Panel on what looks to be an interesting term at the Supreme Court. After the trauma of last falls confirmation hearings, there has been a thought that those who watch the court went out of its way not to look partisan last term. To look for ways to bust up the ideological divide on the court in some cases. Controversieslk to keep them off that docket. Been well documented that each of the conservative judges justices. It went the other way. Each of the liberals at least once abandoned his or her usual voting partners and joined the conservatives. Harmony could be harder to find. Heres a look at the docket. Whether gay or transgender workers are protected under title vii of the Civil Rights Act of 1964. Whether the Trump Administration acted illegally in moving to end the daca program. Courts first Second Amendment case in a decade. The president s power over appointments. Case about a Montana Tax Credit Program that was shut down rather than extended to rick extended to cover religious schools. An abortion cases sure to be added. Theres a chance obamacare might return. You might have heard the chief justice might need to moonlight this term and preside over an impeachment trial in the senate. Even if that does not come to pass, those of us who watch the court will be locked in on john roberts once again, the first chief justice in decades who is also the median justice on the court. Termw how we operated last in the two most important cases. We saw how he used his power. He cited with conservatives to he sided with conservatives and saying the government he voted with liberal justices to stop wilbur rosss plan to add a Citizenship Question to the 2020 census saying the reasons he gave were not believable. Explore all of this with the distinguished panel of experts we have up here. We will take your questions as well. Be thinking. Im going to give short introductions. More, as i to know heard Justice Clarence thomas once say to a house panel, google it. [laughter] robert cultural is a professor of history and sociology at George Washington university. As well as specializing in legal history, he has taught tort and criminal law. He is an expert on the Second Amendment. Associate. An is professor of law in houston. He specializes in constitutional law, the Supreme Court, and the intersections ofs law and personality. If the author of three books. I forget the name of the other one. [laughter] he also writes at josh blackman. Com. He usually writes more about the court than those who are paid to write about it. Carrie severino is chief counsel of the Judicial Crisis Network and coauthor with Molly Hemingway of the best selling book line i did not bring it i did not bring a copy. Justice on trial, the kavanaugh confirmation in the future of the Supreme Court. At the Supreme Court for justice thomas. Megan brown handles regulatory issues. She represents companies and associations including the u. S. Chamber on First Amendment issues. Her pro bono practice focuses on the First Amendment. Howe is the author of scotus blog. The indispensable website for those who care about the court. She is a reporter for her own yhowe. Com. She is the only person i know in the Supreme Court press room who has argued two cases there. We have a real panel of experts. Theyre going to break down some of the issues that are before the court. Were going to start with bob. He will talk to us about the Second Amendment. Yes. The court has before it one of actually the first meaningful Second Amendment case that has it has been asked to consider since mcdonald which incorporated the right to bear arms against the state. In 2016t did consider briefly considered by pure in the case of caetano. Which dealt with whether or not stun guns might be protected under the Second Amendment. The case the court is looking at right now is new york states rifle and Pistol Association versus the city of new york. There are several important issues. Hellere court in mcdonald did not set a standard of review for Second Amendment cases. Theimply pronounced that Second Amendment was an individual right, and that it. Pplied to these the state since then, many observers have looked at what has happened in the lower courts and how they have applied. And have felt that many of the lower federal courts have basically been using a rational basis linens in terms of judging Second Amendment cases, even ugh they happen intermediate scrutiny. There are four justices, i believe, thomas, alito, gorsuch, who from their writings and discussions in a strongm to favor reading of the Second Amendment. I think one might had roberts one might add roberts to that list as well. We have the new york state rifle and Pistol Association versus the city of new york. New york state has a highly restrictive pistol licensing scheme. Has two types of licenses. One is a carry permit. These are highly restrictive. Them if one has large sums of money, or is rich and famous. Donald trump, as a citizen in new york had a carry permit. Notables inof other the city. Ordinary citizens, aside from people who are professional security guards, find it impossible. The other type of permit is somewhat more permissive, a premises permit. Basically, the city exacts a high cost to allow you to own a pistol for protection in your own home. The fees run on the order of about 700. Usually it takes several months wait before one is approved. At the end of the day, a citizen can get a premises permit. Every effort is made to discourage that. Previously, new york city prohibited people who had pistol permits the premises permit even though they had gone through a long screening process moot . Ing their permit is there something for the court to consider . Arguing in a peculiar, and i am not sure persuasive way. Basically telling the