Admiral howard president jackson, dean, faculty, students, thank you for this wonderful privilege that youve given me, this honorary degree. I will tell you, my fellow on arend this is pretty cool. It feels a lot like a superman cape. I want to know, does it stop bullets . [laughter] i could use that in my job. President jackson, fellow on i class of 2015 come its a sincere honor to join you on this extraordinary occasion. Today marks a triumphant milestone in your lives. Symbolically crossing the stage you will also cross over into the next phase of your lives. With each step, you will pound into your souls this week feeling of accomplishment. Years now, you will recall the challenges of that last calculus class, the anxiety of preparing for your last test, the excitement of your last big red freak out night and the last witnessing of the Shirley Ann Jackson weather machine. [laughter] [applause] avriladmiral howard i thought it appropriate that i start this speech and share with you a see story. In my service the sea story is an important exchange of wisdom. Generally in a small place with a beverage of choice and generally reaches great origins of mythology over the lifetime of an individual. This is true. It is not my. It was given to me by the women whose Leadership Award is named after of your i met her when i was a young lieutenant commander. That began a relationship of mentor protege. That was an iconic she was an iconic leader. She was born in 1911 and came into the navy in world war ii. With the start of the war, our nation needed the strengths and talents of everyone. She was one of the first women to join. She had a degree in business and was one of the first women to take courses at harvard. As the war moved out women took on greater and greater roles. They went from administrators to intelligence is a list best specialists. Intelligence specialists. Maybe women were not allowed to serve overseas. Until 1944. We decided that hawaii was once again safe enough, it was a base of Planning Operations and we would send waves to help continue fight the war. Lieutenant winnifred quick was selected with two of her friends to go and set the stage to bring in over 5000 waves to support the war effort. She was pretty excited. She told me this remarkable thing happened. I was astounded at the story because im from colorado and nothing like this has ever happened to me. A denver millionaire offered the use of his wahoo mansion ouahu mansion. He left it staffed all the time. They went to hawaii and started to work in that first week, the eagerly went to this mansion. They put on their bathing suits were getting ready to head to the beach, winnifred quick is standing in the living room looking out this great expanse of class and sees a man walking downshe is not sure that as he comes closer, she starts to think, my goodness, is that he was one of our eco iconic warriors in the pacific theater. A man who had persistence and tenacity and great courage. But also is deeply feared by the japanese, deeply feared by his sailors as well. As he is coming down the beach lieutenant quick starts to believe its him and then to our astonishment, this man comes up to the house, knocks on the door , comes in and she introduces herself. Im when a, how may i help you . He said id seen this house, its never been occupied, ive always been curious come i wanted to see the inside. Would you let me see this beautiful home . She offers him a drink and she says of course. Her friends show up and all of a sudden, the man gets a panicked look on his face and runs out the door. The three lieutenants are concerned. They dont know what theyve done. Being good lieutenants, they went ahead and decided to enjoy themselves and hit the beach. Monday morning, lieutenant winnifred quick is at her desk and the phone rings. Its a two star admiral. He says, were you at a beach house this weekend . She says yes. Did Admiral Halsey show up . She says come i believe so. You did not introduce yourself. He did not introduce himself. The chief of staff continues. Lieutenant come Admiral Halsey walks that beach every weekend. He has always admired that house and when he saw it was opened, he decided he could see it. When he came in, he saw what he saw and when he got back to the rec area, he submitted his staff or right away. He goes, gentlemen there is a house on the beach, three lovely women in this house and their names are quick, wild love. [laughter] i believe they are spies. They are sent here by the japanese to put on the swimsuits and seduce our secrets out of us. I want to know who they are and i want to report that a report on my desk tomorrow. His staff gets to work and they come in monday morning. Admiral, there is good news. They are only naval officers. Admiral halsey said, i did not see any naval officers. The staffs belted out for him. Spelt it out for him. Women naval officers. He goes, dear god, not even the japanese get did this to me. [laughter] women naval officers. Throughout her time she served another 20 years. Captain collins rose to the highest rank she could achieve. Cap and. The head of all the women in the navy. She could never have been an admiral because by law, which you serve, no women could be an admiral or general. Only one woman could be a captain at a time. That law changed in 1967 long after she retired. What she taught me was her story. As you go on this journey, you have to keep your sense of humor. More importantly, you have to keep your sense of self. That brings me to you. In preparation for this special day, asked one of my trusted lieutenants to visit rpi and get a sense of the school culture. He came back telling me about some wonderful times he had undergone after hearing about your most recent grand marshal week, he said i should bring my own jar with a lid. I dont know what thats about. [laughter] he left me with this quote from one of you. A lot of people stereotyped university as strictly an engineering school. But, its so much more than that. All of you will walk out of her with a bachelors of science or architecture degree. There are over 200 student clubs from the palestinian groups mockupa capella singing groups as a graduate of a Technical School myself, regardless of stereotypes, i am here to tell you to remember your roots. You are an engineering school. Your newspaper is the polytechnic and your mascot is the engineer. Over 100 years ago, he referred to the university is the first school of science in Civil Engineering which has a continuous existence to be established in any English Speaking country. If after surviving intro to Engineering Design you have not come to grips with who you are and where you are from, let me tell you, you are engineers. As your Commencement Speaker im required to give you council that will provide you the foundation for success for the rest of your life. I think i offer you one thought. Embrace your inner engineer. Embrace your inner engineer. Without rpi graduates, the country would be a different place. Your academic ancestors invented the ferris wheel, built penn station and explored outerspace without rpi engineers, the world would not only be a lot less userfriendly, it would be a lot less fun. Embrace your inner engineer. Its time to stand up and admit it. You love the logic of spock. You spent countless hours blank Super Smash Brothers and you laugh at big bang theory. Playing Super Smash Brothers and you laugh at big bang theory. You love research. The coolness of algorithms. The smells from chemistry labs. And, most likely, you took apart some family prized possession when you were young to see how it worked. A few decades later, all of who you are and what you have been taught coleman aids in this moment. A diploma that affirms your academic prowess and represents your bright future. Proud family and friends who are thrilled that you have