Transcripts For CSPAN2 Supreme Court Term Preview 20170916

Welcome to the annual Supreme Court preview. Im karis, Vice President of policy and programs at acs. Most of you likely know this is a National Network of lawyers, law students, judges and policymakers who believe that 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 delayed addition of the knife justice to the bench, we are looking at an upcoming term that promises the highstakes that 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. During the first five days the court will consider the constitutionality of the president s troubled man, legitimacy of wisconsins redistricting scheme and whether American Workers can be forced to arbitrate their disputes with their employers as opposed to having a day in court. Some might say the stakes are too high and to lead us through the discussion today is a distinguished panel. We welcome a newcomer to this in no event. He is a professor of law at the John Marshall law school in chicago and is cofounder and coeditor of the constitutional law prof blog which i commend to you, if you like me like a commonlaw junkie. Steve regularly writes for the court cases. Perhaps most overtly, 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 steve recently on what is soon released first ever acs Supreme Court review journal which will be forthcoming october and there are flares out there if you want more information. Now, without further ado, please join me in welcoming steve schmidt. [applause] thank you, cara. Behalf of myself and the panel i would like to thank cara and Caroline Fredrickson and the whole team at the american constitution society. We really like to thank you all for attending. What a fantastic turnout today. 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 there is a new constitutional issue coming up and its a time where we can really be engaged in these things. I am pleased to your part of this conversation today and i am looking forward to hearing from a very distinguished panel. My job as moderator is to basically introduce the panelist and quickly get out of the way and i think i will going to do that. What id like to do is give a short introduction for each of our panelists going to my left. Their full biographies are in your materials so you can take a look and then well get on with the program. Immediately to my left, claire, who is the associate general counsel at the Service Employees International Union where she focuses on litigation docket. She previously practiced at james hoffman, public justice and. [inaudible] in san francisco. Shes authored and coauthored a merit brief and Supreme Court cases on a full range of different topics. We look forward to hearing from her to claires left, hes an associate professor of law at Drexel University and currently visiting associate professor of law at Washington University in st. Louis. He is very involved in new York City Bar Association and the association of american law schools and focuses on immigration law, criminal law, United States and comparative constitutional law, privacy and surveillance in human rights issues. That was quite a mouthful. To his left, an associate professor of law at Georgetown University law center. He served as Deputy Assistant attorney general in the department of Justice Office of Legal Counsel from 20092010 and is attorney advisory from 1994 to 2002. Hes an active contributor to media and blogs and regular considered to. [inaudible] we are pleased to have him join us on the panel today. To martys left, dale is the director of the aclus Voting Rights projects in supervisors the aclus Voting Rights litigation and advocacy work nationwide for hes litigated a number of cases under the federal Voting Rights act and the National Voter registration act and hes an adjunct professor of law at nyu. Then, last but certainly not least, aaron murphy. He is a partner in the Washington Dc Office for practices focus on Supreme Court appellate and constitutional litigation. Shes argued three cases before the United States Supreme Court and she has more awards and recognitions then i think we have time for today. This is our wonderful panel. Would you please join me in welcoming them. [applause] thank you. With that i will say just a brief word of the ground rules and then turn it over to talk about one of the cases that we are all waiting to hear about, the travel ban. Each of our speakers weve asked to speak for about ten minutes and we have asked that they consider intervening with each other as we go and that will leave us about 30 minutes at the end for question and answers from the audience. So, with that, ill turn it over. Thank you so much. And thank you to acs for including inviting me to participate in this. It is interesting to be discussing immigration in the context of the spring court because the Supreme Court doesnt typically grant a lot of immigration cases and they are typically one or two in the last ten years and maybe three but not necessarily raising big constitutional 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 man into consolidated cases but also heard last year and then scheduled for re argument in this term with the ninth justice having been up pointed. Im going to mostly talk about the entry man case although ill say a little bit about rodriguez as well and especially as they might raise similar issues that are related. By way of context, for people who may be less familiar with cases with the immigration context theres a long oversimplified theres two lines of cases that have been contention with each other. On one hand dating to the 19th century the court held the political branches had quite a bit of are afforded quite a bit of difference in the area of their substance immigration with limited judicial review and this dates back to the late 19th century. It has never really been revisited directly and predates the Constitutional Rights revolution but on the other hand in more recent cases even back then procedural due process was still respected and limited extent and a more robust sense then. The court has more recently indicated that there are limits cases like. [inaudible] that just because the case may involve the issue may involve immigration at that doesnt mean that what the political branches do is entirely immune from constitutional review. Those never been fully reconciled and they are somewhat in contention with each other and often the court has used the canon of constitutional avoidance when possible or look to procedural surrogates for subsistence adjudication to draw from the work of rocio nomura. Those might be an issue that arises term. The entry ban case im sure youre familiar with a lot of this because its i wont belabor the details but there was the First Executive order that was issued soon after the new administration came to office and was widely understood to be effectuating Campaign Promise that initiative he was formulated as a total and complete shutdown of muslims entering the United States and that involved over time as it was framed and that First Executive order was enjoined and rather than litigate its the white house issued a new incentive order in march even as it maintained that executive order was simply a watereddown version of the first one in response to the ninth Circuit Decision of the various injunctions affirming the washington induction. Really seeking to commerce the same goals for the cases before the Supreme Court, one from the district of maryland by the Fourth Circuit and one from the district of hawaii of her by the ninth circuit are conserved the consecutive order. The first one involves the suspension of entry from nationals from six was the majority countries for a period of 90 days in order for various agencies to conduct a review to identify what additional betting was necessary. The order included the number of extensions it was not in the executive order. No one also, authorized a waiver that was executive order for casebycase discretion. These review provisions provided that an internal review was to be conducted within 20 days of the Effective Date of the