Whether you are watching over zoom, youtube, facebook, twitter, or our webpage, we are delighted to have you with us. We are recording this, as is cspan, so you may find yourself on cspan at some point in the future. We dont know when. Before we turn to aspects of the upcoming term, i want to say a few words about Justice Ruth Bader ginsburg, who died two weeks ago. I first met Justice Ginsburg 37 years ago, when i was a judge there. Judges are randomly assigned to the courts of appeals, and my boss, judge scalia, was on a panel. Justice ginsburg was an extra ordinary woman, and extra ordinary justice, an extraordinary lawyer, and an extra ordinary american. I would like to ask for a brief moment of silence in her honor. Let me introduce our moderator and turn it over to him to introduce our panel and get the discussion underway. Robert barnes got his bachelors degree in journalism from the university of florida. He has been a Washington Post reporter since 1987. He joined the paper to cover politics, and has served in various editorial positions, including metropolitan editor and National Political editor. He has covered the Supreme Court since november 2006. We appreciate his taking on the job of moderating this panel, despite other, demands on his time, given the unusual amount of Supreme Court news even for this time of the year. In light of this, we trust our speakers will give him an easier time moderating this panel than his fellow journalist Chris Wallace experienced a couple days ago. Over to you, bob. On the contrary, we are going to follow the usual rules, which is interrupt each other, belittle each other. I would like to see you show your disagreement with eye rolls and face scrunches. We are going to move fairly quickly, and if i feel like one of you is taking too much time, i will gently nudge you along by saying something like, will you shut up, man . Or lady. They are all big turns at the Supreme Court. Perhaps at this point, not as big as the one we had last year with so many controversial topics. And over time, we did not finish until mid july. The docket so far this year is not as cramped, but maybe they are leaving a little time for some unexpected cases that might arise after november 3. So, to start with, we are going to go through each of the panelists, who has a case he or she will talk about, then we will do another round after that. Let me just say who your finalists are, and this will be much shorter. A professor of law at the university of california berkeley, president of the ethics and Public Policy center, partner of gibson dunn, independent womans law center, and the associate dean of the George Washington University Law school. I think that you have their full resumes, so you should look at them. She is probably sick of hearing about it, but erins is the most interesting one. First, we are going to start with erin, and she is going to talk about one of the most notable cases on the docket so far, and that is the Affordable Care act, california v texas. Thanks so much for that introduction and for having us all. Yes, we will talk about the Affordable Care act again. This is the third time it has been before the Supreme Court. Of course, there are provisions. Not the first time that the Supreme Court will take a look at the Affordable Health care act. Other challenges to this legislation is the individual mandate. When we look at the Affordable Care act the more controversial provisions was set forth in section 5000a and 5000ab. It required certain qualifying individuals to ensure that they had purchased in qualifying insurance. If they did not, they had the responsibility to pay a penalty. That was enforced by the irs. Go forward a few years to 2012, and we get the Supreme Courts decision. Most of you will recall the focus of the litigation was on the commerce squad, and the challenges to litigation were making the argument that congress has the power to regulate entities, to regulate items once they are in commerce. But on the other hand, they cannot force someone to adjust or to enter commerce themselves as through the Affordable Care act. In a switch, the Supreme Court held that the penalty provision was actually a tax. For constitutional purposes, the provision could be construed as a tax. The Supreme Court upheld the provision under the broader power of congress. To collect taxes. Fastforward to about 2017. Congress, under the tax cuts and jobs act of 2017 signed by President Trump, it zeroed out the individual mandate penalty, the basis for upholding the legislation. Then we get a challenge from texas and 18 other states. Texas is alleging that the Affordable Care act individual mandate is now unconstitutional because the mandate penalty is zero and they argue that a zero penalty tax cannot be a tax a zero tax cannot be a tax at all. The case went to judge oconnor in texas in District Court. Judge oconnor struck down the individual mandate. He also struck down the entire statute. The court of appeals took up the case. The individual mandate could no longer be sustained under power. Procedural steps Going Forward, they disagreed. They basically punted and went back to the District Court. They told him to analyze it with a fine comb. A unique posture that california and other states supporting the legislation. The Supreme Court granted the petition. The case could come back up. At that point, the court could answer. The question before the court was whether the individual mandate is constitutional and there is a legal question if it is not and if the provision is severable. California and the house of representatives argue that the states and individuals challenging do not have standing. The District Court of appeals or compelled to purchase insurance. There is the question of constitutionality of the individual mandate. This is interesting. Commentators on both sides of the aisle if you look at the Courts Holding of nsfid, it raised you have a fairly strong argument to be made that a tax of zero is not a tax at all. To become what the most interesting part of the case will be the question of severability. The Supreme Court found the structure to be unconstitutional. In doing so, chief Justice Roberts used interesting language. He said the doctrine to try to limit the solution to the problem. There is strong evidence otherwise. I think the real question here, at least in my opinion is the question of severability, challenging the provision that you need to look to the 2010 findings of congress that found the individual mandate was linked because it provided funding for the other provisions. On the other hand, the house of representatives and california and other states argue the 2017 legislation and congress clearly contemplated the aca without an enforceable mandate. Interesting as you compare 2010 to 2017 and what that means for severability. Robert thank you very much. We are going to have a q a session toward the end of this. We will be taking questions from you. Any cases we discussed are those that we do not discuss. If you have questions about that and i do we will tackle those, i promise. Next up is alan morrison. He will be talking about department of justice v. House committee on the mueller grand jury case. Alan what can be more exciting the trajan access to the grand jury materials that mueller presented. There is a general rule of secrecy under the federal rules of criminal procedure of materials going before the grand jury. I think most people agree that at some point that grand jury secrecy should be eliminated. In a number of cases, some which my old office was involved in, grand jury materials involving even Richard Nixons appearances before the watergate grand jury, all of those became public under what was applied exception to the rule, after some period of time, they should all be able to be turned over. The Justice Department has disagreed with that for a long