to be clear, because sometimes this is not clear, the provisions that are at issue, they ban not only class actions, not only collective actions, they even ban things like joinder or coplaintiffs. So, you know, simply put, the question is whether or not we are going to return to an era of yellow dog contracts, just in a slightly different form. And the parties in the cases basically cite over two different things. One is whether the various relevant statutes can be harmonized so the nlra, the nlga and also the federal arbitration act and if so, great, stop there. And if not, which statutes should prevail. So on the first point, both sides say that all the statutes can be harmonized. Not surprisingly they would harmonize them differently. There are a lot of arguments for why the f. A. A. Could be harmonized with the nlra and nlga in a way that protects workers rights. One of those i wont go through all of them, but some of the most straightforward are that the f. A. A. Itself includes a clause that says the point of this statute is to make arbitration agreements as enforceable as any other contract but not more so, and so any defense you would have against a regular contract you should also be able to have against an arbitration agreement. And here, you know, this kind of collective action ban would be invalid and illegal under if it were in any kind of agreement. So you would think that savings clause would apply. The other sides argument, strongest argument, i guess i would say, is that in some cases the court has talked about requiring something called a clear congressional command before it will conclude that an employee has a right to a Judicial Forum as opposed to going to arbitration. The problem with those cases is that the reason they are arguably not applicable, in the past when the court has applied the clear congressional command standard, it has never done it in a way that strips people of substantive rights. And here the right to engage in collective action is the course of protection of both of our federal labor laws. Also usually the Court Applies that clear congressional command standard when an employee is saying they have an absolute right to go to court, they cant be sent to arbitration, and here thats not what were talking about. The nlrb actually said you can force your employees to go to arbitration. What were talking about is you just have to allow them to do it as a group, whether in court or in arbitration. So this is really about a collective action ban that has just been embedded in an arbitration clause, not sort of the issue of arbitration itself. So the second piece i was going to talk about, janice vs. Ask me. Again, at this stage, its a petition and before i would go into the merits, i would just say i think the conventional wisdom would be has been that the court is likely to grant because it took a case last term. Having read the papers, im a little more optimistic that the court will deny religion as a reason to deny. For one thing, theres a basic jurisdictional problem in the case and a question about whether the courts ever had jurisdiction over this case. I wont go into the details but what the right to Work Foundation is asking is to overturn a 60yearold precedent nesm considerate is inclined to do that, it might want to do it in a case where it doesnt have the outstanding question with respect to its jurisdiction. There are also pleading problems, you know, the complaint, this has all gone up on a complaint, its very conclusory if you were to to apply it. The idea is that no employee in the United States, public or private, has to join a union, never has to pay to fund a unions political activity. If a majority of workers in a work place decides to unionize than that union becomes the exclusive representative. What that means is the employer has to bargain with it and the , union tinings a duty which is once youre chosen by the workers and become the excuse i representative, as the union, you have a legally imposed duty to represent both members of the union and nonmembers. Its called a duty of fair representation, any union can be sued for violating it. Whats been worked out over time is a system where, because nonmembers of the union are entitled to Union Services, so for example, if they want to bring a grievance, theyre require, they can be required to pay a small fee which is called an agency or fair share fee. They dont have to pay for any of the political expenses of the union, theyre just required to pay a small fee to cover the cost of the services that they are actually receiving. So what this case says, or argues, righttowork, argues is that as a matter of the First Amendment, it is unconstitutional to require nonmembers to pay even for the services that they provide. So in other words, as a matter of the First Amendment, nonUnion Members should have the right to receive Union Services for free. And you know, i think its time for me to stop but you can imagine the consequences of that kind of system. You end up with a basic collective action problem that any economist could have explained to you 100 years ago. You get all the services for free, gets a lot harder to convince anyone to become a member. Which is why we dont have that system in the first place. But anyway, ill stop there. Excellent. Thank you very much, claire. Now well hear from dale about a political gerrymandering case and possibly another voting case. Thanks. Im going to talk about two cases in the court, gil vs. Whitford and another one. Im going to steal from pam who described this case as being one about a constant feature of our politics, one that starts with discussion of lofty ideas, moves to a situation where a few people retire into a room and there, in justice suters words there is a poll hall and trade of interest and somebody gets screw. Im talking not about 10 cruises about ted cruzs twitter account but gerrymandering. Gil vs. Whitford is the first gerrymandering case to be heard in the Supreme Court in over a decade. The last one ended inconclusively where four , justices held that gerrymandering claims were found nonjusticiable, and four found they were and one said the plan was not unconstitutional but didnt want to go so far to say that no partisan gerrymandering claims could be justiciable but the court had failed to arrive at a standard. This case tries to take up that challenge and articulate a manageable standard for assessing when partisanship in the redistricting process gos es beyond sort of the ordinary injection of politic into redistricting and becomes so excessive as to become unconstitutional. One of the innovations that the plaintiffs have introduced to this area of law thats much discussed in some of the coverage of the case, is something called the efficiency gap, developed by one of the professor, im sorry, one of the lawyers in the case, professor Nick Stephanopoulos of the university of chicago. The efficiency gap attempts to measure each partys wasted votes at the statewide level. That is the number of votes cast for losing candidates and the number of votes cast for a winning candidate beyond the level that that candidate needed to receive in order to actually win that seat. And then compares the number of wasted votes that each party resoved on a statewide level and calculates the ratio. It purports to show that