Transcripts For CSPAN2 Supreme Court Term Preview 20170915

Upcoming year of action. This is just over 90 minutes. [inaudible conversations]ne. Good morning everyone. E to as good morning. Welcome to the annual Supreme Court preview. I am cara stein, vice policy of program which most of you know is a National Network ofld lawyers, law students, judges and policy makers who believe the law should be enforced to improve peoples lives. Here we are again. After a Supreme Court term that many felt was lackluster despite the much delayed addition of a nice justice to the bench, we are looking at an upcoming term that promises the highstakes we had grown accustomed to in recent years. You need only look at the first two weeks of oral arguments to see what i mean. Of during just those first five days, the court will consider the constitutionality of the president s travel ban, the legitimacy of wisconsins redistricting scheme and whether American Workers can be forced to arbitrate t disputes with employers as opposed to have a day in court. Some may say the stakes are too high. To lead us through discussion with our distinct panel we have the privilege of welcoming a new, to this event, steven schwinn. He is a professor of law at the John Marshall law school in chicago and is cofounder of the constitutional. [inaudible] i commend to you, he regularly writes for the preview of the United States Supreme Court cases and he directs the project for the seventh circuit. Perhaps most importantly, he serves on the board of advisors to the chicago lawyer chapter of the american constitution society. I have had the pleasure of working with him recently on what is our soon to be released first ever Supreme Court review journal which will be coming in october and there are flyers out there if you want more information. Now, without further ado, please join me in welcoming steve. Thank you cara. On behalf of myself and the panel, i would like to thank carolyn and the whole team at the american constitutional society. We would really like to thank you all for attending. What a fantastic turnout. I am really excited about this. What an important time to be talking about these issues. It seems like every time i open the paper theres a new constitutional issue comingto up. This is a time we really need to be engaged in these things. I am pleased to part of this conversation and im really looking forward to hearing from a very distinguished panel. My job as moderator is basically to introduce the panelists and quickly get out of the way. I think i will do that. What i would like to do is give a short introduction for each of our panelists. Their full biographies are in your material. Llre in you can take a look and we will get on with the program. Immediately to my left, claire is associate generalun counsel at the Service Employees International Union where she focuses on litigation docket. Do she previously practiced that public justice, james and hoffman. She is authored and coauthored a merits briefs in Supreme Court cases on a full range of different topics. We look forward to hearing from her today. To her left a neil callan. She is an associate professor of law and a visiting professor at washington university. He is very involved in the Bar Association and the association of american law schools. Focuses on immigration law, criminal law, United States and comparative constitutional law, privacy and surveillance and human rights issues. L that is white a mouthful. To his left, marty lederman, associate professor of law at george towne university. He serves as Deputy Attorney general and the department of Justice Office of legalrn counsel from 2009 until 2010 and as the attorney advisor from 1994 until 2002. He is an active contributor to media and blogs, a regular contributor and slate among his very other activities. We are pleased to have him join us on the panel today. To his left, dale is the director of the aclu Voting Rights project and supervisesd the aclu voting right litigation and advocacy work nationwide. Nation he has litigated a number of cases under the federal Voting Rights act and the National Voter registration act and hes an adjunct professor of law. Last and certainly not least, details left is aaron murphy. Is a partner in the washington d. C. Office and is focused on Supreme Court, appellate litigation. Shes argued three cases before the United States Supreme Court and she has more awards and recognitions and i think we have time for today. This is our wonderful panel. Would you please join me in welcoming them. [applause] thank you very much. With that i am going to say just a brief word about ground rules and then i will pass it on so they can talk about one of the cases were all waiting to hear about, the travel ban. Each of our speakers will speak for about ten minutes. Weve asked that they consider intervening with each other as we go and that will leave us about 30 minutes at the end for questions and answers from the audience. With that, i turn it over. Thank you so much. Thank you for including me and inviting me to participate in this event. Its interesting to be discussing immigration in the context of the Supreme Court because the Supreme Court doesnt typically grant a lot of immigration cases, therey ras thpically one or two, maybe three and not necessarily raising big constitutionalal questions. This year, the court has already agreed to hear three cases, of course the one that was referred to, arising from the muslim entry ban and two cases that were heard last year and then scheduled for re argument in this term. Jennings versus rodriguez. Im going to mostly talk about the entry ban case although off a little bit about rodriguez as well. Especially insofar as they might raise similar issues that are related. By way of context for people who may be less familiar with how constitutional issues arise, there is a long, there are two lines of cases that are somewhat intentional. On the one hand, going back to cases from the 19th century, the court has heldd that political branches have, therefore did deference in their area of immigrationn with very limited judicial review. This dates back to the late 19th century, the era of chinese exclusion and has never really been revisited directly, it predates the Constitutional Rights revolution. On other cases, even back then, procedural due process was still respected, but the court has more recently indicated there are limits in cases, but just because the case, the issue may involve immigration, that doesnt mean that what the political branches do is entirely immune from constitutional review. Those have never been fully reconciled, they are somewhat in tension with each other and often what the court hassi done is to use constitutional avoidance or look at procedural surrogates for substantive adjudication and those kinds of approaches may be at issue in the cases that arise this term. I won the entry ban case, im sure a lot of you are familiar with us i wont belabor a lot of details. The First Executive order was issued widely after the new administration came to office. It was initially formulated as a total and complete shutdown of muslims entering the United States. That evolved over time and how it was framed. They issued a new order ind march even though it maintained it was simply a watereddown version in response to the ninth Circuit Decision affirming the washington injunction, butdi really seeking to accomplish the same goal. The cases before the Supreme Court, one from the district of maryland, one from the district of hawaii, there concerning the second executive order which has a number of provisions. The first one involves thehe suspension of entry of nationals from six muslim countries for a period of 90 days in order for various agencies to conduct a review to identify which additional betting was necessary. The order included a number of exemptions that were not in the First Executive order, dual citizens of other countries, and also authorizing a waiver that was not available in the firston executive order for officialste to exercise casebycase discretion. These provisions provided an internal review to be conducted within 20 days of the Effective Date of the order and also directed on submission of that reportt that the secretary of state would then begin to request other governments to provide Additional Information aboutut what information the United States wanted from other countries about nationals seeking to be admitted to the United States. That was supposed to happen within 50 days. Rder t subsequently, over the summer, the Supreme Court modified its second executive order to change the Effective Date such that the Effective