Now, Georgetown Law Center holds a discussion on the upcoming 2018 cases before the Supreme Court. Attorneys have argued before the high court examine some of the cases that justice will be taking up. This is about 90 minutes. So the people who are getting the food just finished up that quietly and will get the program started. Im irv gornstein executive director of the Supreme Court institute and a professor at georgetown and going to welcome you to todays program which is a preview of the cases that are set for the second half of this term. The first half of the term had really more blockbusters than weve seen in a long time, and the second half of the term thomases to be even more exciting than the first half. Fortunately, we have an incredible panel today to discuss these cases. Before i i get out of the way i just want to thank the American Constitution Society and the Federalist Society for cosponsoring this event. I want to thank en for special Events Coordinator at a want to just introduce our moderator, amy howe, who is a georgetown graduate, first andnd most important. She was once the editor, reporter for the scotusblog and now she is just an independent contractor and a reporter for the scotusblog. And amy really i think probably knows more about the Supreme Court than any person alive. So with that ill turn program over to amy. That is a toughto introductin to live up to. Irv asked me to be very brief in introducing our pet also going to point you to their nametags. You have the google. What it really think you need to know about our panel is that between the four of them have argued 84 cases at the Supreme Court. He could think about it in terms of the number of cases the Supreme Court hears each term, that is well over a full term worth of cases just with these panelists. I want to think the Supreme Court for giving us so much interesting stuff to talk about today. Ifif theres one thing the seams of emerging this term, i think it has to be redistricting. I know my colleagues in the press room will agree it seems like theres one of these sort of Homer Simpson signs, you know, it is been asked him of our since the last redistricting request was filed. The last one was on monday. Were going to start with the case out of maryland. Over the summer Justice Ruth Bader ginsburg wasth talking abt deal versus whitford which was a case in which the Supreme Court heard oral argument in october and if she was discussed the preview, the person gerrymandering case she said it was probably the most important case the Supreme Court is going to decide this term. After they heard oral arguments apparently couldnt quite get enough of partisann. Gerrymandering so an early december they granted another case called benedict versus lamothe out of maryland. The wisconsin case is a challenge to the state legislative maps drawn by wisconsins republicancontrolled senate. The maryland case is a challenge to a single federal Congressional District on by democratic Election Officials iw maryland. And who better to discuss redistricting and paul smith who argued on behalfth of the challengersth in gill and is now here at georgetown is the distinguished visitor. Thanks, amy that happy talking about the maryland case. The same lack of information everybody else about why the case was taken in december. It was a big surprise in many ways. So gill gets argued in october and we are all merrily going along thinking maybe we could win, maybe we cant but if we do with the guys to rule in genuine favor and get a new map in wisconsin. There were some reasons thatfe might be true but based on the way theyve set of it, december the taken entirely new case out ofwa maryland. The surprise was that they didnt have to do that. They couldve done with the normal do when they have case, hold the second case and remand it later on or decide later on what the appropriate disposition would be after they decided the one theyve already heard argument in. But they didnt. This case has been to the Supreme Court twice that because it up before under the name of shapiro versus mcmanus on the technical issue of whether or not it was sufficiently frivolous that the District Court correctly dismissed it without avoiding a threejudge court. Supreme court said no, its not insubstantial at all. You should have pointed a threejudge court. On remand it to did and the threejudge court held the case is the big barrier to these cases has been for a number of years, is very sufficiently to apply that judges can decide the constitutional issue of whether theres too much political biasi in the map or otherwise. The case proceeds along. Were getting our wisconsin case of the court. Maryland makes a preliminary injunction motion to it is denied by a vote of two to want and they go up to the Supreme Court. As amy mention its a very different case, it is what is seeking to achieve in the legal theory and will be interesting to see how the Court Response to these different kinds of theories. The challenge is to the single district in maryland in the far westerne end, district six, district in that general area for many years was republicancontrolled, elected congressman in 2011. The democrats democrats being in control of maryland decidedec in the wisdom to take some of the rural area out of it and tried that into Montgomery County so that it became much more blue than it hadad been in the past. And started electing democratic member of the house. You end up with a delegation that was seven democrats andho e republican. The argument there make use that is somehow unconstitutional that the one is unconstitutional, that the change from a republican district to a democratic district in the circumstances of this case was a violation of the First Amendment rights of the Republican Voters in that district, the claim is the state act of a specific intent retaliatein against them because of their decision to exercise their rights to vote for republicans in the past and that the retaliation took the form of changing the districts so those people wouldst no longr be able to control their destiny, now henceforth be represented by democrat. That is a fundamentally different thing than the argument we are making in the wisconsin case, a more traditional gerrymandering claim this as a whole array of districts in the state is unfair, even if the one party gets the majority of the votes statewide to get much less than the majority of the district which is what gerrymander, most people would say gerrymander is. Theres a lot to be said, the First Amendment jurisprudence they are pursuing has some advantages. The main one is it doesnt turn on showing the bias is too much. Their argument is that any amount of political motivation, specific intent, to flip this district from one party to the other is inherently unconstitutional. They dont have to have efficiency gap, which is our mathematical formula for judging the severity of gerrymandering to help the court separate really extreme gerrymander is what you say are unconstitutional from politics as usual. They dont have to make any argument about the whole map. All of thosese things are interesting and it would be an interesting way for the court to go in that it would have some limits. It would turn so much on the fact that the district was previous one white and is now another way. What its impact would be elsewhere were not sure. We on the Aoife Mcardle believe in our three. We think the plaintiff in maryland should win but they should win under our approach, the map in fact, is unconstitutional statewide. We give the efficiency gap scores and the like. One way the court could handle this is to decide, they went on our three or who knows, maybe it will take their three and r3 will turn out to be wrong. There was a lot of argument about how maybe we didnt have standing because we didnt have played us from every single district. In wisconsin all night tonight of them in the legislative map. They dont have that problem. I really dont have any prediction for you, but the court is clearly very interested in gerrymandering. It is been hearing these cases now since the 1980s. Really if you go back even further, 1960s, and has never come around to find a way to run against a partisan gerrymander. I think the time may be now. The fact they took a second case is encouraging in the