period of time, nothing much as a matter of policy, but they thought the rule did not have an inherent exception. A couple of years ago, the First Circuit court ruled in favor of the Justice Department, saying there was no inherit right to access to grand jury materials no matter how long they had been around. In the meantime, before the recent d. C. Circuit judge, the attorney general of the United States in the obama discretion sent a letter to the rules committee saying, we think the law ought to be changed and there ought to be a historic exception, and perhaps other exceptions. The rules committee rejected that because they thought it was not necessary to change the rules because all of the cases had gone in favor of exceptions. That exception no longer applies and will have to be fixed by the rules committee. This case is much narrower. It involves an exception to the grand jury exception under which a judicial proceeding matters involved in a judicial proceeding can be released. Typically that arises in a case in which the defendant was to crossexamine a witness has appeared before the grand jury. Obviously, the defendant gives the right to the grand jury material to see if it is inconsistent. This case involves the question whether an impeachment proceeding for the congress constitutes a judicial proceeding and is up for that exception. The d. C. Role it did constitute judicial proceeding and that is up before the court. One point i want to make is it is not clear this case will not become moot. The subpoena that was issued was issued during the time that the impeachment proceeding was going on. Two things have to happen for the case not to be moot on january 20 President Trump no longer has to be in office, or he feels not in office, the house has to decide if he wants to renew the subpoena or not. These problems were obvious to the court when they agree to take the case so it is unclear if they are anxious to take the case or not but they decided to many months ago. I think i have a little bit of time left, so let me talk about one other case before the court called carney against adams. It deals with delaware statutes that provide for two different ways of seeing there is a balance on several of the courts. They have two rules one is called the bare majority rule. It is what they call it on the opinions. Under that, there are seven judges on a court, no more than four can be of the same Political Party. The second rule is if there is a vacancy on the court, the constitutional provision in delaware says they must appoint someone from the Political Party that will not cause a bare majority rule to be violated. That has been interpreted to be that only democrats and republicans can serve on the Supreme Court of delaware. With a decided that, because the provision was added to earlier provisions, they invoked the doctrine of separability and concluded that because they were all part of the same legislative package that the provision of the bare majority would go the way of the democratic the severability law in that situation seems to be the law of separability of delaware. Not the statute that congress had enacted. The court has had both of these issues before and the question of, what is the arguable justification . I joined in a brief that said the notion of political appointees and policymaking had nothing to do with this and there was a legitimate interest in seeing there was balance. I do not think the court will reach that issue, what if it does, it might Say Something about balance representation not only on courts but administrative agencies running for the federal election commission, to the trade commission and exchange commission. We will keep an eye on that case, as well. Robert thank you, alan. Somewhat appropriate the court kicks off its term with a question about political appointments to the Supreme Court. Up next, he will be talking about a case called van buren v. U. S. Thank you for the Federalist Society inviting me here. The case i am talking about is a criminal case involving the law called the computer law and abuse act, a computer hacking statute enacted in the 1980s. Although we have all moved to computers as we are in this panel, the Supreme Court has never interpreted what this law means. It matters to a lot of people because it is saying how easy it is to commit a computer crime and how many of us are computer criminals by virtue of this 1980s law enacted in a very different era. Van buren is a Police Officer who has access to a government database of information about people and he accepted a payment to look up someone that some private party was interested in knowing about. Even though he had been trained are only allowed to access the database for official reasons, it was part of a sting, the fbi and the person who had asked van buren to look up this individual for the payment. It was all part of a government sting. Van buren is charged with violating the Computer Fraud and abuse act on the theory he had been told should only access the database for official reasons and he had accessed the database for nonofficial reasons and therefore violated the law. The law says it is a federal crime to access the computer without authorization or to exceed authorized access to any protected computer. Under the statute, a protected computer is basically any computer the definition is any computer that can be reached under commerce laws think about any computer, whether connected to the internet or not, everything is covered, or close to everything is covered under this law. The big question is what is access without authorization or exceeding authorized access . It is agreed by the parties issue is whether van buren exceeded authorized access because he had been given an account to access the database so he initially accessed it with authorization but did he exceed that . There is a statutory definition, here is what the definition is the term exceeds authorized access is to access a computer with authorization and use such access to obtain or alter information in the computer that the accessor is not entitled to obtain or alter, which at least when i hear that, it is an entirely circular definition. You cannot do what you cannot do without answering about what you cant do. Why does this matter . The two sides have starkly different understandings of what the law means. Van burens side says the act is just about computer hacking, breaking in. You are not breaking into a computer if you just violate some sort of a written restriction or you were told not to do something and do it anyway. That can be a contractual violation, and employment problem, but not a federal crime. From the defenses side, the defense argues this law should be construed to hacking, circumventing some sort of access restriction. The governments argument is it is not only to someone who hacked income up with someone who upon gaining access has violated some restriction, including some written restriction, and therefore van buren violated this law because he was told not to access the computer for personal reasons and he did so. Why does this case matter . The law is written so broadly, that it applies to basically any computer and any written restriction. The Supreme Court has to decide, is this just about hacking or does it apply to hacking and violating any written restriction on a computer. That matters to a lot of people because if you have ever noticed, you are probably violating terms of service to a computer right now and it is very common to violent terms of service to a website, online social media site, you have to tell the truth when you log into facebook and give your real name, a dating service, you have to give your real age. The governments theory lays out the theory that if the government is right, although those acts are federal crimes and the statute is criminalizing everyone and everything a little bit of