Date of each provision would be when any injunctions were lifted after those particular provisions. The ninth circuit lifted it on june 12. Now all of those internal provisions by now have run the review provisions in terms of the time periods prescribed in executive order. Section six of the executive order suspended the refugeeay Admissions Program for 120 days and then also reduce the number of refugees that wereov authorized to be admitted for this fiscal year and removed and expressed religious preference in the First Executive order. You have these two casesrc working out. In the Fourth Circuit, the issue was resolved on constitutional grounds, the Fourth Circuit concluded that the District Court enjoys section two of the entry ban provision but it didnt address the refugee provision. The dissenting opinions, in that case took issue with thewa majority looking beyond the reach its conclusion that it was motivating the order although the court did also look to some evidence i was on the face of the order itself. With one dissenting judge raising a concern that donald trump, in his words, might never be able to free himself from the stigma of bias that the District Court has enshrined with its political factfinding. In the hawaii order, the District Court enjoys bothfu the entry ban as well as the refugee curtailing of the refugee Admissions Program and then when the ninth circuit affirmed that, the threejudge panel didnt rest its decision on two different statutory grounds. It wasnt an exercise of the delegated authority from congress and it may have run a foul of antidiscrimination in the discrimination law. The Supreme Court partially stayed the injunction which allowed the entry ban to go into effect as individuals cannot credibly claim modified relationships. Theres been a decent amount of litigation about the scope of that and what the Supreme Court said which we can talk about in a q a if folks are interested in. Theres a good chance that by the time the case is orderedin next month, it will be regarded as moot. I should note that the professor has written about this and i certainly commend those to you. Presumably, the time period will have been ended and by the time the oral argument comes around, the time limits in the executive order will now in fact have run. Presumably then a new executive order will be issued and the focal point of this issue, should it reach the marriage, its not a given that it will be decided on constitutional grounds because there are they statutory issues and so, it may well be that either by avoidance ground or interpretation they dont reach these questions. With just a couple minutesur left, let me Say Something about jennings. If they dont reach these issues in this litigation and does in fact conclude thatat the case is moot, some of the issues might become relevant. Jennings involves, he presents the court with the challenge of how to navigate between two decisions. Its held that in definite, potentially permanent that a person is not seeing a likelihood of being removed raises serious questions under due process clause. In light of those concerns, the court interpreted thosed iot provisions to not authorize but rather require the need for detention. The more versus kim decided a couple years later, a provision that categorically mandates individuals based on being deportable to prior criminal conditions unlike the individuals, they dont have final orders of removal. In rodriguez, it may be that this case will be decided on statutory grounds if the court wishes to validate this policy. That is how the ninth circuit did so. The oral argument last year, there was some discussiont about how to apply the avoidance cannon, to the extent that theres aa different approach taken, that could affect how its applied in other contexts where theres also the issue, in each set of issues theres a concurring opinion in the past from Justice Kennedy that might bear upon how the court might act. Can talk about this in the q a. Thank you very much. Next up we will hear from claire on some arbitration cases and possibly a casee that may be on the court docket contract docket dealing with labor issues. Has mentioned, i work with the employees union so im handling cases about workers. These two cases are linked to each other because they are about employment. There also, in my mind connected because i have a real chance of being a onetwo punch against workers rights that we havent seen since the 2013 term. What i mean by that is in 2013 we had a case called mole hall which, fortunately, in my view was ultimately dismissed as improperly granted. That was an attack on private sectors employees ability to jam together and organize. At the same time there is a case called harris versus quinn whe which went after public employees, in particular home care workers who were paid with publicc monies to organize. Situatihe in this term we have sort of the same situation where you have the first set of cases all talk about. Second case is an attempt to make every state in the country right to work for all Public Sector employees. So, with respect to murphy oil, the National Labour relations act and other statutes less commonly talked about, those two from the earlier 20th century both provide one core protection for workers. The core protection in both statutes and the core rights they guarantee is the right of workers to band togetherit and Work Together to defend their rights or advocate for themselves, whether its in litigation, testifying before legislature, more traditionalec things you think of like strikes. Those statutes protect both Union Members and nonunionna members so it doesnt matter if youre in a union. You just have this right. At the time that congress enacted those statutes, it was very well aware of the possibility that employersor might try to get workers to waive their rights. That was forefront in congress is mine because part of what motivated the statute for these things called yellow dot contracts was an environment in which your employer will say all hire you but only if you sign here saying youll never try to form union. That was one of the Practices Congress wanted to get rid of. The other thing thats interesting is, at the time they were thought of as a free Market Solution of income equality and workers rights. The idea is to facilitate a private negotiation as opposed to imposing that requirements like minimum wage or leave. The idea was if you give workers the ability to band together they negotiate a fair deal themselves and you dont need as much topdown regulation. Both statutes prohibit employers from requiring employees to waive their rights. Ri the nlg a stripped jurisdiction to enforce such waivers. And they make requiring a. Waiver on fair labor practice. It also includes a provisionul that refers to workers rights to support each other litigation. The issue is whether employers can require their employees to waive their rights to participate inth collective action to band together. If they invent that in an arbitration agreement. Sometimes is not clear, the provision that issue in the cases band class actions, collective actions even band things like and joined her d and cold plaintiff. The parties and cases basically fight over two different things. One is whether the statutes can be harmonized, and if so great, stop there, and if not which statute should prevail. Both sides say they could be harmonized but both sides would harmonize differently. There are a lot of arguments for why the faa could be harmonized with the lra and others that would harmonize employee rights. I wont go through all of them but some of them are that the faa itself includes the saving clause to make arbitration agreements as enforceable as any other agreement. Reemen any defense you would have against a regular contractinval you should have against an arbitration agreement. This collective action bandd would be invalid and illegal if it were in any other kind of agreement. You would think it would apply. S i the other side argument is, in some cases the court has talked about firing from a clear congressional command before it will conclude that an employee has a right to judicial form as opposed to going to arbitration. The problem with those cases and the reason they are not applicable is, in the past when the court has applied the clear congressional command standard, it has never done in a wayward strips people of substantive rights. The right to engage in collective action is protected under both oural federal labor laws. Usually there by that clear congressional command standard when an employee is saying they have a right to go to court and get present arbitration. Here, thats