sense that whatever theyre doing itw, is probably not going to be a clean, so these cases can never be one. That would be my bold prediction. We will see. Amy howe do you have anything you all want to add . A quick question. Do you think the Virginia Elections played into this decision in november to take on the maryland case instead of holding it for Something Else . I dont know. Theres all sorts of theories. One is if the democratic gerrymander and one of the things the chief justice was served about was appearing partisans partisan so this gives them an opportunity if they want toe ise against both parties at the same time. That may be the reason. How the Virginia Elections would have factored into thens decisin im not sure. It was a big debate about whether the Virginia Election showed that gerrymandering isnt such a problem because you can overcome it. What did the opposite. We have very strong proof gerrymandered gerrymander is are difficult to overcome. Yet eight or 9 majority of the vote for theve Democratic Candidates for the house of delegates in virginia and he didnt get theho majority of the seats. There was one district that was close but then it would have been 5050 and had a massive advantage on the boat. The gerrymander held. Thats my message and of sticking to it. In maryland what is the theory for why the switch makes a difference . What is it like every district designed in some way, discrimination against the people in the minority in the district . The problem is it can be every district that happened to be a republican map is unconstitutional to the democrats and the democratic district is unconstitutional to the republicans. Very, what can to narrow it by focusing on specific intent andnd saying tht the flipping isnt instance of retaliation that was clearly done deliberately. Is any of this done accidentally . . [laughing] just randomly. To their theory. They draw a distinction between people knowing the effect of what they are doing and having me specific punitive retaliatory intent. Whether that works, i dont know. Is there evidence . I dont know is not even disputed that they tried to make the democrats do not have a lot of gerrymander as the opportunity, trying to seize the opportunity they had available and it seems like to me, in doing some moving and looking at the oral argument transcript, one of the challenges with the theory is proof problem. What kind of proof is necessary and how you can scrutinize this. Do you happen to know the policy built into the theory, the idea theres like a safe harbor, sort if you launder but not launder, but if you have an independent Commission Set up in the district that youre kind of automatically okay . Do anything like that . That might be a way to make the rule more workable. I dont know, we certainly have taken the view in the gill case that the intent prong of our threepart standard is almost never going to be satisfied. Maybe never if its drawn by a real bipartisan or nonpartisan commission, the legislature where one house is one party and the other house is the other party. Because the level that we would have to show is only going to be there when its a oneparty control of the government and the state. Even new york stale gerrymander where they said we let you gerrymander the senate, we gerrymander, each gets one house. Thats a question that unfortunately didnt get asked at the podium. The same situation largely arose in virginia. The it gerrymander i was talking about was the lower house and gave control to the republicans so they tried, the democrats, to do what they could with the senate. They just didnt do a good job. And so, is the theory is limited to just the flip, and so if youre the im sorry, if you are a bunch of republicans who get packed into congressman harrisons district the one republican district remaining left in maryland. The Eastern Shore is where that district is. The Eastern Shore. This is the western shore, hartford county, but say that again now. So, usually in the gerrymander, thinking about packing and cracking, as ways of doing bad things to a racial minority. So cracking is not okay, but packing is not right, i would think they would say a constitutional violation if youre joined into county where your party is winning. Where we would say that could be part and parcel of violation, that packing prevents you and your party from electing a share amount of people state wide. I promise well leave time for questions for all of you at the end. Well move onto the next case, trump versus hawaii 3. 0. I understand that the last the preview was on september 19th last year, and at that point travel ban 2. 0 was still in place, and the case was scheduled for oral argument in early october, but on september 24th, the president issued a new order and everything started all over again. So willy is going to talk to us about the travel ban, different . How is it going to go around. I dissent from calling it 3. 0. Host . Fair enough. I think its 3. 1 because weve already had a little peek at it in the form of the court basically saying, okay, this is off to the 9th circuit and theyre going to decide it quickly. Were going to go ahead and issue a stay of the District Courts injunction and we know the 9th circuit is going to decide it quickly, but we have no idea what theyre going to decide. If by some chance they were to decide against the administration, were going to preemptively stay that pending petition by the government and were confident that theyll act with dispatch which the 9th district did and the 4th district did not. And its only on the state of hawaiis victory in the 9th district and the state of hawaii won that on statutory grounds so that accounts for the first, basically the first two issues, the first three issues, and are these kinds of cases reviewable . Can you bring a lawsuit that says the president is obliged to let into the country certain categories of people . Does the statute bar the president from discriminating on the grounds of National Origin as to certain categories of people . Is the District Courts remedy an overbroad remedy . Basically an injunction that applies to a large swath of people and not with those affiliated with the case . The other issue that is swirling around the travel ban cases is whether everything the president has done, 1. 0, 2. 0, 3. 0 is all tainted by antimuslim animus and establishment clause, whether or not the establishment clause applies at all. Thats teed up in the 4th circuit. The 4th circuit heard arguments, but as of an hour ago had not rendered a decision. The state of hawaii in opposition from the 9th circuit. By the way, if you grant it on the establishment clause question the state preserved of which the 9th circuit decided not to take. So, the Supreme Court did, in fact, did that and decide to take so the establishment clause is in the case. Its quite a bit, but we have not actually gotten in a little sense, eyeballs on the Supreme Courts handling of cases. Everything so far has been orders issued by the court, except somewhat curious issue that the court issued on a stay the very end of last term. And while theres been some especially in the 4th circuit, you might see in the Lower Court Judges how to handle the cases, the most recent stay from the Supreme Court, the only dissenters were ginsburg and sotomayor. The stay orders, including one accompanied by a recent opinion had said absolutely nothing, but the likelihood of success. Now, the dissent by justices thomas, alito and gorsuch, sort of a partial dissent from the granting of a stay on travel ban 2. 