a job and for you biology majors, the ability to create the zombie antidote when the apocalypse happens. [laughter] embrace your inner engineer. Whether or not you work as an engineer, remembered this from your time at rpi. Embracing your inner engineer means you always learn, you will never lose the love of discovery and you will always be ready to roll up your sleeves for hard work. Embracing your inner engineer means you face failure with courage. For failing only means you limited the path of pursuit. You prized teamwork, you understand the value of different perspective and generating ideas. You love competing with the best because it makes you better. Whether you realize it today or whether you realize it later the past four years has made you better. When you embrace your inner engineer, you realize that rpi gave you structure discipline and focus. Give back to your community. Transformation, modernization and animation. With broad reaches of the universe yet to be explored, what great building or bridges are yet to be built, take what you have learned here at rpi the knowledge, the methods, the relationships and apply it to our world most mixing problems. Embrace your inner engineer to find what makes you feel alive and makes you wake up happy every day. Use this passion and turn it into goodness for all of humankind. We need rpi graduates for our most challenging problems. Wherever you go, there will be others who have embraced their inner engineer. Connect with your fellow professionals because their backgrounds and experiences will amplify all of your successes. Class of 2015, remember who you are and where you have come from. As you walk from your chairs to destiny that awaits you, you can proudly say you are an engineer and embrace every aspect of what that means. As you walk this earth on your own journey and you come across another engineer, give thanks. You not only have found a kindred spirit, you have a surefire partner for this on the apocalypse. For the zombie apocalypse. When that moment comes and that panic sets in, is there an engineer in the house . Rise up and say i am an rpi engineer. [applause] class of 2015 congratulations. [applause] director of clinical cardiology in boston, dr. Patrick ogara on the offenses in heart surgery in the progress being made in the understanding of heart health. This is a valid that has been crimped onto this catheter that is being now positioned into the diseased valve. It will be deployed in just a second with the balloon being inflated and a new valve will be inserted inside the old calcified valve. As you can see here, Delivery System is being withdrawn and the wire will be withdrawn and what weve just seen in this little pictorial is replacement of a diseased aortic valve in a manner that does not require openheart surgery. We are trying to become smarter about predicting who will get disease we are trying to get smarter as to identifying the most effective means to prevent the disease and smarter about following up over a longer amount of time. We are currently in the era where we are trying to harness the promise of the Human Genome Research project that has been in existence for more than a decade. With all of the informatics that can be driven by the giants of the industry like google, for example him and information about sociology, geography demographics, where you live, where the Railroad Tracks are in your city, whats your likelihood to get diabetes on the basis of your educational background and whats your likelihood of developing Something Like diabetes or hypertension if you live in a certain part of the city where you have less access to the right kind of food or even the right kinds of instructions about sodium consumption. Little things like that that can have an enormous impact on population health. The new congressional directory is a handy guide to the one working congress with color photos of every sender and house member and bio and Contact Information and twitter handles. A full out map of capitol hill and a look at congressional committees, the president s cabinet, federal agencies and state governors. Order your copy today. The Supreme Court current term comes to an end this month with major decisions about health care, same sex marriage and housing determination. Experts discuss how the courts decisions in these cases could have a Lasting Impact on the country and on constitutional law. Its an hour and a half. Winnie i am the executive Vice President of external affairs at the center for american progress, and it is my pleasure to welcome you to cap for this important conversation. As americans and as progressives, we are well aware of the central role that the United States Supreme Court has played in the history and wellbeing of our country. Their charge, to provide a level Playing Field and ensure equal justice under the law, has continually broadened our nations definition of we the people and expanded the circle of opportunity for americans once excluded and exploited. When the court has met its charge and propel progress and equality forward, our nation has been the better for it. Through brown and loving griswold and roe, gideon and maranda, the court has upheld that the promise and protections of our country are meant for all and that our constitution is a thriving and living document and that our Justice System should be fair. That is why courts matter. But just like the broader story of america, the progress facilitated by our courts has not always been consistent or constant. The power to change america for the better also comes with the authority to do the opposite, to restrict access, and able corruption, and deny freedom to americans left behind by other institutions. Thats why courts matter. They can tip the scales even further in favor of the powerful and privileged. After 60 years of advances, a majority of the justices on the court have increasingly and certainly too often reversed the progress of the 20th century. Over the last 15 years, they have corrupted the notion of religious liberty, transforming it from a shield to protect religious organizations and religious minorities to a sordid to impose harm on the already marginalized. And they have restrict it and diminish the voices and votes of Everyday Americans in our elections by gutting the Voting Rights act in deregulating money in politics. The three major cases we are discussing today faced the most conservative court in decades. Each of these three major decisions is integral for the functioning and future of our country. A positive decision in any one or two of these cases does not diminish and will not diminish or negate the damage of the negative decision in just one. In their hands this month rests the hopes of loving samesex couples waiting for decades to walk down the aisle for the person whom they love. In their hands this month, rests the ability of the federal government to effectively combat housing discrimination based on race, color, national organization, Family Status or religion. Housing discrimination has remained one of the most persistent and hideous forms of racial discrminations and one of the avenues for recourse but disparate impact claims to provide cover to prejudice and bias. Kept to the American Dream out of reach for far too many families. In their hands this june rests the stability and future of the American Health care system and quite literally the lives of 6 million americans who receive subsidies from the federal exchanges. We are no longer merely talking about the the affordable act, president obamas health care law. We arent talking about whether the American Health care system will continue to work for all whether one action by the Supreme Court will send our Health Care System into chaos with prices skyrocketing and Affordable Access shut off for millions. The stakes couldnt be higher. Millions