Transcripts For CSPAN2 Key Capitol Hill Hearings 20240622

Almost never his litigated in the this is an area of law and there is lots of learning based on opinions and the posturing of congress. These debates rarely it in the court. The george w. Bush administration. And both the administrations refuse to enforce the statute on the grounds they are constitutional power rendered that statute again person born in jerusalem commenced litigation that first went to the court three years ago. The court said no and direct the dc circuit to decided on the merits. Some some people thought the court was depriving itself an escape route. Would not be able to use the political question if they concluded it would have been desirable seem to be a lot disconcerting noises they were being forced to decide something that had a lot of Foreign Affairs and political visibility. Obviously obviously taking sides owns and controls yours is politically loaded question. In the court did address the merits and so he was right. Justice kennedy writing for the majority in the chief justice of the of a little bit of background framework for deciding these questions will set by Jennifer Jackson he basically said there are three ways this can run. On the same they want the same thing the president s power strongest. The pres. Is acting alone he has some authority. In the present is acting contrary the harvest time hardest time for the president s power to the upheld. Only if only if the presence power exclusive and conclusive. President. It has been thought the president is almost always going to lose. Some of this at the present facing down congress successfully. The the court said here are the president alone to make the decisions what foreign powers recognized cant be forced to contradict decisions with some formal document. Dangerous dangerous woman israel would contradict the president s determination. Victory for the administration of the frustration also suffered a bit a bit of a defeat. As hold opinion though the context in which president is authorized to do something. That opinion had some Strong Language that the Justice Department quoted the scene of the president have broad power. Justice Kennedy Catholic is the case in category one. Future sessions ability to present so the nation and its external relation quoting chief justice marshall. That whole argument goes away. Administration on this panel say relies on history. It history. It is actually quite similar to last terms of just the start existence of the text of history of life on history. Concurrence really say he still believe this was a political question. You have to his influence would seem to be there. This is thomass concurrence is more pro. The way to interpret the constitution• Pacific Power is mentioned as the presence. A very broad view and surprisingly all three people who worked in the executive branch to very harsh view with the majority rule the pres. President has been permitted to defy statute. See the opening of the scope of executive authority and how to reconcile the conflicting claims in the Foreign Affairs area. We we dont see a lot of cases so its hard to say that this was ball a lot of litigation interesting to see how the alignments shakeout differently. As you know, obama care was before the court. In our discussions you said you saw connections between that case and the Texas Department of housing and Community Affairs Fair Housing Act disparate impact i would like to discuss both. Heres retrenchment. I want to discuss the case talked about her formative experience and was getting at this issue. More importantly with what you saw is a huge step backwards in unanimous in context. Understand the context. I started law school and 79 with the case which involve title and the 1964 Civil Rights Act. What is. Forced Labors Office of the ccp. He he went to court and set up the statute. You cant. Cap denying Employment Opportunity because of race. You cant discriminate to which the majority of the courts so were not going to allow a couple of words and statute to be interpreted. The overall purpose is to help minorities. Next line lets face it you are going are going to ignore the plain meaning of the statute that the overall congressional purpose. Justice Justice Rehnquist wrote a very famous dissent started off by saying this decision was in 79. Big brother has come down until the populace the words have no meaning. That time i got interested in this question in another similar case directly relative to the texas case. And again you cant discriminate against any individual because of race or sex. And some members of the Supreme Court like the decision they made about banning discrimination against any people on the basis of race so they changed it to say against non minority individuals and then you must to do with under the test. There is no difference in proportion to the availability of minorities that has a prohibited discriminatory effect. So what you see is the opinions that only favored groups are treated equally but that now that is turned into a right to proportional representation on the business necessity. And with a basic american notions and i thought in the subsequent theory going along way to the judicial revision of statutes on those of enacted law. How was true in does precisely lake whether the majority opinion said to have the natural meaning that a broader purpose was to give subsidies. Precise facts the only provision that the subsidies are available for purchases exchanges established by the state under 30 beloved 1311. What if there was established by the federal government . The state means state which is not a complicated question. But it was for those six members of the Supreme Court and to analyze of donny weber that to provide that language i will not walk