order and also directed at the report that there would be a secretary of state within begin to request other governments to provide Additional Information about what information the United States wanted from other countries about nationals seeking to be admitted to the United States. That report was supposed to happen within 50 days. So, subsequently, over the summer the Supreme Court modified its second executive order to change the Effective Date on such that the Effective Date of each provision would be when any inductions were lifted after that particular provision so the ninth circuit lifted the internal review proceedings on june 12th and so now all of those internal provisions by now have run review provisions in terms of the time periods that are prescribed in the executive order. Section six of the executive order suspended the Us Refugee Admissions Program for 120 days and also reduce the number of refugees that were authorized to be admitted for this fiscal year from 110,022,000 and removed and express religious reference in the executive order. You have these two cases working up and the Fourth Circuit you have issue was resolved on the constitutional ground in the Fourth Circuit concluded in a divided opinion that the District Court enjoined the section two of the entry fan provision didnt address the refugee provision but did when the Fourth Circuit affirmed in a forest on the constitutional ground under the establishment clause and the dissenting opinion in the case essentially took issue with the majority looking beyond the base of the executive reporter itself reached its conclusion that religious intimates were motivating the order although the court did also look to some evidence that it was based on with one dissenting judge raising the concern that donald trump in his words never be able to free himself from the stigma of bias that the District Court has in trying with this program is very factfinding. In the high order, they enjoined both the entry ban as well as the refugee curtailing of the Refugee Admissions Program and when the ninth circuit affirmed that the threejudge panel rested its decision on two separate factory grounds that it wasnt an exercise of the delegated authority from congress and it may have run afoul of antidiscrimination in the immigration law. So the. [inaudible] and allows the entry ban to go into effect as to individuals who cannot claim to credibly claim bona fide relationships with persons or entities in the United States and there has been a decent litigation about the scope of that and what the Supreme Court said which we can talk about in a q a folks are interested but theres a good chance that by the time this case is argued next month it will be regarded as moot and i should know the professor has written quite a bit about this issue and mostly on justice security and i certainly would commend those pieces to you. Because presumably the period will have ended now that the states have been lifted and by the time the oral argument comes around there is all the time limits in the executive order even as modified will now, in fact run and by then, presumably a new executive will be issued and the focal point of this issue will turn to that. Should it reach the merits its not by any means that will be decided on constitutional grounds because there are the statutory issues and it may well be that by avoidance grounds or straightforward statutory interpretation the court doesnt reach these constitutional questions. With a question let me Say Something about jennings because especially if the court doesnt reach these issues in this litigation and does, in fact conclude that the case is moot they might become relevant so jennings involves presents the course with the challenge of how to navigate between two decisions that are intentionally to each other. [inaudible] indefinite intentional detention of an individual that this is no reasonable likelihood of being removed raises serious constitutional questions under the due process clause and in light of those constitutional concerns the court interpreted those provisions to not authorize but require periodic review of the need for detention. On the other hand,. [inaudible] cited a few later sustain against constitutional challenges statutory provision that categorically mandates detention for individuals based solely on their being deportable due to prior criminal convictions, as opposed to having an individualized determination of whether they are a flight risk or danger to public safety. Unlike the those are individuals that dont have final orders of removal and so again in rodriguez there may be that this case will be decided on statutory grounds if the court wishes to invalidate the policy and that is how the ninth circuit at oral argument went last year there was some discussion about how to apply the avoidance cannon and that is something to the extent that theres a different approach taken in rodriguez that could affect how the avoidance can is applied in other contexts and theres also the issue of involving the strength and each set of issues theres a concurring opinion in the past from Justice Kennedy that might bear upon how the court might act in this case. I will stop there and we can leave and talk. In the q a. Thank you very much. Next up is from claire about arbitration cases and possibly about a case that may be on the court docket dealing with labor issues. Yes, so, as mentioned, i work for the Service Employees union i handle the cases about workers and these two cases are linked to each other because theyre about employment and they are also, in my mind connected, because they have a real chance of being a oneto punch and we havent seen the chancel since the 2013 term. What i mean by that is in 2013 we had a case called. [inaudible] which fortunately, in my view, there was ultimately dismissive granted but that was an attack on private sector employees ability to band together in organize. At the same time that term was another case called harris versus quinn which went after the ability of Public Employees in particular home care workers who were paid with public money to organize. In this term we have the same situation where you have the first set of cases i will talk about three consolidated and that is an attack on private sector to band together and the second case in which it has not been granted and may not be granted is called janus versus and that is an attempt to make every state in the country right to work for all Public Sector employees. So, first with respect to murphy oil i think the relative legal backgrounds that helps us understand the case is the National Labor relations act and the other statutes calmly talk about those two statutes from the earliest 20th century both provide one for protection for workers and the core protection in both statutes in the core right the guarantee is the right of workers to band together and Work Together to defend their rights to advocate for themselves whether it is litigation, testifying before legislator or more traditional things that you think of like strike and both statutes protect both Union Members and also non Union Members and it doesnt matter if you are in a union but you have this right. At the time that congress enacted both of those statutes it was very well aware of the possibility that employers might try to get workers to waive their rights and that was forefront in congress mind because part of the motivation was called yellow dog contracts which was a requirement that your player would say how high are you but only if you sign here saying you will never, ever form a union and if so, congress that was one of the practices that congress wanted to get rid of when it passed the nra and an gla. The other thing interested about these cases is that at the time they were thought of as the more sort of freemarket solution to the problem in incoming quality and workers rights because the point of statutes is to facilitate a private ordering of Labor Relations and facilitate private negotiations as opposed to imposing requirements like minimum wage or stuff like that. The