at a certain level, the ratio is so extreme that one party is effectively locked into power, entrenched for a decade, after which the cycle perpetuates itself. In a 21 decision, a lower court, and this was a District Court a threejudge District Court rather than a court of appeals, because challenges to a statewide redistricting plan under the constitution go to a special threejudge court. The District Court held in a 21 decision that the plan was unconstitutional. It discussed the efficiency gap but did not rest exclusively on it. It found a range of evidence that the republicans in wisconsin had entrenched themselves effectively for a decade. I thought one of the most interesting facts that the court identified was the share of the party the share that each party got in 2012 and 2014 in terms of statewide vote and the share of seats that each party got. In 2012, republican candidates for state assembly got 48 of statewide a minority. , they got about 60 of the seats, the supermajority. But in 2014, republicans candidates for state assembly got about 52 so they did much better they got the majority and , again got about 60 noveget 60 of the seats. Right . So whats interesting, i think, is not so much the disproportionality but the fact that the g. O. P. Candidate vote share really made no difference in terms of the seat share. Either way, whether they were getting a minority or a majority of the votes statewide, they were effectively locked into a supermajority of the seats. Now, wisconsin makes a variety of arguments as to why this does not demonstrate entrenchment or a variety of issues in the case including issues related to standing. I wanted to focus on one issue, the question of whether or not the disproportionality that we see sometimes between a statewide vote for candidates of one party and the translation of that vote into seats is due to gerrymandering or to political geography. This phenomenon is referred to as the big sort, in which liberal voters tend to be clustered in densely populated urban areas that are very, very liberal, districts are maybe 80 democratic or the vote share goes 80 for democratic. Whereas conservatives tend to be more spread out in areas that are conservative, but perhaps less so. If you think about, say, maps of which president ial candidate won which counties, right, sometimes you see these maps after an election. And you tend to see this sort of sea of red surrounding Little Islands of blue in urban areas. I think that kind of gives you an idea of what this phenomenon looks like. The result is that democrats naturally have more wasted votes in any system of representation that depends upon geographically compact, Single Member districts. The question that i think is posed here is how much of that bias can be attributed to natural sorting and political geography and how much of it can be attributed to gerrymandering and is there a way to develop a judicially manageable standard that enables a fact finder to determine the difference . There are a lot of amicus briefs in this case, i think theres one for every man, woman and child in the state of wisconsin. Ill talk about the aclus briefly what percentage of them are wasted . [laughter] there should be a study and a paper. There will be, im sure. The aclus brief arises from First Amendment principles. And two principles in particular. First that theres a principle of government neutrality in the public sphere drawn from freedom of speech cases and second that voters have a right to associate freely with their candidates and parties of choice, a freedom of association thats impermissibly burdened when one party has so entrenched itself that shifting Voter Preferences have no meaningful effect on the distribution of political power. Some parting thoughts about the case, it has, i think, the potential to be the most significant Voting Rights and redistricting case since reynolds vs. Simms established one person, one vote a case that chief Justice Warren himself described as the most significant case he ever authored. If you look around the country, there are reasons to think we have something of a crisis of democratic accountability right now. You look at a state like maryland where democrats statewide get about 60 of the votes and yet control 78 congressional seats and a huge supermajority in the state legislature. You look at a number of states that are about 5050 in term of the statewide vote that candidates from the parties get, michigan, pennsylvania, ohio, virginia, north carolina, but where the g. O. P. Has a super majority in terms of the congressional delegation and the state legislatures. I think the best Political Science on this suggests that the massive disproportionality we see in a lot of states and the entrenchment of one particular party is not fully attributable to political geography. There are, i think, Reasonable Estimates that as much as 15 seats of the republican advantage in congress right now can be attributable, can be attributed to gerrymandering. So if the plaintiffs succeed in this case, it has the chance to have immediate consequences for redistricting around the country and the distribution of political power and introduce an entirely new limiting principle in redistricting processes going forward. Briefly, ill mention one other case, houston vs. A. Philip randolph institute, an aclu case were litigating with the organization demos, a challenge to an ohio voter purge program. If you live in ohio and you are registered to vote and dont vote in a twoyear period, half of the electorate not voting in a mid term election, youre marked for possible removal based on the assumption that you have moved to another jurisdiction and are no longer eligible to vote in that jurisdiction. Youre sent a notice and if you do not return that notice and do not vote during the next two federal election cycles, youre removed from the roles. The sixth circuit found that this violates the National Voter registration act. The effect of that ruling was that 7,500 voters who cast ballots in the 2016 election, people who had not moved and were indisputably eligible to vote, the state of ohio concedes this, cast ballots, they had been purged under this process, and had the sixth circuit not ruled the way it did, these voters would have been disenfranchised and their ballots would have gone uncounted. This case centers on the motor voter law, which provides that any law that removes voters because of failure to vote is prohibited. Congress were concerned about programs that kicked people off the roles for inactivity. There were concerns that these kinds of programs were essentially a reregistration requirement that disproportionately affected minority communities where turnout tends to be lower and a reuters study found this program disproportionately affected People Living in predominantly africanamerican communities this case will be argued in november. Thank you. Thank you for those terrific , summaries. Well hear from aaron who will talk about a Fourth Amendment case coming up and if time permits, about an alien tort statute case. I am going to talk about that, but just to make sure nobody gets the wrong impression to the fact that i am sitting to the left of my copanelists. I want to say a couple of quick words about the wisconsin case. We are pretty involved in the case. Its