Will most likely be remembered for Justice Brett kavanaughs confirmation hearings than for any particular case the court decided. It is too early to make sweeping statements about the impact of President Trumps nominees to the court, though the rapid destruction of america their opponents foresaw has yet to occur. Justices Brett Kavanaugh and neil gorsuch have, however lived , up to the chief justices declaration that we do not have obama judges or trump judges, bush edges or clinton judges. Like their predecessors, kavanaugh and gorsuch are their own men at times bucking , expectations of how a trump judge will vote. They are not cookiecutter republicans, but thoughtful jurists with independent views of the law. And we will explore some of that today. This panel will focus on the term thes of the past , most important cases such as the census citizenship case and the political gerrymandering case, and a few missed opportunities, like the cases involving the nondelegation doctrine and deference to a ministry of agencies. Enough from me. We are fortunate to have with us today four distinguished panelists. And if i devoted the time there many achievements and positions deserved that would easily take , about 90 minutes here. So i will keep their introductions extremely leave. Ted is a professor at Amherst College and founder and director of the James Wilson Institute on National Rights and the american founding. He has authored many books on politics, political philosophy and jurisprudence and his articles have appeared in professional journals as well as popular outlets including the wall street journal and national review. John eastman is the Henry Salvatori professor of law and director of the center for constitutional jurisprudence at the Founder School of law at chapman university. Hes also a senior fellow at the Claremont Institute. Before entering academia he served as a law clerk to Justice Clarence thomas and practice at the Law Firm Kirkland and ellis. Matthew frank is the director of the center on religion and constitution at the Witherspoon Institute and Professor Emeritus of Political Science at radford university. He is a visiting lecturer at redcliff. He has written a number of books and articles about the court and constitutional law and Anthony Peacock is a professor of Political Science and Department Head at utah state university. Hes also the director of the project on liberty and american constitutionalism at utah state. Tony has written numerous books and articles about the court, the federalist papers and Voting Rights. Each panelist will come up to the podium and make a presentation of about 15 minutes and then we will open it up to discussion and audience q a. With that im going to turn it , over to tony. Tony thank you, elizabeth. I will try to stay to my 15 minutes. Ive got my watch. Just let me know if i go over. I would like to thank joe and the Claremont Institute for inviting me to appear before this very distinguished panel , and thanks to all of you for showing up and making us feel like we might actually have something important to say. Appreciate that as well. We are going to comment on hopefully relatively Different Cases from this last term. Im going to comment primarily on the partisan gerrymandering case, and the new york case, the department versus new york, which was the citizen question case. Psa years theme at the a at the apsa is populism and privilege. Both have come together and appeals by legal academics, Public Interest law firms, Political Parties and others that have pleaded to have federal courts intervene in yet another political issue in the name of fairness. That issue in this case is political gerrymandering. In route versus common cause in the case that considered that issue, the court rejected such solicitations and ruled that partisan gerrymandering is were were not political questions that were beyond the reach of federal courts. During most of these panels that we have on the Supreme Court, we discussed how many important political issues the to dish area increasingly decides to take on, but this was a refreshing change where the court washed its hands of an issue, partisan gerrymandering. Partisan gerrymandering, that for the last roughly 45 years it has suggested it just might take up. In rucho versus common cause, the court concluded and i quote here, what the appellees and dissent seek is an unprecedented expansion of judicial power. The expansion of Judicial Authority would not be into just any area of controversy put into one of the most intensely partisan aspects of american political life. That intervention would be unlimited in scope and duration. It would recur over and over again around the country with each new round of districting for state as well as federal representatives. And the unelected and politically unaccountable branch of the federal government would decide the issue. This is another dispute in ruch o, who gets to decide these issues of partisan gerrymandering. In rucho, voters and other plaintiffs in North Carolina and maryland filed suit challenging their states post 2010 Congressional Redistricting maps as unconstitutional partisan gerrymanders. Discriminated against democrats where the maryland litigation claimed the Republican Redistricting map discriminated against republicans. Pointedourt in rucho out as far back as 1962 in the , reapportionment case baker versus carr, the Supreme Court held that a political question was a case that lacked a judicially discoverable and manageable standard for resolving the issue at hand. Last year in gill versus whitford, decided in june 2018, and where the plaintiffs from wisconsin were determined to lacked standing in other partisan gerrymandering case, the court emphasized that ever since baker, the unresolved question in partisan gerrymandering cases was whether such cases involved a legal right resolvable according to legal principles, or was instead a political question that had to be resolved elsewhere. Although in cases such as davis demere, the 1986 decision, the court suggested that cracking and packing voters from opposing parties into districts might raise a partisan gerrymandering claim as the gerrymandering claim. As the majority in rucho highlighted, even in vanda mayor the justices were so divided that no ever emerged in the case. There was a split in that case. So no court standard emerged, and that has been the situation for over 30 years. Must be clear, manageable and neutral, and no standard exists according to the report and no way to decide how much is too much. The plurality also emphasized that the problem here was not about restraining the political branches of government as to how to meaningfully constrain the discretion of the courts. And their intrusion into the very foundation of democratic decisionmaking. Its not just about the political branches. Its about the judiciary as well. The court did concede that the supreme had intervened in redistricting cases in two scenarios. The one person one vote decision and the racial gerrymandering cases. I would submit that the courts mandate of racial redistricting to comply with the Voting Rights citizenshipted the question, which is what the issue was in the new york case. Indicatedt have restraint, the department of commerce versus new york also decided in june and appeared to indicate the opposite. The court intent on injecting itself to keep the Trump Administration from putting the question on the census. Rucho chief Justice Roberts issue inon the key part five of the decision where roberts and the four liberals on the court rejected secretary rosss contention that compliance was the reason for putting the question on the census. Roberts and the liberal members of the court thought this was pretextual. In other words, ross was not telling the truth. They decided that because ross indicated shortly after taking office in early that he wanted a 2017 Citizenship Question on the census but it was not until march 2018 that he said the doj had requested the question in order to ensure better compliance with the vra. The court acknowledged there was no legal or constitutional impediment to asking a Citizenship Question on the census. It had been asked on every census but one between 1820 and 2010. Since the administrative seizure act allowed for review by the secretary of commerce, it was suspected that ross was not perfectly honest about the reason for the Citizenship Question on the census, quote meaningful judicial review of chief Justice Roberts put it cannot be had until the case had been remanded for further examination, and thats what the Court Ordered in this case. They