you through the ways but to adjust have that dissent what that majority was doing but then i will make three general points in addition to what justice pallia pointed out. But that is not a case because they did not delegate to deal precisely to be on federal exchanges so the promise of the statute is that congress made this decision to say you will have subsidies established by the federal government by writing the words he will have some cities established by the states. To make ted decision to say precisely the opposite you can use the majority opinion of some explanation people intent would have said the opposite in this is all a big mistake and we did not intend but nobody can explain it if you did not intend why would use that for relation . Then to save ambiguity and then to pretend there was any anomaly but then for the Affordable Care act with the language on this seamless web. [laughter] with the qualified individuals to transport this back in this case. The notion of a qualified individuals provision but i dont even care why would you transport that over . And that makes no sense. Just because they said it established by the state but those other provisions dont tell you that much. But to look at those other provisions to figure out what it says was with my 36 b and so anywhere in the Affordable Care act that is not terribly daunting. So with this legislative masterpiece so that the judiciary has free rein to do whatever they want. This is not the debate between people who thank you should were born dash looking words in isolation now of the statutory context to understand the purpose we could have emphasized more to look at the words in the context because that is precisely what they said that it makes it clear to deal with subsidies with the majority opinions that this was a strange place. But the context makes clear section 1311 the strongest possible into have the states run the exchange. 1311 tells you why they did that because they needed to incentivize states and the rest of the statutes because when they talk about territory with the exclusive provision you will treat this as a state to change that is not bound in this provision. And with that policy can tromp the purpose of this statute that is clearly with the majority opinion did. And then the broader purpose wherever we want to was the key decision and then if there is sitting in the statute anything with the legislative history is somebody said yes 31 subsidies. Here for all Public Policy we will not see anything reflecting back. The other thing is any explanation that the states will run the exchange. To try to pretend the subsidies will be available on all exchanges because thered be no incentive for this thankless task. So we return full circle that this is or million because you saying descriptions that is contrary to the statute that is the of e jut here are not invokingni anmng because you looked at said judges own views of what they think is the policy. We think it is good policy to help minorities but they decided to do it in a way we do not discriminate against giant non minorities. But it also wanted the states to run the exchanges which is why of the condition. Nobody disputes with they really wanted medicaidni for needed health care but they condition did they want them to have action with that same judicial override we got to was stage where literally with the budgetary issues unless it was done by people to have some accountability with the tax regime employer mandate to impose tax credits to be affected by a representative government. Because it merits brief discussion but title eight which was enacted four years after the 1964 Civil Rights Act says you cannot deny housing or discriminate because of the other prohibited criteria then texas said because you cannot treat people differently because of their race. The majority response was that okay so people in congress probably did not know to discuss the words the fact that they had provided the basis with the Fair Housing Act but as they say that what we thought was a vestige of the 70s with the magisterial purposes to says Justice Renquist said the orwellian enterprise to rewrite the law as for those elected by the people and accountable to the people. File will spend a minute on this because they say you just be a fuddyduddy but this is the essence of popular sovereignty but it is usurped the legislative function to make those five unelected lawyers establish National Policy from what those elected representatives have done. And that is us definition of charity. Is a completely perverts the judicial role. So if you play by the rules or read the law as the states to, you but if it is the policymaking body to argue the same policy that went into whatever legislation was enacted then there is no way to get beyond the political system because the judiciary is another stop along the legislative process so not ready violated something or if they keep you are a nice guy or a powerful corporation so that is to do those protections what you are entitled to be another branch of the legislative form but that first judicial role has complete disrespect whenever you hear debates about the opinions solely about the policy results rather or not the approach is consistent with a separation of powers that is my june 20 fed, 2016 was a sad orwellian day and the great port jurisprudence and to Pay Attention and with this analysis. The inshrined you is really not a nation of laws and you have to appeal to the policy preferences not to those that should form their judgment as a gigantic set back. I knew there was a highrisk. But lets see if we can get it a couple more so the court decided criminal law cases having to do with the Death Penalty also to do with one of the cases that you argued with mens rea. You the was