an exaggeration, but not much. This will be coming to the Supreme Court to figure out what this law means an answer, how we people, as they use computers, are filing this criminal statute and could be arrested and prosecuted. The court has the opportunity to adopt a narrow interpretation about hacking or a broad interpretation. It will come back to congress to come up with answers depending on what the Supreme Courts interpretation is. Robert let me play editor for a second. Do you know if this is the only thing he was charged with, this officer . Orin he was charged with another offense print he was charged with wire fraud. It was a services fraud. Robert he was being bribed . Orin he was being bribed, exactly. There is the bribe, and there is the computer hacking offense. The related bribery charge is still there. Robert ok, thank you. Elizabeth is going to talk about a case involving Ford Motor Company and a little bit about the business docket. Elizabeth it is great to be here. I appreciate Justice Ginsburg and somebody ways and one of the reasons i want to talk about this case is because there is a scenario in the case that leaves quite a legacy. I think it will be a great segue to discuss what is it what is on everyones minds, her legacy. The business docket has some great cases, and a little bit of a constitutional look that erin previewed. A business docket is only about a third of the way. Already, we have some big ticket cases. I will address in a moment. Cases about where a u. S. Company can be held liable for human rights abuses abroad. What constitutes fair use of intellectual property. Whether a company can be subjected to massive liability under the ftc act and under a statute. We will have a case i will touch on last. What courts will do with these runaway agencies that are unconstitutionally structured. I will spend a moment because they are so important. It is not just the auto industry, it is consumers and big tech. The issue is a company that makes your product and delivers a service, where can it be sued by a person hurt as a result of you that product. Individuals who are driving ford cars, one was injured regrettably with a fatal accident when a tire blew out. The other was an instance where an airbag did not apply. In one case, the state, and the other the injured plaintiff sued ford motor for defective parts the tire and the airbag. The issue in both cases is whether these plaintiffs were entitled to sue the company in the state in which they were injured. The reason we care about this, especially at the Federalist Society and citizens, our constitution says federal courts have limited jurisdiction and the cannot exercise their power over a person or defendant without due process. The Supreme Court has long held that for a lawsuit to satisfy due process, one of two things has to be true the defendant has to be at home in the state or form in which they are being sued. If you live there, you can be sued there on anything. These cases involve the Second Branch of jurisdiction doctrine, which is called specific jurisdiction, the Supreme Court has said it is ok for a plaintiff to sue a defendant in federal court in a diversity case like this if and only if, the defendants outreach or contact with that forum relate directly to the suit or injury at issue. This is an important point. What happened in both of these cases before the court is the Supreme Court said although uncontested that in both cases, they did not buy their cars from four directly, the cars ended up there from private resales, the cars were manufactured in a different state. The fact that ford does a lot of business in each of the states in montana and minnesota is enough to subject the company to suit even though it had no direct cause of relationship with the plaintiffs driving those cars or the injuries that occurred. That goes along the line of a super majority of Supreme Court cases on the general jurisdiction side, Justice Ginsburg offered an opinion in 2014 said general jurisdiction just because something is prevalent, you do not connect the suit conduct. Id the specific jurisdiction side, there is a series of decisions that you have to have a tight lexus between what the defendant did what happened to the particular plaintiff. That does not appear to exist in either of these cases. I do not think this is one of those cases that confirmation of the vote of 90 or 81. Lexis is not enough. Anyone who puts anything can be sued there. It shows contrast to that case and how the court has lined up on issues across lines. We will touch on other cases. The confirmation. Robert thank you. I have never moderated a panel in which moderators have so abided by their time limits. I am shocked. We might be wrapping up in no time at all. Our next case, which in many ways is a followup to the issues the court did not get to in Masterpiece Cake shop, and it is the intersection of laws against discrimination and when they bump up against religious liberty. Ed will be talking about a case called fulton against the city of philadelphia. Ed the case will be argued on november 4, after election day. The issue is whether a Catholic Group can be barred from providing Foster Care Services in philadelphia because of catholic beliefs about marriage and foster kids. There is a clash between religions liberty and lbgtq nondiscrimination laws. It also, more importantly, tees up Employment Division versus smith for possible overruling. As many of you know, Employment Division versus smith is the 1990 opinion of the Supreme Court in which a five justice majority or a six justice majority on the holding what a five justice majority on the rationale ruled applicable laws, present no free exercise claim. That really is probably the most controversial ruling by Justice Scalia among conservatives, at least. It was soon as overruling a line of cases that applied strict scrutiny to substantial burdens on religious liberty. Congress responded rapidly in 1993 with an act reimposed the strict scrutiny standard that preceded smith. Four years later, the Supreme Court said the federal could not constitutionally be applied against the states. It continues to apply against federal actors, but in this case it did not apply against state actors. That is why you had a flurry of state freedom acts. In recent years, the unanimous consensus in favor of the federal referendum in 1993 has come up as it has shifted in the eyes of many. Very briefly, in this case, the catholic entity, social services, saying the citys actions reflect hostility to religious beliefs. It takes the case, the city itself does not abide by the nondiscrimination norms and is trying to hold it to. In turn in the Supreme Court, the city has advanced a new argument that css is merely performing Government Services and exercising government power and has free exercise rights in doing so. That strikes me as a sweeping assertion. We will see how the court addresses it. The Catholic Church has been doing foster care work long before the city got involved. There is a question of what limits, if any, are there to a government entitys ability to make similar claims in other areas, whether it is marriage licensing or so on. The case could be decided one way or the other, the court could see this case because of smith. There are several justices who have expressed their hostility to smith. We have seen recent cases the ability to carve matters out of the scope of smith. So i will try to stay within the time limit and leave it right there. Could i ask a small fact question . You may. I heard someplace that the Catholic Party in this case has never had a request from samesex couples to adopt a child. Is that factually correct, and mike that matter in terms of their standing in this case . I understand that to be factually correct. I am not sure it affects standing. There are dozens of child placing agencys from which