0 says, of course, the granting of the stay totally means the applicants have a likelihood of successful demerits, but nothing saying that in the opinion from the Supreme Court. So, we will actually get a look at whether the votes on the stay stays, has something to tell us about the justices merits. And the merits include can these cases be litigated at all. Does the statute bar a form of National Origin, something significant in future cases involving future president s and future classes of immigrants from other countries not involved in these travel ban cases at all. And then, of course, also, the clause question. So it may well be some justices that voted for stays, thought the balance of the equity is lodged with the government, but that the government may wind up losing on the merits, or maybe not. This is cued queueked up and interesting to see not just the arguments, but from the justices. Could you elaborate on what the argument is that the establishment clause doesnt apply to the government when its make a timely decision . Im not sure that i can kind of capture it. I think that the basic idea is that so, take, for example, a claim based on asylum. Its when this country is granted asylum to a referee, its based on fear based on the country from which you came, not just bad things that might happen to you, but among other things persecution on the grounds of religion. So, for example, if you have no religion, youre not eligible to claim asylum well, what im about to say is probably wrong, so say it anyway. No one is watching. [laughter] it is a lot easier to make out a claim for asylum if you can base it off religion and as a result, asylum decisions take into account certain religious distinctions, kind of as a matter of asylum law. I think its not lets look at the constitution and find the clause this aspect of bill of rights doesnt apply at the border, but more intuition. Weve been making distinctions among people. Lets say we might grant asylum to a christian from egypt, but not an egypt from muslim on grounds of likelihood of further persecution on religious grounds. Therefore, not all distinctions based on religion at the border can be outcome. The answer to that problem, some of thome dont violate the establishment clause because theres a perfectly reasonable good explanation . That brings up the question, is the establishment clause an equality protection clause for religion or is it Something Else . I mean, in the equal protection context, we would say, the guaranteed Legal Protection based on whatever, well, of course, we have to treat people dissimilarly a lot. And we look at important interest or whatever tailoring you want. But i think that kind of brings up the question, how how do we do religious distinctions . How do we analyze them under the constitution and are they is the making after religious distinction, per se, unconstitutional . Is it like race discrimination so its rarely okay, like discrimination based on something thats not a class i think one of the interesting thing, too, i think this issue has dropped out now, but the original issue had a preference for minority and raised similar religious questions, thats no longer the part of the question. There the argument that by the order was pretext and intended to favor christians in terms of who could come in as refugees. I think thats basically right, although, bear in mind, we havent yet seen a fullblown briefing on the establishment clause question in the Supreme Court yet so well see if that resurfaces. I think that the pretext is very much in the case, but its a question of, you know, what evidence of pretext is there . And for what. I wonder if you see any parallel to what happened or i thought happened when it came to the gitmo litigation, where after september 11th, the courts at first just kind of stayed out, giving the administration kind of a lot of latitude and over the years, it seemed became more and more willing to intervene and have something to say about gitmo and then the d. C. Circuit said forget all of those people. But, i wonder if the reverse might be true here, that there seemed to have been, right after the election, a lot of scrutiny of the travel ban, given what the president had said during the campaign and the transition and that sort of thing and there was a real suspicion that it was very, very, very much based in amimus and do you think that the Supreme Court and the lower courts are getting over time, more and more focused on the text of what the i think this says rather than kind of the ba backdrop to all of this . Or do you think that those comments by the president will continue to have a, you know, a big effect as we get the travel ban and if i can add on top of that, so the difference in the different order, no longer applies strictly to the majority Muslim Country and like weve done the vetting and these are the ones where we still need more information. Right, and i believe that, the same question the followup on and ill come back. And spoken like a true Supreme Court advocate. I believe in the 4th circuit somebody said basically, is it your issue that this president can never what the order says, once, once you sort of step into the puddle of discrimination youll never wash clean. But i do think that what tom brought up at the very beginning, you see, you know, very hastily issued order at the airport and so on, extreme springback by several of the District Court injunctions, and government seeking emergency relief, and still pretty forceful opinions from the court of appeals, maybe not quite as the District Court. You get to the Supreme Court and theres pushback and a stay on 2. 0, if you have a bona fide connection with people in this country were not granting a stay to you, were granting a stay to everybody else. So the 9th circuit then says, okay, were taking our cue from the Supreme Court and only allowing an injunction to go so far. But then the speak Supreme Court is staying what theyve done and its a more robust stay that the court issued last june. So maybe the amplitude is thats the wrong, the wrong term, but the were kind of oscillating around it. Thats okay. Where were going to end up, but that the swings are less radical between the sort of District Courts and the court of appeals, than when we first started. Basically the first injunctions were basically the president had engaged in discrimination and could never i think it seems pretty likely that whatever the Supreme Court winds up saying that thats not going to be the ultimate that it may well be featured in the argument, im sure that its something that the justices are thinking about, in particular, on, you know, when the justices decide questions about whether something should ever be reviewable, you know, i think theyd always think down the road and think about the case thats before them right now. And i think that its certainly going to be something they think about, but ill be surprised if the decision were the president has engaged in invidious discrimination throughout the writing of all three of the orders and each and every one of them rests on a form of animus so the whole thij now well move to the weighty issue of Online Shopping. South dakota versus wayfair. This is a case about which i am deeply conflicted on the one hand, my husband, Tom Goldstein represents south dakota, which is trying to require out of state retailers to pay, to collect and pay sales taxes and on the other hand like a lot of working mothers, i do a lot of Online Shopping. So ill let tom talk about south dakota versus wayfair. You can tell this is a big issue in our household. So this case has roots in all of your your category purchases, which may be less than they were at the time that the Supreme Court decided the case its controlling right now, a case called quill. Can you explain what a category is. Thats right, it used to be youd go to your mailbox, you would go to your mailbox, that would be a thing. You would go to your mailbox and it would be inundated with dozens upon dozens and dozens of catalogs of pictures of things you would then not buy, but they would keep sending the catalogs and you would try and unsubscribe and theyd keep sending them. And then people would buy something. There was a fight if you lived in maryland and the Catalog Company was located in South Carolina. What it that the state could do about sales taxes. And the Supreme Court decided in the quill case that it would not follow evolving dormant Commerce Clause jurisprudence. The state could regulate that has a substantial nexus to the state, but uniquely in the sales context would adhere to the rule that says a state cannot tax a sale, where theres no physical presence. And so that meant that the sales tax could not be applied to the purchase from South Carolina or wherever Catalog Company and thats been the rule for a long time. And it has obviously had very big implications for Internet Sales, including buy for a long time, amazon, but many, many, other companies and had kind of a dramatic effect how the internet economy has