remanded the case to have further evidence taken with respect to rosss motives. The courts reasoning was criticized by Justice Thomas joined by justices gorsuch and cavanaugh. Who pointed out that new york marked the First Time Ever that the court had invalidated an Agency Action solely because it questioned the sincerity of the agencys otherwise adequate rationale. The standards the ministry of procedure action required an agency to follow in its actions, findings and conclusions didnt even allow the court to inquire into the question of pretext. Pretext could not make up a subset of arbitrary and capricious review which was the standard that was used here. Because it had to be based on the existing admin strata of administrative record as earlier cases that highlighted nonevidence that might come up on remand. The District Court had already allowed an additional claim for discovery that went beyond the admin strata of record and that administrative record and that the supremes in new york recognized may have been ordered in error. The courts decision opened up a whole new avenue of attack on executive action. In future and argue believe the separation of powers by enabling judicial interference with the enforcement of the laws any time opponents of an executive claim to a pretext for a decision. In other words new york would fundamentally transformed the nature of Administrative Law according to Justice Thomas. I think ive got four minutes left. Ok. I just wanted to quickly mention two decisions that i think indicate some pushback against what are called nationwide injunctions or universal injunctions and restrictions on executive power in National Security and immigration related matters. The first case is nelson versus preapp. Justice alitos decision that reversed the ninth circuits holding. That the respondents in the cases who were deportable for certain specified crimes were not subject to the immigration and nationality asked mandatory detention requirement because they were not arrested by immigration officials as soon as they were released from jail. That is a complicated decision. I wont get into the details. The second was the july 26 stay in trump versus sierra club which was the border wall injunction case. This case was about whether President Trump and his administration could use the National Emergencies act of 1976 to reallocate 2. 5 billion congress had earmarked to build the border wall. Judge Hayward Gilliam in the Northern District of california had issued a nationwide injunction to stop trump from using the nea. The court stated that injunction. As the wall street journal put it and they disagreed with the policy of using the nea to get around congress build the wall. But it said the good news was that the high court was finally sending a message about the proliferation of National Injunctions by lower court judges. One problem with nationwide injunctions is that they are typically issued before the merits of the case are ever decided. In trump versus hawaii, the travel ban case from last year, Justice Thomas invited the court to curtail the power of single District Court judges usually in deep blue states granting injunctions that applied nationwide. According to Justice Thomas , universal court nationwide injunctions have become increasingly common and were taking a toll on the federal system preventing legal questions from in his words percolating through federal courts, encouraging Forum Shopping and making every case a National Emergency for the courts and executive branch. He wanted to question this but the court in its concluding remarks in the hawaii case last year said it didnt have to take up the nationwide scope of injunctions. In that case thomas had suggested there was no article three or equitable jurisdiction for such injunctions and i think its possible that a majority on the court might be willing to reconsider that opinion and the necessity of whether to reassess these nationwide injunctions. Whether to reassess these nationwide injunctions. In trump versus sierra club, both justices thomas and gorsuch would have dismissed the District Courts certification for a classwide injunctive relief and denied jurisdiction to even hear a claim in the case. I think both preamp and sierra club suggests there may be at least three other justices on the court that might be willing let me finish up by saying there have been 37 nationwide injunctions. During the Trump Administration. Thats what Justice Thomas had highlighted had been a problem. This was a significant problem from the point of view of separation of powers and National Security issues in particular. Thank you. [applause] thank you very much. As a senior fellow at the Claremont Institute i am particularly delighted to be on this Supreme Court panel. 20 years ago we founded our litigation shop, the center for constitutional jurisprudence and almost from the beginning we have been pursuing as one of our main goals a pushback against the admin strata of state and a revival of the constitutional separation of powers. You might think i would be depressed because two of those key issues, a deference to agency interpretations, and a revival of the nondelegation doctrine were both up before the court this term and our side lost on both of those. But for from being depressed, i am actually quite ecstatic about how these cases come out and im going to talk about those. The first one deals with the nondelegation doctrine. Gundy versus United States. The nondelegation doctrine is tied to an obscure provision in the constitution, article one, section one, clause one of the constitution. The legislative powers herein granted our vested in congress. That means the lawmaking that goes on in this country has to be done by congress. It cant be delegated to private actors or unelected executive agencies. What congress did in the sex offender registration and notice act, punted to the attorney general on the issue of whether the act would apply retroactively to people who had already been convicted of sex crimes. But now, would have to register. And whether that would apply only to people convicted after the act was passed or would have retroactive effect. It was punted to the attorney general without any guiding principle whatsoever to decide whether he should extend the acts Registration Requirements retroactively or keep it only prospective. The theory on which the court has allowed vast delegations of lawmaking power to agencies since the 1930s, has always been, did the congress resolve the tough political questions and give the executive agency an intelligible principle that would control and guide the discretion as it filled in the details of the lawmaking power . The intelligible principle has turned out to be great in theory but completely ignored in fact. We have great swaths of lawmaking power that are delegated to agencies to further the Public Interest or to do things that are fair and reasonable. Barely any principal much less an intelligible one. This one didnt even have that questionse 4 presented in the petition for certiorari, the Court Granted it on only one question. Shall we revive the nondelegation doctrine or does this delegation of lawmaking power violate the nondelegation doctrine . The holding of the court was that the nondelegation doctrine really hasnt been revived. We ducked the issue. Its an odd lineup on the boat. Justice alito who clearly has favored in the past a revival of the nondelegation doctrine voted with the more liberal wing of the court to deny the nondelegation doctrine issue here. That made it a five to three decision. Justice cavanagh was recused from it because he had not yet been ceded by the time the case was argued in the first week of october. The case is not decided until the very last week of the courts term. It was one of the longest courts sitting on the docket. Ive written an article called Justice Alitos strategic vote because about what would have happened if he had voted with Neil Gorsuchs strong dissent characterizing whats at issue and whats at stake in this effort to revive the nondelegation doctrine. If alito had voted with gorsuch , a position he had previously indicated he fully supports, we would have had a 44 tie. Neither the majority opinion nor Justice Gorsuchs strong dissent would have seen the light of day. We would have only seen the we would have only seen the opinion of the Second Circuit is affirmed by an equally divided court. And we wouldnt have any hint of how seriously the revival of nondelegation doctrine that is underway was actually underway. Some have pointed out to me , including my good friend john malcolm at