perspective foster parents from which perspective foster parents can inquire. And if it did, they would be referred to another agency that would be open to approving it for the home, but i do not see how it bears on standing. It could be a reason for the court to adopt the case. Except what happened here is the agency has been disqualified by the city for further participation. I dont see that as an option. The question is about the contract with the city, right . Yeah. Actually, there is a whole dispute back and forth about what course of action is actually relevant. The city changed its contract at one point to add specific broader language that it thinks strengthens its position. The question of whether there was a course of action before that that reflects religious hostility, the justices have gone back and forth on some of these factual assertions. We have talked about some very specific cases. I would like now to ask you to think about what Justice Ginsburgs death means, what judge barretts confirmation might mean, and give me the bigger view of what you see this court term being like under these circumstances. Alan, lets start with you. I think the answer is uncertain. I am assuming that unless something turns up and or people change their mind, that judge barrett will become just a spirit at some point will become Justice Barrett at some point. I just want to say with regard to what elizabeth said, those cases are quite different from all the cases that have come before the court. While i have written that Justice Ginsburg was surely right in the outcome of the prior cases when it was the plaintiffs engaging, i disagreed strongly with her rationale and her opinions. This is the case about Forum Shopping, where it is not at all clear that she would. Have gone along with this. The Ford Motor Company same we sell thousands of cars in every state in the country, but you plaintiff happened to not be the original buyer of that car in this state, and therefore you have to sue us in michigan, delaware, or where the car was many fractured or designed. That seems to be like Forum Shopping. I think the message in these cases is that broad Forum Shopping is out. We will see whether it applies the same to the defendants and the plaintiffs. But overall, i would agree that the court stocking is not really filled out or as rich as it has been in prior years. On the other hand, all of the cases that came to the top at the end of the term were cases well after september or october, so it is very hard to know now. Obviously Justice Barrett will not vote the same way as Justice Ginsburg did on many cases, but my view has always been that you dont really know what a judge is going to be like when she or he is to the Supreme Court until they have been there a while. Justice scalia was much more moderate when he was on the court of appeals, not because he was hiding anything, but because the docket was different in his position in the judiciary was different. So it is hard to tell. Judge barrett is an extremely able lawyer. You just never know when you get cases and you are in the super court, you see things quite a bit differently. While i am not hoping that she is going to be a substitute for Justice Ginsburg, i am not willing to write it off either. One of the things that has sort of been immediately mentioned is that one of the five members who upheld the Affordable Care act is obviously gone now. Judge barrett has been critical of the aca. But i sin in on a number of these i listen in on a number of these Supreme Court previews, and i am struck by how many lawyers who arent fan of the ac a who dont think this case at the Supreme Court is a 54 one, that it might have much more to do with the question of separability as to whether the aca survives. Could you talk about that . Absolutely. I would like to mention on timing, we dont know when, assuming judge barrett replaces Justice Ginsburg, we dont know when that will occur. If it does take place before november 10, then she will sit for that case. The tradition is that if a judge is not confirmed when oral argument is heard, they dont participate. So judge kavanaugh would recuse himself from cases where oral argument was already heard. Same for justice kagan. [indiscernible] if it is 44, the individual mandate is upheld. The remand would still take effect, but it would go back to the district to determine separability so that there wont be indecision at the court with regard to the entire statute. And then also, i think that theres becoming a greater consensus as this case makes it way through the court that the constitutional question may not actually be that close. The Supreme Court it was a stretch in order to call it attacks, but they were very clear that in order to be a tax, the essential feature was that it must raise some revenue. If we are talking about a broad power, that would certainly be the taxing power with no requirement that there be any sort of revenue raising. But the sort of check on that is that the government is accountable, so the people will call the elected representatives to account. But if it does not meet the meaning of being a tax, than that check of power is absent. I could see the chief justice finding that problematic under the new 2017 statute, but it really does boil down to separability. If you look at what congress did in 2017, i think there is a really good argument to be made under Supreme Court old and present cases that the mandate is separable. The reason for this is if you look at the 2017 congress, they obviously thought an unenforceable mandate was compatible with the rest of the aca. We are not talking about the situation in 2010, where they were capping the revenue from that. They tossed all of that out the window with 2017. So youve got a congress that clearly thinks the unenforceable mandate is compatible with the aca. Some members may be reluctant to step into the political side. Congress could pass a statute which would raise some revenue, and that would at least moot the controversy and get the spring court out of a tough situation. It certainly would be the Supreme Court out of a tough situation. It would certainly be a way. They certainly dont have reason to send it back because you have a different analysis. The court they are charging at least 100 rather the unenforceable mandate. As long as we can find some way to keep aca litigation going. What do you think about the term in these unusual circumstances that the court is facing . I wanted to go back to the question, the broader one that you were suggesting about where does the Supreme Court go, assuming that Amy Coney Barrett is confirmed. I would guess that on the whole, we are going to see a considerable and perhaps quite rapid shift to the right. I think it is almost hard to remember that the Supreme Court can in fact change direction. We almost lose sight of the fact that that is common in Supreme Court history, and we dont see that because we had a history that is kind of remarkable of the last 40 years or 50 years, where we had justice powell, the kind of moderate republican at the center swing vote. Then it became Justice Oconnor as the kind of moderate center swing vote. Then Justice Kennedy is the sort of moderate center swing vote. Then we had chief Justice Roberts as the swing vote. It would have been sensible to say then things will shift, although in light of trump being president , i think chief Justice Roberts, to try to ensure some kind of stability, to have the court kind of the institution in American Life not doing wacky things, he basically remade himself as the moderate centrist republican appointee swing vote, and the court should change the court didnt change very much. If you have Justice Barrett, suddenly chief Justice Roberts, who i think is fundamentally a conservative and was being more institutional maybe then would be his natural state, hes not