You get to hear about Upcoming Supreme Court term and hear from some of the top experts we could line up. The order in which our three panelists will speak varies slightly from the program you might have seen and it is reverse alphabetical order. Will introduce the three of them all at once and take a seat. You might even hear from eat later on. From me later on. Elia will always be the one who got away. He is now the director of constitutional studies and a senior fellow. However, probably all of you know him for many years to be spent at Cato Institute culminating in being director of catos center for constitutional studies. He was publisher and published 11 volumes. He has testified oh ok. You are responsible one way or another for 11 volumes. How many briefs have any of you filed . I bet it has not been more than 500. That is the extraordinary accomplishment and distinction he has here. He is associated with many other Nonprofit Institutions and is the author of supreme disorder judicial nominations and 2020 and continues to do very well. She focuses her practice on appellate litigation including highstakes appeals and u. S. Supreme court and she is argued in the u. S. Supreme court, filed dozens of briefs nationwide from 2010 to 2011 she worked for justice side of mayor and the Supreme Court. Amy is known to a great many of you for her work at scotus blog where she serves as editor and reporter for many years and continues to contribute articles that i read all the time there. She also argues before the Supreme Court. She has cotaught courses in Supreme Court litigation at both Stanford Law School and Harvard Law School and she holds lodge agrees holds a law degree. Start us off please. Great, thank you very much. It is wonderful to be back here. I think this is my first time in the building since i left in january but it will always have a special place in my heart because i actually got married in cato and have the reception right here in this room. Trevor, where are you . This trevor not in the room right now . He made a joke in his opening remarks about his four volumes he has now edited which is great. It means he did over one third of what i did. Even if his longevity at cato beats mind i hope i can still remain the federal or and hopefully put out the record for editing the review that trevor wont reach. Wally, you missed out you left out an interesting part of my biography, my recent stint in Higher Education and i realize i had to maintain credibility with this audience i had to leave georgetown and resume a more legitimate position with manhattan. Last term as you heard all day, this is not a case a term where i do a lot of Supreme Court reviews and some years you kind of have to put the stick on a pig and make sexy some tax cases or something. Did not have to do that last term. Some on the left especially are concerned that there is a reversal of the war in court civilrights gains of the 1960s but really what we are seeing is a stripping of war wallpaper of the 1970s. These are glasses from last nights gala, always a good time. It had a 1970s theme. That leads me into the first case i am covering, which is the harvard and unc affirmative action case. If i am right that the court is really reversing the excesses of the burger court not the war in court the next president from the 1970s is which in 1979 us this was an unusual case. Four justices said you cannot use race as a criterion for college admissions. Four justices said absolutely, you can use race however you like to remedy past wrongs and one justice, the deciding vote said well, neither of these is right. I think diversity is a compelling interest but race can only be one of many factors to achieve compelling interest and educational diversity. On that one justices opinion was this whole edifice that is now was born. So now more than 40 years later, we have a challenge to the oldest public and oldest private university in the country, harvard and unc using race. How . We do not know. That is part of the problem. But it sure seems like based on the statistics and based on how much harder it is depending on your race to get in at the equivalent level of resume, whether it is epa or sats and extracurriculars. They say and harvard for example, that the intangible scores, the personality score of Asian American applicants was downgraded on purpose so they could be projected even if they are more qualified than others etc. Etc. The question is after the Supreme Court in 2003 expanded upon that one vote and had five votes to allow the consideration of race as one among many nondeterminative factors but not strict quotas, will the court overturn that kind of allowance . I think it is good after initially taking up the harvard case the court added the unc case because all the modern jurisprudence involved public institutions. Under current jurisprudence there is no difference between public and private institutions that take federal educational funding under title vi. I dont think this case will differentiate. This is not about the treatment about private institutions taking private funds. Nevertheless, it is a four squarefoot one challenge to the use of race in admissions and indeed, potentially to the idea of educational diversity being a compelling interest that allows use of race which another context may not be. This is one area where if you had to bet you would think the harvard case would end up 62 with the new justice recuse. This is not an area where chief Justice Roberts he after all was the one who in a 2007 School Busing case wrote to