the Heritage Foundation that they could have easily set that case for reargument and then Brett Kavanaugh would have been able to participate and we may have had a different vote. So just politically i ask the question given all that went on in the confirmation hearings for Brett Kavanaugh, do we really want the revival of the nondelegation doctrine to be with Brett Kavanaugh being the deciding vote in his first term on an issue about a offender registration . Probably not. Sex offender registration . Probably not. So i think they punted on this. But the dynamics of the case were pretty obvious to everybody including the party in the case that was filing the petition for rehearing to have a reargument the next term. That will be heard at the first Court Conference in september so we will know a little bit more about whether it was the subject matter they wanted to duck the issue on or just the timing that they wanted to duck the issue on. Nevertheless, i count five votes for reviving a fairly stringent nondelegation doctrine and we havent had that in about 80 years. I think this is a very significant development. I want to play where it comes out and tied a little bit back to tonys comments. The nondelegation doctrine is central to the attack on President Trumps use of the National Emergencies act to build a wall. There is not much constraint or intelligible principle on the president s exercise of that delegated authority either. The president s authority might be a little stronger than the normal nondelegation case because it deals with Foreign Affairs and international matters. But the one thing that should be absolutely clear, if we do revive a nondelegation doctrine, it ought to be acrosstheboard. It ought not to be we didnt mean to delegate authority to this president even though we are fine with delegating authority to every other president. So those are the kind of issues we are going to be confronting next term very quickly on nondelegation issues. The second pushback case that we lost, but that we won is kaiser versus wilkie. Here was the issue on whether the socalled doctrine of our deference should be overruled. And the court held no, it shouldnt be. Justice kagan in defending starry decisive and the notion that we ought to keep our deference in place really modified rather dramatically the way the deference doctrine had come to be playing out in the lower courts. So in her defense she kind of modified the case rather dramatically which was something neil gorsuch pointed out. Our deference is an agencys interpretation of its own ambiguous regulations which were written in support of an ambiguous statute under chevron deference. The nondelegation combined with the deference combined with the double deference combined with the ability of agencies through guidance memos or whatever to effectively make new law is increasingly seen by several members of the court has a real threat to separation of powers. In fact even seen by Justice Scalia before he passed away, who was the author of the our deference doctrine as such a threat to separation of powers that he announced in an opinion before he died that he would overturn our at the first opportunity. He never got that opportunity , but neil gorsuch has taken up the baton rather dramatically. I think Brett Kavanaugh in his time on the d. C. Circuit judge and even in the hints we get in some of his opinions and has taken it up as well. Just to kind of pick up on here. Justice gorsuch in his dissent, its just a lambasting of retaining this deference doctrine. A bare majority flinches, and our lives on. Todays decision is more a stay of execution than a pardon. He calls it a fantasy, a paper, linguistic hocuspocus, no more than an exercise of raw political executive power. Secret intentions are not the law. Just in case anybody thought that there was any conclusion confusion about where he stood on this thing. Both of these cases more broadly indicate a real tectonic shift going on in the court, probably one that was started by scalia , but hadnt taken much route as it seems to have. Justice kagan famously said we are all originalists now. I think we are seeing is a revival of textualism of not just the kind of raw text that what the actual original meaning of the text was. And that the text controls more broadly. So we see a couple of cases, warehouse versus u. S. Fish and Wildlife Service dealing with critical habitat down in louisiana over an area that was not capable of being habited by the critter that was at issue. Habitat the court held must actually be habitat. Neil gorsuch again last year, the justices always get a dog of a case to be their first opinion on the case, and his dealt with a fairly minor and mundane issue of statutory law. But he used his first opinion last year to really assert this principle and give us some indication of whats going to guide him on his time on the bench. It is of course our job to apply faithfully the law congress has written. It is never our job to rewrite a constitutionally valid statutory text under banner of speculation about what Congress Might have done had it faced a question that on everyones account it never faced. Constant competition between constable and quarry, regulator and regulated can come as no surprise in our changing world, but neither should the proper role of the judiciary in that process. To apply, not amend the work of the peoples representatives. That was in a case involving Debt Collection statutes. A pretty broadside criticism of what i think was, lets look at king versus burwell p the second of the obamacare cases. Justice roberts said the statutory phrase can also mean exchanged not established by the state. This was a fairly bold move for a brandnew justice in first of opinion but i think it laid down an important marker about the importance of textualism. We also see in these cases a big fight over starry decisis. Neil gorsuch says its an odd starry starry decisis invoked by the majority when they are themselves completely altering the way that our difference doctrine would be applied in going future. Something very similar to that fight happened in planned parenthood versus casey when under stare decisis they kept row but radically changed the regime of how it would be applied. We see in nick versus township of scott and overruling of a longstanding Williamson County case. We see and franchised tax burden versus hyatt and overruling of a sovereign immunity case in nevada versus hibbs. Justice breyers dissent says todays decision can only cause one to wonder which cases the court will overrule next. And in gamble versus United States, the court retained the sovereign immunity doctrine but Justice Thomas in a concurring opinion rights and extensive critique of the way stare decisis has come to mean an immovable notion. To address the proper role of stare decisis, we ought not to elevate prior decisions that are patently or demonstrably erroneous over the text of the constitution and here is this notion of recurring to text of what the law is rather than the words of a prior opinion. Particularly with demonstrably erroneous, he uses that phrase several times, precedents. He takes direct aim at planned parenthood versus casey which is i suspect why everybody is just so apoplectic about the fights over stare decisis right now. Obviously the stare decisis fight is laying the groundwork for the grand fight that most people anticipate coming fairly quickly over abortion and the ongoing status of roe v. Wade as superduper president that cant be touched whatsoever. We have several cases that were decided last term with the court already starting to maneuver on those issues. The petition for certiorari was denied. It was an issue about private rights of action to challenge state determinations of qualified medicare providers. One of the parties in the case was planned parenthood so even though the abortion issue itself wasnt at stake, the case implicated that. We have june medical services which upheld a stay of the District Court decision which had upheld louisianas abortion restrictions law, was very similar to texas law that had been struck down just to terms earlier. That one was still kind of pushed off a little bit but the issues are there. I think most interesting, box versus planned parenthood of indiana. The court decided fairly straightforwardly, upholding indianas law dealing with fetal remains but then denying review on indianas law that it would be illegal to have sex or race or disability based abortions. We dont have a circuit split on that issue yet. We dont want to take it up yet. But these things are clearly coming. You can see on