court if you do not rule our way, we are coming after you. That may cause even the notorious rbg will look at that and say you do not threaten my court. Event, yesterday the court had a session in chambers to resolve the moot issue. They have not publicly announced their ruling on that. Presumably, we will get a decision on friday. Considered to be moot. My production is that the court if they take that view, do, the most likely Second Amendment case to come to the horse court is george young versus hawaii. Theii has a prohibition on carrying of pistols outside of the home. The carrying of pistols outside of the home. It does not grant permits for carrying for selfdefense. The District Court sustained this law against the Second Amendment challenge. The ninth circuit, in a threejudge panel, reversed. Saying the Second Amendment does encompass the right to carry out as well as the right to possess. The ninththe ninth circuit was t that and going to do an on bank review of the final determination. They suspended that. First to see what indeed happens in new york city which may address the question of what extent does the Second Amendment extend beyond the home. That is where we are. Thank you. The wall street journal editorial boardfirst to see whas in new york memorably called whitehouses brief an enemy of the court brief. [laughter] the republican senators weighed in with a letter saying do not Pay Attention to them. Roberts favoritehouse thing. Andave democrats republicans arguing about the court. Windows roberts at stripes to his sleeve . Win thank you so much. It is a pleasure to be here. I have two cases. The first presents the question whether the sixth amendment requires the unanimous jury to convict. Oregon have a different law. For certain cases, you can convict with 10 members. Louisiana has subsequently repealed that law. Oregon have a different law. This case only reflects retroactive claims. This case focuses on an issue known as incorporation. , statedesigned amendments only restricted to federal power. After the 14th amendment, that calculus change. Over the course of the 20th century, the Supreme Court said certain rights are fundamental rights. As fundamental rights, the state cannot deprive those rights such as the violation of due process. Virtually the entirety of the bill of rights has been incorporated. Over the course of the 20th century, the Supreme Courtthe Sy Incorporated about a decade ago. A few outliers is the right to unanimous jury verdict. You might say waita matt, i have my constitution here, you have trial, anto a speedy trial, impartial jury. It says nothing about unanimous jury verdict. Youre right. This is what makes this case difficult. Case called had a. Im versus indiana all of the justices agreed they disagreed on perhaps the rationale. All of the justices agreed they disagreed on perhaps the rationale. Justice thomas they all agreed on the same front. This case is different. Expressedere is no enumerated rights to that verdict, this one is a i hope this one is 90. I think justices thomas, maybe gorsuch, kavanaugh may be also might be a little bit hesitant about incorporated unenumerated rights. I encourage you to read a brief by a Republican Attorney general working for he basically wrote the brief for the attorney general of louisiana. It is very good. Thinking. My the second case i would like to talk about involves our favorite affirmative action policy known as dhaka daca. After thinking. Congress said no to the dream act, obama took action with daca. Agreement i agreed with wholeheartedly. Certain minors who were brought here through no fault of their own are given deferred action. Deferred action says we will put you on the back of the line for removal, we will not prioritize you. We will give you something good called lawful presence. Lawful presence is a status that is not citizenship, not amnesty, benefits or you can now work, you get a Social Security number. In effecty was through the entirety of the obama administration. After President Trump came to he decided to repeal the policy. In large part because texas threatened to sue him. You would think that a policy that one president enact through he decided to repeal the executive action could be repealed through the same action. That is not how things work. Strict courts held that President Trump could not rescind daca. They did not say that it must remain in stone. Policy cannot remain policy cannot remain in still forever. They said the rationale you have given has been arbitrary. One court said that President Trumps adamants toward hispanics taints the decision. Any attempt to rescind the policy the fifth a moment. The Supreme Court that would allow trump to do what he wants to do but not weigh in on merits of the policy. Wyatt why is it important . The next president the next prese to reenact dhaka daca from scratch. My hope is that the Court Decides whether this policy is legal. Maybe this will give us new confidence that is all i have. I will turn it over to my new friend carrie. You will be surprised to learn that women on this panel volunteered to do more cases than the men. Im going to cover one set of three cases chapter do with interpretation. The title vii case. Sed basically having to do with whether title viis protections against sex discrimination apply to Sexual Orientation and transgender status. Tothe court is attempting enable the lawn what it covers. This is one of the criminal cases im looking at. It provided a great example of where this court has come, embodying what Justice Kagan said. With these issues of mitchell major social import, you may see the focus on is this a good thing . There is some of that. Both sides are really fighting for the grounds of who has the correct interpretation of statute. Significantis