even a swing vote anymore. He has the assignment power, but the swing vote on the court becomes Brett Kavanaugh, maybe, or neil gorsuch, depending on the case. And Brett Kavanaugh or neil gorsuch as the swing vote, that is a very conservative court. So i think we are looking at some considerable shifts. Maybe they will take a term and slow down at first. But the history to me suggests when you have a majority that has a very clear ideological direction, the court generally goes in that direction. I think the lesson is the court didnt just sit around and wait. They moved. I would at least guess that we are going to see some significant movements in a way that we havent seen before in a long time. Are you rubbing your hands in anticipation . Are you rubbing your hands in anticipation . I agree with much of what he orrin just said. The chief, having been lauded for occupying the median position on the court, will no longer be there. He may have been left in that position as a response to President Trump, so it might well be that even apart from a new justice, he would have swung back right. The chief has the challenge of some sort of middle coalition with Justice Kavanaugh or justice gorsuch, or on the losing end of some cases, or making it a six justice majority, the one point i would emphasize is that contrary to reports of her position on stare decisis, judge barrett very much adheres to a traditional view of stare decisis. Has emphasized that it is perfectly fine for the Supreme Court to accept as operating presumption that precedents have been rightly decided until such time as it is necessary to revisit them. She has emphasized that the court does not need to go out seeking cases to rule. Yes, the court will be very different if she replaced Justice Ginsburg. I dont think we will see an immediate search and destroy mission on a lot of precedents. This is a court that doesnt seem that reluctant to overturn precedent, except for justice kagan, who talks about it a lot. Elizabeth, what do you see when you think about the term that is coming up . [indiscernible] i think certainly in the business docket, which is where i practice most, i dont think there is going to be any major shift, in part because a lot of those cases are decided on the terms of their own specific statutes, in line with the courts precedents. I think the breadth or rationale on some of the court cases, if these state Supreme Courts are correct, they have a distinction between general and specific distinction which is very difficult to reconcile. I think, to get to a finer point, you see this in the briefing of a proximate cause standard, where you have to have a tight nexus between the defendants contact with the state and a suit. What is interesting is they were not granted separate argument time for the more moderate view. Back in the bristolmyers case three years ago, the Solicitor Generals Office did urge a proximate cause standard. So it is there that i could see some differences. I will tell you, i think the area we could see differences, and it goes to the separability point in the Fannie Freddie case. It is on an unconstitutional agency that has taken action against someone. Well, is it unconstitutional because the statute that made them has some problematic provision . It is the same as the last case that says the person at the agency making the decision and enforcing federal law is not adequately supervised by the president , so they are not adequately accountable. It is a constitutional problem. I think the hard question arises in where the composition of the court could really matter, what to do about the violation that occurred when the constitutional defect was present. The court confronted some National Labor Relations Board decisions. The court was turning the direction of constitutional violations need to mean something, and if a constitutional violation resulted in a decision that actually hurt or affected someone, there may be a serious problem in just taking out the decision or the statute. The court was on the bubble on that. There was a lot of vote splitting in the last term. This is where i think the composition of the court could matter, that judge barrett may be stronger on some of these remedial issues than we saw in the last term. I wonder if she might consider the structural violation rights. Whether that might matter. Do you think a constitutional structural violation might make a difference . I think so, just from the standpoint that, if it is a structural problem, the act that the Government Agency took is void. It was never authorized. Youve got some precedent for this in the appointments clause. Not to get too nerdy on this , the current cases are about removal. We have cases that, if some officer of the United States is not constitutionally appointed, then everything they did was void. Some people try to draw the distinction. Once you are in office, you are at least saying that you are held accountable to the people. So i do think the structural nature of some of these violations would matter, and i think where the rubber is going to meet the road. It is going to have a big practical consequence. You see this all over the country right now. There are tons of cases grappling with the issue with the issue on the court on june 26. What happens to those decisions, enforcing those decisions Going Forward . Do they have to start over from square one and make sure they have the jurisdictional and all of the other boxes to keep going . Its going to be a big deal and could be consequential with the new court. Theres a case on the pending docket which could be announced anytime actually, several cases from the federal circuit involving the appointment of patent judges. Theres a question of whether they are principal officers. The issue of that, there are i think 360 patent judges whose decisions are regularly getting appealed to the federal circuit. A quite difficult and interesting question on the merits of whether they are officers or not, this remedial issue is going to be huge in terms of practicalities. I think elizabeths firm has got at least one of those cases, and those of us who are interested, are puzzling about what to do about it. I dont think we care between two patentees who is winning and who is not, but how this is going to impact not just the patent judges, but the judges that all of the agencies or perhaps other places. So it is a huge issue that the court is going to have to face, and whoever the replacement is for Justice Ginsburg, or whenever that comes about, that case will certainly be heard by a full nine justices. But that is a really significant case across the business community. I imagine theres probably some companies on both sides of the issue coming up in the federal circuit. There was a case from wisconsin in the spring about voting. It was called Republican National committee v. Democratic national committee. The court split 54 on it. It seems like the kind of case the court really hates to weigh in on, but certainly not a day goes by that i dont see another emergency application get to the court about some voting change. If you talk a little bit about how these voting issues, these cases about how people vote, how the ballots are going to be counted affect the court leading up to the election, just speculate on what is going to happen after the election, since the president seemed to indicate fairly strongly the other night that he expected the court may be will decide this. Who would like to go first . Do i have to pick someone . Warren. I was hoping you wouldnt pick me. [laughter] i am not well situated to answer these questions, although after the mess that was bush v. Gore, i hope the Supreme Court stays as far away from these cases as possible. Can they . I think it largely depends on what lower courts do. I think it makes a big difference in terms of the justices attitude, of should the