the Amusement Park worker with his wife of 70 years took there two kids and dumped him. Be an american so he shared it with everyone on earth so he would pose to facebook some things were styled as rap music in said enough bad beijings about his wife schaede data protection. Personally i concede there was a more restrained tone. And to think about shooting up a kindergarten believe it or not he got a light combat. Which was an indication people knew he did not mean that literally and said that things about local police and eventually the officer came to arrest him with the prevailing view of nine of the circuits have adopted the view as the court would want to recognize and negligence standard if you Say Something reasonable person would think is the thread is of felony and the prosecutor said in a closing statement doesnt matter what he says that i made a. 50 times in the brief and the chief justice who wrote the opinion finding for my client on the eight one basis encoded a back to west now i find that gratified some now widely repeated 50 times in briefs. But it was litigated nor unconstitutional basis saying the constitution required to have to be higher than negligence and under the penal code it could mean to threaten someone someone that you know, the person will take as a print that is the only issue that what we had petitioned on as a clinic had petition in earlier on a constitutional basis and on the statutory argument. We did not want to raise it. Per with that statutory argument but lo and behold to old dash statutory argument the agreement to the oral argument as was spent on the constitutional issue so of course, the court decided on a statutory basis. [laughter] but all these cases between the negligence standard of a couple questions from Justice Kagan and maybe a followup question with a recklessness standard. All the court wound up doing was saying and in addition to. For the purposes of the statute to have some sort of intent it would not cross recklessness off the list. The onus that it took the third longest to decide. When it is the h one decision with the concurrence from Justice Alito and a dissent from Justice Thomas you figure Something Else happened and i presume there was a danger with on the recklessness grounds. In a when the papers of the court are released and will not live long enough to see Justice Souter pain from by to see what was going on is there was a recklessness standard but there was an early stage votes for negligence then to go to the Third Circuit but to be like the conservative Justice Ginsberg most are happy to answer the question to ignore the case but Justice Alito likes to write the brief and he did a very good job with this issue how will it was preserved so it will be interesting to see what happened misheard. But mcfadyen was the case to send us signal to be a serious enough crime. So with the First Amendment case and to have a rule whether they cannot personally solicit Campaign Contributions to find the committee who are the solicitors in to be the treasurer of his or her community to write thankyou notes to contributors. And florida took this rule not just to ban with similar solicitation for those that ask for contributions and then for posting the letter as it was up personal solicitation. So based on and the jurisprudence which im sure people are familiar with whether the ban on speech was constitutional. And a tough opinion to say this is a limitation on speech and it is content based if youre asking for money but it satisfies strict scrutiny and i think most impartial observers who have read the opinion concluded this was of variant of strict scrutiny. So the four justices who have dissented almost all of the decisions and are happy to join the chief justice justice, joined him to say essentially that judges are different we have to go after the integrity and it is bad for judges to ask for contributions from their supporters so if they will know about those contributions but my view that we have said this in oral argument in addition to the technical First Amendment reasons there were two Important Reasons why they did not stand up for it is a sham that we will attract people to think that judges are not involved but dont worry it will just appear that way because that is a good thing and second, which Justice Scalia mentioned in his dissent was that this isnt actually a rule that favors the establishment. It will not be hard to find a prominent lawyer who was on your committee who can effectively go out to get contributions. But if you are not that well connected, you may need the personal touch to understand why your campaign is important so this is a rule that was propagated by the American Bar Association about the judicial establishment. What this case shows is that context increasingly matters with the First Amendment jurisprudence. The other two cases was walker with the First Amendment also lost five four and many people believed the argument was on the license plate of government speech or the person whos car is in many people believed it is a hybrid but they put it into the governments speech box because then they gave him power in the third case, was about municipal finds where the First Amendment aside one and content based speech they did apply scrutiny with different size rules and that was the ideological sign or a commercial synar directional sign the court said it fails but the context was the was clear from the record was being persecuted so it could find a way to get the science up the ordinance would change so in all three cases the judicial and legal establishment worried about government power to regulate signs or license plate programs or an ordinance were there is discrimination that the context mattered and the analysis came later. Very quickly to see it