of lives hang in the balance. No matter the issue, health care, immigration, Marriage Equality offshore drilling, Privacy Ethics Committee judiciary will play an increasingly Important Role in the lives of hardworking americans as well as the success of the progressive legislative agenda through legal analysis, policy analysis, communications and the Public Education in convenient stakeholders come a little progress is helping to push the american legal system and a more progressive direction and educate the public about the impact of the coors on issues they care about most. Each of the decisions will impact the health, wellbeing and security of millions of americans and to introduce our distinguished panelists. It is my pleasure to introduce the moderator of todays discussion, ari melber, chief Legal Correspondent for msnbc and cohost of msnbcs popular daytime ensemble showcase the cycle of the writer of law and politics which covers politics law and Constitutional Rights on msnbc. Com. In addition to his work, ari is an attorney and correspondent and his writings have appeared in the atlantic, politico. He has practiced First Amendment law at a major firm in new york city and has worked for the 2004 john kerry president ial campaign as well as legislative aide for maria cantwell. Thank you for joining us on the floor is yours. Ari thank you so much. Good morning, everyone. Excited about our panel that will get under way. You know the tv show i am on his popular because she said so and that is a good rule of thumb. We will keep that in mind and keep telling everyone now. I want to do this very quickly which is call up each of our star panelists one at a time. Not unlike a big popular concert or anyone whos ever been to coachella or lollapalooza. You do the names one at a time. But we dont have to do loud applause. That is up to you guys. Let me welcome Michele Jawando to the stage. Vice president legal progress. She worked as general counsel to senator Kristen Hillebrand and , also served as Campaign Manager for Election Protection of people for the american way and many other things. Ill keep this moving. Roberta kaplan is a partner at a major firm that many of you have heard of fort edith windsor. Welcome her. Ian millhiser, a senior fellow here also has written extensively and clerked for judge eric clay on the sixth circuit. Lisa rice, come on now. Executive Vice President for the Fair Housing Alliance very much involved in the case we will discuss another civil rights issues. Elizabeth taylor, executive director of the national law program. Welcome her here. She spent her career both in the court room in the boardroom and also worked at doj. As you can imagine, that is very brief because i want to spend our time hearing from these folks with a lot more theyve done. I will move over here because i dont want to do a big formal thing. How do i sound . Are you guys all on . Say hello. Get the technical stuff out of the way. We want to talk about these three cases as they promised. For an opening, one way to think about the current Supreme Court and this may run through all three cases if this not only term were not just nine justices were sort of a personality, or a friend of years. Ian is shaking his head. Ian they are not friends. Ari i think you could argue that they would be a bit like a friend that wants to be considered laidback. You ever have a friend who says i dont care where we go to dinner. Its up to you guys when they pick a restaurant they have strong opinions about where you go to dinner. Or i dont care which way we drive. But when we are going to the stadium, they have strong opinions on which way to go. What i mean by that is we have a court that talks a lot about judicial dynamism and a constrained role for unelected judges. It talks a lot of times about deferring to congress or congress ability to discuss the health care example, congress ability to amend and fixed their role in Voting Rights. Congress can get in and change it. There seems to be a lot of references across these areas by this court. Into the idea that you guys figure it out and we know our role and we are easygoing and sushi is fine. You get to the point that theres something the court cares about in that cares about of medicines to reach deeply not only into the life of americans but into the political process and to the extent it has limiting principles, again, if you think about the fair housing case, many of the limiting principles seem empty as a practical matter today. We will speak today about whether its a fair concern or perhaps not and whether the court has every right as statutory Problems Congress can fix. Maybe that is not the point and they have every right to do what they need to do and not as just not adjust based on whether congress is. I would like us to think about that and i would like to start with a simple restaurant analogy before we get too deep. I want to turn it to our panel. The way we will do this, so that you hear more of them and less of me, we split up the cases. We will do roughly 20 minutes on each, with each being explained by one of our two panelists. And then go out to the audience. And for everyone watching im live stream or cspan, when we do the audience part, identify yourself. We can do a comment or question. We care only about length. If you want to do a comment, that is fine. We can get a response from it. With that said, we still want to start with fair housing and start with lisa. Tell us in plain english with this case is about and then let chop it up. Lisa ok, i will try to tell you in plain english because it involves a very technical issue called disparate impact or discriminatory impact. The case was initially brought by the Inclusive Community project which is a nonprofit Fair Housing Organization based in texas doing work in taxes and the mission of Inclusive Communities project is to redress or try to undo centuries long, systemic residential segregation, both perpetuated by a federal government and also perpetuated by private actors. That is their goal and mission. One of the ways they do that is to help place persons of color in communities where their race does not predominate. And it does so by using some in some part, by taking advantage of a Voucher Program that is offered under the tax credit, the low Income Housing tax credit, which is administered, at the federal level by the Treasury Department, but the Treasury Department does leave it up to each individual state to come up with its own formula for how the tax credits will be apportioned. The state of texas used a formula for a place in the tax credit housing and the number in a way that icp argued showed perpetual racial segregation. In fact, they showed evidence at court that 92 of the low Income Housing tax credit projects had been placed in predominate communities of color. Icp challenged the formulas that it had a disparate impact based on race. The lower court agreed with icp. The Appellate Court also agreed with icp and the state of texas appealed the case to the Supreme Court. This the question before the Supreme Court is whether or not the whole theory of disparate impact is cognizable under the federal act. This case is taking place it is laid out or unfolded against a very interesting backdrop and that is that 11 Appellate Court courts that have heard the matter have agreed there is disparate impact that is cognizable under the law and you have unanimity under the Appellate Court on that particular issue before the court. What you dont have unanimity on amongst the Appellate Court is this test, this threepronged test you have to use to determine whether or not theres disparate impact, and that is not before the court. Ari define disparate impact. Lisa the disparate impact is where you have a policy that seems neutral on its face. Let me give you an example not related to