not were talking about. Have what we are talking about is you have to allow them to do a group, whether its for arbitration so this collective action man has been bay on has been sabedded. Before we going to the merits, i would say the conventional wisdom is that it is likely to grant it because it took a case like friedrichs last term. Having read those papers on a little more optimistic. For one thing there is a basic jurisdictional problem in the case. The question about whether the courts ever had jurisdiction over this case. I wont go into the details, but what they are asking in these cases is to overturn a 60 year precedent. If they are inclined to do that, they might want to do it in a case where it doesnt have this outstanding question. There are also pleading problems. The complaints that this has all gone up on a complaint and its very inclusionary if you apply it. On the substance, the ideas that no employee in the United States, public or private, has ever join a union if they dont want too. If a majority of workers in the workplace decide to unionize that it becomes ann inclusive representative. Has to the employer has to bargain with it and the union takes on a duty which is once are chosen by the workers, you have a duty to represent both members of the union and nonmembers. M wher any union can be sued for violating a what has worked out over time as a system where nonmembers of the union are entitled to Union Services, for example if they want to bring a grievance. They can be required to pay a small fee called a fair share fee. They dont have to pay for the political expenses, they just have to pay a small fee to cover the cost of the services they are actually receiving. Read what this case argues is that as a matter of the First Amendment, it is unconstitutional to require nonmembers to pay even for the services they provide. As a matter of the First Amendment, nonUnion Members should have the right tout receive Union Services for free. Rs ago imagine the consequences of that kind of system. You have a basic collective action problem that anyone could have explained to you years ago that you get all the services for harry, free, it gets harder to convince anyone to become a member. Thats why we dont have that system in the first place. M goin now we will hear about a gerrymandering case and a caating case. I will speak briefly about two cases in the court. Gill versus whitford. I will steal shamelesslyd thc from pam carlin who has described this case of a constant feature of our politics, one that starts with the discussion of lofty ideas, moves to a situation where few people retire in a room in the process ends with someone getting screwed. Ymande im talking not about the management of ted cruz twitter account for redistricting and gerrymandering. Its the first gerrymandering to be heard in the Supreme Court in over a decade. The last one ended inconclusively without satisfaction for anyone in which four justices held that their non suspicion both and found the redistricting plan at issue unconstitutional and Justice Kennedy was in theti middle and agreed the plan was not unconstitutional and no claims could ever be. [inaudible] the court had not yet arrived at a manageable standard. They try to articulate a manageable standard for assessing when redistricting goes beyond the ordinarysort of injection of politics and becomes unconstitutional. Some the efficiency gap is much discussed, developed by one of the lawyers in the case of the university of chicago. The efficiency gap attempts to measure each parties wasted vot vote, the number of votes cast for losing candidates on the number of votes cast for a winning candidate be on the level that that candidate needed to receive in order to actually win that seat. Ototso in comparison, the wasted votes that each party receives on a statewide level and calculates the ratio. Had a certain level the one party is essentially a locked into power and the system perpetuates itself. In the 2 1 decision, the lower court, District Court rather than a court of appeals. The District Court held in a 2 1 decision that the plan is unconstitutional. It discussed the efficiency gap at the. Rest on it. Found a range of evidence that the republicans in wisconsin had entrenched themselves for a decade. One of the most interesting fact was the share that each party got in 2014 in terms of statewide votes and seats. In 2012 republican candidates for state of assembly got 48 of the votes. Thats the minority. They got 60 of the seats,y thats a super majority. In 2014 they got 52 so they did much better. They got a majority and again got 60 of the seats. Are read whats interesting is the fact that the gop candidate will share really made the difference in terms of the seat share whether they were getting minority or majority, they were locked into a super majority. Theres a variety of arguments that it doesnt demonstrate entrenchment. I just want to focus on oner issue and thats this f question of whether or not the disproportionality that we see sometimes between a statewide vote for candidates of one party is due to gerrymandering. They have districts that are maybe 80 democratic because theyre very liberal and a urban area and republicans are spread out but perhaps less so. You think of which candidates one which counties, you tend to see the sea of red surrounding islands of blue and that gives you an idea of what this phenomenon looks like for the result is that democrats naturally have more wasted votes than any system of representation that depends on geographically compact. The question thats posed here is how much of that bias can be attributed to political geography and how much can be attributive to gerrymandering, and is there a way to develop a manageable standard that enabled the factfinder to determine the difference. Providing theres one for every man woman and child in the state of wisconsin. What percentage are wasted . The [laughter] there should be a study in a paper so the aclu brief arises from First Amendment principles and two principles in particular. First theres a principle of government neutrality and the fear drawn from freedom of speech cases and voters have a right to associate freely with their candidates and parties of choice, freedom of association thats burdened when one party has so entrenched itself that shifting Voter Preferences have no meaningful effect on the distribution of political power. The case has the potential to be the most significant voting right and redistricting case since they establish the one person one vote. It was described as the most significant case that he ever authored. Look at a if you look around the country there is reason to think there is a crisis of democratic accountability. There are a number of stateses 5050 in terms of the statewide vote, michigan, pennsylvania, ohio, north carolina, but where the gop has a super majority in terms of delegation in the state legislatures. I think the best Political Science on this suggests the massive disproportionality that we see a lot of statesic in the entrenchment of one particular party is not fully attributable to political geography. It can be attributed, if the plaintiff succeed they could have immediate consequences to redistricting and introduce an entire principal in redistricting processes going forward. Briefly, ill mention one other case, houston versus a philip randolph. This is the case were litigatin litigating. Its an ohio voter purge program but if you go to ohio and youre registered to vote but you do not vote in a twoyear time period, essentially half of the electric not voting in the primary, you risk possible t removal based on you have moved to another jurisdiction. You are sent a notice but if you dont return it and do not vote during the next two federal election cycles you are removed from the roles. Th a decision found this violates the national registevoter registration act. They were people who had notat moved and were eligible to vote and they cast ballots. They had been purged under this process and had the sixth circuit not world the way it did, these voters would have been disenfranchised and their ballots would have gone on failu uncounted. There congress enacted a prohibition because they were concerned about programs that kick people off the role for inactivity. They were concerned that these kinds of programs were essentially a reregistration requirement that disproportionally affected more minority ca communities where turnout is lower. It also affects primarily africanamerican people. This case will be argued in november. Thank you for those summaries. Next we will hear from aaron. I am going to talk about that