idea was that if you give workers the ability to band together they can negotiate to a fair deal themselves and you dont need as much of the topdown regulations. Both statutes prohibit employers from requiring employees to waive their rights and the nlg a stripped the course of jurisdiction to enforce waivers in the and lra goes a step further and makes an employers requiring essential waiver and unfair labor practice. The north laguardia act also includes a provision that says and refers to particularly workers rights to support each other in litigation. The issue in these cases called murphy oil and related cases is whether employers can require their employees to waive their rights to participate in collective action to band together with other workers if they in bed that collective action band in an arbitration and just to be clear, because sometimes it is not clear the provisions that are issued band not only class actions but they even ban things like joining or coplaintiff and simply put, the question is whether or not we will return to an era of yellow dot contracts in terms of a slightly different form. The parties in the cases basically fight over two Different Things one is whether the various relative judges can be harmonized for the nlra, the nlg a and the federal arbitration act. If so, great, stop there and if not, which statutes should prevail. On the first point both sides day all the statutes can be harmonized and not surprisingly they would harmonize differently and there are a lot of arguments of why the faa can be harmonized with the protects workers rights and one of those i wont go through all of them at some of the straightforward is the faa itself includes a saving clause that says the point of the statute is just to make arbitration agreements as enforceable as any other contract but not more so and any defense you would have against a regular contract you should also be able to have against an arbitration agreement. Here this collective action band would be invalid and illegal under if it were in any other kind of agreement so you would think that clause would apply. The other argument i would say is that in some cases the court has talked about requiring something called the clear congressional command before it will conclude that an employee has a right to judicial form as opposed to going to arbitration. The reason those are arguably not applicable is in the past when the court has applied the cute clear congressional command standard it has never done it in a way that strips people of substantive rights and here the right to engage in collective action is the course of substantive protection in our federal labor laws and also usually the Court Applies to that clear congressional command standard when an employee is saying they have an absolute right to go to court and they cant be sent to arbitration and here that is not what were talking about. The actually said you can force your employees to go to arbitration but what were talking about is you just have to allow them to do it as a Group Whether in court or in arbitration. So, this is about a collective action man that has been embedded in arbitration clause not the issue of arbitration itself. The second issue i was going to talk about was janets first acne and this is a petition and before i would go into the mirror as i would just say that i think the conventional wisdom would be or has been that the courts grants number one having read the papers i will say that im a little more optimistic that the court will deny for one thing, there is a basic jurisdictional problem in the case and the question about whether the court ever had jurisdiction over this case i wont go into the details but given that what the national right to Work Foundation is to overturn the sixyearold president and if the court is inclined to do that it might want to do it in a case where it doesnt have this outstanding question with respect to jurisdiction. There are also pleading problems and the complaints that this has all gone off and is conclusory if you are actually going to apply. On the substance basically the idea is that no employee in the United States public or private asked to ever join a union if they dont want to and never has to pay to funds Political Activities if the majority of workers in the workplace decide to unionize then that union becomes exclusive representative and what that means is that the employer has to bargain with its and the union takes on a duty which is once your chosen by the workers and become the exclusive representative of the union you have a duty to represent both members of the union and nonmembers. Its called the duty of a fair representation in any union can be sued for violating it. What has worked out over time is a system where because nonmembers of the union are entitled to Union Services for example, they want to bring agreement they are required to pay a small fee which is called an agency fee or a fair share fee. They dont have to pay any of the political expenses but there required to pay a small fee to cover the cost of the services that they are actually receiving. What this case says or argues is that a matter of the First Amendment it is unconstitutional to require nonmembers to pay even for their services that they provide to another words as a matter of the First Amendment non Union Members should have the right to receive Union Services for free and, i think, its time for me to stop but the consequences of that system you end up with a basic collective action problem that any economist could explain the hundred years ago which is you get all the services for free and it gets harder to convince anyone to become a member. Thats why we dont have that system in the first place. Anyway, i was up there. Excellent. Thank you very much claire. Now we will hear from dale but a political gerrymandering case and possibly about another voting case. I will talk briefly about guilt versus whitford and houston versus randolph institute. Im going to steal shamelessly from pam carlin who has described this case as being one about a constant feature of our politics. One that starts with discussion of lofty ideas, moves to a situation where a few people retire into a room, and there they pool hall in trade interest and the process ends in someone getting screwed. I am talking not about the management of ted cruzs twitter account redistricting and specifically about gerrymandering. This is the first partisan gerrymandering case to be heard in the spring court over a decade. The last one concluded inconclusively without satisfaction for anyone in which four justices held that partisan gerrymandering claims are non digestible for what it found. [inaudible] Justice Kennedy sort of in the middle agreed that the plan was not unconstitutional but did not want to go so far as to say that no partisan gerrymandering claims could ever be due to civil just that the court had yet to arrive at a manageable standard. The case tries to take a that challenge and articulates a manageable standard for assessing when partisanship in the redistricting process goes beyond the ordinary injection of politics into redistricting and so become excessive as to become unconstitutional. One of the innovations that the plaintiffs have introduced this area of law that is much discussed and some of the coverage of the case is something called the efficiency gap helped by one of the professors, im sorry, one of the lawyers in the case, professor stephanopoulos of this university of chicago. The efficiency gap attempts to measure each parties wasted votes at the statewide level. That is the number of votes cast for losing candidates and the number of votes cast for a winning candidate beyond the level that that candidate needed to receive in order to actually win that case. Then it compares the number of wasted votes that each party receives on a statewide level incorrectly for the ratio and purports to show that at a certain level the ratio is so extreme that one party is effectively lost in the power and entrenched for a decade after which it perpetuates itself. They got about 60 