Supreme Court to be the institution that answers these questions. What we know of what happened following the election of 2000, there was a majority that thought we need to be the ones that resolve this, and that did not put the justices in their finest hour, to put that mildly. So hopefully it would not come to the Supreme Court, especially in light of statements from President Trump that he wants to have judge barrett on the court to be a key vote for him and the prospect of election litigation. It is not going to be a happy situation if we get there, and i hope we dont. Has the president put judge barrett in a place where she will be asked to recuse, and should she . Well, im not sure that the president s actual remarks were exactly as orrin depicted them. Look, recusal is a decision that is made that is totally fact dependent. Back in 2016, Ruth Bader Ginsburg made lots of remarks very derogatory of donald trump. No one was suggesting at that time that if there were election litigation, she would have to recuse. And in fact, her derogatory remarks had a lot to do with his failure to disclose his taxes, yet she did not see fit to recuse from the big cases that presented the very question whether entities could request his financial records this last year. I share orrins desire that there not be issues like this. I thing it is quite possible that if there are, it may well be that there be a super majority ruling against some challenges in a way that could have some longterm benefits for the court. You follow this more closely than i have, so correct me if i am wrong. In the electionrelated challenges so far, the court has largely had the rule that the state rule stay in effect and lower courts should not be changing those. What happens with some of the cases that involve state courts changing those . That gets a little more complicated. But i think the court is going to abide by the rules that the state has enacted legislatively. That does not mean there wont be disputes, but it does at least provides a baseline for deciding those. This would be one that your old boss would not be happy to see come to the court. His worry about the the instituational reputation of the court. Do you think the other justices share that . Is he the oneman band there . I think probably no. He may be the most cautious about wading into political battles of the current justices. Everyone sees the court as an institution, and has an institutional prerogative at many times. But i would think that the entire court, on the political doctrine, whether justices are capable of issuing judicially manageable standards, since time immemorial, justices have been cautious about weighing into political matters. So i think that would be shared across the board. It would be a particular concern of chief Justice Roberts. We do want to take your questions. There is the raise your hand symbol that will start taking questions, and some other questions will be coming in other ways. So please give this panel some questions. They like to take them. Elizabeth, is there anything else that is coming up in the term that you think we should talk about . Theres lots of things. I think there is a very interesting statutory interpretation cases coming up. One of them is of particular consequence. These are the sec cases, the fcc cases, and a separate statutory case. Yesterday, it got a companion in the third circuit. The question is whether the federal trade commission can subject regulated industries or companies to a broad range of equitable remedies that the agency has deemed to include billiondollar monetary penalties on the rationale that if, for example, a business engages in conduct that deceived a consumer, every penny that the business earned from that act or practice or product should be disgorged. It is a tremendous hammer for the government in these cases, and what comes before the court is, for a long time, and i think this is kind of a trend that would continue if judge barrett is confirmed, that the justices have been much more careful about. Last term, in an sec case, the Supreme Court upheld the authority to impose those kinds of remedies because the sec statute said in black and white that the agency had the power to issue injunctions, which is conduct restraint, as well as traditional forms of equitable relief, which, if you go back in history, included money. The ftc statute is not as clear. We are going to see the court very consequential cases that are going to turn on the language of a particular statute. I was looking at some of judge barretts opinions from the seventh circuit. She has been excruciatingly attentive to statutory language. She had a case that was a state secrets case. She focused very specifically on what the language was come on the focus of trademark and patent cases. This is exactly the kind of careful jurisprudence and statutory detail that is so important to many cases coming up, and i think that approach is exactly right because that is what the justices should be doing, looking at the language of the law. Is there anything from your perspective that you are looking court doing or hoping that the court wont do . I think one issue on which the court is unanimous and that is that the election not be close. [laughter] i would say, to the extent that one tries to read tea leaves into what the court has done in election cases in the last you are so, it is hard to do because most of them have null opinions in a not extensive briefing. It looks like they are in favor of stability, that they do not interrupt things in the middle. On the other hand, the coronavirus is different. Not something that anyone could have reasonably anticipated before, and at least where a state legislator or duly authorized agent has authority to make changes to take into account current circumstances, i think the court will be more likely to sustain those, regardless of what the lower courts say. But when people are trying to get the court to make changes, i think this court is not going to be willing to do that in the middle of the election. About the question of judge barretts possible recusal, assuming that she is on board, as some of you may remember, in 1974, when the nixon case was before the Supreme Court, William Rehnquist recused himself in that case. There was no reason given for him doing that. I think that may be a question about whether he did it because of his closeness to richard nixon, or for some other reason, including the fact he had been criticized a couple of years before for not recusing himself in a case. I dont think the president has done his nominee any favors by saying that he wants her there in time to help decide the election, and is pushing for her confirmation before the election. But she will have to decide for herself. I am sure that the senators are going to ask some questions about it, and of sorts, she shouldnt be pinned down on how she is going to decide cases, whether you are going to sit on this case differently as a matter of what senatorial views on the outcome. I know we have some participant questions. I am having trouble seeing them, so i am just going to ask the tech support folks to help me out on that, and to unmute someone who has a question. I think ben sellars is first. While we are waiting, if i may, i checked the transcript of the debate other night. Chris wallace asked, are you counting on the Supreme Court including a justice to settle a dispute . Trump said i am counting on them to look at the ballots, as though they could examine the ballots one by one. I think it was a general statement that he expects the court to handle disputes. I dont think it was anything come of that statement at least, that creates a special problem for judge barrett. I suppose that is up to who is listening and what else has come before it. We shouldnt construe it like a statute, however. Ben sellars, are you there . I dont