the case. Ive worked on. One of the casesive worked on. The Insurance Company said we will not insure any home that is valued under 65,000. If the market value of your home is 65,000, you cannot get insurance at their company. The policy is mutual on its face. It doesnt seem to have any racial connotations they are. If you apply the policy across the board, it has the discriminatory effect of excluding africanamerican and latino homeowners who have market values under 65,000. Ari did congress mean to provide this kind of attention even where there isnt explicit evidence of individual Racial Discrimination and let the court deal with the outcome. Lisa so thats a great question. It was one raised during the hearing. I think its very clear that congress did intend for disparate impact to be included when it originally passed the law in 1968 and also when it amended the law in 1988. In fact, there was a congressional brave written and coauthored empire by senator Walter Mondale and ed brooke the original authors and they say in their amicus brief that they actually did intend for it to be included in the original law that was passed april the 11, 1968. Actually, as the brief points out, there were amendment made at the time that the law was passed in 1968 to infer an intentional standard within the statute and congress rejected that amendment. So, not only did the framers or the authors of the law intend for there to be disparate impact, but when those who were opposing the law meant to infer or confer the intentional standard in the statute, it was rejected by the congress. Subsequently, in multiple years, senator orrin hatch tried to amend the Fair Housing Act by adding an intentional standard. So, after the law was passed in 1968, senator hatch tried on many, many occasions to change the law by adding this intentional standard. Every single time it was rejected by the court and in 1988 when the law was amended to really expand and broaden coverage to include two protected classes. Disability status and the familial status at that time again, this intentional amendment was introduced. It was rejected, but what congress did do when it amended the law was it said there were three instances that we dont want to apply to disparate impacts. One example is remember familial status is now a protected class. What Congress Said is if local musicalitys past a reasonable occupancy standard, we do not mean for the reasonable occupancy standard to be challenged by the Fair Housing Act under the disparate Impact Analysis, saying the occupancy standard will discriminate against families with children. Because you can see how that will happen. Ari right. Lisa you have an occupancy standard that says you have to have one person in a bedroom for every 70 square feet. That is going to limit having an opportunity for children. Ari panel . Michele one thing i find interesting as we consider disparate impact as we think about often discrimination in this country through the prism of white and black interaction. I think what is so important about this particular standard is how we look at discrimination as we think about familial status. Think about young families. Also recently you see how it has this great uptake in claims being brought from disabled residents that we often dont see discrimination to read through a plan to disabled citizens, but yet you find difficulty with appropriate housing. To the extent that many of the conversations have only centered on just talking about race and not thinking about these other protected classes, my hope here is that the Court Considers the farreaching effect that will come into play if you think about striking down disparate and act. Ari robbie, i wonder who could speak to what the court views as the dilemma here, especially given your time before the court because on one hand, many people relate to the concern that we have a lot of what is called in the literature racism without racist racism that is unfair and built on a legacy of what was formal racism is no longer explicitly announced and applied in the same way and it way and in the country wants to come by combat that. People can relate to that. Yet it is not so easy because on the other hand being fairminded about legal limitations, people say if you are going to use the legal punishment or regulation of saying something is racist, that has formal legal consequences and a great deal of stigma in the society and people saying we set up what is a neutral policy based on numbers and how the government will comment and say this is racism. How does the court deal with the dilemma . Roberta i spent countless hours thinking about the different journeys this court has been on comparing lgbt civil rights and more traditional africanamerican civil rights. When it handed down shelby county, it could not be more opposite in terms of promoting civil rights. I spent a lot of time thinking about why another one hand is and we have seen incredible progress, and on the other hand we are seeing quite the same thing. I think you hit on an issue that is important to the court and this issue of labeling people as racist or homophobic in the context of windsor is something they are extremely sensitive to. Some of the most intense questioning in windsor is what i was expecting. Doma was passed with huge majorities, signed into law, in the question i got was are you saying the huge number of senators and president clinton who voted, are you saying they were homophobes . In dealing with that, whether it is africanamerican civil rights or gay civil rights, you kind of have to dance a bit because the answer is yes, they probably were homophobic at the time. On the other hand, used the word and say that in that kind of creates this reaction you do not want to have. I kind of said no, i am not saying its prejudice. Its based on a misunderstanding which was true. But i think your question arguably has the core of what may be motivating the court that they dont want to label anyone a bad person. Lisa ari, if i could follow up to what robbie said some argue that is the beauty actually the disparate impact argument. You are saying we know that you did not intend to discriminate. You are not a racist but you employ this policy that has a discriminatory effect. You didnt mean to do it but you did it so lets change that. Some argue that is the beauty of the disparate impact of a discriminatory effect argument. Elizabeth one of the points you made at the outset is just federal law. We are just interpreting what the words say. A lot of the argument was that there a lot of the argument was that there are that there are parts of the Fair Housing Act as they adversely affect. So the fha does that make them available. There was a lot of conversation about but there may come available is the same as adversely affect. Ari you are saying make housing unavailable. Elizabeth make housing unavailable does that Mean Congress intended to look at the impact and not just the intent. The proponents of the disparate Impact Analysis makes them available in some statutes there is language that adversely affects them they were ok with using disparate Impact Analysis just looking at the aesthetics. Just looking at the effects and not the intent. Justice breyer, in arguments said, why should we change a law, analysis that is working and has been working for many years to use the disparate Impact Analysis . He made a similar point in that case several years ago. The family for Community Schools against seattle for Justice Roberts said the way to end discrimination is to end discrimination. The court struck down voluntary efforts to integrate the School System that was de facto segregated. Justice breyer said this is crazy to shut our eyes at the realities that de facto segregation is just as harmful and in this case to bring it back to where i live, and the impact where