an interesting case, i wanted to share a few views about it. Theres a lot of discussion in the case about how we can identify the partisan impact and whether we can find this narrow and precise test that everyone is looking for to figure out how much partisan is too much partisan, and gerrymandering, but it seems to me that the fundamental problem is theres a lot less discussion from the plaintiffs and their side of the case of how were going to map any of that onto a constitutional violation. And in thinking about that, i think you have to think about how this is very different from the context of racial gerrymandering. The court said in that context, the injury is the idea that is an equal protection violation to be sorting people on the basis of race. That theory doesnt work when you try to apply it to sorting people on the basis of partisan affiliation. One, because its never been treated as a suspect classification in the same way, and two, because the reason its not treated as the same kind of suspect classification as race is because part season affiliation is not an immutable character usic. Characteristic. You can change your partisan affiliation and the way you vote in one election may not dictate how youre voting in other piece of the same election, let alone in future elections. So just because i want, you know, the republican in my particular district, doesnt even necessarily mean i want the republican candidate for governor or whatever else it may be statewide. And to me the real question is in this case is, how do we does any of this map on to an actual constitutional theory of injury in the notion that, you know, i have an interest not only in being put in a district where my vote counts in a certain way for purposes of who im voting for, but also in such a manner that the districts are arranged so that theres a proportional representation statewide that reflects the way i voted in an individual election. I think its particularly fascinating for all of this to arise in wisconsin which is kind of your quintessential purple state, where you have voters that really are voters, who consider themselves independent, who may in the same election vote for one republican and one democrat. Who may want divided government among, you know, between the house and the senate, between the legislature and the executive. So the notion that people have a protected interest in ensuring that however they vote in particular elections sort of is reflected all throughout the state not only to me is constitutionally problematic, but also just isnt really right and may be attributing to people things that arent what they want. Now of course there are plenty of people who vote in a particular way all the time and you know, they have a practical interest in that. But i think thats the real issue in this case and it will be very, very interesting to hear argument in this case and have that fundamental, theoretical debate because thats the debate thats been going on in partisan gerrymandering cases for quite sometime. It is really the debate at the heart of the standing of justiciability issues in the case. With that said, ill talk about what im supposed to be talking about which is the carpenter case, which is to me, another really, really interesting case, really interesting set of criminal issues in a Fourth Amendment case. This is a case about socalled cell site data, the data that your Cell Phone Company is keeps, they keep records of every time your cell phone is connecting to a tower to ensure cellular service. They have a record of what tower youre connected to. If you think about it if , somebody gets hold of those records they can learn a heck of a lot of information about you. Its sort of a little more rudimentary version of g. P. S. Because its not an exact location of where you are, probably a one to twomile radius but those records can basically show where you are. 24 hours a day. Since most of us have our cell phones on us most of the time. Thats exactly what, kind of the records were used for in this criminal case. Mr. Carpenter was charged with violations for a string of robberies, and the government obtained these records if from his Cell Phone Company and introduced them at trial to demonstrate that he was in the vicinity of each of the relevant robberies and it obtained that information without a warrant. It had a court order, ill talk about that in a moment, but did not have a warrant. Mr. Carpenter argued that this was a violation of his Fourth Amendment rights, it was an unreasonable search. The sixth circuit disagreed relying on this doctrine known as the Third Party Doctrine, concluded there wasnt a search at all because this information, he knowingly allowed his cell phone provider to have this data and its just information that a third party is keeping in records, and therefore theres no really he doesnt own this information and have a privacy interest in it such that the Cell Phone Company cant release it without running afoul, without engaging in a search. And the sixth circuit was not alone in reaching that conclusion. Most of the courts that have confronted this issue, the lower courts had concluded that these obtaining this kind of information without a warrant doesnt violate the Fourth Amendment. There have been plenty of dissenting views along the way and this has been a hotly debated issue in the lower courts but as this petition came to the Supreme Court, there wasnt really a circuit split, but the court nonetheless decided to take the case after about four months of relisting it. So all of that suggests that the court is, you know, pretty concerned about this issue because it doesnt usually reach out to take an issue when the lower courts arent actually strictly divide on it. So i think from that alone theres some concern probably if , youre in the governments shoes, i think if you take this case also in the trajectory of recent cases from the court in which the justices have shown particular concern about how the Fourth Amendment is going to apply to technology in the modern age, that also would suggest that the government got some problems here. Probably to me the most important of those cases to look at in terms of putting this in context is the jones case a few years back involving g. P. S. Search and there, the Court Unanimously concluded that putting attaching a g. P. S. To somebodys car was a search. Now whats interest about that case is while the Court Unanimously reached that conclusion, there were very different views about how to get there you had a fivejustice majority concluding that that was a search because it was a physical thing to attach the g. P. S. To the car and therefore you had an expectation of privacy based on trespass law. Four other justices said people have a reasonable expectation of privacy in the information that is obtained from a g. P. S. Device and that this is just totally different from anything his tore exly that you would have thought of as the kind of information the government could obtain without a warrant. And then you had concurrence from Justice Sotomayor who was in the fivejustice majority saying, i do think we can resolve this case on trespass grounds, but im kind of with the four concurring justices in saying that i also think that theres a reasonable expectation of privacy problem here and in