of the seats, the super majority, in 2014 republican candidates for state assembly got about 52 , they did much better. They got majority. The gang got about 60 of the seats. Whats interesting is not so much the disproportionality, the fact that the gop candidate chair really made no difference in terms of the seat share. Either where rather a minority and majority, they were locked into a super majority of it. Wisconsin makes arguments as to why its not the efficiency theres a variety issues in the case including issues related to standing. I want to focus on one issues. The question of whether or not disproportionality we see between the statewide vote for candidates of one party and the translation of that into seats is due to jerry mandarin or political geography. Sometimes referred to as the big sword in which liberal voters are clustered into densely populated liberal areas in which districts are 80 democratic or the vote share is 80 for democratic candidates. Conservatives are spread out in areas that are conservative but perhaps less so. Think about maps of what president ial candidate which counties, sometimes you see the maps after an election. The cc of red surrounded Little Islands of blue in urban areas. That gives you an idea of what this looks like. The result is democrats naturally have were wasted votes in any system that depends on geographically compact singlemember districts. The question posed is how much of that can be attributed to natural sorting political geography and how much can be attributed to gerrymandering. Is there way to develop a manageable standard two enables a path finder to determine the difference . Slaughter briefs in this case, i think one for every man woman and child in the state of wisconsin. Which percentage of them are wasted . There should be a study of them. There will be, im sure. The aclu is brief. It arises from First Amendment. Two principles in particular. First of principle of government neutrality in the public sphere john from freedom of speech voters have a right to associate freely their candidates and parties of choice, freedom of association as burden when one party has entrenched itself and shifting voter preference have no meaningful effect on the distribution of political power. Some thoughts about the case, it has the potential to be the most significant Voting Rights since reynolds versus sims establish the principle of one person one vote, case that chief justice warned described as the most significant case you ever author. If you look around the country, theres reasons to think we have something of a crisis democratic accountability. Estate lake maryland where they get about 60 of the votes and yet control seven out of eight congressional seats and a huge super majority in the state legislature. Some states that are 5050 in terms of the statewide roads, michigan, pennsylvania ohio Virginia North carolina who were the gop has a super majority in terms of that in the state legislatures. The best science on the suggest the mass proportionality that we see in the entrenchment of a particular party is not it fully attributable to geography. I think there is that as much is 15 seats of the republican advantage in congress can be attributable to gerrymandering. If the plaintiffs succeed in this case it has a chance to have immediate consequences for redistricting around the country and introduce a new limiting principle in the processes going forward. Briefly, one other case. Houston versus randall. This is a case there were mitigated, a challenge to an ohio purge program in which if you live in ohio registered to vote in you to not vote it to your time, thats half of the electric now voting in half the electric earmarked for possible removal based on the assumption that you have moved to another jurisdiction and no longer eligible to vote in that jurisdiction. Your center notice. If you dont vote within the next two federal cycles you removed. The six circuit from this violates the National Voter registration act. The effect of that was also to 500 balance. People who have not moved were indisputably eligible to vote concedes this. The ballots have been purged under this process and have they not ruled the way to please we voters wouldve been disenfranchised and they wouldve gone on counted. The motor voter law says any that is in the removal of is prohibited. They were concerned about programs that kicked people off the role for inactivity. Concerns that in particular these programs were re registration requirement that disproportionately affected minority communities where turnout tends to be lower. And they found that this disparity should disproportionately affect people who lived in africanamerican communities. Thank you for that terrific summary for now well hear from aaron and if time permits will hear about an alien statute place. Just to keep things interesting and make sure nobody gets the wrong impression from the fact that im sitting to the far left of michael panelists. Just a few quick words about the wisconsin case. Its an interesting case. I wanted to share a few views about it. Theres a lot of discussion in the case about how we can identify the partisan impact and if we can find this narrow precise test everyone is looking for to figure out how much partisan is too much. But it seems to me the fundamental problem is a lot less discussion from the plaintiffs on their side of the case of how will map that onto a constitutional violation. Think you have to think about how this is very different from the context of racial gerrymandering. The injury is that theres an equal protection violation to be sort of people on the basis of race. That doesnt work when you try to apply on the basis of partisan affiliation. One, because its never been treated as a classification in the same way because the reason is not treated as the same is because partisan affiliation is not an immutable characteristic. You can change it. The way you voted one election may not even dictate how you vote in the future. Just because i want the republican in my district doesnt actually mean i want the republican candidate for governor or whatever else statewide. To me, the real question in the case is, does this map onto an actual constitutional theory of injury the notion that i have an interest not only input in the district where my vote counts in a certain way purposes of whom voting for but also in a manner that the districts are arranged that theres a representation statewide that reflects the way voted in an election. Its fascinating for this to arise in wisconsin which is the quintessential purple state. You have voters who are voters who consider themselves independent who might go for a republican in a democratic the same election. They might want to write a government between the house and the senate and the legislative and the executive. So the notion that people have a protective interest in ensuring that however they vote is reflected throughout the state, not only to me is a constitutionally problematic but its not right might be attributing to things that are what they want. Theres plenty people who vote the same well the time and have a practical interest in that. I think the real issue in the case and it will be interesting to hear argument and have that fundamental debate. That has been going on in partisan gerrymandering cases for quite some time. Set the heart of this issue. With that said, ill talk about what im supposed to be talking about rich is a carpenter case. Its an interesting set of criminal issues. A Fourth Amendment case. Its about self site data. Location information which is the data yourself on Company Keeps records of every time yourself on his connecting to a tower to ensure cellular service. They have a record of what tower youre connected to. Someone gets a hold of the records we can learn information about you. Its a rudimentary version of gps because its not an exact location of where you are. Those records can basically show where you are 24 hours a day since most of us have our cell phones on this most of the time. Thats exactly what the records were used