almost every little case that has nothing to do with abortion, the court already maneuvering itself to decide kind of lay the groundwork for those. With that my time has expired. I think those are the big tectonic shifts we are talking about now and we will be talking about for several years yet to come. Thanks. [applause] dont worry, this is timed at 14 minutes and 57 seconds. It should be said at the outset before we review the box scores of the highs and lows of the year that the specter haunting our days really is the specter of federal judges reflecting the favorite theories of the left in the law schools. Using nationwide injunctions. Thinking they have a license to block virtually every initiative of a conservative administration. The slender wrist connection to statutes or no connections at all to any ground of the law and they evidently see themselves as a Political Class that forms the regime. They look upon the works of the Trump Administration and they just dont have it. They will use any effort to block the moves of the Administration Whether on immigration and environment in this move works to bar any elected conservative administration from enacting its measures. It represents a nullification of a regime of elections. It marks nothing less than a change in the regime if we acquiesce in this. And as alito recognized even if the court slaps this down, thats not going to end it. David forte reminds us of socrates last words. It was a good hemlock. Not a great hemlock. [laughter] this year on the court it was not a great year even though we had five conservative in the court, brought forth that fit conservative vote with the mix did not exactly bring outcomes produced for us dancing in the street. Even when the cases came up by my lights the right way they came up for the wrong reasons. So we have the victory in the plemons bird cross case justified on the ground that the christian meaning of the symbol had been washed away over time by a culture that simply found the cross familiar as it ceased to take with much seriousness the that it marked. The decision in the case of gerrymandering turned i think in the right way but that causes most of us to shake our heads was john roberts switched to knock out that question of citizenship on the census. The decision that gave the judges new grounds for putting the kibosh on executive orders if they suspected those decisions were, gasp, affected by dark and political motives. But apart from guessing of the chief justice and his moves we have a striking cluster of cases in which Justice Gorsuch was going over to join the liberal side with four conservatives in dissent. I would register here my own deep concern for the tension thats manifested itself this year between two of our friends, justices alito and gorsuch. Their differences have been coming mainly in the criminal cases. But the tension is expressing itself and the language has become more colored. In the gamble case on double jeopardy, just as gorsuch accused alito of committing a desecration of federalism. And alito responded in turn that the dissent with gorsuch writing fundamentally misunderstands the governmental structures established by our constitution. But the language does get more colored and with cspan listening and i think i will withhold it right now. In the heyman case, gorsuch joins liberals in striking down the arrangements of judges exercising discretion under programs of supervised release and returning prisoners to jail for violating the terms of their release. Putting people in jail, he argued, should require the judgment of the jury. To the print we can almost hear Justice Alito grinding his teeth. Alito pointed out that in 2018, federal District Courts adjudicated 16,946 revocations of supervised release. There is simply no way he said youre were going to be able to enough juries to adjudicate all these cases in terms that are consistent with the sixth amendment and the consultation confrontation clause. The deepest disappointment for me this year, building over the past two years has been the decisive move even of Justice Alito and the conservative judges into the stats of moral relativism in the regulation speech. The shift was made by Justice Alito. On the question of derogatory and insulting names for trademarks. Up to that point, alito was the only judge Still Holding to logic of the famous case which was built on the firmest understanding of how we are constituted by nature and the nature of ordinary language. As aristotle reminded us, human beings can do more than in it sounds to indicate pleasure or pain. One way or another language reflects that sense of things by settling on the words at the moment that would carry the moral functions of praising and blaming. Commending and condemning. And there will be others with more age. Conveying a sense of insult or assault. For the language to function the words that carry those meetings would be readily understood by Truck Drivers and construction workers as well as by lawyers. We could give a cluster of words to ordinary people and they would have no trouble marking the terms with expressive axis as words of insult against words that were around the borderline. You can try these things. The nword. Kike, bastard, wop, urologist, meter maid. People have no idea identifying triggered words. Alito when his colleagues cast the protection of the First Amendment demonstrating at the funeral of a marine saying semper fi fags and thank god for dead soldiers. As the mattel case turned and he finally put himself in the current that has been carrying his other colleagues including our late friend, scalia, the key in line was the justice embraced from Justice Brennan and said this willingness to make judgments on derogatory names and trademarks offends a bedrock First Amendment principle. Speech may not be banned on the grounds it expresses ideas that offend. Gorsuch and alito projected the same relativism into the domain of religion. It is the proudest boast of our free speech jurisprudence that we protect speech we hate. It must be the proudest boast of our free exercise jurisprudence that we protect those beliefs that we find offensive. The shift was simple but unsettling. The implication is that offense is entirely subjective. The different words or modes of expression offend people for reasons that may be wholly personal and what is ruled out then is that something may indeed be expressed or done and that the speech or act like the burning of crosses that may indeed offensive in principle. Now for me, the lands brought the lines brought back right away the scenes from 40 years ago when i was invited in by the aclu to state the other side of the aclus position in this case of a group of nazis parading through a community containing many jews who had survived the holocaust. It was declared the First Amendment protects all ideas popular or despise, good or bad. In this translation it was a matter of being popular or despised. To be despised was merely to be unpopular. It was no part of understanding that certain things may in and of themselves be in principle despicable. And now this position of the aclu seems to be settling now as the position even of conservatives on the court. During the debate over the nazis, dave hamlin said we must be free to hear the nazis because we must be free to choose the nazis. But that freedom to choose the nazis in a free election spring of course from that proposition. All men are created equal. But the nazis with their racial principle rejected at the root that founding premise and with it the regime of free elections. To say that it was legitimate to choose the nazis and election was not only to choose the party that would and free elections, it would sweep away also that regime of absolute freedom that the aclu effects to treasure. This is a spiral into incoherence. From the principle of moral relativism there is no ground on which to judge this regime of freedom as a good which has a moral claim to be preserved. Justice alito sees himself as trying to cast a wider zone around the protection of speech because he hasnt mined the ways in which political speech has been repressed on campuses in the country. But as dan evans used to say, the problem with pragmatism is that it doesnt work. [laughter] this move to relativism will not do anything to protect conservatives on the campuses. It will simply remove the moral grounds for defending our own position. A seasoned lawyer told me four 40 years ago in new york, you cant have obscenities in the titles of corporations. If you did, the yellow pages would be filled with items such as the American Tobacco company. The