hear him. Whos next . Paul, are you there . Yes. Good afternoon, ladies and gentlemen. That you for taking the time out of your day to put this on. Earlier this year, it made the news that the court denied in a number of Second Amendment cases, and i know they havent addressed that in some years. But assuming that judge barrett is confirmed, do you foresee any substantial change in the courts attitude toward Second Amendment petitions . Thank you. Who would like to take that . I am happy to address that. I do think, whether on the Second Amendment, or other issues that the court has been inclined to deny review in a number of cases, is something that will probably change if we have a Justice Barrett. It is much easier to get votes votes for a conservative review of an opinion below when you have at least five justices to choose from. Of course, Justice Barrett has written a significant dissent on a Second Amendment issue that has gotten attention, and i think she was be very open to trying to provide the lower courts greater guidance on these Second Amendment issues. I think she listed that is her most significant decision in the Senate Questionnaire that she just filled out. It has been a surprise to those of us who cover the court that the court has not taken up more of these Second Amendment issues, especially this term, after Justice Kavanaugh agreeing that they shouldnt decide the new york case that was called upon more. Does anyone have a theory as to why they didnt take up any of those cases . The theory bandied around is the chief justice was the conservative supporters of the Second Amendment were concerned that the chief justice would not be on board. They didnt want to take the case if there wasnt a fifth vote. I am a believer that the Second Amendment has been overused, but i agree with judge barretts dissent in the case where she basically said the person convicted of fraud and was denied the right to have a gun, and judge barrett said, i think correctly that all cases about felons not having the right to have a gun dealt with who are dangerous, and people who commit fraud might be dangerous for other reasons, but having nothing to do with a gun. I remember in Justice Scalias decision, he made no that they should not be denied guns because they were convicted felons. But i think that is a relatively easy Second Amendment case. The much harder ones are the questions about concealed carry and the right to carry in public. The court may well take those cases it has turned down before. We have a question from john adler. Hello. I was curious what folks thought about perspective Justice Barrett thought about standing doctrine, and whether any of the folks on the panel think the chief justice might look to use a case like california v. Texas to curtail article threes standing generally, and perhaps curtail special solicitude for state standing. That is something clearly the chief justice was not happy with and that a provision of law that has no enforcement mechanism might be an opportunity to do that. Who would like to take a standing question . Reporters do not take standing questions. Orrin, im calling on you. I would ask jonathan adler, who was just calling. I think that is certainly a possibility. I share the sense that the idea of giving the state standing in some of these cases is a stretch and could be cut back. I think it is certainly possible, although i dont know specifically judge barretts views. Erin, do you have some views on this . With regard to individual standing, i am not sure that california v. Texas is the case to hold that back, precisely because an unenforceable mandate seems like individuals should be given some way to challenge a provision. If we just have all of these federal laws that are presumably unenforceable, you still may have standing to challenge them. The question of what the standing is in the state of texas and how its this was the same issue that came up with the daca case several years ago because they had been issuing licenses to people who got daca benefits. This last term, in the case aizabeth mentioned, there was standing issue because, although the head of the cfpb was duly appointed, the president could not remove them, and i and others raised the issue as to whether they had standing to object to the president s inability to fire somebody, and Justice Roberts, there didnt seem to be any difficulty for him at all, and gave it the back of his hand. So, it is hard to know. Ive written something that says you dont have standing unless we want you to have standing. That is the problem with standing. Ive litigated on both sides, testified about it, and i wish it would go away, but it is not going away. People use it when they want Justice Ginsburg, for example, used it to say that legislatures in one house of virginia couldnt challenge a law changing a redistricting. Where you stand is where you sit on the standing doctrine. Sort of like the rules for a stay. Elizabeth . You took the words out of my mouth. In the Fannie Freddie case this year, theres a big standing issue. One of the issues that litigants tried to posture is in a particular case, the issue is that the conservator is a constitutional defect, but it is ultimately subject to the secretary of treasurys approval. First of all, they were saying didnt have to worry at all about executive branch supervision. The standard dependent on the individual. Maybe these folks who are sort of shareholders who are suing are contesting a deal that the conservator struck with the treasury on how to pay back certain loans from the financial crisis. The shareholders basically saying that the conservator did a deal with the devil and the treasury. There was a big question about whether they had sufficient standing to bring this case at all in the fifth circuit. They were so worried about the constitutional problems the president was also , involved in some way. But i agree, it is a very messy it is a complicated case, but i agree, it is a very messy area. We have a question from bill. Are you there . I am here. My question is are there any areas where we can expect or think that a Justice Barrett would differ from her publican appointed colleagues . Theres a lot of discussion as though she is just going to join in lockstep, which of course never happens, and a justice always has unique views on the law. Is there any area where we expect Justice Barrett to depart from the other republican appointees . Do you want to start . I think it is very difficult to say. I am sure there will be such areas, but she has been on the seventh circuit for three years as a federal appellate judge. She and her colleagues are trying to make sense of the same Supreme Court opinions, the same circuit precedent as each other, so there really isnt an opportunity to see a whole lot there. Ifferences unlike justice thomas, she has supported the more traditional the constitutional issues, but that doesnt distinguish her from the other justices. I think we have a lot to learn. She has made clear in the white house rose garden ceremony that Justice Scalias philosophy is hers as well. She has also written as an originalist and arrived at the same answers on questions. I cant define any particular areas right now, but im sure there will be. It is interesting. Like justice thomas, one of the things that struck me about some of her opinions in the seventh circuit, shes had some questions about things with Law Enforcement, the Second Amendment restrictions, about who can give consent, it was pointed out that it is interesting. There was a thermal imaging case when government or Law Enforcement would not be able to look into your house. It was stated as a religion case, and ended up being a pro criminal defense result based on the implication of originalist jurisprudence. It may be that in some cases, again, it is impossible to tell, but there may be instances in