for in this criminal case. Mr. Carpenter was charged with violations for robberies and the government obtained these records from his Cell Phone Company and introduce them to trial to demonstrate that he was in the vicinity of each of the relevant robberies and then obtain that information without a warrant. They had a court order but they obtained that without a warrant. So mr. Carpenter argued this was a violation of his Fourth Amendment rights. The six circuit disagreed and relying on this doctrine conclude there is not a search at all because the information he knowingly allowed his cell phone provider to have this data is just information to third parties keeping in records and therefore little this information or have an interest in it such that the Cell Phone Company cannot release it without running the six circuit was not alone in reaching a conclusion. Most of the courts had concluded that obtaining this information without a warrant does not violate the Fourth Amendment. There have been dissenting views along the way and this is been a hotly debated issue but as it came to the Supreme Court there was a circuit split. The court decided to take the case after about four months of relisting it. That suggests the court is pretty concerned about this issue because it doesnt usually reach out to take an issue when the lower courts are strictly divided on it. From that alone theres some concern if youre in the government shoes. If you take this case in the trajectory of recent cases from the court in which justices have shown particular concern about how the Fourth Amendment will apply to technology and the modern age, that would suggest the government has problems. Probably the most important of those cases to look at is the jones case. A few years back and involve gps search and the Court Unanimously concluded that putting and attaching the gps to somebodys car was a search. Its interesting as well the unanimously reach the conclusion there are different views about how to get there. You had five justice majority concluding that was a search because it was a physical trespass to attach the device to the car and you had spe expectan for privacy because of the trespass law. Others said well get there by same people have a reasonable expectation of privacy in the information obtained from a gps device and this is totally different from anything historically you wouldve thought of that the government could obtain without a warrant. Then you have a concurrent from justice of the mayor said i think we can resolve this case on trespass ground but im with the four concurring justices and saying i also think theres a reasonable expectation for privacy problem. Particularly she noted she thought the court might need to reexamine this thirdparty doctrine thats underlying the cell phone cases we need to rethink the idea that in the modern age every time we allow our relationship with the cell phone provider or other Technology Provider to give them access to information and or email for instance, that we have somehow implicitly consented to that information being equally available to the government without a warrant. Theres indications here that make this look like a tough case for the government. And i think its more complicated because theres difficulties and thats evident in the brief which is written in a narrow way. They have declined to ask the court to overrule the thirdparty doctrine. I think a lot of people would like the court to do. They made a judgment call to make the court to say theres nothing wrong with the doctrine or something which not apply here because theres the strongest private see interest at stake. Not sure that arguments me is completely practically satisfying. The Court Allowed that there pretty doctrine to be use to obtain financial records. And in this day and age when very few of us use cash all the time you can learn a lot about me by obtaining my financial records. Not only where i am but what im doing were you. Thats not to say dont think the court will latch onto the but its not simple. The other thing that makes it interesting is the information was obtained pursuant to a federal statute. It doesnt require warrant impose constraints on what had to be shown to a judge to get an order allowing the government to obtain the records. The government has an argument that even if this is a search or Fourth Amendment interest is a statute that makes this a reasonable search. Notably the petitioners say maybe you should punt on that and kick it back to the six circuit let them address it whether it is a search whether its a reasonable search. Think theres some complications theyll make it an interesting case even though people have a strong instinct that the court will have an instinct that its troubled the idea that the government could obtain this information without a warrant. Thank you. I hope we can explore the difference between political gerrymandering on one hand and racial gerrymandering on the other. Thank you. Last but not least will hear from marty who will talk about the Masterpiece Cake shop case. I want to pick up something aaron just talked about and also the travel ban case to give you sense that the resolution of both of those might be different than what youre expecting. Aaron suggested at the end of her remarks very possible splitting the baby in half answer from the court. The principal question presented is whether this collection Location Information is a search subject to scrutiny. I think there is at least five justices, may be more who might decide the answer to the want to bs that government ought to be subject to some limitations on how they collect the databases of information. However, there may also be a majority of justices within the group who believe the standards that congress enacted in the Communications Act is sufficient because in particular its more robust than what they would have tos show in a grand jury subpoena. That i think is the grill in the middle of the room that nobodys talking about in the case. The courts doctrine on that is old and hasnt been rethought in a long time. Its very easy to use grand jury subpoenas to get information from thirdparty providers and from all sorts. Theres some justices may think that at least as long as that is true the standard that congress set up suffices. On the travel ban, i think its unlikely the court will reach the constitutional question. Think its likely to resolve the case on statutory grounds. Think hes right to suggest that its likely President Trump will issue an amendment or extension of the executive order now that the review process is completed in which they will either impose different constraints for maybe a different set of countries altogether now that the reviews completed or say theyre almost done with it so they need 30 or 90 days of the travel ban to stay in place. But theyve obtained information from the nations of the world this review process. We dont know what that is yet. So i think it will result before or after oral arguments for reconsideration or refiling based on new facts and circumstances after the president changes the executive order. A probably be proved wrong in both but just are not surprised if they happen. As soon most of the people know about masterpiece. Its one of the sexier cases on the docket the stern involving the love cake. And whether cake speaks. So rather than going over the details of the lower court decision. I assume you know many of the facts if you look at the review panels come out give historical background in two respects. One is looking long term. This long been the case that, has required some sort of business, businesses and vendors to make their Services Available to everyone. Innkeepers and commentators in particular. In recent decades spent complemented by a number of state statutes theyre all different in some respects requiring antidiscrimination norms to other sorts of vendors. Various grounds. The most common are race, sex, religion the colorado statute famously title ii of the 64 Civil Rights Act provides in places of public accommodations which dont cover these