particular, she noted that she thought the court might need to reexamine this Third Party Doctrine thats underlying these cell site cases and we need toe think we need to rethink the idea that in the modern age every time we allow somebody, you know, our relationships with a cell phone provider or some sort of other Technology Provider to give them access to information. To give them access to our email, for instance, that weve somehow, you know, implicitly consented to that information being equally available to the government without a warrant. So, you have a lot of indications here that make this look like a tough case for the government. But i do think its a little more complicated than that. Because there are, you know, theres some difficulties here and i think thats kind of evident in the petitioners brief which is written in a pretty narrow way. They have explicitly declined to ask the court to overrule the thirdparty doctrine which i think a will the of people would like the court to do but they made a judgment call that makes a lot of sense to try and tell the court look, theres nothing wrong with this doctrine in other contexts. It just is something that shouldnt apply here because theres a stronger interest, a privacy interest at stake when it comes to revealing my location 100 of the time. Im not sure that argument to me is completely practically satisfying. The court has allowed the Third Party Doctrine to be used to obtain, for instance, all financial records and in this day and age, when very few of us use cash all the time, you can learn a heck of a lot about me from obtaining my financial records on a daily basis, not only where i am but exactly what im doing, wherever i am. Thats not to say i dont think the court might latch on to that as an easy way to distinguish those cases, but it is not simple. The other thing that makes this thing the last thing ill say really interesting, the , information was obtained pursuant to a federal statute that while it doesnt require a warrant, did impose constraints on what had to be shown to a judge to get aned orer from the to get an order from the judge to allow the government to obtain these records. So the government has an argument that, you know, even if this is a search, even if theres a Fourth Amendment interest here, theres a statute and that statute makes this a reasonable search and notably the petitioners here, their First Response to that argument is to say, maybe you should punt on that Supreme Court and kick it back to the sixth circuit and let them address in the first instance whether, even if this was a searching it was a reasonable search. So i think theres some complications in here that will make this an interesting case even though i think a will the of people have a strong instinct that the court is going to have a strong instinct that is very troubled by the idea that government can obtain this kind of information without a warrant. Excellent, thank you very much, erin. I hope we can explore this difference between political gerrymandering and racial gerrymandering on the other, maybe during q a period. Thank you very much. Last but certainly not least, well hear from arti literman who will talk about the Masterpiece Cake shop case. Quite thanks very much. Thanks very much. Before i do, i want to pick up on something erin just talked about in carpenter and the travel ban case, just to give you a sense that the resolution of both of those cases might be different from what youre expecting. And aaron suggested a very possible splitting the baby in answer from the court. The question is if the cell site information is a search subject to some Fourth Amendment scrutiny . I do think theres at least five justices, maybe more, maybe nine justices who might decide that the answer to that question ought to be yes, that governments ought to be subject to some limitations in term of how to collect day a ta bases of collected these data patient databases of information that reveal so much about ourselves, however, there may also be a majority of justices within that group who believes that the standards that congress enacted in the Communications Act is sufficient because in particular its a little more robust even than what the government would have to show in a grand jury subpoena for the very same information. And the grand jury subpoena issue, i think, is sort of the gorilla in the middle of the room that no one is talk much talking much about in this case. And the courts doctrine on this is old and has not been rethought in a long time but its verying very easey to use grand jury subpoenas to get any information from third party providers, third parties of all sorts, and theres some justices who might think that at least as long as thats true, the standard that congress set up here suffices. So this satisfies the Fourth Amendment, even though its subject to Fourth Amendment constraints. On the travel ban, i think its very unlikely the court will reach the constitutional question. If it reaches the merits i think its likely to resolve the case on statutory grounds. Besides that hes right to suggest, i think, that it is likely that President Trump will issue either an amendment or an extension of the executive order now that the whole review process is virtually completed in which they will either impose different constraints from maybe a different set of countries altogether, now that the review is virtually completed, or say that they are almost done with that review and so they need an extra 30 or 90 days or however many it is of the travel ban to stay in place. But theyve obtained a lot of information from all the nations of the world in this review process and we dont know what that is yet. So i think if not mootness, a very likely result either before or after oral argument is that the Court Remands the case for reconsideration or for refiling based on new facts and circumstances. After the president changes the executive order. Just, i will probably be proved wrong in both of those case bus just so youre not surprised. Masterpiece, im going to assume most people in this room know about masterpiece, its one of the sexier cases on the docket this term, involving the law of cake and whether cake speaks. [laughter] so im just, rather than going over the details of the Lower Court Decision or many of the facts in the case which i assume you know or could know if you listen or view any of the other Supreme Court review panels that are all over the internet right now, im going to give some historical backgrounds in two respects. One is looking longterm back. Its long been the case that the common law has required some sorts of businesses and vendors to make their Services Available to everyone. Innkeepers and common carriers in particular. Over the last 100 years or so, thats been complemented by a number of state statutes requiring theyre all different in some respect, requiring antidiscrimination norms with respect to other sorts of vendors. On various grounds. Most common of which are race and sex and religion, of course. Colorado statutes, and famously title ii of the 64 Civil Rights Act provides that in places of public combination which do not cover these sorts of businesses. But do cover hotels, restaurants, and the like. Entertainment facilities. Be used religion cannot as a grounds for