case this past term challenge that long settled convention on that law when the Trademark Commission applied the standards which should have been an easy case, a company taking itself to the edge of the f word with a product called a few ct fuct. I wrote to my views of the libertarian friends on the board and they gave me a goodnatured ribbing and print when the court came down on their side, but they also gave me the complement of noting this has Justice Alito wrote is his concurring opinion in part as a letter to me. For what he did in his occurrence was to pick out the critical part of the teaching that i had been pressing, he picked up on justice murphys line that these obscene and insulting words were not necessary to the exposition of ideas. They could be banned without diminishing in any way the freedom to make a substantive argument. So mr. Rosenfeld in new jersey at a parentteacher meeting has one adjective, mother effingham, and to tell rosenfeld to stop using that word for the sake of avoiding degrading the climate of discussion. To do that is not to deprive rosenfeld of his freedom to make the most searing critique of the school board. And thats why the application of the standard will still leave us with the widest freedom of speech and contesting even the most controversial subjects in our politics. Roberts, sotomayor convinced that this decision could indeed contribute to the further coarsening of the culture. Sotomayor seemed to say that awful nword would make its way now into the names of companies and trademarks. Alito thought as she did that this affected the statute that would be directed more precisely to screening this fall garrity. This will garrity. He was convinced that the court was not erasing moral relativism. But that reading of the case was structurally undercut by Justice Kagan in her opinion for the majority. The Trademark Office she said had rejected marks reflecting support for al qaeda because the bombing of civilians and other terrorist acts were shocking to a sense of decency. But at the same time the Trademark Office approved registration of a mark with the words war on tara memorial. In other words for Justice Kagan, viewpoint neutrality evidently means that we must treat on the same moral plane or the same plane of legitimacy the killing of the innocent and the opposition to the killing of the innocent. Now if that isnt moral relativism i think words have lost their meaning. But what was the more precise test that Justice Sotomayor would bring would urge the authorities to use to avoid the deepening vulgarity of our public life . The statute enjoins the office to refuse trademarks to immoral or scandalous matter. All the judges found these words too broad. What do they offer instead . Sotomayor suggested that scandalous can instead mean simply indecent. Shocking. Generally offensive. And she consulted dictionaries to say that by scandalous it means shocking to the sense of truth. Decency. Propriety. But then what do indecent, improper and disgraceful mean . Why would they mean anything different from what the drafter was getting at by saying immoral, scandalous . But even more telling is what the Trademark Office did in applying the statute. They asked whether substantial part of the public would find it more shocking to the sense of truth, decency, propriety. Giving a sense to moral feeling. In other words the Trademark Office was interpreting immoral or scandalous essentially along the same lines and the same words used by sotomayor. And breyer. And as they backed into a commonsense understanding of what was meant by obscene, insulting, shocking, they were essentially backing in to the lies of the old case as they were compelled to mark back into the theres no way of getting around them. If the judges had spent a little bit more of their time as undergraduates cultivating some reading and philosophy, they might have read portions of thomas reeds classic 18thcentury work, on the active powers of the human mind. If they had, they would have learned why it would not have been really possible to redraft that statute in the way that alito, roberts and breyer wanted it. He recalled how philosophers such as david hume keep finding great difficulties about a thing which to the rest of mankind seems perfectly clear. The notion of an act of power is so clear. So simple. So evident that people have the active powers to cause their own acts to happen that its taken for granted and it eludes any at supply a logical definition. So he said we cannot give a logical definition of thought. Or duration. Of number. Or of motion to read we cannot give a further definition without simply using synonyms and saying the same thing in another way. What is a number . The dictionary says, one of a series of positive integers derived by counting. A number . A unique member . As reid suggested, every attempt to provide the definition will keep offering up synonyms for saying the same thing. So sotomayor and her colleagues thought the notion of immoral to be too vague and broad. What to they offer as more precise . Shocking, indecent, wrongful. And by scandalous they offered exciting reproach. Extremely offensive. To the sense of duty. Is it not playing that they are simply saying the same thing in another way and not adding anything, it even a bit more precise to the translation . To adapt an old line from henry james, the judges have made themselves victims of perplexities from which a single spark of direct perception could have saved them. No, my friends. There is no way that the statute here can be made more precise. And anything put in its place you will find just as broad and elusive. Or to put on their way, just a little bit of serious philosophy read early could save us and our public life some grave mistakes , even this late in the season of our experience. [applause] good morning and thank you to the Claremont Institute for organizing these panels again this year. A quick biographical note. I am now permanently at Princeton University as associative director of the James Madison program, though i remain affiliated with the Witherspoon Institute. Continuing their recent pattern of working as little as possible, the justices of the Supreme Court decided 73 cases in october term 2018. Just one more than the previous term. Fewer of those this year were per curiam issued under undersigned opinions, there were just seven of those this term. Four of them unanimous. There were more decisions issued with signed opinions than 66 against last years 59. While there were about as many decisions last year with signed opinions, there were fewer constitutional cases this year. 21 against last years 26. Of the 66 cases decided with signed opinions, 25 were unanimous. Ninezero, or 80, which was an improvement if you prize consensus as the chief justice professes to do. Last years term saw 19 unanimous cases. 18 cases were decided by the narrowest 54 margin. Another two by a five to three margin. A total of 20 cases decided by a mere five votes being just the same as last term. So on balance, the progress toward consensus seems elusive. We are accustomed to viewing the courts decisions as the products of contending blocks of justices conventionally called conservative and liberal. If they stuck together, they could have things their own way hope of has been the court watchers, but just concluded, only eight of the decisions or produced by all five conservatives voting together. Attractingnine were one conservative vote. The final term, 15 of the decisions were made by the conservative blocks. Muchiberals are overall better at sticking together. Conventionally the onlyogical opposite and one in 53 cases. Thomas and kavanaugh each voted with one occasion and in five more cases, just as did so four times. Just as gorsuch was also the most likely to vote with three liberals doing so twice. Asicture begins to emerge just as gorgeous have in the most interesting voting pattern. He was tied with Justice Thomas himselfburg and found outnumbered as a conservative member in a liberal block. More such crossover votes than any other justice. Breyertied with justice and wrote the second greatest number of opinions overall, exceeded only by Justice Thomas at 26, but his total was pumped up by his not unusual 12 occurring opinions. Finally, just as gorgeous robe for the divided decisions and spoke three times would be conservative justices and three times with the liberals. Crossover votes, by aost for liberals conservative justice courses has surfaced as the matter among the conservative justices. Thenumbers, like conventional labels conservative and liberal tell us