you live on your health is enormous. There was a study done recently that in two areas of richmond, virginia, Life Expectancy changes by 20 years because of the area you live in. Women in low income communities, largely africanamerican, are 15 times more likely to die of aids than women in other communities. Theres a tremendous amount of work being done on the socioeconomic causes of Health Disparities and it all has to do with much of it has to do with where you live. Whether you have access to healthy food, primary care providers. And simply the stress of living in a Community Like that, there was an article in the new yorker last week about the impact on a developing childs brain on the impact of living in a low income community. There is up to a 6 change in the development of the brain of a child solely because of where he or she is born. To shut our eyes to that and simply say we are going to decide this by focusing on the statue is certainly the impact of being counterproductive. Whether it has the intent of being counterproductive, i cant say. Ari that is a limitation that we see certainly applied selectively for some of the time. It wont tell you whether people under the view of the constitution are involved in the equality and decency should allowed to marry regardless of their gender, how they met or what they want to do together, which gets us to the next case we want to reach. It is an injustice that he knows so much about this case, but i promise you we go 2020 and we will do that. Definitely get you on the next case. Robbie, tell us what this case is about. Its fair to assume our audience and people at home remember the previous cases including those that you argued. What is in this case will be decided this month and potentially the create the National Standard are right and or write for Marriage Equality in our nations history . Roberta i have to tell you, i never thought i would get to be the good news bearer on civil rights issues. Knock on wood im hoping that will be the case. When i walked into the office this morning they had cnn on the tv and they had a flash and flash poll that says 63 of americans nationwide support Marriage Equality. Again i have to pause every time i see those numbers. The journey the country has been on, 2003 was the first case of seeking Marriage Equality in massachusetts and the first time gay people could get married. And now we are at 37 states. The question before this court is whether that equality will extend to the remaining 13. Whether or not does the federal not only does the federal government have to recognize the equal dignity, but states like like mississippi or texas or louisiana or florida have to allow gay citizens to have the equality of marriage. That is what the case is about. That is why is getting the attention its getting. We shall see. Fingers crossed. Ari ian, why dont you walk us through what the outcomes could be here. It seems that one would be simply saying states have to recognize marriages performed in other states regardless of the the law, which is sort of a federalism issue the other seemingly faulty federalized or something else. Enlighten us. Ian the most likely outcome is going to be some version of all 50 states required not just to recognize outofstate marriages, theyre required to issue marriage licenses to gay couples under their own law. That is the good news. But i think how the court reaches that decision is almost as important as if they reach that decision. One thing that is interesting about this case, the fair housing case is a proxy war over the broader ideological battle where conservatives for a long time have wanted to limit civil rights to disparate treatment. You have to show intent in order to prove discrimination. If you believe the only type of civil rights by laois and is where you have intent, marriage discrimination qualifies because even if the person is not does not hold some sort of its the intent of these laws to provide less rights to samesex couples than they provide to opposite sex couples. It is also the case that if you look at the Supreme Court doctrine, gay rights is an easy question. The Supreme Court has said when a group has historically experienced a type of discrimination which bears no relation to their ability to perform or contribute to society , they are entitled to higher protection under the constitution. There is no question that on Sexual Orientation fitting that bill. There are few numbers you hear new york city arrested 50,000 people over the course of four decades because those people were seeking consensual sex with a person of the same sex. That used to be a crime in the state of new york. This study of philadelphia formed a moral squad that arrested 200,000 gay men every month. It used to be the policy of the nine states of america that the federal government would not hire gay people. It uses words like repulsion. More than half the state at one point had laws allowing the court the state would try to cure what they saw as a pathology. Theres no question that Sexual Orientation meets the standards of this history of discrimination and yet the court there have been a number of gay rights decisions starting in 1996. What strikes me is how incremental these decisions have been pee. I suspect that has profound implications for the future. While it will mean that samesex couples will be allowed to marry, it will also not mean that states wont be able to engage in other forms of antigate dissemination. Antigate dissemination. Antigay discrimination. That might be constitutional under what the Supreme Court has said after they rule that Marriage Equality is the law of the land. The short answer to your question its likely the narrow victory will be a complete victory. We will get Marriage Equality in all 50 states. It is much less likely that the court will recognize what the constitution really commands which is that discrimination against gay people of any kind should be treated with skepticism. Air you mentioned the federal governments obligation to explain itself. We see some discussion of, where do these rules come from . Its really Something Special about the judiciary. Its the only part of government that has rules and having to explain itself and explain his thinking its thinking. Some of these decisions dont wear well in realtime. To the decision in which ohio cites approvingly the argument against Marriage Equality but its striking because it deals feels like such a weak argument. Let me read from it. It is rational to recognize that marriage is adopted not to regulate love, but to regulate sex, most especially the unintended effects of mailfemale intercourse. The argument being made is that because marriage was initially structured to deal with what society viewed as a potential problem of sex and procreation it is therefore limited. Speak to us about this and why this is a rising. It seems like a very weak argument when you look at the endurance of marriage as something that exists and it legally protects with or without children. You will be shocked to hear that i agree with you. Its a pretty silly argument. Most of the justin justices think its a silly argument. The reason this argument is upon us is because there arent any other arguments left. Its the only distinction that the people opposing equality can come up with between gay couples and straight couples. This idea that a straight couple sometimes biologically procreates. It pushed them into a view of marriage that is so divorced from reality. And so divorced from what any american thinks of as marriage. I dont think anyone thinks they get married to someone so that if they accidentally procreate that kid will be protected. Nobody says you may get pregnant and i want to make sure the kid has protection. I dont know what universe marriage exists in that world, but its no universe i know