is all about context i prefer there would have said they are different and recall that under inclusiveness but if you dont bin something that is indistinguishable then that is barely rational to support a judicial decision and i think the d. C. Circuit just used that analysis. So now as they have strict scrutiny is much less of a problem because of the commercial speech cases are often ocean how could you possibly have a compelling interest to accomplish this . I assume that will be sorted out but the at least theyre a little more candid it is not strict scrutiny as the courts might to apply that. But the d. C. Court is strictly limited to the contributions of Party Committees like in the case of banning contributions from Government Contractors was appalled but they took great pains to say we have no issue before us which i think were almost certainly have a different outcome because of the Legal Standard the circuit applied was watered down scrutiny. It was a risk to incur the wrath of the audience. Who has a question . Third year law student at university in chicago. I am curious about the license plate casein the implications of that purple yesterday a District Court held the trademark registration process was also governments speech and what kind of expansions things that we think should be content neutral have become government speech . As the trademark is stripped away because it is proved offensive to some people. What are your thoughts . There is a key distinction between government speech or editing. With a trademark contacts the public billboard context Public Transportation i thought the law was pretty clear before the recent decision that if the government is not speaking in editing and private places there is no realistic way to say that they were renting a public space for your own messages that Justice Alito made clear to their acting as the editor. There scissoring someone will have serious ramifications in another context i do think that law has ben a a whole over the place to begin with and use by those who dont like the notion people can complain about discrimination to and fro their principles and use the case to uphold those restrictions. There is a recent case that it the same thing out of new york. The tricky part that gets people upset is obviously of the viewpoint was republican but then to save the 04 democrats that isnt a problem. People are wrapped around the axle of you say dont do drugs with the viewpoint to ban that advocates the use of drugs. So people of gatt were about the implications from that perspective. With a trademark context at least the license plate is of actual government saying. [laughter] i think youll be awfully hard to transfer that over to the trademark context i yes to give Legal Protection but there really isnt a body for in the government anything. [applause] [inaudible conversations] we have a great panel today. , to introduce a the moderator, as a little fellow here at the Heritage Foundation she writes about cases and judicial nomination in the role of the court and also manages the Appellate Advocacy Program that includes to prepare litigators for oral arguments before the Supreme Court betray a graduate from eggs aviary university. We just heard from an impressive panel of lawyers argued big cases this term now we hear from three of the top reporters in the nation that is not an easy task to explain to the American People what the Supreme Court complex in a rather confusing opinions mean this requires profound knowledge of the core and its cases we are fortunate to have with us today our guests and take you for joining us. I will keep their introductions very brief and then we can get right into the conversation. Covering the Supreme Court for the lost regional as california weekly and has the Award Winning account of military trouble prior to joining the journal he worked for other publications including the Washington Post and Time Magazine and also works for hollywood talent agencies and held the 2015 senior royal lecture series at the university of new mexico. A graduate of harvard college. Next tavis Supreme Court correspondent for the New York Times that began in 2008 he also writes a column sidebar since 2007 he joined the New York Times after graduating from yale and returned to receive his law degree them practice elder the premier First Amendment law firms. Then he returned to the Legal Department to a rise on defamation in privacy and other issues he has taught media law at ucla and the yale. His work has appeared in the new yorker and vanity fair Rolling Stone and a number of leading law reviews. Markets cover the Supreme Court for the Associated Press in 2006 that has coincided with big changes with the marriage and health care and Campaign Financing and he has written about the Justice Department health care and National Politics and is based out of washington and atlanta. Then he worked for the atlanta constitution while attending princeton university. So picking up on the discussion of the First Amendment with a Confederate Flag case why you think the judgment was unanimous . What trend busey with this decision . We covered to some of this in the Previous Panel that i will see if i can add a couple of points to link the three cases together. You see that generality but freespeech is a stage of conservative valued and the other is the liberals on the court tended to vote as a block and when they can pick off one of the members on the conservative side did they achieve a victory. About the Confederate Flag it came after the charleston shootings. Would have put the court in an awkward position if it came out the other way. But it is a very blunt instrument to categorize 300 different license plates that say i would rather be golfing to advertise burger joints and it is