nothing about if he is performing well. Maybe he is raking a new trail in which judges will be eventually persuade to follow it. Decided a moment ago that they hold the double jeopardy for the same act under their criminal statutes. It was recognized for so long that it was surprising a case was taken up on the subject. It remains a mystery who voted to grant certiorari. There was no circuit split forcing the cortan. The 11th circuits ruling on the question was affirmed in the case came down seven to two. Justice ginsburg and gorsuch dissenting prewith Justice Thomas plainly signaling in his concurrence that essay of his on stare decisis that his was the third vote, but he decided to reaffirm the precedents anyway. But do the math. Who was the fourth vote . Its complete the mysterious who among the other six and the majority besides gorsuch besides alito provided that fourth vote. Justice gorsuchs dissents for dissent which was for himself alone. His dissent was a pastiche of cobbled together originalist arguments, each one absolutely flattened Justice Alito in his opinion for the court. Both gorsuch and ginsberg thought there was some force to the argument that sovereignty rests with the whole people of the United States and not at all with the federal and state governments as separate sovereigns. But as alito pointed out, this was a non sequitur. Yes, he went on, our constitution rests on the principle that the people are sovereign, but that does not mean that they have conferred all the attributes of sovereignty on a single government. In United States versus davis, Justice Gorsuch wrote for a five to four court that a federal statute lengthening the federal they have conferred all the attributes of sovereignty on a single government. In United States versus davis, gorsuch wrote that our federal statute lengthening the potential prison sentence for felons committing crimes of violence was unconstitutionally vague and in violation of the due process clause. The question was whether provision punishing an offense for carrying the substantial risk of violence by its nature identified an element of a categorical or ordinary case for such an offense or an attribute of the actual crime committed by the defendant in his own case. Joined by the four liberals, they withheld that punishing a defendant on such a basis subjected him to the vagaries of the sentencing judges notions of what is typical ordinary. Justice cavanaugh at the head of the four conservative justices in dissent countered that unlike recent decisions in which sentencing enhancements were invalidated because they turned down categorical offenses of past records and the record, it required the judge and jury to determine whether the actual facts in the present case warranted a finding that it was by its nature crime of violence. The gorsuch and cavanaugh opinions displayed considerable virtuosity in the arts of statutory interpretation, but the telling difference came in their different attitudes toward the constitutionality and the doctrine of constitutional avoidance. Gorsuch conceded that reading the statute was, in his words, linguistically feasible, yet insisted deference to that interpretation should be rejected because it would extend the reach of the criminal law, in this case, rather than reduce its reach. Justice cavanaugh responded that there is no reason for the interpretive rule of lenity to trump the constitutional doctrine and that statutes must be interpreted as constitutional if it is reasonably possible to do so. A third case we are considering is a versus haymond, decided june 26. Is United States versus haymond, decided june 26. Breyer briefly conferred in the judgment. Before conservatives held that people released cannot be sent back to prison for child pornography after a judges finding of a conference of the evidence for this was was said to write of a trial by jury, which must find guilt beyond a reasonable doubt. Gorsuchs opinion drew a sharp tongue response from Justice Alito at the head of the rest of the courts conservatives. Alito charged gorsuch with grossly misunderstanding the meaning of recent reforms in criminal justice, which replaced the old system of parole with the new system of supervised release but not substantively changing the status of convicts under the system. Alito pointed out that like the parolees of years past, they are not yet anyway free of the continued attentions of the criminal justice system. Gorsuch seemed to say, had made the categorical error of treating persons under supervised release as though every judgment of their conduct were a brandnew prosecution requiring a jury trial, with thousands of convicts still living under the supervised release system, alito said Justice Gorsuchs opinion threatened consequences that will be farreaching and unfortunate. I pause to note these three examples pointed Justice Gorsuchs more civil terry and outlook of criminal law, but they also suggest more broadly a judicial engagement style of jurisprudence, impatient with assumption of constitutionality and other doctrines of counsel deference for my own view is that gorsuch was victorious in two of the three cases and had the weaker argument in all three of them. My other mention is federalism in the commerce clause. Tennessee, wine and spirits versus thomas, also decided june 26, was a 72 decision with Justice Alito and Justice Gorsuch joined by thomas. It concerned the constitutionality of a tennessee law, requiring residents two years in the state before acquiring a license to run a local store run a liquor store. Gorsuch said the commerce doctrine, which condemn state laws and tennessee argue the law say by the 2 First Amendment and was unavailing. Its provision giving constitutional standing to state laws on the transportation or importation of liquor cannot really shield any state law, alito said, on the subject of the liquor trade, for this would lead to absurd results with which the council could not led to produce. Justice gorsuch said there is no purpose to the provision of the 21st amendment if it did not shield state laws on liquor, generally, from the reach of the commerce clause, dormant or active. There was significant strength and weaknesses in opinions area Justice Alito made a sound case. It was further constitutional grounding and logic of a dormant clause. Justice gorsuch exposed a deep, and in my view, and unwarranted skepticism about that doctrine. On the original understanding, purpose and constitutional reach of the 21st amendment, gorsuch had the stronger argument that alito, and this should have been enough to decide the case. Was this a case of national or nationalist conservatism versus federalist conservatism . It is hard to say. The case was unusual, 21st amendment controversies are rare. And the presence of the liberals on alitos side and cavanaugh complicates the picture. There is no easy way to paint alito or gorsuch as taking the liberal side and tennessee wine and spirits. The libertarian conservatives cheered the outcome, while the two most obviously libertarian justice, gorsuch and thomas, dissented in the case. If the term just concluded, it is a harbinger of things to come. Gorsuch is the man to watch in the contemporary Supreme Court. Thank you. [applause] thank you for those remarks. I would like to open it up for questions from the audience, but before we do that, i was wondering if, obviously, we heard matts thoughts on Justice Gorsuch. I wondered if others would like to share their thoughts on our two newest justices and how they may be shaping the roberts court. I will pick that up. I think it is much too early to tell about Brett Kavanaugh. I think just the dynamic of how we got there, and all of the controversy that came with it indicated he would probably stay his hand quite a bit the first year, and i think the granting of this day in the louisiana case, the Abortion Case, several aspects demonstrate that was true, even the gundy case on the court deciding not to schedule a preargument that would allow him to cast a vote on that. I think next term is going to tell us a lot. I do want to ask matt a question in the gamble case, and your question about, we cant even figure out how this thing got there. You get two votes, you get Justice Thomas to three. Do you think the court has revived the old rule of three, that if there are three colleagues will cast the fourth vote to grant . Look over the last decade, like the dodo bird, has a come back . I dont know, john. It is possible. Yeah, i your guess is as good as mine on that one. Is this working . It is for cspan, not the room. You have to speak loud. I just went to