discriminating against colored. Colorado has gone further in two respects. To all businesses. It also extends it to discrimination on the basis of Sexual Orientation. Any ofo does not allow its commercial vendors, i believe, to discriminate against their customers on the basis of Sexual Orientation. The Historical Context is over the years, these antidiscrimination norms and these commonlaw rules have constantly been subjected to constitutional challenge. Under property rights, contract rights, freedom of religion, freedom of speech, freedom of association and the like. Gotten anyery rarely traction at all from the Supreme Court or from many of the other courts over the years, particularly when it comes to race and sex discrimination. These sorts of claims were includingrejected heart of atlanta hotel. Bomb jones university. Runyan versus mcclary, a whole line of cases. This is one in a series. You might think, it just gets the back of the hand. These constitutional claims for exemption from the antidiscrimination law might be treated the same way. That brings me to my second Historical Contextual point. When the court two terms ago decided there was a constitutional right to samesex couples to be married, the court also, in the majority opinion by Justice Kennedy went out of its way to emphasize that it did not view objection to samesex marriage in the same way that it views racial discrimination. Thinking that most people that object to samesex marriage do so on longstanding religious grounds. I will quote from Justice Kennedys majority opinion. This objection has long been held and continues to be held in good faith by reasonable and sincere people. Many deemed samesex marriage to be wrong and they reach that conclusion based on decent and honorable religious philosophical premises. That is nothing like any justice would have said about race discrimination or opposite mixedrace marriage. I think a majority of the justices think it is a very bad idea for states, at least in the short run until the nation becomes more reconciled to samesex marriage across the nation. It is a bad idea to require commercial vendors to participate in samesex marriage when they dont want to. The court thinks their objections are worthy of more respect than race or sex discrimination objectors. If the court were in state legislatures, i think they would build in exemptions into these statutes. A majority of justices think it is a bad idea that colorado did not do so. That is a far cry from saying there is a constitutional right to exempt oneself from the state statutes. There might be a majority of justices who want to find a constitutional claim, but it is going to be hard to do so. It is hard when you start thinking about it to figure out what the limits are not dont bleed over into sex and race discrimination, but dont undermine a whole decade worth of doctrines in this regard. The defendant here has raised free speech and free exercise objections. I will not talk about free exercise because i think most everyone agrees that will be a futile claim. The court will not overrule smith. Even if it did, it would lose under smith. These claims lost unanimously in the presmith era. It is one of compelled speech. The shop is climbing over their claiming that over their religious objections, they are being forced to Say Something with the cake. Im going to be generous to the petitioners brief. As i see it, their strongest case is that they should prevail when both of two criteria are present. Inber one, the vendor question, is him or herself engaged in some sort of creative First Amendment activity. Andtive artistic activity custommade wedding cakes are that kind of activity. I think they are right about that. There is at least some constitutional protection for that. That does not mean you win the case. That wont be enough. They will not say everyone engaged in artistic and expressive activities are not entitled to exemptions. You can imagine all the different cases. The second criteria is that in addition, the products or services they create through this artistic activity inherently conveys a message , they dont agree with. Not that anyone will miss attribute the message to them, but they dont want to have to say that message in the same way that jehovah witness students did not want to pledge fealty to the flag, and motorists in New Hampshire did not want to a test to live free or die. A custommade wedding cake they argue inherently says, celebrating this couple, a statement that Jack Phillips not only does not believe but thinks is morally objectionable and religiously incorrect. I think that is where the heart of the case, where the justices might get tangled up. Does a wedding cake inherently say anything itself, or does it really only celebrate a couple by virtue of what the couple does with the cake . If your wedding is anything like mine, my wedding cake did not say anything even implicitly accept what the cake and alice in wonderland said, which was eat me. [laughter] people may have wanted to celebrate us, but not because of the cake. That will be the hardest part for the justices who want to recognize institutional constitutional exemption to try to articulate why a wedding cake is inherently expressive, and in particular why the cake standing alone rather than the use of the cake made by certain couples is inherently expressive. And whether that is a positive limiting principle. I dont think the justices are inclined to issue a broad decision that will provide constitutional exemptions to all sorts of antidiscrimination laws. It is hard to reach that result than you would think. Having said that, you ought not to be surprised if there is a majority of justices that get there in a narrow opinion. There are about 50 amicus briefs on the side of Masterpiece Cake shop in this case, which is exponentially greater than the number of constitutional exemptions in any of the historical cases. It includes the United States of america, which has filed for the first time in its history against exemptions. They have antidiscrimination laws. Or not filed at all. I think the first time in history the u. S. Has filed in favor of a constitutional exemption. The solicitor general has tried very hard to craft a narrow series for an exemption. Although i am not quite sure i understand what the limiting principles are quite yet in their brief. I think the challenge with those that would recognize the exemption is to figure out those limiting principles, which is easier said than done. These are smart and creative justices and i dont put anything past him. Pastor them. Excellent. Thank you for walking us through that. We have about 30 minutes for questions and answers. I have a full list of questions. I imagine the panelists have questions. I think we would rather hear from you. We have some roving microphones. If anyone has any questions for any of the panelists or panel entirely. Front here please. Hi, i am from aspen, colorado. I am aware of our hate crimes act. Have you ever gotten a cake from the Masterpiece Cake shop . I am a lesbian. I was arrested at my church. My case was documented at the Supreme Court, a habeas corpus case. I am alleging that the hate crimes act, 245 and 241, may not be enforced by our courts in america from aspen, colorado to the court of appeals to the Supreme Court of