of. The image of merit that was per trade marriage that was portrayed would almost be a situation where i would try to hypothesize you can have a merry straight couple who have a horrible marriage, they are abusive to each other and violent to each other. Under this theory that these people should be the states policy for that couple to stay married because its good for the kids. Obviously that makes no sense. That is just crazy world. I think the justices recognize that. Hopefully again, cant help myself. You will see that view of marriage. It is so divorced from reality. One piece i want to go back to is something that ian said, and i will join the knock on wood and the concept we think about Marriage Equality as we will create a Legal Environment that theres protection forward in the very next day they could go to work, share that they have been married and for a host of reasons potentially lose their job, lose their health care depending where they are. The question is are we setting framework where we are and moving forward as a think about Marriage Equality in the country . But at the same time when we expand our questions of discrimination, now you are not talking about the relationship between individuals, then do we find ourselves back in the world, a disparate impact world but we look at civil rights for all persons would you will have the potential to move out on longheld traditional ideas or notions, but in a very different context because now you talk about losing your ability to work, to live, health care. Theres a host of protections that many of us in the Community Think about what nondiscrimination looks like for everyone. We hope we have the opportunity to do that, but as we think about the long reaching effects, discrimination in the way the court has thought about it as potential ramifications for samesex couples the way we see it in other traditional civil rights. There are some people seem to get fired because their boss says you are a sad day. People are fired because, and excuse me for saying this, they are called a faggot, and those cases were easy it seemed to me. People are coming around to the idea you shouldnt fire someone. The question is what do you do with a situation where theres a disparate disparate impact or a subtle under the desk discrimination and that is where the commonalities will very much come to the floor. At this point we will go to obamacare. At this juncture on the past two cases because folks have a deep sense of obamacare. We are going to take a poll, and the poll will be simply what you think will happen on each case. Start with their housing and say do you think the disparate impact will be upheld to continue or will it be overruled and struck down . How many think current will be upheld in that case . I am a progressive. How many people think it will be struck down . Mixed, okay, and on Marriage Equality, im not going to give you a good possibility, how many do you think the case will advance Marriage Equality. By show of hands know. Look at that. We can do one about the obamacare one, even though we will do it next. Were about to hear about it. You may have heard about whether the way the law was written should deny. By show of hands, how many people think the law will be upheld and subsidies continued . How many think no, the part of the law will be essentially struck down . We have some pessimists. That gives a sense of where we come from. Now tell us about the case. That was a good test of what the class knows already. Most of you do know a fair amount. Just to take you back a little bit. Congress enacted the Affordable Care act to address very Serious Problems and access to health care and country. There are basically three prongs to the stool that was part of the Affordable Care act. One is everybody has to get health care unless he makes so unless you make so little money are exempted from the requirement appeared to is that Insurance Companies have to provide insurance to people regardless of preexisting conditions. For the first time people have been diagnosed with cancer or multiple sclerosis or whatever is they dont want to cover, those people are entitled to get insurance. The third problem is the tax subsidies. The only way the three leg is still works as for the tax subsidy to be available because if you dont provide the tax subsidies, then youve got a big pool of people exempted from the requirement to get health care. All of a sudden the people who are getting insurance i just do are just the sick people with preexisting conditions. The Insurance Companies cant afford it. They need the database of Healthy People to be able to spread the risk of covering people with preexisting conditions. The problem was that we had a lot of people in this country Getting Health Care by showing up at the emergency room door which is really bad economically im also really bad for your health not to get Preventive Care along the way and show up at the emergency room door. So on top of the people with preexisting conditions to marketing treatment, normal everyday people who couldnt afford health care because they did not Health Insurance and congress is trying to fix a significant social problem. A we all know that we all know that the the Affordable Care act got past. The opposition to the Affordable Care act has not yet given up. I cant remember how many times theres been a bill passed. I think it is 49. 50, 51. The opposition continues. After Supreme Court decided in the fib case, they decided that the Affordable Care act passed muster because it was enacted pursuant to the taxing power of the United States. Then the opponents came up with another idea and this idea was to find a creative idea to find forwards in the statute that says exchanges created by the state and because of these words in the statute admit that they couldnt be in the exchange that were created by the state. This fairly technical statutory argument created by the state is in a provision of the statute that addresses how you calculate the subsidy that somebody is entitled to. There appears other provisions that interrelate. There is a provision that says states shall create exchanges. Another provision says that the that if the state opts not to creat an exchange, federal government full text it can create exchange, it is used throughout the statute to refer both to the exchange created by the state and the exchange created if the state opts not to create an exchange. It is pulling these words out of context because of the calculation of tax subsidies and a provision that refers to exchange created by the state and is even more complicated because the refers back to another statutory section at that refers to another statutory section. The argument is these words mean you cant give tax subsidies in an exchange created by the federal government appeared 34 states have exchanges that are federally facilitated marketplaces. There are 6. 4 Million People getting tax subsidies on the federally facilitated marketplaces. If the court goes the wrong way, not only will the 6. 