the quality to move along there is nothing to see. But as a matter of First Amendment it is a little troubling. The heather to cases simultaneously expand the realm and then made scrutiny Something Else. It was unanimous the three of those liberal justices by justice cajun including the of the article that objective to what she perceived to be a very sweeping statement from Justice Thomas that all content regulation immediately trigger straight scrutiny she wishes of the view it is an easy case if you treat Church Science different than Political Science it does not pass the laugh test you have to read these pronouncements but this could be part of a up project that you see this in the citation it is all content based regulation against strict scrutiny and Justice Thomas doesnt from commercial speech for a the proposition was the pharmaceutical marketing case so we have very aggressively have expanded the realm but then you see it in action were under no conceivable rational system system, can this regulation is the opposite of narrowly tailored paillette who rates this opinion and the you have the cheese on death of chief justice saying this which is surprising with the fact they hero to a very vigorous dissent in the Campaign Regulation case. Those are some things with the First Amendment case. Following up on that, do you think there is a connection which will license plate case from several years ago today treat the Confederate Flag that they dont deserve protection . Cry of the Junior Member of this panel but it does seem to be with Justice Thomas to be out of peace from comments of cross burning from the bench to join those liberals from configuration. I was not here for the there casey there but i do think it would have been helpful if Justice Thomas had written a concurrence with some insight as to why he saw this different from other free speech cases yes taken positions on. Turning to th to give the lawenforcement leeway thats for the photo cast registries . With the crow robot doctorate, we see the same thing across the street at the capital which is a much broader skepticism of the tough on crime approach the states and Congress Took in the 19 eighties whose ramifications with the three strikes you are out are felt now. On capitol hill receive bipartisan efforts to reexamine those policies at the court, in particular when they have to judge which source of offenses trigger automatic deportation come with the courts more and more has been citing with the individual versus the government and prosecutors. They dont say in their opinion they go out of their way to raise the critique but theyre not exactly related but it falls into a general pattern of the my ill the resurrection and with somewhat greater standards after paying for very little but there was no mistake from what issue. The that the one book to justify a the stopgap was not fatal to the traffic stop. But it does seem that we are seeing that with the hotel registry case is interesting and has never, before to date back many decades it had an ordinance that a condition of having the innkeeper license remember those old is when you would write your horse to see if they had room for the night night, it requires maintaining a hotel registry in which every guest test to identify themselves to put in an information and most important they could be inspection and at any time for any or no reason. The police tended to use that was what they called parking meter hotels where they may be renting rooms by the hour for short periods in the South Central l. A. And said there using the power to reduce your crime or fight Human Trafficking that she people may want to use low end hotels the utmost care familyowned Small Businesses complain to the police were harassing them but they were not big places with the police showing up at 2 00 a. M. To wake up the owner with no suspicion was too much. The court agreed in order to have access the police need is something. Not a full search warrant but the administrative subpoena other than a whim that would allow the innkeeper to fight to the requested fee once to to get a neutral during. Item know if that is directly a look or of a critique of the general criminaljustice system but it reflects a renewed interest in the projections. That is the case where the Fourth Amendment case to take the dna sample from people they arrested that had not been convicted just arrested and the court said that was okay interestingly in that case Justice Breyer was in the majority and Justice Scalia was in the descent seemingly this less intrusive issue was Justice Briar in the majority. But they have not quite come not to critique over criminalization in the majority opinion but in the descent of yates is of destruction of the sarbanesoxley Justice Kagan said that is what the majority is upset about imf said because i know the guy can rewrite the statute but there is a sense on two different occasions to ask the question a 20 year sentence for what . The power to force a plea bargain from the innocent person is unacceptable. That is a remarkable turnaround for the chief justice because in 1993 after he left his job he wrote an oped for my newspaper to discuss the aggressive position of the First Bush Administration so to help states fight off criminal defendants who have these highpowered aclu attorneys and was concerned the Clinton Administration might not as aggressively support states trying to defend criminal convictions to keep the onslaught from overwhelming the federal justice system. Is opinion may have changed or maybe the world change but it did strike me those comments to go far beyond to express regarding criminal defense rights. A good term for religious liberty for opinions like hobby lobby. What do you think explains the nearly unanimous