colorado, 10th circuit, and now u. S. Supreme court. My colleague on my right have discussed, what is hate . How are we interpreting the hate crimes act for violations . I dont see many cases where our rights as lesbians i would also include there could be a gender discrimination. You are so wise, and we appreciate your long hours in law school. Any of you, i would address it to anyone that has a thought are we in america enforcing the hate crimes act that has been on the books . We know that in 1973, homosexuality was no longer deemed a Mental Illness and yet the judge deemed me mentally ill. There is a lot of questions we are addressing. These issues will not arise in Masterpiece Cake shop or any other court docket cases. I can tell you from experience that the Obama Administration Civil Rights Division enforced the hate crimes act against Sexual Orientation based violence quite frequently. I have no idea what the Trump Administration department of justice is doing with such cases. Im afraid that is a little bit far afield from this terms cases in court. Perhaps there will be issues in the future that are raised before the court. Thank you. Question of the table in the middle . To questions about the muslim ban case. With the possibility of the president issuing an additional executive order, i was wondering if you could speak to the possibility of the court reaching the merits capable of repetition innovating review. The second question i have is whether or not you think the Trump Administration, or the court rather would be willing to consider trumps statements on the campaign trail. Sure. So on the second question, i subject ofhas been a debate between the majority and dissenting opinions in the lower courts. And i dont have a good read as to how the justices would engage that. My own view is that relevant to the doctrinal claim. Therefore, you look to evidence of motivation. Its not just statements on the trail. N there are there is some thatnce of religion animus the plaintiffs have pointed to. There have been statements during the term of the administration. So i imagine that will come up. Certainly has been debated, along the different judges in the lower courts. On the first question, i suppose thats plausible. Sure there are other Panel Members that may speak to that as well. Be whether ay whether they choose to hear it. Theres that going on too. Its possible they could hear to,then choose not especially in the immigration context, given what i was the longg in historical arc, the tension power and the there is often the court, time, hasg period of looked to ways to avoid engaging constitutional questions. Be to reachn would the merits on the statutory grounds. Be to reach the merits and address it on procedural grounds. Another would be to not hear the case, especially if it seems like it might return to them in some other form. Incapable of review, right . So the new executive order could haveallenged and will different terms and conditions and perhaps Different Countries does. He current one i mean, just to add one other thought, i think a good deal will depend on what the United States is saying and whether they want the court i mean, theyre taking the position of we want you to deal with this court like i think the will deal with it. We dont quite know exactly, i think, at this point what their on all of that is going to be. So it will be i still think, if they dont theanything more about what review has demonstrated, theyre putting themselves in a bad posture before the court. Either the review has shown that there are risks to national or it hasnt. They cant really hide the ball on that. Yes. I just dont know if their view is going to be kind of weve got something new, so lets figure some lower courts, or if their view is going to be these Lower Court Decisions are we need you to Say Something now. I think thats a lot thats thel going to happen and humanitarian about the way the and the way the court is going to handle it. It may be that remanding is course. Er this goes to the issues in rodriguez as well, when the Court Rodriguez involves prolonged detention of detainedo are being for a particularly long period of time. The Court Reviews some of the related issues, the information that was presented the court and what in the first instance in the supreme went to how long did the detention of the people who affected by that were, the detention was relatively short. And it is you know, the general went to the court last year that it was granted the rodriguez and said, those statistics were wrong. And they were never tested by the adversarial process. The air right now. So i would think that would be a good reason that if there are assertions being made, the court might want to remand initially. Ng it up just continuing on this theme, if i can ask a question in particular, or anybody who wants to weigh in, you had mentioned the statutory of this piece. I wonder if you can talk more about that, in particular the exercise of authority to halt immigration in the National Interest and the evidence that goes to National Interest, which was the basis of the ninth circuits rule grg so argument, in brief, is the president purports primarily upon a statue that was part of the act from 1952r branchfforded executive officials very broad discretion to exclude people from the preventtates, to passports from being given to certain people and the like. And the statue itself, section thef seems to give president virtually unbounded discretion to exclude the entry persons or classes of persons based upon any finding tot such entry is necessary advance a National Interest. Is, is that really as broad a delegation as the claiming it is . And the hawaii plaintiffs in particular, the hogan brief just this week, makes a pretty compelling case, that like the the courtase that decided in the 50s, this should be viewed against the backdrop preceded thishat 1952 statue and should be limited to certain sorts of claims by the president. And then theres a bunch of 1952 in enacted after which Congress Seems to it,nstrate a distaste for for National Origin based proxies for exclusions, for National Origin has a broad proxy rather than diving down more particularly into a particular person or group of persons is dangerous or if theywise a problem, are to enter into the United States. Theink the Court Establishment Clause questions are very complicated and difficult and novel. Willt think the court have much stomach to resolve them, one way or the other. Possibility of saying that 1182 doesnt give the president the authority to here will bed tempting to at least certain justices. I have no idea whether it will be a majority. In part because i think and i thet this would be in courts opinion i think at least some justices must feel, although President Trump made a finding that the entry of persons, all persons bem these six nations would detrimental to the United States, that was based on no review of anyo problems or any evidence of any withems that have occurred the entry of these individuals under the extraordinarily strict conditions that are already present with respect to entry in the United States. It seems, by all accounts, to be explicable as making good on a promise that he made necessarilyign, not that hes got muslim animus but that hes basically showing his supporters, as