4 Million People lose their tax subsidies and therefore their insurance, but the estimates are another million and a half people will probably lose insurance because as i said at the beginning if you pull out the base, everybodys costs go up. Even the people who are getting tax subsidies will have their insurance priced out of release reach because the cost of coverage is going now. Going up. I want to bring what they says that at the beginning about fair housing, which is about how orin hatch has tried over and over again to get the results of the litigants in the fair housing case are now trying to get out of court. You know, you see the exact same dynamic with the Affordable Care act. This is the weakest statutory interpretation argument, king v. Burwell, that i have ever seen reach the Supreme Court. Elizabeth listed some of the evidence. The plaintiffs hone in on these words through an exchange established by the state. I will admit if you read one sentence completely divorced from anything else in the statute you may think theyre onto something, until you see that the word exchanges defined to mean a Government Agency or nonprofit entity is established by the state. Any exchange regardless of whether its federal government or State Government is aimed to be established by state. This case borders on the sectional belief. That said, there is an argument for why it got here. While there are some things a the lawyer who brought this case has not been candid about he was unusually candid in a conversation with a friend of mine who is a reporter now with bloomberg. They had a conversation with mr. Carvin in assam the same issue called how they were having the d. C. Circuit. Some of you may remember the d. C. Circuit actually bought the plaintiffs theory and the full d. C. Circuit decided to do with its located over again. This is all the drama was going on and in that context, mr. Carvin said he thinks the republicans on the Supreme Court are going to get as much of it give as much as a damn as to what a bunch of obama appointees think. And just in case theres any ambiguity as to what he was saying here, he asked them, do you think you are going to lose any judges appointed by a republican and he said no i do not think i will lose any republican appointed judges. So this is not a case about statutory interpretation. Let me just jump in. It is important that we use the language is statutory interpretation. This case is argued as a statutory interpretation case, and the reason for that is because it is obvious what congress intended. But to just say congress intended the subsidies to be available in federal exchanges. But you can say congress screwed up in accomplishing that. In way lives or at least we may live because the courts answer to that is what congress thinks that. And that is why it is important to do what he ingested, which is look at the statute as a whole which is for the statutory interpretation do. Look not just at these four words but a context of the entire statutes. They should give where the court let me say to make sure we stay accessible here. It seems we are collapsed into different analytical structures on how they should be decided. One is the actual inquiry the court is doing, which is what does the law do. In this case im paper record it seems very farfetched to argue that the challengers to obamacare argue that the laws secretly discriminated based on geography. Nobody knew about it. Nobody opposed the law is a good or bad thing. Had this multiyear debate about it and that was just a secret design that somehow was never discovered and now needs to be applied by the court in a way the other branches never wanted, never discussed, never said. As he so eloquently described, included in a sort of secret suicide trigger. Its just very farfetched. I am just being fair to the argument, but then the second analytical structure you refer to and cynicism as well is the most political. I wonder if we could tease that out because its fair to say justices are humans and at times will be moved by their own instincts whether they personal, political or ideological. The question for folks to understand what they do is how does that actually work because its also fair to say that members of this court and past court had plenty of vehicles you can point to where justices depart from what you might think they would want to do or feel constrained by the rule. Youve written a 10 about this. Youve written about this. If this is a farfetched statutory argument, that is to say this law doesnt do what you think it does. Why is this appealing as a farfetched controversial way to limit the aca when the court has clearly not gone that route when given more mainstream chances. It is definitely true that there is a twotiered litigation strategy going on here. Theres a strategy on the surface were doj wrote an excellent brief and excellent amicus briefs, which lays out what elizabeth and i have been talking about, which shows it is absolutely clear the statutes only be read one way. Below the surface, there is another strategy going on they consist of trying to embarrass the justice says are inclined to not do what the statute clearly says he should do. A lot of it points to this legal argument that says, come on guys, we cant get away with this. Justice scalia even wrote about this so again, i would hope that the mere fact that this is an easy case and there really is only way to read the statute even with nine justices, but in the event that, whether theyre motivated reasoning for whether through a more conscious partisan desire, they are not inclined to do their job, then i would hope that they would at least realize that the arguments in this case are so weak that it would be embarrassing not just to themselves but i think to the court as an institution. Help me out. It is a very good argument against but didnt answer the question posed and as a journalist one of my pet peeves, one of the questions posed is it that come if youre sympathetic to that, then why do you think as a court expert that justices are linked in to consider what is a weaker argument against the aca right now . I think you realize there is some sense to look, no one can explain how the justice make certain decisions. No one is allowed in that room there anyone who tells you they somehow some insight into it id like to know where they went to law school. It certainly was not taught to me in law school. My guess, and this is a guess, is they knew there would have to do this earlier. So my guess is they figured guess is they figure they might as well get over with now. Thats why you saw it. Hopefully i agree with the panel that it doesnt speak to the merits of the pundits argument or im amazed, sitting there amazed as a Supreme Court advocate to hear the comment that the plaintiffs counsel me to i just cant imagine, even if thats what you think in heart of hearts, i cant imagine saying im going to get all republican appointed judges on my side and none of the others. Look, maybe im idealistic or ive never been accused of assisting publicly idealistic in my life i think a lot of judges to decide on the merits. In the marriage contest cases, theres an awful lot of republican appointed judges. Most of them since windsor have decided for equality. So its actually coveted is the degree of cynicism. One technical point. It only take four justices. If we look at it, we know there were four justices who thought the decision should of went that way. To hear a case in the first place. I think thats another part of the conversation that we should kind of add. The other thing that i will say is theres the larger conversation thats kind of taken place about the Roberts Court and kind of a direction in which this court is moving. I think most americans, theres a poll out today i think in the Washington Post just released, or just wrote that over 55 of americans want the Supreme Court to uphold the subsidies. And i think its just a common using within the states . Within the states that would be denied them. So most of these states again, that are 34 states. Most of the states are kind of president ial primary kind of swing states, have more of a Republican Leadership in those states. And in those states which you could say have a more conservative population, they want the obamacare subsidies to be upheld by the Supreme Court. Just cannot look at the backdrop of whats happening at a think thats a really important point to make. I want to go to the audience questions and final thought on the obamacare and then bring you guys in. I was going to broaden it a little bit to why the court might want to use these four words in sort of a craft