decision. Those were pretty easy cases for the court and much as a prisoner he was told he wanted to for religious but then had to wear a headscarf rand was not hired. And that case it was not clear that she was wearing her headscarf for religious reasons and never said that but the person to interview her had a pretty good idea she was wearing it for religious reaches reasons and was not hired because at the time the company had come to a policy no caps or head scarves in any type of head covering looked so very easily decided by the court if you look at the briefing with the exception of business scrips the briefing was onesided. There is in many cases produced were both sides are on the same side but that happened here. Those were cases in the arkansas case where 40 states allow prisoners to grow beards there has been no real instances of inmates dash being contravened the security interest was hard to see in the court was not really prepared to differ in that case in the abercrombie and fitch case it was the eight one decision that Justice Scalia wrote and he said if a Company Thinks are has a reasonable idea that they need a religious accommodation then you should give them the accommodation but there were a couple of justices who said maybe this will lead to awkward conversations up front but that is better than the situation that resulted. And his majority opinion and Justice Scalia talks about federal civilrights law. What impact might this have been the aftermath of samesex marriage case . That site to religious reasons not to be involved . Battle they say will be as easily decided that is the familiar split to make it much harder. I dont think that though less side of the court will willingly adapt to. Head of know if you have freedom of restoration act provisions i suppose the stuff about job discrimination helps a little bit but you have a significant defense all over the country. Actually there is a messy situation because despite the marriage proving federal law does not protect Sexual Orientation as a class with a state by state issue half have some form of antidiscrimination protection and half have a different type of law on the books providing cash is it is currently happening we will see the state courts to apply the statutes in these instances so we may see that play out considerably different unless congress decides to clarify or act of Sexual Orientation and protection because right now to be on the floor of the protection for samesex couples now i dont know what grounds it would be hard to rand that case. Taking the average person is surprised by this you can tell in much of the country a samesex couple could get married in the afternoon then fired a that evening for being gay. It is the sequence of events that the constitutional right to samesex marriage there is no job discrimination protection for gay people. They can get married to they have that right but employers could still fire them for being hippies. They are not a protected class. So unless there is a civic protection for people you dont like there is nothing there. One more point to. [laughter] some antidiscrimination laws to make marital status a protected class so now is that include the sex of the spouse . I wonder if those statice protections will now encompass samesex marriage specifically. If you give it vice to that to discriminate make sure it is on the basis of them being gave not samesex married couple. Exactly. [laughter] go care moving on from samesex marriage, it has been a rough year for conservatives you wrote the justices on the left could be disciplined to vote as one even the conservatives who did not agree although they voted together. What is the hope for conservatives . Limitation still feel pretty good at the next term pocket , there is some cases the conservative side is in pretty good shape. There is all kinds of ways to assess as political scientist had cases and by that standard they k mount it is also into the voting alignments but also with the theory is the especially liberal court people say it was a consequence of conservatives to make gravy at cases to the court to fall short i think there is something to that argument. As far as conservative as being divided there is more intellectual argument on the left side of the court it is highly concentrated ideologically and it isnt always clear the theory with the outcome in the particular case. I agree. The phenomenon of liberal unity and conservative diversity is something we have seen for many years on this court even when conservatives win they cannot agree why as he sought in the marriage case when they lose they cannot agree on why they lost for the we have four different the sense none of them agreed why they objected. Several years ago there was an opportunity to overrule the establishment clause standing case and there you had the five four decision but there were three opinions in the majority. But they came out in different directions. The same thing happened throughout the storm. It is true that we have seen since the 90s when Justice Stevens was the senior liberal justice but when Justice Stevens was in that position is certainly made a big. Trying to draw them altogether. Justice gainsborough tries to do the same thing is cautious and signing dissenting opinions when necessary. I they seem to exert a kind of discipline cohesion the stereotypically expect more of a conservative when he saw and the marriage case and opinion no one would mistake for having been written by anyone else. All four of the liberal justices who joined him thought exactly the same thing because none of them wrote a concurring opinion or sought a single punctuation mark being out of line. They do have that unity. The conservatives seem to have some down significantly and sometimes minor ways of wanted