discuss this also. I was there when gorsuch arrived opinion in davis. His first was, dont worry, this guy will spend a lot of time in jail under state law, and i share the concern about expanding the reach of the federal criminal code, but still, alito was describing this case to me. Look, a guy comes in, and you go for a series of convenience stores, holding a sawed off shotgun to the throat, and now you are telling me this statute is too vague . And he could not understand the wrong of what he was doing . This vagueness i thought was so refined to think it would escape the recognition of ordinary people. How do you understand . Can you give us a reading about the vagueness of the statute . I had trouble understanding it. The vagueness doctrine under due process i think is sound at its core, and i think it was misapplied in this case, and i think that Justice Gorsuch and the four liberals wrongly assimilated it to some previous cases under sort of superficially similar statutes that did require judges to make typical case judgments about defendants past records for sentencing purposes. That language, by its nature, has appeared in a number of statutes, but i think that cavanaugh kavanaugh, i think it was kavanaugh, had the better argument about how to read that particular phraseology rightly and in context of the statute in this case. So he recognized and conceded that the court understood. And judging the act in the case with whether the violence is possibly factored into this, and yet, the underlying statute was not precise enough in confirming that ground for the judges . Something like that . Something like that. Ok, it loses the judgment about rendering judge just from ordinary justice from ordinary folks. It can be vague. I will drink to that. Any other thoughts on our new justices . I agree with jon i will be brief about this. I think it is too early to tell with justice kavanaugh. He has been reticent in some cases and you could say the same about neil gorsuch. There are a lot of views that we have not seen opinions but it may be too early to tell. The case i focused on, the new york case, commerce versus new york, i think if you are constitutional originalist or conservative, he would be happy with both of those decisions in the cases. As john alluded to, a lot of the big issues were delayed. It seemed like the court wanted some breathing room this term. I wondered if you all could mention some of the cases that you are particularly interested to watch in this next term as it starts . We have daca coming up, a couple of obamacare cases, a Second Amendment case, and there is the possibility of an Abortion Case coming up. So picking up on the theme of my talk about renewed devotion to textualism. The three title vii cases, which all involve whether the prohibition on sex termination in title vii includes Sexual Orientation discrimination and even more recently, gender identity discrimination. I think where there are five pretty solid votes, except for extra ordinary cases, like the obamacare cases with roberts, the devotion to actually detect it as written as originally understood i think will prevail. The broader question that is presented by the daca cases and the whole separation of powers and executive authority, i think they are going to confront the legitimacy of the original daca program if it was truly under prosecutorial discretion as the Obama Administration claimed, then how could it be the case the new administration cannot exercise their prosecutorial discretion in the opposite direction . We cannot have a nondelegation doctrine or prosecutorial discretion doctrine or various doctrines that ebbs and flows is pending on whether we like the guy in the white house or if we dont like the guy in the white house. I think there are five solid votes on that proposition that if the president wants to resend dr. , he will be able to resend daca, he will be able to do so, but one thing that gives me trouble is roberts opinion in the citizenship case, which opens the door for looking at wheatbased assessment of motive and all of these things. If the court goes down that path, we are never going to have the end of looking behind the scenes with legislative intent, which i thought the court had put behind it a long time ago and an executive official intends, and opening pandoras box that roberts opened up in this case. I dont think it will play out in the daca cases. It is possible he would pull Something Else again but it was a travesty what he did in that case. I dont think they are going to do it here. This is not nearly as contentious as that issue was, at least on the merits of prosecutorial discretion. What i would like to see is a 90 decision, although i am not naive enough to think we would get that uniformity on a politically contentious issue. Other thoughts on big cases . I will say quickly, being from utah, im interested in the second decision from new york that the court will consider. Last year i think on this panel, we were asked where we thought the court might go on some of the issues with Justice Gorsuch on the court. The Second Amendment was one of those issues that had not been considered in the heller decisions. And cavanaugh and kavanaugh and gorsuch will be interesting justices given what they have said in earlier cases on those issues. I am looking forward to clarification on that issue next year. Although, new york is desperately trying to avoid the court ruling on the case. It hasnt happened yet. I think that is proof you are right about the vote lineup earls new york would be happy to get the court up there. I have a question. How about your prophecy, your gifts of prophecy. We have the harris case coming up on the Funeral Homes, and that is the funeral director who has switched to become a woman, and this could be quite disturbing for people who are in the in the hallmark of grieving and adding the complication to their days. The question is going to be whether the Civil Rights Act and discrimination spaced on sex can assume transgender identity. On the face, you think it is a plausible argument and they simply try to be contextual list here. What is your reading here, the four liberal judges will take the line of finding that implication buried in that text . But once again, instead of deciding whether we think it was incorporated in the text, is the claim itself a coherent and tenable claim supported by objective evidence . So it goes to the question of, what do you make of the text . What is your reading of what the four liberal judges are likely to do . Is it as dark as mine . I do think they are likely to rule in part because of the Supreme Courts prior decision in price versus waterhouse, which allows sex stereotyping to be included in the text, and how does man who wants to be a woman should dress in funeral home as a type of stereotyping, and i think they will do a pricewaterhouse assessment, but i think the conservative argument against that is stronger on the gender identity claim and harass Funeral Homes thexual orientation claims because that same statute guarantees the ability to have different private facilities or housing facilities, which is a guarantee which cannot be sustained if you allow gender identity to be encompassed within sex discrimination. I think clearly on that one, but also on the Sexual Orientation cases, the conservatives will more faithfully apply the text and that was understood. I think Neil Gorsuchs first opinion from the air before says it is not our job to speculate on what congress right have done, it is two through the text as it comes to us, and i think there will be at five votes to that but only five votes. I share that judgment. Any other thoughts on that case . Ok. I was wondering what the panel inks of the native rights case, carpenter versus murphy . Do you think that will be a major and important case that has implications by the nature of citizenship, and group rights in the future . Or is that not an important case . I confess, i dont know the case at all. So this was the case out of oklahoma, where a criminal defendant was arguing that a large portion of eastern oklahoma where a criminal defendant was arguing that a large portion of eastern oklahoma is in territory, and so his conviction by state court was improper, and the court heard argument in december and asked for more briefing. The parties filed additional briefing, and the court, instead of issuing an opinion, reset it for a second argument in the coming term. Well, if it was argued in december, so kavanaugh was already there. So this is not a fourfour split. The re arguing to get the fifth vote . I believe gorsuch was