but to keep things interesting, i want to see a couple quick words about the wisconsin case. We are pretty heavily involved because we present id tlegislature. At such an interesting case. I just wanted to share a few views about it. There is a lot of discussion about how we can identify the partisan impact on whether we can find this narrow and precise test that everyonesan looking for to find out who how much partisan is too much partisan but the fundamental problem is theres not enough discussion on how to map any of that on a constitutional violation. Think about this health itste very different from racial gerrymandering. Be in that case the injury is the idea that its an equal protection violation to sort people on the basis of race. That theory doesnt work when you distorted to people on partisan affiliation because its never been treated as a classification in the same way and the reason its not treated as race is because its not an unchangeable characteristic. You can change your affiliation and one way you vote in the election may not be the same for future elections. S. Just because i want theve republican my particular district doesnt necessarily mean i want to republican and it for governo governor oror whatever else statewide. The real question is does any of this addon to a constitutional theory of injury and the notion that i have an interest not only being in the district where my vote counts in a certain way for purposes of who imct voting for but also in such a manner that the district always this recent not reflect how i voted in an individual election. I think its fascinating for all of this to arise in wisconsin where you have voters that really are voters who consider themselves independent who may wantte divided government between the house and the senate and the legislature and the executive, so the notion that people have a protected interest in ensuring that however they vote inno particular elections is reflected all throughout the state. Not only to me is it problematic but also, is it really right and maybeul attributing things they dont actually want. There are plenty of people vote in a particular way all the tim time, but i thinkve thats the real issue in this case and it would be very interesting to hear argument and have that theoretical debate because thats the debate thats going on in gerrymandering and its at the heart of the issues in the case. With that said, i will talk about what im supposed to be talking about which is the carpenter case which is to me another really interesting case. This is the case about subsite location information, the data that your Cell Phone Company keeps record of every s time your cell phone is connecting to a tower, they have a record of what tower youre connected to. Lot of i if someone gets a hold of those records, they can learn a lot of information about you. Its not an exact location of where you are, probably a one to 2mile radius of where you are and it can show where you are 24 hours a day. Thats exactly what the records were used for in this common case. Mr. Carpenter was charged with violations for a string of robberies and the government obtained these records from his Cell Phone Company and introduce them at trial to demonstrate he was in the vicinity of each of the relevant robberies and did obtain that information without a warrant. It had a court order and ill talk about that moment. It obtained it without a warrant. Mr. Carpenter argued that this is a violation of his Fourth Amendment rights and it was an unreasonable search for the sixth circuitl disagreed, and relying on this doctrine known as the thirdparty doctrine concluded there wasnt a search at all because this information, he knowingly allowed his cell phone provider to have this data is just information that a third party is keeping in records and therefore he doesnt own this information or have a privacy interest in it such that the Cell Phone Company cant release it without engaging in a search. The sixth circuit was not alone in reaching that t conclusion. E most of the courts i have confronted this is you had concluded that obtaining this kind of information without a warrant doesnt violate the board amendment. There had been plenty ofis dissenting views along the way this has been a hotly debated issue in the lower court, but as this came to the Supreme Court, there wasnt really a circuit split. El the court nonetheless decided to take the case after about four months of relisting it. All of that suggests that the court is pretty concerned about this issue because it doesnt usually reach out to take an issue when the lower courts are actually strictly divided on it. From that alone i think there is some concern if youre in the government shoes, i think if you take this case in the trajectory of recent cases from the court in which the justices have shown particular concern about how the Fourth Amendment is going to apply to technology and the modern age, that alsoar would suggest that the government has some problems here. Probably the most important of both cases to look at in terms of putting all this in context is the jones case a few years back involving gps search, and there the Court Unanimously concluded that attaching a gps to somebodys car was a search. Whats interesting about that cases while the Court Unanimously reach that conclusion, there were very different views about how to get there. You had a five justice majority concluding that that was a search because it was a physical trespass to attach the gps device to the car and therefore you had an expectation of privacy and the different justice saying we would get there by saying people have a reasonable expectation of privacy in the information that is obtained from a gps device and this is just totally different from anything historically that you wouldve thought of as the kind of information the government could obtain without a warrant, and then you had a concurrence fromic justice certainly are saying i do think we can resolve this on trespassing grounds but im with the justices in saying that i also thinkght need there is a reasonable expectation of privacy problem and in particular, she noted she thought the court might need to reexamine this thirdparty doctrine underlying these cases and we need to rethink the idea that in the modern age, every time we allow, that our relationships with the cell phone provider or other Technology Provider to give them access to information, to give themso access to our email for instance, that we somehow implicitly consented to that information being equally available to the government without a warrant. You have a lot of indications here that make this look like a tough case for the government, but i do think its a little more collocated than that. There are some difficultiespretn here and i think thats evident in the petitioners brief which is written in a pretty narrow way, they have t explicitly declined to ask the court to overrule the thirdparty doctrine which is think a lot of people would like the courts do, but they made a judgment call that probably makes a lot of sense to try to tell, look theres nothing wrong with this doctrine another context is just shouldnt apply here because theres a stronger privacy interest at stakem when it comes to revealing my location one 100 of the time. Im not sure that argument to me is completely practically satisfying, theyve allowedfo the thirdparty doctrine to be used to maintain all financial records in this day and age when very few of us use cash all the time, i think you can learn a lot about me from obtaining my financial records on a daily basis, not only where i am but what im doing wherever i am. Thats not say dont think the court might latch onto that as an easy way tot distinguish those cases, but its not simple, and the other thing that makes this, the last thing ill say thats really interesting is the information here was obtained pursuant to aos federal statute that while it doesnt require a warrant, it did impose constraints on what had to be shown to a judge to get in order to obtain these records. No the government has an argument that even if this is a search, even if there is a Fourth Amendment interest covers a statute and that statute makes this a reasonable search and notably the petitioners, their First Response was to say maybe you should punt on that and kick it back to the sixth circuit and let them address whether, even if this was a search itca was a regional bowl search. I think theres some convocations that will make this an interesting case. Ry government can obtain this kind of information without a warrant. Excellent, thank you very much, erin. I hope we can explore this