businesses, hotels, businesses and the like race cannot be used as a ground for discriminate against customers. Colorado has gone further and applies antidiscrimination law to virtually all businesses and extends it to do trend discrimination on the basis of Sexual Orientation. Approximately 21 states in the district do so. Colorado does not allowed in the commercial vendors to discriminate of their customers on the basis of Sexual Orientation. The Historical Context is that over the years these antidiscrimination norms, rules have been suggested to constitutional challenge. Under freedom of religion, freedom of speech, and the like. They have very rarely gotten traction from the Supreme Court many of the other courts over the years particularly when it comes to race and sex discrimination. They were uniformly rejected. There is a line of cases. This is just one that series and you might think you should get the back of the hand. These constitutional differences and claims for exemption might be treated the same way. Brings me to my second Historical Contextual point. When the court decided there was a constitutional right to samesex couples to be married the court in the majority opinion when out of its way to emphasize it did not view objection to samesex marriage as it views racial discrimination. Thinking most people who object to samesex marriage do some longstanding religious grounds. A quote from Justice Kennedys opinion. Long been held and continues to be held in good faith by reasonable and sincere people. Many assume samesex marriage to be wrong and they reach that a stunned decent or logical philosophical teachings. Its not anything they was said about race or mixedrace marriage. So i think a majority of the justices probably think its a bad idea for states at least in the short run until the nation becomes more reconcile to samesex marriage across the nation. Its a bad idea to require commercial vendors or others to participate in samesex marriage when they dont want to. The court thinks its worthy of more respect. So if the court had their druthers i think they were building exemptions into the statutes. The majority think its probably a bad idea that colorado did not do so here. But the institutional right to exempt oneself, think there might be a majority who want to fund the constitutional claim but it will be hard to do so. Its hard when you start thinking about it to figure out what the limits are that dont plead over to sex and race discrimination dont undermine the decades worth of doctrines in this car. The defendant here has raised free speech and free exercise objection i want talk about here because i think almost everyone agrees that will be a futile claim. The courts will not overrule smith. So the principal claim is one of compelled speech. The bait shop is claiming over their religious objections there being forced to Say Something so been generous to the petitioners brief. Their strongest case for limited principles as they should prevail when both of two criteria present. Number one the commercial actor is him or herself engaged in a First Amendment activity . In custommade wedding cakes are that activity. I think theyre right. The court will hold that theres some constitutional protection for that. Doesnt mean you win the case. Everyone would be entitled to exemptions because that would be way too much. The second criteria they suggest is in addition, the product and service they create inherently conveys the message they dont agree with. Not that anyone will necessarily think are misattributed the message but they dont want to have to say that the same with a jehovah witness students didnt want to pledge feel to to the flag and the motorist in New Hampshire to want to attest to live free or die in willy versus maynard. And a wedding cake in particular they argue inherently says celebrate this couple. The statement that phillips does not only believe but thinks its morally objectionable. I think thats where the heart of the case might get tangled up try to figure out. Does a wedding cake inherently same thing itself were only say celebrate this couple leverage over the couple does the cake. If your wedding is like mine, my wedding cake to the same thing except 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. That will be the hardest part for the justices who want to recognize constitutional exemption to articulate why a wedding cake is inherently expressive. And whether cake standing alone rather than the cake made by certain couples is inherently expressive. Whether its a possible limiting principle that might make it a narrow decision. I dont think the justices are inclined to provide constitutional exemptions to antidiscrimination laws. Its harder to reach that result in you may think. Having said that, i think you ought not to be surprised if there is justices who figure out a way to get there in a narrow opinion. Theres about 50 groups on the side of Masterpiece Cake shop which is probably exponentially greater than the number in support of constitutional exemptions and other historical cases. That includes United States of america which is filed in the first time of history against exemptions which you can imagine because they have antidiscrimination laws were not filed at all. I think the first time in history they filed in favor of an exemption. They tried very hard to craft a very narrow theory for an exemption. Im not sure it quite understand what the limiting principles are quite yet the greek. I think the challenge for those who would recognize the exemption is to figure out the limiting principles. A little easier said than done. There were smart justices. I wont put anything past the. Thank you for walking us through the about 30 minutes for questions and answers. Have a full list of questions myself i think would like to hear from you. We have microphones. If you have questions for the panelists of the panel entirely. Hello. Im from aspen, colorado. Im away of our hate crimes act. Have you ever gotten a cake for Masterpiece Cake shop . Im a lesbian. My case was brought to the Supreme Court, alleging that the hate crimes act, 18 usc 249, 245 and 241 may not be enforced by our courts in america from aspen, colorado to the court of appeals, to the Supreme Court of colorado, federal District Court, ten circu circuit my cole on my right i just suggest what is hate and how are we interpreting the hate crimes act for violations . Dont see many cases were all rights as lesbians, i would include there could be a gender discrimination. So, you are so wise, we appreciate your long hours in law school. So any of you, i would address it to anyone who has a thought on, are we in america enforcing the hate crimes act that has been on the books. We know 1973 homosexuality was no longer deemed to mental illness. Yet, the judge deemed to be penciling it ill. These issues will not arise and that. What i can tell you from experience and knowledge that the obama administrations of Rights Division enforce the hate crimes act against Sexual Orientation quite frequently. I have no idea what the Trump Administration is doing with such cases. Im afraid that far afield from this court. Perhaps their old issues in the future raise before the court. Thank you. Have two questions about the muslim been case. The first is, with this issue and the possibility with the president issuing an additional executive order, and wondering if you could look at the possibility of the courts reaching the merits and then the second question, whether or not you think the Trump Administration worth the court would be willing to consider trump statements on the campaign trail. On the second question, that has been a subject of debate between majority and dissenting opinions in the lower court. We dont have a good read yet has how the justices would engage that. My own view is that moderation is relevant to the claim and therefore you like to evidence of motivation. Its not just on the campaign trail. There are some others that they pointed to their been statements ongoing during the term of the administration. I imagine that will come up. It has been