to get to the same place. One other thing is going on. There is a generational divide the sometimes shows between the chief justice Justice Scalia one mostly of the fact that he sees the five votes to do something he wants to get it done now in the chief justice is not necessarily see that sense of urgency. One example from a few years ago the right to life case where Justice Scalia raised that the chief justice would not go far enough. A same thing happened last year where again someone here turn an angry concurrence Justice Scalia complained the court was no should have known. He saw the justice making his. About the unity footnote where he says and there is some forced of this. This. The liberals who signed on the opinion had the assignment would have written it very differently and they would have been more doctrine. You might have been able to flesh out the constitutional provision level of scrutiny or equal protection fits in. They like to speak with one voice. For justice that even if he were inclined to vote pulitzersetting a paper bag and provide the fifth vote. Its funny. The following monday is hot justices burn a paperback. And the lethal and just lethal injection case the court should review the constitutionality of the Death Penalty. There are already a few. You think the court is likely to take up the constitutional issue . I guess im skeptical. In the case Justice Breyer said he very likely fill the Death Penalty itself was unconstitutional and that this is a product of a product of his 20 years of reviewing these cases on the bench for a variety of reasons including how long it takes to carry out sentences how any violations that have been factors. What is curious is that he is not the first justice to come late in his career to this conclusion. Justice blackmun did. Justice stevens did in the end of his time and is curious that it would take and reality Justice Breyer 20 years to come to a conclusion that was sitting there and 94. 94. He had just seen Justice Blackmun say those very words. In the same in the same reason that breyer is applying today has existed for some time. But the reason i dont think this is necessarily going to get a full hearing before the court is that it seems unlikely that even if the other two liberal justices were inclined to take this on they would do it without knowing. I i dont think you want to take on a case. I dont see any indication that he is willing to take that final step. He has talked the whole case about intellectual disability about the importance of the dignity that reflects the nation. Could be open to that kind of challenge challenge, but i havent seen any indication. Justice kennedy, a different kind of challenge which were aware litigator i would probably bring. Absolutely absolutely nothing in the case involving jury selection. He invited a challenge to the constitutionality of indefinite solitary confinement. The people in that business should get on the ball. On the rogers. Why breyer and ginsburg know it is their opposition to the Death Penalty. Have a good post speculating that it is actually one of the least fun aspects of being a Supreme Court justice of the and dropped it at night with a steady parade of lastminute applications. A a lifestyle thing. [laughter] breyer might say that it gives them an insight. We only execute 35 people year. Why those 35 as opposed all the other murders he has scratching your head. Clicks that was more true years ago there were more executions of options. Something that cant be said in the process of being nominated and confirmed. People that point. There is a certain freedom that comes with the approach of retirement. Clicks if they do reach that constitutional issue the chief justice dissent complaining are looking at the states that have recently repealed how come the condemned community would not wait for the democratic process to play out. Justice when you wrote about pres. Obamas comments linking him with past president s have the say. Do you think you think it had any impact on the outcome . Clicks that speaks for itself. Clicks should we expect this to be a normal Going Forward . Clicks this was interesting. Hope all i had gotten attention for his comments on court cases particular before being decided as well as after where its a bit more typical. But it did seem interesting. He actually went as far to criticize the certain stage in june of the court should not have taken this case. So it was interesting and thus by coincidence i have i happen to have sitting in my inbox study of president ial comments. Looking at the the study and seeing how rare was although not completely unheard of i dont i dont think its going to be a very typical thing. I think out of one factor presence most likely to comment on pending cases tend to be lawyers who think they know a lot about the law and are in a position to discuss it. And so president clinton, that on on the pending case in a signing statement where he predicted that coincide with in a sampling case. It has happened before. I dont think it is going to become. As president believes he knows a lot about the law and is in a good position to explain it. I dont i dont think he has any illusions about that. More trying to explain or layout is the positions of public either assure them that his legal position is wise unsustainable or lay the groundwork for a response should he lose. I dont think its going to be that talent. Talent. I dont think obama has planned most of these remarks. That came out of the press conference where he is directly asked the question and immediately responded. My guess is that it will be something we see very typically although he has had more significant pieces of legislation before the court than the typical person. Person. Clicks okay. For any of the panelists. As