very and has to do a lot with the current makeup of the court where you are seeing the of textual list and ritualist approach. Groups like the federalist making making those kind of philosophies more wellknown. It has a lot to do with that. Three cases are combined into two groups in title vii, the first is Sexual Orientation. There are two cases that are going to be argued together. Next week on the seventh. One has to do with gerald who was a Child WelfareServices Court nader in georgia. He was fired. Were factual disputes as to whether he was fired due to an audit, or that he had joined a gay softball league. The root question here is whether he can even bring this claim under title vii. Wasly, donald sactown a skydiving this instructor in new york. Part of his job, he would have to strap himself and people he was training. If it was a woman, he would reassure them that it was there are distinctions that are permitted. The Supreme Court itself suggested might be necessary for separate sex bathrooms, allowing for different dress codes. Allowing for different fitness requirements. Virginia military case, ginsburg suggested if you open up the school to women, you might have to build a new dorm. You might have to have different standards. There is a suggested that this is potentially required to open the door to women. A lot of things i dont think the court wants to bring into that. There is tension in both parties heightened idea of muscle. Words because of sex. Everyone agrees that the intent at the time probably was not to add orientation or transgender status to the role. There is Language Justice scalia himself had in 1988 saying this is about male on male sexual harassment. Beeng this might not have in the mind of congress at the time, but we have to follow the text even when it might not be what they contemplated. He said the statutory prohibitions often go beyond the principal people to cover reasonably comparable evils. As a result, the laws and went on one side, you have been in the mind of congress at the time, but we have to follow the text even one thing this part of the people covers more than they expected. On the other side, uf people saying either way you have people saying either way it depends on whether members of one sex have this advantages. It doesnt go beyond that. Is this a logical conclusion of the text . Or is this hiding an elephant in the mouse hole. Discussion of of sex stereotyping. The price case brings sex the because ofto sex category. That may boil down to the same initial question about because sexhat sex means stereotyping information is people that is useful to find out if there has been discrimination. United states is arguing it is not a standalone thing. I think i will be a question. Makeer the court wants to sex stereotyping a standalone type of discrimination based on sex, or whether they want to say it all boils down to what is because of sex. It is there is no legislative history, but there is subsequent history that both sides sate means different things. It will be interesting to watch. Everything from watching in 1976 the court said pregnancy discrimination was not because of sex paired they apparently were not going at that point with the anything that has to do with sexes because of sex. Congress went back and added that. Now the definition includes pregnancy. Includes, but not limited to. There have been repeated bills there have been repeated bills attempting almost every year since 1975 in the case of orientation, and since 2007 in the case of transgender is him to add that to the list of things that are protected classes. Does that suggest that congress to change it and doesnt . Does that mean i think it is already covered . Both sides make different arguments. The Civil Rights Act of 1991 was passed after several circuits had said sexually and sexual or or transgender status was not included. This that mean that they are ratifying that information . At least some of the parties say like Price Waterhouse or oncology. Price waterhouse is after that. Thate this, they say incorporates this broader understanding of what sex is. Understanding of what sex is. Employers on the other hand will say they purposefully did not change the language. It says because of sex, they could have added Sexual Orientation or transgender status although it was not discussed at the time. Those are some of the issues that are going to be brought up in going back and forth. I am running low on time. I did not even get to describe thethose fact very well in the Funeral Homes case. Most of the arguments are very similar. There are some distinctions in cases inl orientation virginia that get carried out because it is an argument of this is an argument of associational harm. The government basically the quickest way to boil down their argument is sex is different. Cases in virginia that get carried out race you cannot have single race bathrooms. You cant have racially restrictive dress codes. There is just a difference between the kind of discriminations we allow on sex versus race. I think the other parallel that happens in the transgender cases the parallel to religious conversion. Could you analogize this to the asus ofon on religious conversion . The asus of religious conversion . Basis of religious conversion . Versus kansas is an eighth amendment case about the insanity defense. Even though the eighth amendment is an area that traditionally has brought in involving standards of decency. They are talking about both sides. Were going to leave this program for a minute to take into the white house. President trump spoke with reporters a short time ago before departing to florida. Talk of we are doing it pres. Trump we are talking about health care. We are going to be speaking to the great people