worked. So in this case, you mentioned, we represent, my law firm does, the state which is challenging this prior precedent, quill, and trying to establish at that there is a constitutional power in the state to tax sales into the state over the internet. I will try and present the case kind of subjectively in how i describe the other sides but. [laughter] give awe give you fairly barely a sense what the case is about. The case comes back to the Supreme Court for another case from colorado a few years ago, Justice Kennedy wrote a concurring opinion, kind of nothing, apropos. Were in a collateral fight over how you tax things in the internet era and i note we have this quill case and causing a lot of havoc and a lot of harm to states and localities that are unable to tax sales into their jurisdictions. Whenever there was an opportunity, i think we should revisit that quill decision. And Justice Kennedy and Justice Thomas are the only members of the court at the time quill was decided who are still there. And in addition, and this is a deep, deep insider tip, pro tip, you know, Justice Kennedy, this guy has thought by some to be relatively important in the Supreme Court and everybody kind of took notice and on behalf of the retail community, we represent a bunch of retailers, we had a meeting and we decided to work with various states to get statutes enacted that would challenge quill. And so this is a very unusual case for us because we built the case from the ground up. We designed the legislation, got the legislation passed, the we went into court. We told the courts that, hello, we want to lose which is an interesting thing to do. I do that all the time, but never not usually on purpose and so, we said to the trial court and then the south dakota Supreme Court, we just want to go straight to the u. S. Supreme court and we timed the case from the enactment of the legislation all the way through so it would make the last conference in january and argued this term. So, the Court Received the petition and brief and opposition, and received not just the amicas, but basically they were screaming, dont Pay Attention to this case and that is a strategy suggesting its important. The court did grant. It has an implication of course. Some companies have started to adjust to the existing rule. Amazon, now because its trying to deliver things to you in 30 seconds or less has facilities in a lot of states and so it has the physical presence all around the country in many, many, many states and has started to collect the sales tax, except if you use this program called, theres a you buy from other people through amazon and wont collect in that instance. If youre buying from amazon, amazon will connect it. But a lot, lot, lot internet retailers will not and this has really big implications for how commerce occurs in the United States. If you have a lot of whats called showrooming now and that is, youll, for example, go into a best buy and see different televisions and enjoy their incredible customer service, and learn a lot from the technicians there, and then based on what you see on the televisions, youll then go and order it online from somebody else and buy it for some percent less because best buy is going to have to charge you whatever the local and state sales tax are. And this adds up to billions and billions and billions of dollars that are not collected. Now, it turns out that youre actually supposed to, when you purchase online, you dont have to pay the sales tax from such a retailer, but youre supposed to pay the use tax. I would like everyone to close their eyes and hold up their hand if theyve ever paid the use tax . Yes. So, oh, theres somebody in the back who actually wants to be able to become a member of the bar. [laughter] its a funny story, a professor now at stanford, friend of many in the room. When she was at virginia went one time to go to the tax office and pay the use tax on things that she had bought online. And she went into the office and they went, youre pam carlin, youre the person who pays the use tax. [laughter] theres apparently one virginia resident. Pam, after teaching her legal ethics class would go down and pay the use tax. In terms of, you know, this is one. Cases where you tell the Supreme Court, by the way, theres this guy, kennedy, he says you should think about this and a line of cases involving the dormant should be overruled and Justice Gorsuch said that quill should be interred because it had lost its edge that it was no longer made sense in an internet era in which there are so many hundreds of billions of dollars in internet commerce. And so, one would assume that because the Supreme Court granted sirt that we had to have the winds as our back. Nonetheless, others have argument. And its said that the state lost the quill case in part because of a concern about retro activity. That they were asking to overrule a prior precedent in quill and had taken the position in the Supreme Court, the state had, if they won, they were going to retroactively collect several years of taxes which caused a decent amount of angst in the Supreme Court and this statute, the south dakota statute is written to have no retro activity. But probably the major question that will weigh on the justices mind as a practical matter is how administratable is this . Imagine you have a small shop located somewhere in arkansas. First, why are you at george law school. If you have a small shop in arkansas, how possible is it that you can figure out each tax at each locality in each of the 50 states . And this is a technological question and theres a debate about it, we happen to think its entirely manageable. The other side believes that it is, you know, mathematically impossible. Theyre not telling the truth. But this will be a very, very serious concern. Also, there are weighty concerns whenever youre overruling a decision or trying to about how invested people are in the existing body of law. How many businesses have been set up in the expectation that they will not be charging the sales tax and those sorts of things. But i dont think that anybody doubts the importance of the case. And you know, what it will mean for the shape of retail in this country. I would say its very likely that the court, having decided to take up the problem and having had the invitation from Justice Kennedy, will decide to rule for the states, but they may well decide to go the other sides principal argument which is that congress has got this. Its completely in hand. Congress is wellfunctioning, and you know, is all over this problem. Theyve been looking at it carefully for the last 25 years and are just really on the brink of solving all of this. Because this, you know, the way that our commerce laws works, of course, is to say that the states are not going to regulate this issue because its congress thats responsible. Theres been a variety of legislative choices out there, a lot of proposals for different ways that the states would be able to administer their sales and use taxes to interstate sales, and none of that legislation has passed so far, but i think that, you know, even if the Supreme Court were to rule for the states in this context, it might well spur legislative action so that theres some mechanism thats created by congress to deal with this problem, but so far, it seems like there is no legislative solution on the horizon, which i think may cause the court just to say, all right, times up. I have a question about significance beyond taxes. This will be the first time that the court with Justice Gorsuch on it is expressly taking over whether to overrule a precedent. I mean, what implications do you see for a justice who might believe in more than Justice Thomas does, thinking about which precedence that are wrong, should be overruled and whether its like well, this is actually, you know, a very serious concern because the very question of how much weight can have an ideological valance when you have a court thats split 54. And you imagine more liberal justices more than the colleagues. We have a written you dont have to overrule quill, thats a case about c catalo catalogs, this is a case about the internet. Thats a slightly different context and this is quite different so weve tried to offer them a path that doesnt require them formally to overrule