difference between political gerrymandering and racial gerrymandering on the other, the masterpiece bakeshop case. Thanks very much, before i do i want to pick up on something aaron just talked about in carpenter and also the travel ban case. To give you a sense that the resolution of both of those cases may be different from what you are expecting. Erin suggested at the start of her remarks a possible splitting the baby in half answer from the court. The principal question presented to the court is whether this collection of the database location information, at least in bulk, is a search subject to some Fourth Amendment scrutiny. Theres at least five justices, maybe more, maybe even nine justices who might decide that the answer up to be yes, that governments ought to be subject to some limitations in terms of how they can collect these databases of information. However, there may also be a majority of judges within that group who believe that the standard congress and acted in the Communications Act is sufficient because in particular, its more robust even than what the government would have to show juries in the same information. The grand jury subpoena issue, im sort of that gorilla in the middle of the room that no ones talking much about in this case. The courts doctrine on that is more evident than we thought and a long time that its very easy to use grand jury subpoenas to get any sort of information from thirdparty providers. And theres some justices might think at least as long as thatstrue, the standard congress set up suffices. It satisfies the Fourth Amendment even though its subject to Fourth Amendment constraints. I think its unlikely the court will reach the question as it reaches america is likely to resolve itself out. But besides what she suggests, i think it is likely that President Trump will issue either an amendment or extension of the executive order now that the due process is virtually completed, in which they will either impose different constraints from maybe a different set of countries altogether now that the review is virtually completed, or say that they are almost done with that review so they need an extra 30 or 90 days or however many is of the travel ban to stay in place but they obtain a lot of information from all the nations of the world in this review process and we dont know what that is yet. I think they very likely may result either before or after that the Court Remanded the case for reconsideration or for refiling based on the new facts and circumstances after the president changes the executive order. I may be proved wrong in both those cases but just so youre not surprised if that happened. The masterpiece im going to assume people in this room know about masterpieces, one of the sexiest cases on the docket. The term involving the law of cake. And whether kate speaks. So rather than going over the details of the Lower Court Decision or many of the facts which i assume you know or you could know if you view any of the other Supreme Court review panels that are all over the internet, im going to give a little historical background in two respects. One is looking long term, its been long the case that the common law as required some sort of businesses and vendors to make their Services Available to everyone, innkeepers in common areas in particular and were recently more in recent decades over the last hundred years, that has been complemented by a number of state statutes requiring, they are all different in some respects, requiring antidiscrimination norms with respect to other vendors. On various grounds based on sex and religion of course but colorado statute, and then famously titled two of the 64 Civil Rights Act provides that in places of public accommodation which dont cover these sorts of businesses but do cover restaurants and the like, entertainment facilities, race and religion cannot in any way be used as a ground for discriminating against customers. Colorado has gone further in two respects. To virtually all businesses and it extends it to discrimination on the basis of Sexual Orientation. By my count, approximately 21 states in the district do so so colorado does not allow any commercial vendors to discriminate against their customers on the basis of Sexual Orientation. The historicalcontext is over the years , these antidiscrimination norms and common law rules have constantly been subjected to constitutional challenge under property rights, contract rights, the number of religion, freedom of speech. Read about association and the like and they have very rarely gotten any traction at all from the Supreme Court or for that matter from many of the other courts, particularly when it comes to race and sex discrimination, these sorts of claims were uniformly rough projected in many cases, bob jones university, mccrary, a whole line of cases. And this is one note here in that series and you might think well, it should get the back of the hand, these constitutional claims for exemptions on the antidiscrimination law might be treated the same way but that brings me to my second sort of historical contextual points. When the court to terms ago decided that there was a constitutional right to samesex couples to be married, the court also in the majority opinion by Justice Kennedy went out of his way to emphasize that it did not view objections to samesex marriage in the same way that views racial discrimination, thinking that most people who object to samesex marriage do so on longstanding religious grounds, ill quote from justice these majority in a number of defense. This objection has long been held and continues to be held in good faith by reasonable and sincere people, many view samesex marriage the wrong and they reach that conclusion based on honorable religious notices. Its nothing like anything that any justice would have said about race discrimination. Even opposite race, mixed race marriage. Emma and lennon versus virginia. So i think the majority of the justices probably think its a very bad idea or states at least in the short run until the nation becomes more reconciled between samesex marriage across the nation. Its a bad idea to require commercial lenders or others to participate in samesex marriage when they dont want to, the court thinks their objections are worthy of more respect than sex discrimination, objection. So if the court had their druthers, i think they would build in exemptions into these statutes. I think the majority of justices think its a bad idea and that colorado should not do itself here but thats a far cry from saying theres a constitutional right to exempt oneself from those statues. I think that several, there might be majority of justices who want to find a constitutional claim. But its going to be hard to do so. Its very hard when you start thinking about it to figure out what the limits are that dont need bleed over into sex and race discrimination, that dont undermine a whole series of decades worth of doctrines. In this regard. The plaintiff, the defendant here, Jack Phillips has raised free speech and free exercise objections. Im not going to talk here about free exercise unless the ones interested and everyone agrees that would be a futile plan. Youre not going to overrule smith and even if it did they would lose under smith. These cases lost in that era so the principal claim is one of compelled speech. Bakeshop is claiming that over the religious objection, they are being forced to Say Something with the cake. So what, im going to be generous to the petitioners on brief and as i see it, their strongest case for eliminating principle is that they should prevail when both of two criteria are present. Number one, vendor in question is a commercial actor, he is him or herself engaged in some sort of First Amendment activity, creative artistic activity and custommade wedding cakes are that kind of activity. I think theyre right about that. Its what we are now told theres at least some constitutional protection or that, that doesnt mean you win the case and that wont be enough, it wont be enough to say that everyone engaged in any artistic activity is entitled to exemptions because that would prove way too much into our taxes. So the second criteria they suggest is that in addition, the product of service that they create through this objectivity inherently conveys the message that they dont agree with. Not that anyone will necessarily think or attribute the message to them but that they dont want to have to say that in the way the jehovahs witness students didnt want to pledge fealty to the flag in the barnett case and New Hampshire didnt want to attest the live free or die in willy versus maynard and that wedding