the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. He said it is a sorted business this did being up by race. There could be some middle ground. Depending on what Justice Kavanaugh and barrett to do but i would not bet on that. If they overturn roe i think they are equally likely to overturn bucky. Moving from the most highest profile case of the term to the very first case of the term. The first monday in october the court takes up there was when 10 years ago. That is how long some of these cases last. This is a property rash property case. The problem is the standard for what waters beans under the clean water act is unclear and depends on one justice. What waters means under the clean water act is unclear and depends on one justice. They could challenge that before the epa took them to court. For a decade later they still have been going through the court system and it is all stuck on this issue of the definition of water. I wont bore you with the way the epa issued various guidance documents. Presumably the court will now take the opportunity to adopt the test from the four justice plurality which would allow wetlands to be regulated only when they themselves have a continuous surface water connection to regulated water. If you have a puddle in your property and it rains heavily and have a larger puddle that would not suffice. Moving from water to pigs. In 2018 california voters approved proposition 12 a farreaching law to prevent animal cruelty requiring all pork and eggs in the state to satisfy how the animals were raised, how they were confined etc. California has regulations and a lot of industry areas that effectively set the standard nationwide. If you are a car manufacturer you wont have one type of fuel omission for cars sold in california and another kind for the rest of the country. It sets the standard. This dynamic is particularly angry just for the pork industry particularly agree just egregious for the pork industry. The problem is of course, that the constitution gives congress the power to regulate interstate commerce not the state. Congress does not have any regulatory scheme for this kind that is relevant to this case. This raises the issue of the negative or dormant clause which is no sleepy area of law. And it tends to cut across ideological lines. Justices atomic thomas and gore sick of the most hostile. With the theme of my 70s glasses the dormant Commerce Clause covering standards is a balancing test from 1971 the pike case which i wont go through. It is undo birding this undue burden this. Whoever went here, i do predict firmly there will be a new clearer standard for evaluating negative Commerce Clause claims and so pikes halfcentury balancing test which has allowed plenty of lawyers to bring home the bacon will be at retired and replaced by something perhaps that will be a more clear regulation. Finally, the last case i want to talk about lets that is a website designer in colorado like master p the cake maker that did not want to make a custom take for a samesex wedding. Was he a free speech martyr . We dont know. They rolled 72 that they had antireligious bias ruled 72. Here we have a website designer and so there is no debate over whether there is First Amendment protected expressive activity. This is website design. Before running afoul filed a suit about not wanting to be fined, not wanting to be compelled to create these websites to celebrate samesex weddings, which lori smith the designer had religious beliefs against. The 10th circuit curiously and i think the only example of this kind of reasoning in this type of case said that the market for any Service Provider in that particular Service Provider. Lori smith here creates a unique custom product so the market is not it is a relevant there are other website centers available, what their prices are things like that because every Business Owner is its own market. It is remarkable really. Even if lori smith loses here, which i think is unlikely, but if she loses it will not be on the 10th circuits rationale which is just bonkers. The court will only hear the case on whether compelling someone to speak to comply with antidiscrimination law violates the free speech clause. There are some other issues with free exercise. Simply about compelling speech in the context of antidiscrimination laws. The court could slice and dice and find another narrow way to avoid resolving the constitutional questions but again, i dont think i think it will be a win for smith and not be a 10th circuit style analysis. I think i will end it there and let me just say i for one in here for reversal of the. Thank you. We will hear from amy. Height hello everyone. Thanks for having me. I wish i had cool props but i dont. I do have to offer some thoughts on three cases coming up this term one blockbuster, one may be blockbuster and one probably not look buster. Let me start with the blockbuster. This is the case in which the Supreme Court is going to tell us whether the independent state Legislature Theory is just a theory or actually a in constitutional law. It involves the constitutional elections clause it provides the time, places and manner of Holding Elections for senators and representatives shall be prescribed in each state by the legislature thereof. The case comes out of North Carolina. The North Carolina republican dominated legislature for the 2022 federal election, state Supreme Court which is nominated by democrats, then unconstitutional under the state constitution on the grounds of political gerrymandering violates the state