which her approach lends her in a place where, with justice thomas, they would be in the likely majority on some of those type of questions. We have a question from dan short. Go ahead, dan. Hello . Are you there, dan . Ok. Anna . Sorry about that. Youre correct. So i just wanted to find out if any of you could comment on the case called torres v. Madrid, because that is bringing up a lot of important aspects of police, police use of force. The case is about excessive use of force. It sounds like, or looks like, it could potential ly he had applications for the doctrine of qualified immunity as well. I was wondering if you are aware of any other cases that have implications on this subject matter, and if you could say anything about this case. As a matter of fact, i do know someone who can talk about torres v. Madrid, and that is orrin. It is a really interesting case. It deals with whether it is seizure for the government in this case to shoot someone who keeps driving. They are in a car, and they are never actually restrained, but they are injured by the shots, in this case. The question is whether that counts as a seizure of the person. What is really interesting about this case is that usually seizure means taking control, and this is not. On the other hand, there is a good practical reason to say that this is a seizure, and that if it is a seizure, it can then be included in a Fourth Amendment Excessive Force claim, which would certainly be the result you would want from a standpoint of shooting someone counting as Excessive Force. It seems like a natural thing, whether they happen to stop or not. Theres also a really interesting originalist angle to the torres which is a lot of case debriefing in the case is about the history of what an arrest is. It turns out in common law, it was a tort and a crime for someone to escape an arrest as presence. Stors there was a question about what an arrest is that triggers this tort, and that was in an area when there were no general Police Officers. You would have private parties and constables that did not want to let them go because it was a big drag to have to bring the prisoner to court. It was a tort or a crime of the constable to let someone go. There were cases on what counts as an arrest, the idea being that an arrest is a seizure, that said as long as the constable laid a finger on someone, even if they dont submit to the officers authority, that is an arrest. The argument is does that fit into modern Fourth Amendment law in the same way or not, and it plausibly might. You might see a combination of originalist views and practical concerns about the use of Excessive Force from the left and you might get kind of a coalition saying that is a seizure under the Fourth Amendment. There was quite a rightleft coalition that taught the court would take up this issue in some cases involving qualified immunity, thoughts that it had gone too far, and the court did absolutely nothing with those cases, and didnt seem to give much of a reason. But maybe we were all wrong that they were actually considering them. What do you think is happening there . Does anyone have a theory . I will offer one thought. A difficulty with overturning the qualified immunity cases is that what do you replace it with . That then starts this long body of new law that would have to be created of exactly what the standard is and how would the standard apply. It is one thing to say there is no qualified immunity ever, but then what happens if it was, for example, an officer who conducted search or seizure that was deemed constitutional at the time, but then the law changed . Is there narrow constitutional immunity . Where does it go from there . They may be trying to find ways to take pieces of the puzzle one at a time, or that may be why the judges are hesitant to jump in on this, because the imprecations are huge. Also, given that congress in the context of could just amend 1983 section 1983, maybe they could think it would shoot up to congress. Congress always jumps in to fix the problem. Yes, yes. They could do it very simply. They could just eliminate it and impose liability on the cities and the counties. That is essentially what the law is for the federal government under the federal claims act. If it is good enough for the federal government, it should be good enough for the cities and the states. It has been around since the early to mid 1980s, but i think that orrin is right. They could make it clear and eliminate a lot of the cases and a lot of the problems. So i dont expect a court will do anything on qualified immunity. I think the chance was there to take it. We have another question from carly. Do i have that correctly . Can you hear me . We can. Thank you so much. My question is in relation to the privileges and immunities, and if you think there is going to be any Movement Toward reliance on originalist viewpoint. If there were a just disparate that he could pull her in on some of his arguments which others have declined to follow. Elizabeth, do you want to take that . Sure. Sorry, i had to unmute. I think it is a hard, but very interesting question. I think this gets to a very sensitive area of the Supreme Courts work. It is the intersection of stare decisis, all of the precedent that the court has built up, and whether the religious immunity clause would be a basis for supporting some of those decisions. What i will say is i dont expect a Seismic Shift or a rep in progression there. I wouldnt be surprised if perhaps there is more attention given to those sort of arguments Going Forward if judge barrett is confirmed. I think we have time for one more and i think dan short is back after having technical problems. Yes, can you hear me now . Yes. Apologies for earlier. I was curious of your perspective going back to the ac a case of how you think the likelihood of gorsuch, alito, or thomas, and potentially kavanaugh as well, siding with the other justices on another round of upholding subsequent to the legislation. Erin, do you want to start us off on that . Sure. I think those justices will probably look skeptically at the constitutional issue. Justice gorsuch, kavanaugh, alito, thomas, potentially the chief, just disparate, i think it is really not an ideological one. Of course, the Court Doctrine simply asks what congress would have intended. This is a complicated case because you have the 2010 statute and then you have the amendment that zeroed out the mandate. Kavanaugh laste term talking about narrow separability. There is a presumption, even though it is not expressed, that a constitutional question can be separable. I think they could find it to be separable. Justice kavanaugh had a decision last term in which he said constitutional litigation is not gotcha legislation for something that congress may have inadvertently done. Anyone else have something on that . No . All right, well, that is our time. I want to thank you all for participating. If i had some way to show applause, i would do it. But perhaps lee knows better, so i will turn this back over to her. Thanks, bob. Thanks to all of our speakers. I think there is a way to do it, but i dont know how to do it. [laughter] icon i am not so , zoom proficient that i know how to do it, but i do want to thank all of you for a very stimulating discussion of the upcoming term, and for a very interesting discussion also about the potential impact of a Justice Barrett. Thanks so much to all of you for watching, and we hope to see you soon at another Federalist Society event. Check out our website for our upcoming events. With that, thanks, everybody, and have a good afternoon. Watch live coverage of the Senate Confirmation hearings for judge Amy Coney Barrett starting monday, october 12 with Opening Statements by Committee Members and judge merrick. Live coverage on cspan and cspan. Org
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