we enter the president ial election cycle how do you think the Supreme Court will be . Senator takers is proposing. Do you think the court will become an important issue . Quakes every four years we have this conversation. It always ends up being no accept the only time or in recent times when the court was an issue with Richard Nixon ran. It it only was an issue running is the court because it fit into the law and or line or a campaign that he ran more generally. I think to think that the court i cant remember the statistics. More people can identify the three stooges. The stooges. The idea that it will become a salient issue is unlikely. I i think that the Supreme Court, the holder becomes is well wellknown the longer he or she serves. They they are on tv and then disappear. We found chief Justice Roberts is bound by fewer americans today that he was ten years ago. A recent poll. I think right now its important for donors. This invisible part of the election. Hardcore people on both the left and right who are super concerned about the direction of the court. In this portion of those watching today. They will be making their preference no not so much of the ballot box but in which candidates that support. I think it is important to some constituencies. Have the court ruled differently such as the marriage case with the healthcare case it might have been a bigger political issue. I would only happen if we end up with a a vacancy close to election day crystallizes the stakes immediately clicks i completely agree that the court will not play much of a role. As a form of matter it ought to. To. The next president will probably get to a. Supreme Court Justices and that is why why people will pay more attention. Clicks. So. We just covered it better. Abcaseven. The flipside of that question, do you think any of the justices will shy away from taking up any particularly controversial issue . We have seen no evidence of that. [laughter] clicks this question for all three of you. Virtually impossible to get anything done. So kennedy was in the majority do you think roberts is increasingly going to come the typical . I think i wrote that just to. Out the oddity there was not one decision where both kennedy and robert horan dissent. License roy dissent. License plate case. It is only happened one time a forgettable case a few years ago when the five junior justices were majority. Have said the chief justice seems like is going to play that role where questions are present the courts institutional integrity. I think he is more likely to vote graphs of those cases are ideologically split where he worries about a decision that looks too much like a decision by from republican appointed justices would damage the course reputation. Unless im. Unless im mistaken there are exactly two decisions this up. One final question. Question. Is there a particular concurrence or dissent that you found striking this term i liked the brief parents, doesnt. Many longdistance many longdistance about the vagaries of the administrative state. [laughter] but i like i like that after Justice Kennedy called for a look at solitary confinement Justice Thomas wrote back in a separate concurrence that he thought that a death row inmate in particular have much more spacious quarters the one occupied by his victims. I would agree that those two are a great set. Quakes just the one phrase after another. [laughter] with that we will open up to the audience. Identify identify yourself and ask a brief question. Quakes as he pointed out the court said very little other than not negligence and i imagine people will be trying to make sense of that it is likely the 2016 election will continue to find the government that exists today. The first nature to the next appointment clicks any additional questions . Clicks thank you very much. Just some thoughts. Clicks there are three of them. This last term will be hard to be. We had the First Healthcare case then liliana first goal of marriage you had healthcare a marriage together. Is going to be hard to follow. Three things. That makes you think there are at least four votes in an attempt to put kennedy hellespont. Never voted to uphold the program. Here again the bible of the what the court means. Our second case represents a very serious challenge whether nonmembers of public unions can be forced nonetheless to pay for fees that the unions use the collective bargaining activities that may be said to violate the First Amendment rights. Very interesting a substantial question in the quite consequential case. In this interesting case. What does one person one vote mean . The account every Single Person on the count the people who were eligible to vote . In this matters. At the moment most count every Single Person. In their visitors you get a lot of children legally from abroad undocumented people peoples right to vote has been stripped of prisoners and so you have vastly different voting power in different districts if you mean eligible voters. The court has agreed to decide which way that goes. Great political consequences because at the moment urban centers extensively in more voting power the world. The court least will recast that. Quakes that doesnt include the strong likelihood of abortion this of the texas quite restrictions. Quite surprising cannot take it. And so they are for the first time in a long time memorial look clicks and the others . Clicks those are the big ones that are here right now the lesson we saw is that is because the court is willing to look does not mean that the outcome is complete which is the lesson we get particularly from the texas versus Inclusive Communities case of the disparate impact case. We saw the court going out of its way to look at that issue twice on the issue twice twice having the casting hearing