anything. And Justice Scalia described it and it seems to work. You know, weve put on our faux and stay warm and ive got no problem with that. And you know, i do think it is a puzzle in this court how to navigate the question of kind of major doctrinal steps when the opinion thats going to get written says something about the vitality of precedent and when its time to overrule it. So, it is a i think a very, very serious concern for how many votes you can get. This case doesnt, i think itself, ring, you know, a loud ideological bell. It isnt one while we have Justice Kennedy, Justice Gorsuch, and Justice Thomas who have spoken on this question, its not something that you think that Justice Briar is wringing his hands about the sales tax, he probably doesnt use a computer he probably does use a computer, but doesnt do Online Shopping as much as joanne does. Use a cell phone. And where the justices stand technologically is not quite doesnt itself have any kind of ideological resonance either. But we are very, very conscious. Fact if we were to write a brief that suggested an opinion that said, hey, precedent smecedent. And you set up the next case, precedencesmecedent. And weve turn to the case of state municipal and county employees, the first time weve talked about it at a preview because the court only granted it this fall, but i feel like weve been talking about the issues in the case the last 20 years, and ill turn it over to talk about it. Thats exactly right. The issue in the case, whether it violates the First Amendment for a state to require Public Employees who are not members of Public Employee unions to pay fees to those unions to cover the costs of collective bargaining. Collective bargaining that will benefit those nonmember employees. And it does sound familiar. Basically for two reasons, that issue. One is the court seems to have addressed this issue and said that, yes, its okay to require those types of fees. In that case 40 years ago called abood, thats reason number one. Number two, the issue might sound familiar, this is the third time in the last four or five years where the court has agreed to consider that issue. There was a case a few years ago that just chatting with my colleague here, who can correct me, and say anything wrong about these cases, but he knows a lot more than i do because he argued one of them. Harris versus quinn raised the issue essentially of whether or implicated whether abood, the 40yearold precedent should be overturned and did not prevail in that case. Split decision. , but he prevailed in allowing abood to live another day which is important so the precedence remains on the books. The court heard oral arguments two years in a case called frederick, addressing the same issue. Justice kennedy and more conservative leaning justices, we assume Justice Thomas not active at the oral argument, but assume he might have been with them based on the oral argument, that side of the court seemed to think that abood was maybe, it was time for abood to go. And Justice Scalia passed away shortly after the oral argument and a month or so after that, the court affirmed the decision below by an equally decided court suggesting that Justice Scalia would have been the fifth vote and its his oral argument comments were any indication, that suggest the way it looked, it was like it was going, is that abood would have been overruled and requiring Public Sector employees who are not members of the union, and preparing them to pay dues to agency fees to the agency if youre reading the tea leaves its safe to think that Justice Gorsuch in the drivers seat. And i havent deviled deeply on this issue, but if you get a voting record, theres a possibility he may side with the conservative wing of the court and that abood may be in trouble. So, just to back up a little bit, basically the case, the petitioner on the case is a gentleman by the name of mark janus, hes a Public Employee in illinois. Hes not a member of his union, but every month because of illinois law and the collect live Bargaining Agreement hes subject to, i think its siphoned out of hits paycheck before he gets it 45 to the union. His argument, this is a violation of my First Amendment rights. Im compelled to subsidize the activities and sngsly the Political Activities of the union. Now, why are they Political Activities . Because as we know from another line of cases thats undisputed, you cant force people to subsidize unions when theyre doing purely Political Activities. Here the issue is the fees are used for collective bargaining. And janus says if youre collective bargaining and the party is the state, youre enacting Public Policy and to get them to pay you more, get this payment or that, and contraceptive, and class sizes and all the things we realize are Public Policy issues. Inherently in any collective bargaining with the state on the other side, thats a form of engagement lobbying with the government and if you dont like what positions the union is going to take in those cases, its unfair and violates the First Amendment to require you to subsidize the union in that effort. Thats list basic argument. And the other argument, theres a 40yearold precedent and its okay. And the basic r basic argument appearing in the briefs, essentially that everyone agrees at least, its not disputed in this case that the state can say, essentially, that the only one union can represent all the people in the each bargaining unit and the union has the ability to speak on behalf of the employees and in fact, has a duty to represent not just the workers who are members of that union, but also the workers like mr. Janus who decided not to be members and in that circumstance its very unfair to let people like mr. Janus ride off the work the union is doing and simply get the benefits of the negotiation without having to pay for it. They say in the Public Employee context, the First Amendment is much more limited than in other contexts and there are a whole bunch of different lines of cases that say when youre regulating the government in its role as employer, when youre affecting the government in its role as employer, the First Amendment is less protective of the employees speech. Thats basically the issue. I think, as i said earlier, i think if you were forecasting this case, probably put a thumb on the scale on the side of the challengers to abood. I think the case is very important and has broad policy implications because of the fact that my understanding and, paul, correct me if you have better statistics. From what i was able to glean from the briefs was about 80 of the agents, of the unions dues are these agency fees that are sort of in play and there are maybe 5 million or so employees across the country who are currently subject to the requirements to pay these fees, and theres a great fear that if the fees are not required to be paid, then a lot of those folks are not going to become members of the union and theyre not going to pay the fees and the overall funding is going to dry out and weaken Public Sectors across the country and so its an important case. One final point. One thing thats interesting in this case, before stepping back from this in particular. Its the latest or one in a series of interesting cases thats been that have been brought by conservative leaning groups, Public Interest groups, with the conservative bent, using the First Amendment as a way to to kind of perspective, in this case, its, maybe its economic interests. In other cases like master piece cake shop, sort of the rights of traditionalistminded americans answers abortion or gay rights, but theres the conservative side using the First Amendment as a toll to advance policy and legal objectives. I think that case fits this that pattern. That trend is one thats interesting and it had some valance with Justice Kennedy and if a justice were appointed might continue to be a factor increasingly important in the years to come. Paul . Maybe ill just agree with the prediction and give an anecdote. When youre oppose ago First Amendment claim with Justice Kennedy its hard. When i argued this three or four years ago, we thought it was on the merits, that this is reasonable to do if they take a public job, its only money and nobody thinks it means they believe in the union and the law has always been when