debated along with different judges in the lower courts. On the first question, i think its possible. One question may be whether they choose to hear, theres that going onto. Possible they could hear and choose not to. Especially in the context of how they rise in immigration the tension between the power there is often they have looked at ways to avoid engaging constitutional questions. One option would be to reach the merits of statutory grounds. Another would be to not hear the case especially if it seems to return to them in some other form. So the new executive order could be challenged and will have different terms and conditions and the current one. Just had another thought, i think a good deal will depend on what the United States is saying and whether they want the court, if theyre taking the position of we want you to deal with this stuff that i think the court will deal with it. We dont know exactly at this point what their approach on all that will be. Ill think they know what it demonstrated it me that there is risk to National Security is just it out on lower courts i think the lot that still gonna happen to the argument that the courts going to be thinking about. She needs you and rodriguez as well. It involves prolonging detention of people like heart review some of the related issues information presented in the first instance in the Supreme Court went to how long the attention of the people at that time were. It was relatively short. They went to the court last year was granted and rodriguez and said the statistics were wrong. Theyre never tested by adversarial process. The court might to romantic. If i could ask a question for marty in particular you had mentioned the statutory component of this piece, could you talk more about that and in particular the president s exercise of authority to halt immigration in the National Interest in the evidence that goes to National Interest which is the basis of the ninth circuit. So the argument brief is that present reports and primarily on the statue that was part of the medicare act 1952 which afforded executive Branch Officials face with very broad discretion to exclude people from the United States to present the passports from being given to certain people. In that section itself by its terms seem to give the person unbounded discretion to exclude the entry of any persons or classes of persons based upon any finding that it can advance a natural interest. One question is it has brought a delegation as the president is claiming it is. In the hogan brief that was filed this week makes a compelling case that like the passport case that the court decided the 50s should be viewed against the backdrop of practices that preceded the statute and should be limited to claims by the president. And then theres statues and 50 is congress seem to have a distaste for National Origin based is for exclusions. For you to be that broad proxy. And whether particular person that the where otherwise the problem advanced you. I think the questions are difficult the novel i dont have much to resolve the one with or another. The possibility of saying that will be towed to pursue justices. Thyroid be if it will be a majority. In part because i think and i out there is a being the courts opinion some justices must feel that although President Trump made a finding that all of these would be detrimental to the United States, that was based on no evidence and no review problems are evidence of problems that have occurred with the entry of these individuals under the strict conditions that are present with respect entry in the United States. It seems by all accounts to only be explicable as making good on the promise he made on the campaign. That is basically showing his supporters as politicians do and is making good on a promise to keep muslims out of america. I dont think that will be in the Court Opinion but i think they could fall back on the statutory ground. I think the most likely result is it doesnt reach the merits. And the department of Homeland Security pointed out that undermined the National Interest conclusion. It does but i expect that whatever comes out of the review will be more tailored and premised on what they will say its a much more robust evidentiary predicate. I have no idea what it will be fill be compelling and persuasive. It wont be the virtual black box we got january and march. It have two questions, can you go down a little bit on kennedy in the travel and what we should look for if it does get to the merits . Does anyone have thoughts on evidence that progressive groups or liberal justices have been aggressive in getting things before the court were granting in certain cases because they might be fearful the president make it another vacancy in the next couple of years . On Justice Kennedy, one starting point which i was alluding to is that he offered a concurring opinion in carey versus did a few years ago. This goes to review of the decision and building upon an earlier case. Theres no amount of criminology involved in reading the justice opinion. The language goes to whether or not the baseline rule is the review is deferential. They provide for an exception the standard is that the decision legitimate and bona fide . Justice kennedy alludes that the decision is made that in fact actually that might be an exception to the rule. The be the starting point. He has been one is better than the majority of cases where they have engaged in constitutional avoidance to rest on statutory grounds. He did offer that opinion but he joined that. Thats where ill start. Sure others have thoughts as well. My second question is a progressive trying to get to the court now because they think it will get worse, no. When was last time organized labor filed a petition. I just dont think so. Of 5 for loss is just as much of a loss is a 6 3 loss. Anything can happen as we saw last year. Anybody else want to weigh in . Thank you. Have a question for clear specifically. You mentioned the janus case said he felt more comfort after reading the filings. Could you elaborate on that. I think what i felt was that there are more reasons to deny certain this case that i know about before i read the papers. I think the jurisdictional issues a big one. The case was originally filed by the governor, he never had standing, then there interveners who were going to take the case of theres the case law that you cannot really remedy that jurisdiction that way. And so the ask that writes work is making in this case is a big ask. Theres no way, what they want is to overturn, explicitly overturning longstanding precedents. Theyre not like saying theres a way to win without that. Thats what they want. There may be winds ways they can win Little Things but there trying to avoid talking about the big win. So if you get into that and confident as this court may be that this issue will come up in another vehicle because theres these cases out there, then why go with this one . To think the court will come to this issue sooner rather than later some point . Its hard to say. knows from tracking the cases theres plenty out there. From i o perspective its just a question, dont know enough about the petition to know if its a bad vehicle. Its a fair point if you want a vehicle. They took the case and they were ready to reach a result. I think they will be looking for another opportunity to take it up and reach a result. On political gerrymandering, as a matter of constitutional law, race and political affiliation are not the same but participation in a Political Party is in an association. So, if you have a plan that heard members of a party that dilutes their wrote that was seen to surmount the distinction between race and political affiliation that you mentioned. Could you speak to the association and how that could come into the case . I think thats one of the theories thats but identify by people. I think theres an implicit acknowledgment by the fact that the argument is a me to make it like race but you have to have another theory for getting there. One of those is the idea that the interest is more of a First Amendment and associational interests unless of a pure voting or equal protection interest in the sense of discrimination. 