politicians often do, making good on a promise to muslims out of america. I dont think that will be in the courts opinion. And i think the court might well back on this statutory ground if it reaches the merits. Actually think the most likely result is that it doesnt meet the merits. Ownust on that point, his department of Homeland Security had issued studies, as the ninth circuit pointed out, that kind undermine the conclusion in the executive order. Im fully expecting that whoever comes out of this of this comes out review will be at least recommend missed on what at premised on what they say. I have no idea what it will be, orther it will be compelling persuasive, but it wont be the virtual black box that we got in march. Or up here in the front, please. Hi. Can i ask two questions . Can you bear down a little bit the travel ban, sort of what we should look for . If it does get to the merits there . And does anyone have any thathts on evidence progressive groups or liberal been aggressive getting things before the court or granting third in certain because they may be fearful that the president might get another vacancy sometime in couple of years . Good question. And thestice kennedy entry ban, one starting point is which i was alluding to opinionred a concurring in carrie versus din, which goes consular decisions primarily and building upon an earlier case. And i mean, theres a certain of just the language in that opinion goes to whether the baselinenow, rule is that review of substantive immigration deferential. Pretty one case provides for an exception and the standard is, the decision facially legitimate and bona fide . Alludes toe kennedy is the notion that if the decision is made in bad faith, then in fact actually that might be an exception to that general rule. That would be the starting point for thinking about that. To also hee in the majority in cases where the court has engaged in the constitutional avoidance to rest on statutory grounds, in the immigration context. He joined the majority. Thats where i would start. Im sure others have thoughts as well. Or not. On the second question, was the second question, are progressives trying to get to the court now because they think its going to get worse . Is that the idea . No. [laughter] timeen was the last organized labor filed a petition in the Supreme Court, right . I just dont think so. Much aoss is just as loss as a 63 loss. Did anybody else and anything can happen, as with justiceear scalias death, so you never know. Does anybody else want to on those . Thank you. In the front . Question for claire. Specifically you mentioned the janice case. You felt more comfort after reading the pleadings or filings. The could you elaborate on that . The case is still at the cert stage. Toelt there are more reasons deny cert in this case than i knew about, before i read the papers. I think that the jurisdictional issue is a big one. Basically the case was originally, i think, filed by the governor. He never had standing. Then there were interveners who the case andke theres some Supreme Court case law about how you cant really remedy the absence of jurisdiction that way. Ask thatou know, the right to work working is asking is a pretty big ask. No way i mean, what they want is the overturn overturning of longstanding precedent. Its not like theyre saying, a way we can win wo ut that. Thats win without that. Be ways they could win, little things, without that, that theyre trying to sort of avoid talking about because they want the big win. So if youre gonna do that and if youre confident, as this court may be, that this issue is going to come up in another vehicle, because, you know, theres tons of these cases out then why go with this one . Claire, do you think the issuewill come to this sooner rather than later at some point . Hard to say. s all i know is that, from thating all of the cases, there are plenty of them out there. From my own perspective on just a when,his is not if question. Right. Well be totally i dont know enough about that position to know if its a really bad vehicle. Pointk its a very fair that theyre going to want a good vehicle in which to address the issue. The case and they were clearly ready to reach a result. They will be looking for another opportunity to take it up and reach a result. In the front . On political gerrymandering, a matter of constitutional law, race and politicalization are not the same. But participation in a Political Party is an association which is, of course, protected under amendment. So if you have a plan that herds members of a party into a way that dilutes their vote, to me, would seem to sort of between the distinction race and political affiliation, that you mentioned. To association and how that might come into the case . Yeah. I mean, i think you put your on one of the theories that has been identified by people. Theres sort of an implicit acknowledgment by the fact that the argument isnt make it likend race, but you have to have a different theory for getting there. Ideank one of those is the that well, the interest here is actually more of a first associational interest. And less of a pure kind of voting or equal protection thequal protection interest n sense of discrimination. The problem there is how do you think about the extent of the burden on association . I mean, its not like people ability tothe associate and to make to the political process just because they dont get the outcomes they want all the time. Really one of the interesting facts weve seen in history on some of these ofrymandering cases is some the ones theres multiple instances where, you know, the court was quite confident that there was just this wasantly unfair system that gonna perpetuate a, you know onever a bias in favor of party and then, like, the very next election after the court issued the decision, it flipped completely, because the reality is that politics is affected by than just where were located and where we get to vote and things change. I mean, i think that youre right that theres a different interest thats being articulated here. But i think thats part of why, you know, this really is just a animal. T if nothing else, its a different animal and you cant take the courts existing gerrymandering doctrine make it work the same way in this context, to the extent it works even in the context where its been developed. Ha ha people on both sides would debate that a little bit. Think its one of the difficulties in this case, because you see a lot of attempts by both sides to have pieces of, heres where i think doctrine, atsting the same time, saying, well, its not quite like existing doctrine. The struggle, why the court hasnt reached all of this for a long time. This is something that i with erin on, that the contexts are not analogous, right . Thee are some aspects of racial gerrymandering cases. Particularly when youre trying to assess evidence, right, because both of involvends of cases questions about process, motive, what factors were taken into account. Think the same kinds of evidentiary tests are importable. Host the gerrymandering context. But i agree that some theory underlining these cases is very different. The racial gerrymandering cases are cases about improper classifications. The consequences of those classifications is immaterial to the constitutional harm