government has a pretty good reason to trim back the employees rights for its employment interests without any content basis, that you could do that. And here theyre paying for the services which they benefit from. So, probably isnt even any money out of their pocket and that was the argument. I get to the end of the argument Justice Kennedy says you mean to tell people give up their First Amendment rights when they go to work for the government . Hes the author of the garcetti case that says there are ways the government can more freely restrict peoples speech in the work place for its reasons. Its one of those cases where you sort of know its going to come out a certain way and hard to understand doctrinally why it shouldnt. And one of the things when i was going over the papers, why didnt they just do it in harris . And obviously in that case, they essentially ruled against pauls side, but on a much narrower ground. They could have done it there. They could have, but the thing was at that point Justice Scalia had written the most effective opinion explaining why the agency fee was perfectly fair and equitiable. This is just my completely speculative explanation, that he had some difficulty coming around to a broad overruling of abood having written in the 80s. And it appears to me that they wrote a broad opinion and he wouldnt join it so they wrote a narrow opinion sort of expressing deep skepticism, but not doing it and that he saw the light as time went on. Thats the explanation that i would do. Do any of you have any ideas what they would do if they rule for janus, that abood is overruled, wiggle room in south dakota and wayfair . It seems in this case if you look at the language of harris versus quinn and it walks right up to the line and it could have just distinguished abood and then said, this is narrow, we dont have to address that, but it went out of its way to talk about how, i forget the adjectives, but unworkable. Derogatory adjectives were directed, and i think the court went out of its way to reject some arguments, some of which appeared in their briefs and some in your brief. Yeah, in our brief, not mine personally, but the governments brief when i was at department of justice and it sort of went out of its way to rebut or you know, talk, reject those arguments and you see a lot of those arguments being raised again now for understandable reasons. And some got raised by me a minute ago. So they may want to go whole hog here. So what happens then for private unions . Whats the interrelationship between the cases if theres a federal statute underlying where fees come in the private context . I dont know the answer to that. It seems like the from what i can tell the challengers have been very careful not to effort too much, but, obviously, once this leg of the stool is pulled out, then the stool is harder to balance in some of the others, wed have to see what the ripple effects are. As the case is currently positioned and i think maybe the earlier cases as well. They were very careful not to look like they were asking for anything more than this particular context. I think its an unknown whether theres enough state action and whether it would be viewed as applicable. It might well. Mike was asked that question in oral argument and he was very definitive theres no stated action, doesnt matter. But its not a completely obvious that that is correct and you can imagine someone as resourceful as mike coming up with new arguments if he with ins this. The other question what happens to the duty of the union to represent all these people who are not only paying the fee, but free rider status. Including grievance proceedings, you have to advocate for them in the grievance proceeding. Why is it constitutional to tell a union it has to do that . Well be talking about that in a couple of years at one of these previews. Were going to my surprise and delight we have covered the four cases that we absolutely positively wanted to cover so were going to move on to a couple of the other really significant cases and go back to talk about another First Amendment case. And so this is another case, sort of brought by conservative leaning entities, compelled speech, First Amendment case, sort of in the same pattern, not quite closely relate today janus, but similar in some ways. I think its similar to Masterpiece Cakeshop. I think the attorneys may be the same attorneys involved in the Masterpiece Cakeshop case. So this case, National Institute of family and life advocates, it essentially involved a california statute that places requirements on Crisis Pregnancy Centers, basically run by prolife entities that they provide pregnancy related services, sometimes its ultrasound, sometimes counseling, a whole range of services. These groups are prolife. They dont provide Abortion Services and theres a debate, a lot of the critics of these groups say that they are intentionally misleading people about the dangers of abortion that theyre misleading people about their options, theyre misleading people how the biology works and fetal development. And so, california passed a statute that has two requirements that are in play in this case, with respect to Crisis Pregnancy Centers licensed by the state to provide medical services, it says that those centers have to disseminate to all people who walk into the crisis Pregnancy Center, they need to put forward a notice that says that this is im quoting it here. California has Public Programs that provide immediate free or low cost access to comprehensive Family Planning services, including abortion for eligible women. And so essentially, youre you requiring the prolife Pregnancy Center to advocate for abortions and phone number where people can go. Thats one provision. The second provision, requires Pregnancy Centers not licensed to perform medical services have a notice we dont have doctors here and not licensed to provide medical services. So, to try to allow to get all the case in, i wont give a super long discussion. The argument is that both of those are compelled speech. Theres a huge debate about the levels of scrutiny and the right legal frame work and standards of review that should be used and analyzed. Theres no less than Different Things at play and the court will figure out whether compelling this type of speech is too much. One thing thats interesting here, the solicitor generals brief tries to offer a kind of compromised approach both on the standard of review which they say you dont need to decide all the aspects. But what they say is with respect to the that you should treat the two provisions differently. And that you should not allow california to require people to advertise the Abortion Services that it provides and to require prolife groups to put that notice up saying you can get free or low cost abortions so that should be struck down, but its perfectly reasonable to require clinics that dont have doctors or medical services to put up a note saying that because it will provide information and avoid misleading people who walk in and use their services. Thats the case. And its an interesting one, but implicate where the court is and where Justice Kennedy is on First Amendment issues. Your two cases that youve talked about where here are two cases that you talked about where its clear where the conservative policy outcome is and in one of them, right, the United States is wholeheartedly behind the challenger, janus and found the middle ground in this case. Have a look at these cases, do you see any kind of commonalties . How is the government going to be approaching cases in which the longterm litigating interests of the United States might be different from the desired outcome of the president or the attorney general . I think if you read, especially in the second case, the abortion case, one of the things thats striking is the and the sus office always does this, the tone is sober, its a great brief in many different sentences. It tries to strike, you know, come in and sort of provide a reasonable common sense solution between where the parties are and reject some of the more extreme claims. I think retorically thats effective. I think what explains their difference here is that i think as an objective matter the strength of the arguments are quite different. I think telling a prolife entity that