constitution. Republican legislators who are defending the redistricting say under the elections Clause Legislature has the exclusive authority to regulate the time, place and manner of federal elections, state courts have no authority to interfere with that activity and the state constitution has no application. That is the theory. The independent state Legislature Theory. The Supreme Court has not adopted that theory but it has been floating around for a while. They floated the theory back at the time of bush v gore. The petitioners came to the court and said please state the decision below so our original districts can the election and the Supreme Court by a sixthree votes. This is really important and i think they are going to win. We will adopt this theory. We should state the decision below. Justice kavanaugh wrote an opinion saying this is a really important issue but it is too close to the election for us to interfere and that is why he. No say but then the court grants the petition and so the case is going to be heard in the fall maybe december. What is going to happen . I am not an expert on this, i think we have an expert on the doctrine speaking after this panel. We know there are 4. Pretty good prediction that they think they have a fifth vote already, likely being justice barrett. If you are betting you would bet we are going to have this doctrine after this term but it is not totally clear what it will look like. There is a very aggressive reading of a doctrine which would hold that the state courts simile have no authority ever to pass judgment on state regulation of federal elections. State constitution has no role whatsoever to play. Justice alito floated in his dissenting opinion which is when what the legislature is doing is really something that feels like legislating and not just traditional judicial stuff. In this case, redrawing districts on the ground that they were gerrymandered is too much. That is when this cause has role to play. I do not know what it will look like but i think there is a good chance the court is going to adopt this doctrine. That is the big blockbuster and it has big consequences for federal elections, not state elections. It applies only to federal elections. The second case is mallory versus dash. Mallory versus [inaudible] he claims he injured him in virginia and ohio but he brought this suit in pennsylvania. That is the crack of the case. It is not headquartered in pennsylvania so under the traditional personal jurisdiction rules of the Supreme Court, it is not subject to personal jurisdiction in pennsylvania. But pennsylvania has long required corporations to register to do business in this state and its statute provides if you register to do business in the state you are subject to general personal jurisdiction in the state. The Pennsylvania Court you consent. Once you register to do business in pennsylvania you consent to jurisdiction and all kinds of case is whether or not they happened in pennsylvania. The question is whether the due process clause prohibits the state from requiring a corporation to consent to personal jurisdiction. The pennsylvania Supreme Court said yes, the clause does prohibit states from doing that. The Supreme Court has taken a very narrow view of general jurisdiction for corporations in recent years. If they were to roll for the plaintiff in this case at what essentially undo all those recent cases and allow states a fairly easy mechanism and hold companies on any claim whether or not it has any connection to the state. In the wake of recent Supreme Court cases, this issue really came to the forefront because a bunch of states had this kind of consent principal. At that time i think it was quite obvious to me that Supreme Court whenever allow states to do this. It is less obvious to me now. I still think the company will but it is not as clear as it once was. This is a different court. Last year in the ford case, one justice wrote a quite interesting opinion which was joined by Justice Thomas calling on the court to reconsider its personal jurisdiction and jurisprudence calling on the court to go back to an original view of what personal jurisdiction was before a time of international shoe. And calling into question the fact that it is harder to see corporations than individuals and asking whether that makes a lot of sense. I am really curious to see what he is going to do in this case in particular. I still think it is likely the company will win. Third case i will touch on is the u. S. Versus texas. This is challenged by texas and louisiana to federal policy guidelines. The government promulgated some guidelines. Texas and louisiana sued and in the District Court in texas claiming guidelines venerate violate federal law. The District Court in this case held texas and louisiana have standing to challenge these guidelines and guidelines violate federal law. The fifth circuit denied to state the District Courts nationwide injunction. At the same time the ohio case reaches up to the sixth circuit and in an opinion by judge sutton the sixth circuit when the other way. Sutton held the states had no standing to challenge these guidelines and also rules against them on the merits. The general went to the court on an emergency basis and please lift the junction and the Supreme Court denied that request by a 54 decision with no reasoning. Interestingly, the four justices. Although the court denied the state construed the motion as a prejudgment petition and granted it meaning the case went immediately from the District Court of texas to the Supreme