cake in particular, custommade wedding cake they argue inherently says celebrate this couple. A statement that the Jack Phillips not only doesnt believe things is morally objectionable and religiously incorrect. I can guess where the heart of the case where the justices might get singled out or tried to figure out. Does a wedding cake inherently say anything itself or does it only really say celebrate this couple by virtue of what the couple does with the cake . If your wedding is anything like mine, my wedding cake didnt say anything even implicitly accept what the cake in alice in wonderland said which was eat me. Some people may have wanted to celebrate us but not because of the cake. So i think that thats going to be the heart, the hardest part for the justices to want to recognize constitutional exemption to try to articulate why a wedding take is inherently expressive and in particular why the cake getting a loan rather than the use made by certain couples, this is an apple wedding, this is at a party for the wedding. Is inherently expressive and whether thats a possible limiting principle that might make this a narrow decision. I dont think the justices are inclined to issue a broad decision to provide constitutional exemptions to all sorts of antidiscrimination laws. Its much harder to reach that result than you might think but having said that, i think you ought not to be surprised if there is a majority of justices who figure out a way to get there in a very narrow opinion. There are i think about 50 on activist groups on the side of the cake shop in this case it is probably exponentially greater than the number in support of the constitutional dissensions in any of the historical cases and it includes the United States of america which is file for the first time in its history and all theseother cases the United States has filed against exemptions. Who are not file at all, i think for the first time the United States has filed in favor of a constitutional exemption and a solicitor general has tried very hard to prep a very narrow theory for an exemption although im not sure i quite understand the validity of the principles are quiet in that brief. Though i do think that the challenge for those who would recognize the exemption is to figure out those living principles which is a little bit easier said than done but these arevery smart and very creative justices. Thank you so much marty for walking us through that. We have about 30 minutes for questions and answers and i certainly now call list of questions myself that i imagine the panelists have questions for each other but we rather hear from you so we have some roving microphones but he has questions for any of the panelists or the panel entirely. Just up front please . Im from aspen colorado, im aware of our hate crimes act. You must have gotten it from Masterpiece Cake shop. I was arrested at my church, my case was documented at the us Supreme Court, habeas corpus case. Im alleging that they hate crimes act 18 usc 249 245241 may not be enforced by our court in america from aspen colorado to the court of appeals to the Supreme Court of colorado, federal District Court, 10th circuit and now at the us green court. My colleague on the right and i have discussed what is hate . And how are we interpreting the hate crimes act or violation. I dont see many cases with our rights as lesbians. I would include that there could be a gender discrimination. So you are so wise and we appreciate your long hours involved in the role so any of you i would address it to anyone who has a thought on, are we in america and forcing the hate crimes act that has been on the books . We know in 1973 homosexuality was no longer deemed a mental illness, yet the judge deemed to be mentally ill. There was a lot of questions that we are addressing. These issues will not arise in the cake shop or any of the other cases on the court. I can tell you from experience and knowledge that the Obama Administration Civil Rights Division did enforce this hate crimes act against Sexual Orientation based violence frequently. I have no idea what the Trump Administration is doing with such cases but im afraid thats a little bit far afield from this terms cases in court. Perhaps there will be issues in the future that are raised before the court. Thank you. In the middle . To questions about the muslim than case. The first one is with this issue and the possibility of the president issuing an additional executive order, i was wondering if you could see to the possibility of the court reaching emeritus under the doctrine capable of the view and the second question i have is whether or not you think the Trump Administration or the court rather will be willing to consider trumps statement on the campaign trail. So on the second question, that is, that has been the subject of debate between majority and dissenting opinions in the lower court, i dont know if we have a good read as to how the justices would engage that. My own view is that motivation is relevant to the doctrinal claim and therefore you look to evidence of motivation. Its not just based on the campaign trail. There are, there is evidence that there is religious animus on the basis of the order itself that is the statement. Ongoing during the term of the administration so i imagine that will come up. It certainly has been debated along with the judges in the lower court. On the first question, i suppose thats plausible. Im sure there are other policies you may that as well. One question may be whether as a prudential matter they choose to do it. Theres not going on. Its probably clear that they choose not to because especially in immigration context given what i was describing along the historical art of how they arrived at immigration in the constitution between the power and there is often, the court over a long period of time as looked at ways to avoid engaging constitutional questions so one option would be to reach the statutory grounds. Another would be to reach it on procedural grounds, another would be to not run the case especially if it seems might return in some other form. There not incapable of reviews so the new executive order i think challenged it and we will have different terms and conditions in perhaps Different Countries than the current one does. And i add one other thought, i think a good deal will depend on what the United States is saying and whether they want the court, if they are taking the position of we want you to deal with this stuff, i think the court will deal with it. We dont quite know exactly at this point what their approach on all that is going to be. They dont say anything more about the review has demonstrated, putting themselves in a bad posture before the court. Either the review has shown that there are risks to National Security or it hasnt. I dont know if their view is going to be we got something new so lets go figure it out. Or their view is going to be these Lower Court Decisions are so that we need you to do something now. I think theres lots thats still going to happen between now and the argument that will impact the way the court is thinking about the institute and how much it should be. To the extent that involves factual assertions, it may be that remanding is the better course. This goes to the rodriguez as well that when the supreme, rodriguez involved prolonged detention of people who were being detained, but for a time, when the court reviewed him of the issues related issues in more versus kim, the information presented to the court and what in the first instance, in the Supreme Court had, went to how long theattention of the people who were affected at that time were, the intention was relatively short. And it is , the general went to the court last year or the year that was disbanded in rodriguez and said those statistics were wrong. And they were never tested adversarial process. Thats in the air right now so i would think that would be a good reason that there are factual assertions to be made. The court might see, might want to remand the different definition. Continuing on this theme, if i can ask a question, to marty in particular or anybody, but mentioned statutory component of this piece, i wonder if you can talk more about that and in a particular exercise of authority but about immigration in the National Interest and the evidence goes to National Interest which would be based in the ninth circuit. The statutory argument in brief is the president purports to be acting primarily as i think importantly on a statute that was part of thewalls are active in the mccarthy era. Afforded executive Branch Officials in many different areas of immigration on the face of it