interpretation. There are a number decisions of the Roberts Court where what the court is doing is pulling back sort of standing in the way of efforts to address social problems by either the states or the federal government, striking down section five of the Voting Rights, the other part of it part of fib, didnt get nearly as much press but the court struck down the Medicaid Expansion peace of the piece of the Affordable Care speakers who talk about the first obamacare case. The court upheld the core part of the threelegged stool i described, but in the Medicaid Expansion that was mandatory under the Affordable Care act the court struck that down. So what i fear is that the pendulum and the court has long suffered untold wingnut heaven activist courts does look at social ills of drug abuse the law to address them but is all with the opposite extreme, standing in what efforts by publicly elected officials to name and address social problems. You are also putting a finger on a limited inconsistency which in the first obamacare case the notion of having high demands on states to get the money was considered coercive, right . And in this case they could reread interpret the statute to deny funds, which if it was the theme would also be thats a lot of hypothetical. Thats a problem for down the road. Thats what we do. We look for more problems in our nature as attorneys. I want to talk to you guys for three cases. Its been really wonderful. You guys are just really good at this. Lets go to the mic. As i said at the top please introduce yourself, comments are fine, questions are fine but lets wait time for responsive. Good morning. Im president of the university of Baltimore Center for international and comparative law. Now i am in private practice. I appreciate all the remarks and one general question i for the entire panel is on the darkest of the dark side what is the entire what if the court were were to punt in all three cases and punt it to congress because you love it congress that is under the control of one party and the party has been chomping at the bit for a very long time to really sink its teeth into all these three issues . And the court could be, it wouldnt be the first time the court wouldve interest itself in American History but what if it were to be punted to congress on all of these three issues and say to congress can you do with it. The last speaker talked about on health care but what about all three of them . It gets punted to congress across the way. This is something that weve been grappling with. The potential fix, if it meets the a legislative fix, will depend on what the court says in its opinion. So one of the key hang ups happen in the icp case compassing thing that elizabeth was talking about. Reading the plain text of the law which Justice Alito really wanted the court to do any made arguments toward that end. Actually Justice Scalia said no, we take the whole law in its entirety. We consider the entire law including the amendments. And Justice Scalia said, look look, if you read through the entire law including the amendments, its very clear that disparate impact was like under the Fair Housing Act. But i think, look, we dont have any fallacies that at least the house would put forth the cure it would be a legislative fix. That would meet our end. I dont necessary think that the senate, this particular senate might do that as well, but i think that if there was attention fix that would harm the Fair Housing Act that the president president would veto that, but i also think that it will take us some time to get to the fix that we need and hopefully we would not be dealing with not this particular same congress. Ill just add one thing which is to resist the word punt. If the court were to say so these were to be cut off or if they say that if they said that were going to get comfortable doesnt offer disparate impact litigation, the fact that they didnt include language all, but congress to pass new law this and that, that is not a punt. It is a changing existing law. And, and, and, you know, its not a punt to the were going to do this thing blows up a bunch of 11, fortyfive years. They will overrule two pieces of progressive legislation, something from the Civil Rights Era that at the economic component to Voting Rights so bright it. In that sense from the defenders of the laws you they are likely it alone. And anyone else was looking to change this court. Lets take two questions at the time. This is the last thing in the world republicans in Congress Want to deal with. I dont agree, theres no way. You see the president ial republican candidates contorting themselves and pretzels on this issue. They say they are against Marriage Equality but they would go to a gay marriage. Broadly, lets be careful to that point, do you mean pretzel or do you mean just pieces of the wedding cake . They would like to have waited longer but the sixth circuit me that not really a choice. I want to get, lets take into we can keep talking to take two questions at the time so we get more. My question is regarding the fair housing case. As far as if this desperate impact if they decide it has no place in the Fair Housing Act, how does that affect some hud programs . I know they have a program coming out this summer, or a proposal coming out this summer which is the affordable fair Housing Assessment tool, which is going to require state agencies to look at data on the map and assess where there services are about hold of it and we will take one more. Im with the Financial Consulting firm. Want issue that it neither interestingly on the gay marriage issue was they came out, both justices, is that these arguments just a pretense . Doesnt a pretext argument hold for the two other issues that we also elaborate both senator housing and in the obamacare argument . So, if the Supreme Court strikes down disparate impact under the Fair Housing Act it actually will not affect the affirmative we are housing will. That particular rule is being promulgated under a different section of the law. Affirmatively furthering their housing and disparate impact are two distinctly different things. But one of the things that you may consider when youre conducting your analysis, under afha provision come, is whether or not there are any policies, for example, zoning ordinances that had been passed by the municipality that affect disparate effect on a particular protected class. The disparate impact is a component in terms of considering whether you are affirmatively furthering their fair housing but they are two distinctly different things. I dont think that will not impede the role. Municipalities have been doing it for decades, it is just that they have been calling it something different. Now it will be called the fair Housing Assessment and the only thing that hud is doing is empowering municipalities with the things they will need to accurately provide the assessment. Quickly on pretext. There continues to be a debate about whether or not the court finds itself aligning using a third branch, which is supposed to be a part of the checks and balances would it align itself more with this kind of ideological idea who saved what we see taking place in a conservative movement . If it is an issue around immigration or environment there are questions that are happening, will this Roberts Court align itself for with a direction to point the country in a specific way. I think a lot of us would say for the court to overturn years of precedent, finding situations where there hasnt been a circuit split, taking cases that many people just assume the court would never consider, you have to ask yourself, is that a real question . And if there is something happening where the court that is supposed to be above this kind of partisan politics, is something changing with this
comparemela.com © 2020. All Rights Reserved.