recused. They came from the 10th circuit and he was not on the panel but he mustve voted on whether to take it on in the 10th circuit. It is one of those issues that is like an old sweater with a loose thread. They are a little nervous on pulling on that loose thread, and how much do we give georgia back to the cherokee . There is a whole lot of ramifications for this. I have no idea which way they will go on it. Other questions . I can say that waste on the couple of cases that came up in the last term, if Justice Gorsuch were participating in the case, he is pretty friendly to native american rights claims. And that sex stereotyping case . Well, i think kavanaugh is the swing vote here. And i dont know i mean, what we have seen in the Administrative State and devotion of text and separation of powers would suggest he said, look, Congress Passed the statute. We knew it they meant when they wrote it. That is why there have been efforts to add Sexual Orientation to statutory language, and the efforts would have been meaningless if it was already included. I think that will be determined, but i think we will see whether he follows that strict model or succumbs to the kind of political modern, political sensitivity of the issue. What his tenure on the court more broadly will be like. But, you know, the indications we get from this term is that he will stick with the text, which we will see him put in with the other conservatives. [indiscernible] they are, but that discrimination based on sex means discrimination based on two other things that were not within the contemplation of that work at the time it was written. That is a much more living statutory interpretation view of contextual language than i think the five conservatives had demonstrated a commitment to. This question is for matthew. I thought the evidence in support of the proposition that gorsuch is the new maverick was fascinating and fits with some of the things we have seen, interesting opinions and things we have taken notice of. Before hearing what you had to say, if i would have thought there was a maverick, everybody would have said chief Justice Roberts. Because of the prominence and prominent cases he is excited with. I guess my question is, do you have any hypotheses for what makes gorsuch different from his conservative colleagues . What is different about his way of thinking that leads him to different conclusions in the cases . What does that say about the future of that regionalism on the Supreme Court in the coming years . Thanks, joe. I think Justice Gorsuch is drawn more powerfully to some of the recent work and libertarian original is him. I think it colors his view of the criminal justice cases undiscussed, but it also probably accounts for the bigger of his views on things like chevron. On the 10th circuit, he wrote a case concerning chevron deference in which it sounded a good deal like a recent book on the subject. He hammered on marbury versus madisons famous line that judicial power is the power to say what the law is, which in my view is a tearing of that sentence from its proper context, but he is fond of that view, and i think that he is skeptical about the force of the presumption of constitutionality in some respects. I have a recent article on the subject that i would love to put in front of him, but it is the most recent issue of political thought, and but i dont know i shouldve caught him young, like hadley. I shouldve caught Justice Alito young and men and women in this maturity are probably beyond the reach of our intellectual efforts at this point. Im not so sure i readily subscribe to the view that it is libertarian judicial engagement coming out. We would not have said that about Antonin Scalia a when he issues the confrontation clause case and the right to jury trial. It may be constitutionalism coming out, which i think he sees in the other cases to be extremely devoted to. He will tell you himself, i have come out of the west. I see myself on a ranch. I identify with ethic. But what is the case of the curtilage . What case . No, the police are chasing this guy in a reckless race of the motorcycle. Now they see that motorcycle in a driveway, a tarp, it, is that the word . Nope. Is part of the claim of privacy. Gorsuch has an expensive motion of understanding that. I think the libertarians see this coming out with a vengeance. Since we are on gorsuch, theres a new natural law help explain any of this . I dont think so. As many people in the room may know, Justice Gorsuch did a dissertation at oxford and his dissertation was published on assisted suicide euthanasia, but i dont see any strong evidence that the doctrines or the teachings of the new natural law have any particular force in this jurisprudence. No, but i do see a greater willingness to consider the old natural law and faithful participation in classes of the constitution. Libertarian Civic Engagement or judicial engagement, if it is actually trying to restore original meaning to the overage of unities clause, and, you know, look at these things in the context in which they were written rather than a raw exercise of textualism devoid of the meaning of those who wrote it. I do see him willing to engage in that front. If judicial engagement means enforcing the limit on the federal constitution, either enumerated powers are the limits the constitution imposes on the states via the 14th amendment immunity clause, and getting those clauses right as originally understood, and that is constitutionalism, and it plays out in that extent. And it looks a lot like the new natural law, it is the old version. It is the declarations natural law as we codify it in specific text. That is like when they carry them in the tennessee case. I am the outsider coming into the state thinking you could have the freedom right there. There is his reading of the 21st amendment. There you go. Which comes after the 14th. Alright, i think we have time for one more question. Back here. I know there was a petition earlier this summer on when on the constitutionality of Consumer Finance protection board. I dont know but was granted, but i was wondering if there are any cases potentially coming up on the independent regulatory agencies and whether or not among the conservative justices, is there a coherent view among them on this question of constitutionality of the independent revelatory agencies . One me to take it . Yet, so look, there is this perennial problem when you have got Mission Creep over decades about what would be permissible, you know, starting with one case and trying to unravel the rest of the infrastructure that existed. So they come up with some odd ways to confine their new decision and ways that will not force us to unravel everything that has gone before, and the cfpb, as well, yeah, there is no atwill removal authority, but this is different from other cases where there is not Real Authority because this one is a single head rather than a multihead agency, like that matters one iota to the theory of the concern of separation of powers concern. But as and alito i think is particularly committed to small step restoration rather than pull out the bottom card in the house of cards deck and watch the whole thing collapse restoration. In the meantime, you are going to get these oddities. I think the cfpb case was represented as one of those. While they are trying to restore some principle definitions, particular applications will look odd in the transition. With that, we have come to the end of our time. Please join me in thanking our panels. Heres a look at our live coverage for friday. On cspan at 12 30 p. M. , the house will hold a pro forma session. And formerurnalists white house officials examined the relationship between the press and the Trump Administration. At 4 00, congressional observers talk about the 116th congress and its effectiveness as a lawmaking body. On cspan two at 8 45 a. M. , a discussion about the opioid epidemic. And at 5 00, the senate will hold a pro forma session. The recentake of shootings in el paso, texas, and dayton, ohio, the House Judiciary Committee will return early from the summer recess to markup three bills which includes restricting firearms from those deemed to be a risk to themselves. Live coverage begins wednesday at 10 00 a. M. Eastern on cspan and cspan. Org and if youre on the go, listen to our live coverage using the free cspan radio app. On 2020r focus , calsyn,oined by maura of the center for american progress, and benedic ippolito, Research Fellow with the American Enterprise institute. We spent the first hour hearing from viewers on what they thought about improving the u. S. Al