very broad discretion. To its people from the United States their passports given certain people and the like and thestatute itself touched 1182 sub asked. I as a term seemed to give the president unbounded discretion to exclude the entry of any persons or classes based on any finding that sex entry is necessary to advance a National Interest. One question is that really as broad as the delegation and the president is claiming it is. And the hawaii claim in particular is so in brief that was filed this week makes a compelling case that like the passport case, can versus dallas, the court decided in the 50s that it should be viewed against the backdrop of practices that succeeded the statute and should be limited to certain sorts of claims by the president and then theres a bunch of statues and acted after 1952 in which congresses seemed to demonstrate a distaste for it at a minimum, a distaste for National Origin based proxy for exclusion. For using National Origin as a broad proxy rather than dining down more particularly into whether a particular person or group of persons is dangerous or is otherwise a problem in their cat enter into the United States. I think the court, the establishment clause questions are complicated and difficult and novel, i dont think the court will have much stomach to resolve them. I think the positive ability of a think that 82 doesnt give the president the authority to do what we did here will be something to at least certain justice, i have no idea whether it will be a majority and in part because think and i doubt this would be in the courts opinion, i think at least some justices must feel as i do that although President Trump may be finding that the entry of persons, all persons from these nations would be detrimental to the United States, that was based on no evidence and no review of any problems or any evidence of any problems that have occurred with the entry of these individuals under the extraordinarily fixed conditions that are already present with respect to entry in the United States. It seems by all accounts to only be explicable as making good on a promise that he made in the campaign, not necessarily that hes gotten a muslim man but that hes showing his supporters that hes making good on a promise to keep muslims out of america. I dont think that will be in the courts opinion but the court might well fall back on the statutory ground if it reaches the merits. I think the most likely result is that it doesnt reach the merits. On that point, the ninth circuit pointed out that undermined the National Interest conclusion in the executive order. It does but im expecting that whatever comes out of this review will be much more at least premised on what they will say as much more robust evidentiary etiquette. I have no idea what it will be or whether it will be probably persuasive but it wont be the virtual blackbox that we got in january and march. And i have two questions, can you pour down a little bit on kennedy in the travel ban and sort of what we should floor and if it does get to the merits there . And does anyone have any thoughts on evidence that progressive groups or liberal justices have been aggressive before the court or granted third important cases because they may be fearful that the president might get another vacancy sometime in the next couple years . On Justice Kennedy and the entry band, one starting point is that i was alluding to admit he authored a concurring opinion years ago which goes to a review of consular decisions, primarily and building upon an earlier client in mandel. Theres a certain amount of criminology involved in reading the opinions but the language in that opinion goes to whether or not the baseline rule is that review of immigration decisions is deferential. That provides for an exception and the standard is the decision that its spatially limited and qualified. What Justice Kennedy alludes to is the decision is made in that base then in fact actually that might be an exception to that general rule. That would be the starting point for thinking about that. He has been one to also, he has been in the majority in cases where the court has engaged in this constitutional avoidance to rest on statutory grounds. He did not do the opinion but he joined the majority. Thats where i would start, im sure theres other thoughts as well. The second question was the second question of progressives trying to getto the court now because they think its going to get worse . Number. When was the last time organized labor filed a petition . I dont think so. Theres a 54 lost to a 63 lost. And anything can happen as we saw last year. Did anybody else want to wait in on those . I have a question for claire. Specifically you mentioned the janus case and you sound you felt more comfort after reading or whatever, the filings. Could you elaborate on that . The case is at the third stage and i think what i felt is that there are more reasons to deny in this case then i knew about before i read the papers. And i think that the jurisdictional issue is a big one so basically the case that originally i think celebrated by the governors, he never had a standing. Then there were interveners who were going to take the case and theres the Supreme Court case law about how you cant really remedy the absence of jurisdiction that way. So you know, the ask about right to work thats making in this case is a big ask. Theres no way, what they want is so overturned, its basically the overturning of longstanding precedent, not what theyre saying theres a way we we can win without that. There maybe when, ways in which they could win Little Things without that but theyre trying to avoid because they want the big win. So if youre going to do that and if you are confident as this court may be that the issue is going to come up in another vehicle, because you know, theres tons of these cases out there then why go with this one . Do you think the court will come to this issue sooner rather than later at somepoint. Its hard to say. All i know is that some of the Technology Cases that there are plenty of them out there. From my own perspective, i think this is just a when, not if question. You may well be totally right, i dont know about that particular but i know its a bad view. And its a very fair point that theyre going to want a different vehicle in which to address the issue but they took the case and they were clearly ready to reach a result and i think they will be looking for another opportunity. To reach a result. In the front . On political gerrymandering, the court as a matter of constitutional law raised a politically affiliation are not the same but participation in a Political Party is an association which is of course protected by the First Amendment so if you have a plan that heard members of a party in a way that i was their vote, that would seem to sort of surmount the distinction between race and political affiliation that you mentioned because you look at the association and how that might come into the beast . I think you put your finger on one of this the race thats been identified to, and i think theres an implicit acknowledgment by the fact that the argument is made to try to make it like race, that you have to have a different theory for getting there. And i think one of those is the idea that well, the interest here is actually more of a First Amendment and associational interest and less of a pure kind of voting or equal protection interest in the sense of discrimination. I think part of the problem there is how do you think about the extent of the burden on association. Its not like people dont have the ability to associate and to participate in the political process just because they want all the time and one of the interesting facts that we seen in history on some of these gerrymandering cases is theres multiple instances where the lower court was quite confident that there was just this blatantly unfair system that was going to perpetuate forever a bias in one party and then the very next election after the court issued the decision, it flits completely because the reality is that politics are a lot more than where we are located and where we get to vote. And things change. I think you are right that there is a different interest thats being articulated here. But i think thats part of why this really is just a different animal. If nothing else its a different animal and you cant take the courts existing gerrymandering doctrine and make it work. At the same way in this country to the extent that it works even in context where it was developed, i think people on both sides would dictate that a little bit. But i think one of the difficulties in this