they have to that not necessarily being misleading, that they somehow have to put up a notice, here is a reason to go get an abortion, i think that is a theres a stronger challenge to the constitutionality of that than there is to, you know, essentially providing requiring an entity that could easily be mistaken for a hospital or an entity thats providing medical services to make clear that theyre not actually providing. I think the governments interest with regard to that latter situation is greater, i dont know this for certain, but i imagine theres a lot of regulations that govern the disclosures that have to be made and i would think theres much greater danger of confusion without those notices. Thats my thought. I do have the sense, however, that the administration in this office right now have taken an unusually large number of positions that are contrary to kind of the pure institutional interests of governmental power, that in the Supreme Court and in the lower courts, you see a larger number of briefs than ive seen from Republican Administrations taking positions that say basically the government cant do x or y under the constitution. Its been a bit striking. I think thats fair. I would i think its actually a good thing, and a welcomed development. Traditionally we think of the executive branch asserting its prognosis prerogatives. And we think of the sgs office protecting the government and thats important, but i think some of the institutional issues have to take account of the constitutional mandate which is to faithfully execute the laws. If theres circumstances in which the sgs office and the executive branch conclude that more government power would not be consistent that, i think its both appropriate and welcome that the government is willing to say that in court and its not sort of a oneway ratchet where theyre consistently asking for more Authority Just because a government interest is applied. There are, i think it would be fair to say that there are more things that the administration thinks that government can purposefully do and fewer things that at that may be debatable. The hot issues of the day thats right, but i should have said things on the docket, things coming up to the Supreme Court. Yeah, if were talking about 8th amendment, restrictions on the ability to or yeah, but the last administration filed a brief saying, for example, it violates the 6th amendment to take a guilty plea without advising the criminal defendant of the immigration consequences of that. And also took a position benz t position against the texas abortion statute. Its not unheard of, but i think its demonstrably the case that this Republican Administration has taken that position a lot more than even other Republican Administrations and so, you know, absolutely youve got the government has this responsibility, but i do think that they are more aggressive in this view than other administrations. Those who worked on the doeman cases might disagree. There are cases not defending the governments right to do one thing or another. Its not obvious to me, but i think so. [laughter] i think paul is right though that its driven by the docket. If the docket consisted of just criminal cases, theyll be defending statutes and not im just not sure that weve just discovered the establishment clause or the First Amendment. I think a lot of the constitution has been around for a while and a lot of these problems have been around for a while, and you know, there are i think that there are well on ten cases of some significance in, you know, where youre in where the, you know, this administration is taking aim, decided correctly, i dont know. But i think that its occurring more than people realize. I think one thing to keep in mind on that, and i havent looked empirically. You make the point and it may be right empirically, im not sure, i think to the extent that it is, one thing that should be kept in mind, too, its kind of understandable given the ideological positioning of the past administration, it seems like that gap is bigger, a bigger gap than you would have seen from president bush to president clinton even, or maybe president bush to president obama, im not sure. But it seems this Administration Come in in terms of policy and positions its advocating is conservative. The last administration, i think, the conservatives would say that, you know, went further than maybe predecessors on the left. Sure, although this has nothing to do with relative ideology, right . Saying that a statute is unconstitutional doesnt relate to whether or not the, you know, if you decide the statute is unconstitutional doesnt you dont do that because the Previous Administration was much more liberal than you. You either take the position that its unconstitutional or it isnt. And for sure, the Obama Administration was, you know, substantially more liberal, but i think compared to the bush administrati administration, this administration has had a high level of comfort in saying that something is beyond the power of the congress and not beyond the power of the president , but beyond well beyond the power of congress. It will be interesting to see if that continues. I think in daca, they said that theyre beyond the ments i was going to say lets talk about the power of the president and daca, which is not yet on the docket, on the merits, but the governments petitioned before judgment is up at conference, i believe, on february 16th, so in theory they could try to shoehorn it in. Will he . Thats what the government is shooting for. The courts regular argument schedule ends in april, but there have occasionally been special sessions scheduled after april and before they skip town for the summer and that may well be what the governments looking for in this case. So, this is about the deferred action for childhood arrivals program, which the last administration described as a program of prosecutorial discretion where it would refrain from removing certain Illegal Immigrants from the country based on the idea that it has different enforcement priorities, these people are not priorities for removal, so it will not remove them. And while they remain abide by certain requirements, then they can have, for example, work authorization. So the 5th circuit had declared a related program to be unlawful, and the United States had taken that up to the Supreme Court and after Justice Scalias death the court affirmed the 5th circuits decision, the court, setting no precedent. So the new Administration Comes in and says number one, weve concluded that the program is unlawful based in part of their reasoning of the 5th circuit and the other case. And we are going to wind it down. You know, so were going to stop, stop enrolling people in the program and stop issuing renewals after a period of time. So, a variety of plaintiffs, led by the university of california, brought suit in San Francisco and this case has actually already been up to the Supreme Court once on the hotly contested question what should be in the administrative record, which, you know, dealt with executive privilege, and hotter button issue than might have sounded. And the Court Granted an injunction and denied motions to dismiss. I can review this, its violation of the epa because basically the attorney general advised the secretary of Homeland Security that the program is unlawful. To fear, the rescission of the program i can review whether its unlawful. It is not so therefore its up to reversal. Its not a final decision, as a matter of fact, but that was the injunction. So, the government appealed to the 9th circuit. The 9th circuit has an interesting practice whereby it announces the membership of its Motions Panel for a given month after that panel issued its first order and theyll have that same panel that sits together all month. For the month of january the 9th circuits panel, and they may have fought about whether that would be a good forum to litigated in and decided it would prefer to be in the Supreme Court of the United States. And so, somewhat unusually filed in the Supreme Court not a request for a stay of the injunction, but, in fact, specifically said a stay would be inadequate. It asked for a petition it asked before judgment, meaning this is a case in the court of appeals, but we do not want you to want for a decision