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 participate in the political process because they dont get the outcomes they want. One of interesting things weve seen is theres multiple instances where the lower court was quite confident there is just a on persistent theres going to perpetuate a forever biased in favor of one party. And that the next election after the court issued a decision it flipped because the reality is politics are affected by more than just where were located in will get to vote. Things change. Youre right, but theres a different interest in articulated. As part of why its just a different animal. You can take the courts existing gerrymandering doctrine and make it work the same way in this context. To the extent it works even in the context of spent developed which i think people on both sides would debate that a little bit. Its a difficult in the case because you have a temps on both sides have pieces of its not quite like existing doctrine and in some ways is quite different. Thats a struggle. I agree. Something like real that the context is not analogous. There are some aspects of the racial gerrymandering cases i think its particularly when youre trying to assess evidence because both of these kinds of cases involve questions about process, motive, what factors were taken into account and i think the same kinds of evidentiary test processing if race was a factor are part of it but i agree with aaron that the theory underlying the cases is very different. The cases are about improper classifications. The consequences is immaterial to the constitutional harm. The argument is not that one racial group was deprived a certain level of power comments that consideration in our politics, race predominated. That consideration itself is problematic for politics. Thus the theory. And as alluded to a think theres people in both sides of the debate the question some of the assumptions. But here, agree with aarons point. This is immutable characteristic. Your political affiliations are changeable. Thats really the point. Peoples preferences in terms of candidates and Political Parties makes shift. They have a right to associate with those candidates in that right entails a notion not just if you pass the ballot and express your views, but your views manifest themselves in some way the distribution of political power in a meaningful sense. If you draw lines in a way that negates those that unconstitutionally burdens your association at a certain level. If you think about the redistricting process went this way, people voted for their preferred candidates or parties and after the ballots were cost the government came into the line to decide which floats work in which district to achieve a predetermined outcome of locking one Political Party into power. Nobody would think thats permissible. I think the question is if a Political Party tries to do that before the election and effectiveness lee achieves that result weather thats meaningfully different. But this is hard to explain to students and the public. It may not be immutable but of course in every other area of constitutional law i think Justice Kennedy has said if the state cannot said were drawing the lines to entrance the Democratic Party control of the seats would be illegitimate. The government cant structure the way it works to entrance one partys power. But where your correct is thats Justice Stevens idea. Its obvious there trying to entrench one parties controller receives her district rather than another. By simply an illegitimate basis for doing something. Justice kennedy didnt buy the is a theory he was going to accept in both cases. Thats why everyone is obsessed now with motives or than ten, there is Something Weird about that. We naturally think why is the Wisconsin Legislature trying to secure power for the republican power party, but Justice Kennedy has said clearly hes not willing to make that the basis of the doctrine. We might have time for one more question. We may have heard more right now about neil gorsuch. Side like to hear your thoughts on what to expect from him. Thank you, hes very timid. He issued several separate opinions in four days over lester. I think it took the last justice it took her like three and half years to do likewise. He is not shy about expressing his views. Im not sure why or how that will be received by his colleagues, he seems to wants in a way Something Like Justice Thomas but a different balance i think. He wants to set out his views whatever they might be regardless of where the courts or the doctrine is in each case. He sees himself in an iconoclast. This is based on one month in office. That could change radically. Justice stevens in his early years issued separate opinions all the time. Seemed like he refused to join any opinion if you agree 100 with. Over time that change. Perhaps Justice Gorsuch will become more of a team player than he demonstrated in april 2017. One of the interesting cases to watch model be the carpenter case. Its a Fourth Amendment and criminal in general you get disagreement among justices for likeminded or inclined to the same outcomes about reasoning. That will be an interesting case to get a sense of his approach to analysis criminal issues in particular. That should tell us of things that will be applicable be in the context of the case. Thank you. I think im the only panelists from outside the beltway. So its descriptively the case that neil gorsuch denomination was a polarizing nomination for obvious reasons. When i talk to people there people who accept his nomination as normal and legitimate. There people in the country who paid attention to the process more than they might to other Supreme Court nomination process for whom there is a cloud over his head. One thing i was struck by my wonder the extent to which that services luxury interested in alleviating that club. And it contrasts in some ways to Justice Roberts thought about his role as chief justice and institutional terms. I wonder if that might emerge or might not, mr. Something that struck me. Maybe next at this time will have more to say. I want to thank you for the question. Its interesting that we had an hour and a half discussion about it and i dont think we mentioned the word corset schwantz until your final question. Thank you for coming in participating in thank you to the panelists. [applause] [applause] [inaudible] [inaudible] [inaudible] [inaudible] [inaudible] [inaudible] [inaudible] join us this weekend to see spend cities tour incorporation with their Comcast Cable partners takes book tv in American History to be to concord, New Hampshire. We highlight the history, politics and literary life of the city. Saturday at noon eastern a book tv will feature how New Hampshire became first in the nation primary state. The New Hampshire primary and president ial politics. We see ourselves as a place where canada can rise from being a Virtual National unknown to becoming a contender for the nomination. On sunday at 2 00 p. M. Eastern on American History to become will tour the New Hampshire statement house taken a look at the history of the building of the legislature. The house of representatives has the oldest continuously used legislative chambers of america. Heres the room where the largest state legislature in the United States works and meets. And a visit to the home of Franklin Pierce to learn about the life of the 14th u. S. President. Watch saturday on noon eastern is on cspan2. Working with the cable affiliates visiting cities across the country. Cspan, where history unfolds stealing. In 1979, cspan was created as a Public Service by americas Cable Television companies. Brought you today by your cable or satellite provider. Retired Japanese Military officers talked about the countrys Defense Strategy and efforts to strengthen the usjapan alliance. Other topics included cyber security, preparatio preparatioe 2020 tokyo olympics. E from the Simpson Center in washington, d. C. This is an hour and half. Good morning,