case is you see a lot of attempts to have pieces of years where i do think its like doctrine. The same time, saying, well, its not quite like existing doctrine. The struggle, why the court hasnt reached all of this for a long time. This is something that i with erin on, that the contexts are not analogous, right . Thee are some aspects of racial gerrymandering cases. Particularly when youre trying to assess evidence, right, because both of these kinds of cases when you are trying to assess evidence, both of these cases involve questions about process, motive, what factors were taken into account and i think the same kind of evidentiary tests for assessing whether or not race was a factor in the redistricting orbu gerrymandering. I completely agree with aaron that the theory underlining these cases is very different. The consequences of those cases is immaterial. They werent deprived political power, its that race dominated. That consideration expresses some racial differences problematic for politics. Thats the theory. As aaron alluded to, i think there are people on both sides of the debate that would question some of the assumptions of that theory. Here, i agree with aarons point that this is immutable characteristic. Your local affiliations, i think thats precisely thegal ty point underlying the legal theory. Peoples preferences, in terms of candidates and Political Parties may shift, they have a right to associate with those candidates and that entails a notion not just that you castwa a ballot or express reviews but that your views manifestof themselves in some way in the distribution of politicall power, in a meaningful sense. Unconsti if you draw lines in a way that negate those shifting preferences, then thats burdening your preferences at a certain level. If you think about, if the redistricting process went this way, people voted for their preferred candidates or their preferred parties and after all the ballots were cast, the government came in and drew the line to decide which votes were in which districts in order to achieve a predetermined outcome of locking one Political Party into power. No one would think thats principal. I think the question is whether or not, if a Political Party tries to do that before the election, andfu actually effectively achieveve that result, whether or not that is meaningful differenter and we think not. This is very hard to explain to students in the for the following reasons. In virtually every other area, and this one, i thinkk Justice Kennedy has said, if the state came out and said we are drawing these lines in order to entrench the Democratic Party control over the seats, that would be an illegitimate motive. The government is not supposed to be structuring the way it works in order to entrench one partys power. Thats never supposed to bens okay. s its very obvious that theyre trying to put one partys control over seats or districts rather than another, but simply an illegitimate basis under equal protection law for doing something. They didnt buy that as a feeling in the case. Thats why everyone is having an effect test of the sort that they are talking about. There is Something Weird about that because why is that a legitimate state interest at all. Justice kennedy has now set pretty clearly hes not willing to make that a basis of the doctrine. In the i think we might have time for one more question. I think it took the last justice Something Like three and half years to do likewise. Hi he is not shy about expressing his views. Im not sure if he seems to want too, in some ways Something Like Justice Thomas but with a different balance. He wants to set out his views in where the rest of the court is where the doctrine is, this is just based on his one month in office. That could change radically. Pes over time things change so perhaps the new justice will become more of a team player and he has demonstrated in 2017. I think one of the interesting cases will be the carpet in case. Its one of the areas where you do get disagreements toward among those that are otherwise likeminded or who can come to the same agreement. It might help get more of a note to criminal issues in particula particular. I think it will tell us something that will be applicable beyond that particular case. Thank you. This may be an outside the beltway observation. Its not a substantive point. Its just descriptively the cas case. It was a very polarizing nomination for all the various reasons. When i talked to people, there are people who fullyly accept his nomination asnt normal and legitimate, but there are a lot of people in the country who paid attention to that process more than they might to some other Supreme Court nomination process for whomonde there is a cloud over his head. One of the things i was struck by is what marty is alluding to, i wonder to what extent that services longterm interest. Sort of contrast to the way he thought about his role as chief justice. I wonder if that may emerge or not emerge, its just something that struck me. Maybe next year this time will have more to say on this. To i do want to thank you for the question. Its interesting. Do i dont think we mentioned the new justice wants until your final question. Thank you. I want to thank you for coming and participating and thank you to the panels. [inaudible conversations] [inaudible conversations] [inaudible conversations] coming up tonight, the profile series the Trump Administration officials will continue with ben carson, housing and urban development secretary. He talks about his childhood, how he met his wife, his career as a doctor, his run for president and his interactions with President Trump. You can see that tonight starting at 80 stern on our companion network cspan. Heres a preview. You had a pretty violent temper. I did. Can you explain. I think it was because i was thinking about me. It was always about me. Someone took my things, theyre in my space, i, one day when i was 14 and another teenager angered me and i tried to stab them with a camping knife, unfortunately he had a large metal belt buckle on and it struck with a force that it broke. He was terrified, but i was more terrified because i could take somebodys life for not much reason. That had a major effect on me and i thought about my actions and i realize that i could never become a doctor with a temper like that. My options would be jail, Reform School or the grave and none of those of appealed to me. I said lord help me. There was a bible and i picked it up and the reverse is in there about anger like proverbs 1919. Also. [inaudible] for three hours i stayed in there praying and contemplating and reading and just came to the understanding that to react violently was not a sign of strength. It was a sign of weakness. It menu could easily been i manipulated by your own environment and people in your environment. I decided i wasnt going to be part of it. Thats just a brief profile of the interview with ben carson. You can watch the entire conversation at 80 stern on cspan. Join us monday when Hillary Clinton gets her personal account of the 2015 president ial campaign and election. Its in her memoir, what happened. The former first lady and president ial candidate will talk to her former aide and politic in pro store owner at Warner Theatre starting at 7 00 p. M. Eastern on cspan. Saturday night at ten eastern on after words David Osborne on his book reinventing americas schools, creating a 21st century education system. He is interviewed by chester finn, senior fellow and president emeritus of the form institute. The argument in the book is that around the country the areas that have embraced charters the most are also the fastest improving cities in the country. So, im not saying make every school a charter, im saying if we look at the data and knowing what works for kids, lets treat every Public School like a charter. We can call it something else. We can call the district school, and innovation school, renaissance school, pilot school, whatever, but whats give give it the autonomy so people who run the school can really make the decisions and create a school model that works for the kids they have to teach. Okay. And lets hold them accountable for their performance, and if they do it great job lets replace him with a stronger operator. Watch operator communicators. A look at propose legislation to strengthen u. S. Sanctions against north korea and some of the countries in which it suspected of Money Laundering like china and russia. The House Financial Services subcommittee hosted scholars and two of them were former federatfederal government advisors. Also those from the United Nations security council. This is about two hours