by the court of appeals. We want to you take it now. And they said there are a lot other challenges and this is something, very, very important, it needs to be resolved definitively and soon and you should take it now and they then asked spritly that consideration of the. So those respondents filed the opposition to queue up that conference and could be heard in april or may but basically this will to you this question the merit of daca. The court does not have to develop inside whether the last administration acted unlawfullyu theres lots of ways to decide this case without reaching that. That basically was the basis of the decision, that the program was lawful. Rescinding it because it is unlawful is in itself unlawful. Is there a reason, seems like there must be, the, the administration cant make this go away by deciding to resend it doesnt doesnt like it . I thought the theory was you said what the last guy did was illegal. You were wrong, therefore, what you are doing is illegal. Why doesnt the new guy just said i dont want to do it . Nota legal opinion basically there is litigation risk we see this program in place we will be sued again as a litigation with the cost make it not worthwhile. What about doing that explicitly to say that is about idea . That is always the question what you get into a situation where you can either try to shore up what is under review or do both we werent allowed to do that before. But if they do that to now were going to do it again, here is daca ban 2. 0 we just decided as as a policy matter t to remove, just keep removing people without making these judgments. That the case would now be going to the Supreme Court. Maybe they dont like the optics or the politics they dont want to be seen to begin to children to say our hands are tied. And then with the backdrop of all of this could be the fact the Supreme Court could clear there is prosecutorial discretion. Anybody else . We have two more cases to talk about but we want to leave time for questions. So just talking about the history would have taken the entire 90 minutes we will open to your questions. Do we have a microphone . Please keep them concise. Do you really think with the Supreme Court. [inaudible] i think, im sorry pennsylvania redistricting case with that decision by the pennsylvania Supreme Court under the pennsylvania constitution. There is a stay Application Pending in which the argument is that the state Supreme Court does not have the power of the elections clause to regulate the way the legislature exercises the delegated power to set the time place so it binds the legislature for that function . So if you do bush versus gore but at the end of the day there is enough precedent of the legislature cant be completely independent with that stay application. [inaudible] the followup question is do i agree with other people in the blogosphere who gave significant that Justice Alito didnt give that response but i dont. Id think this is the kind of case with this stuff at stake with the argument maybe not quite as implausible as people think and taken into consideration. Has been referred to the full court . I dont think that is set yet but that is entirely possible. But it issues the merits opinion it is now they have the order but have not written the opinion yet. Certainly is not relevant to the stay application. So you mean if the court does take it up . What does it mean if they granted us stay . There are five justices who think the argument is substantial the standard requires them to make that determination there is a likelihood that it would be reversed so that does mean a lo lot. So if there is a theme that they call the shadow docket decisions in the election cases the court does seem uncomfortable before it comes to an end a decision to redraw the district with those district lines when the election is underway does that jive with your experience . Or is not relevant whether there is a federal question . They dont like federal courts to late in the game to say restart the election process especially during the election year. They said that is not a good idea. Second with a federal case the North Carolina case with gerrymandering claim prevails they have the sense they want to figure out the answer on the merits before the lower courts are anticipating that to apply it that isnt an orderly way to go. But it probably means they like things to go in the right order. But if either of those wide apply to pennsylvania which is so odd otherwise it isnt in the jurisdiction of the Supreme Court with merits because i think it is unlikely. In the era in which conservatives have an effort in the Supreme Court is protective of its own power and it sees the effort going too far to intervene to say state law cannot apply here for that inability to develop other theories that the other mechanisms under state law could be lost in the federal electoral context so it could signal that you just cant work around these doctrines with state law. But the precedent is the arizona case two or three years ago the argument was you cannot make the independent commission take the power away from the legislature because the constitution says legislature five four with the liberal members said the commission is a legislature for that purpose. So to work around those federal limits still exist. The court has also said with the deadlock who should draw the district . What the state courts do that. With the federal courts can. They are authorized they are supposed to get the first shot. People pass constitutional limits in florida how the legislature does redistricting and it was challenged as a violation of the elections clause. So it doesnt seem like a strong argument. How many more redistricting questions . [laughter] [inaudible] the fact that pennsylvania judges are elected i wouldnt think so. But the role the state and federal courts play is pretty well established with most of the justices in Supreme Courts. These are partisan was this brought up in pennsylvania afterwards . I dont know the timing but. Not that that says anything about the decision but it could about the case. Look at the map it isnt based on merits but you are right looking at the state Supreme Court before deciding the case be met. Doesnt it make you feel that one case is likely to win having so many different arguments and is likely that whatever the case might be what impact beyond that state . Does it mean it is more likely somebody will win something . Is that a fair summary . The pennsylvania case was an outlier in the sense it sustained. Anymore on registering . The good news is that will be offenses in 2020 and begin to get to do this all over again. Other questions . Redistricting or otherwise. How did you choose south dakota v. Ow wayfair . When they are a client you get to go. The question is why south dakota. The truth is south dakota chose itself. Its not up to us to make the legislature do anything. There were about half a dozen states that were quite interested in this because theres so much money at stake. The feature of south dakota and a few other states thats quite significant is that you are talking about states t that basically, the sales tax is whether states revenue comes from. We didnt have significant income tax it is date and its quite palpable, the consequence of the decision, states like that are the ones that are most interested in the question at her best able to bring home to the Supreme Court the consequent of the decision and so i think it fits that mold. In the statee south dakota where you dont have a lot of urban shopping areas and that sort of thing so it is a very significant consequence for that state. They want justice. A lot of the retailers on our side also have that Internet Sales but the fact that they have stores in all the states banning even if you buy them online they have discharged the sales tax its only the pure internet sellers subject to the tax so the focus that we represent our best buy and walmart and much more please join me in thanking our excellent panel. [applause] there are many cookies left in front. Fruit less attached. [inaudible conversations] [inaudible conversations] today Hillary Clinton delivers remarks on women participating and leading on human rights, justice in peace. Live coverage from Georgetown University begins at 11 a. M