there. Is not that one racial group was deprived a certain level of political power or just an outsized level of political power. A consideration that is forgotten in our politics, predominated, right . And that that consideration expresses some racial difference that itself is problematic for politics. Thats the theory anyway. As erin alluded to, i think there are people on both that of the debate on this would question some of the assumptions of that theory. But here, i agree with erins that, look, this is a mutablmutable characteristic. Your political affiliations are changeable. But i think thats precisely the the plaintiffs legal theory here, right . Peoples preferences in terms of candidates and shift. Al parties may they have a right to associate with those candidates. Think,t right entails, i sortion not just that you of cast a ballot and express your views but that your views some waythemselves in in the distribution of political power in a meaningful sense. Right . And if you draw lines in a way that negates those shifting thatrences, then unconstitutionally burdens your associational preferences at a certain level. Think about if the redistricting process went this for theire voted preferred parties. And after all the ballots were government then came in and drew the lines to decide which votes were in which astricts in order to achieve predetermined outcome of locking one particular Political Party into power, no one would think thats permissible, right . I think the question is here if a Political Party tries to do that before actuallyion, and effectively achieves that result, right, whether or not meaningfully different and we think not. But this is very hard to explain to students and to the for the following reasons. It may not be immutable. But yes, youre right, of course every other area of constitutional law and this one, i think Justice Kennedy has out and the state came wed, the Legislature Said are drawing these lines in order to entrench the democratic over thesetrol seats, that would be motives. Ate thats never supposed to be okay. But where erin is absolutely is that was justice stephensons idea. Its very obvious that the legislature is trying to entrench one partys control over seats rather than anothers, thats simply an illegitimate basis under equal protection law for doing something. Justice kennedy didnt buy that as a theory that he was willing to accept in the cases. And thats why everyone is now obsessed not with motives or with an intent test but with sort that heof the was talking about. There is Something Weird about because we naturally think wisconsinis the legislature trying to, you know, secure power for the Republican Party . A legitimate interest at all . But Justice Kennedy has said clearly hes not willing to make that the basis of the doctrine. I think we may have time for one more question. Middle, please. I thought we might have heard a little bit more by now about neil gorsuch. To hear your thoughts about what we might expect from our new justice. Thank you. Hes very timid. [laughter] demonstrated he issued seven separate opinions in the course of four days. Took the lastit justice, kagan, took her i think Something Like three and a half do likewise. He is not shy about expressing his views. Im not sure why or how that his be received by colleagues, but he seems to want liken a way, something Justice Thomas but with a think. Nt balance, i wants to set out his views, whatever they might be, and rest ofss of where the the court is and regardless of where the doctrine is in each case. Sees himself as being something of an iconoclast. On his onet based month in office, right . That could change radically. His earlyevens, in years, issued separate opinions all the time. Refused toike he join any opinion that he didnt agree 100 with. Over time, that definitely changed. And so perhaps Justice Gorsuch more of aise become team player than he demonstrated in april of 2017. I do think one of the really interesting cases to watch him case,l be the carpenter just because thats an area, Fourth Amendment, one of the gets that you just disagreement even among justices who are otherwise like minded or toward thenclined same outcomes about reasoning. I think that will be a really interesting case to just get more of a sense of his approach to constitutional analysis, his approach to criminal issues in just i think it will tell us some things that beyond thelicable context of that particular case. Thank you. And thank you can i oh, please. I think im the only panelist from outside the beltway. Be just an outside the beltway observation. [laughter] its not a substantive point, though. Its not i mean, its just descriptively the case that Neil Gorsuchs nomination was a very allrizing nomination for the obvious reasons. When i talk to people, there are people who fully accept his nomination as normal and legitimate. But there are a lot of people in the country who paid attention to that process more than they anodyne some other more Supreme Court nomination process for whom theres a cloud over his head. The things i was struck by is what marty is alluding to. To whichd the extent that actually serves his longterm interest in alleviating that cloud. Contrasts in some ways to the way chief Justice Roberts has thought about his as chief justice in institutional terms. I wonder if thats a tension or not. Emerge its just something that, you know, what marty is alluding to, something that struck me in those terms. And well see. Year at this time, well have more to say on this. For thet to thank you question. Its interesting that we had an hour and a half discussion about this. Factcheck me, i dont think we mentioned the word gorsuch once until your final question. So thank you very much. I want to thank you all for coming today and participating panelists. Ou to the [applause] [is [indistinct conversation] cspan,g up next on Deputy Attorney general Rod Rosenstein on promoting the rule of law at the justice department. Debate on, the house importing undocumented gang members. Cspan, washington journal, live every day with news and issues that impact you. Coming up friday morning, reporter danmes boylan on the progress of congressional investigations into President Trumps alleged with russia. And russias involvement in the election. Dential then a discussion on the latest povertyureau report on and income in the u. S. , with the center for law and social policies olivia golden. And were live in delaware, our cspan bus, 50 speakls tour, where well with governor john carney about in priorities and how policy washington affects his stay. Washingtonwatch journal live at 7 30 friday morning. Join the discussion. Friday, a look at the Trump Administrations efforts to trade deficit. Without causing major interruptions to the global economy. With thee live American Enterprise institute starting at 10 a. M. Eastern here on cspan and streaming on our free cspan radio app. 3, a look at the legacy of Supreme Court Justice Antonin Scalia who died last year. The Hoover Institution hosts law professors, live at 11 a. M. Eastern. Follow live on cspan. Org and free cspan radio app. Generalputy attorney Rod Rosenstein on the importance of the constitution and the rule law. Its part of a Heritage Foundation series to mark day on september 17. Its 40 minutes. [applause]