Court on the merits and jumped over the fifth circuit. There are several issues in the case because we are here to talk about the constitution i will just highlight the constitutional issue which is whether texas and louisiana have standing to challenge these enforcement guidelines. That there he District Court accepted was that the enforcement of these guidelines will result in more undocumented noncitizens out on the streets in texas and louisiana and that will cause them to incur more money and it could lead to more crime. The solicitor general challenges that. It offers the court an array of different ways it could hold a standing. Could hold when estate sues the federal government needs to allege injury. They could hold as a general matter plaintiffs cannot challenge enforcement decisions because those are dependent on decisions of third parties. It takes on the reasoning on its own. I think judge suttons opinion is quite good and offers the court a pretty good roadmap to hold there is no standing here and it offers a course some pretty narrow grounds on which it could resolve the case. Whether this turns out to have wide or narrow implication i think remains to be seen. Thank you. We will hear now from amy. Thank you, it is great to be here. I am not sure i have been on another panel with another amy before. I am going to talk about two cases, one is a blockbuster, one is a little bit lower profile and then i will look ahead at the september 28 conference when the justices will meet to map out new cases for the upcoming term. I will start with a case called which involves the statute of limitations and dna testing. In 2009 the Supreme Court held for an inmate has a right under state law to prove his innocence with new dna evidence then those procedures for the testing must be fundamentally fair. Two years later, the court held that inmates can pursue a federal civil rights claim to obtain dna testing of crime scene evidence. They have to show the state law has denied them the right to due process. The question before the court is when the statute of limitations could bring that civil rights claim starts to run does it run when they reject your request for dna testing or does it run later after the state Court Appeals process has run its course . The question comes in the case of a texas inmate rodney reed who was convicted and sentenced to death in 1998 for the 1996 rape and murder. He admits he was and a relationship and says suggested someone else perhaps her fiance who was a police officer, have ultimately been responsible for her murder. After his he tried to have dna testing conducted on items including her truck, which she often drove. The state trial court turned him down in 2018. The texas state criminal appeals, the highest state court for criminal cases in texas, turned him down than april of 2017, and denied a rehearing later. 2019, which would have been timing timely under the statute of limitations, which was borrowed under texas law from when the state criminal court denied rehearing but too late for anything else. He went to the federal trial court, the courts threw him out, and the fifth circuit brought claims that he brought his case too late. He came to the Supreme Court asking the justices to weigh in and asking them to adopt the 11th circuit ruling, which provides that the statute of limitations for dna testing only begins to run when all of the state Court Litigation has run its course. He says that the state criminal court ruling is the authoritative construction of the states dna testing log and it did not exist until then. There in terms of why this matters not just to reed but others in the criminal case community, the Accountability Group is fighting for a more generous interpretation of the statute of limitations. Dna testing is often the only the texas District Attorney says that the trial courts bunny 14 order 2014 order was part of the texas statute of criminal appeals that it was the decision turning him down in april of 2017 that interpreted the statute, not the order. They also argued that the court has no right to hear the case. The second case i want to discuss is merrill versus milligan involving section two of the billing rights act, which bars the discrimination of people to vote on the basis of race or color. Under the totality of the circumstances, elections are not equally open to participations by minorities. The Supreme Courts the Supreme Court in another case if this was wrong, i was going to have to blame warren burger, and they had another test to vote for resolution. There were two cases for plaintiffs satisfied before you look at the totality of the circumstances. I am not going to outline all three of them, but the focus on the case is on the first one, which is whether the Minority Group can demonstrate that it is sufficiently geographically compact to constitute a majority in a single district. In this case, milligan is a challenge to the state redistricting map for the house of representatives that alabama enacted in 2020. Every time there is a consensus, we need to draw a new map, so alabama redrew the map. It has seven districts. The state drew one majority minority district. The challengers went to federal court and argued that this plan under this voting terminology packs black voters into one district and cracked the rest of them into multiple districts, diluting their votes. They said that the state should have drawn another majority black district and the failure to do so violates section two of the Voting Rights act. The court agreed with the challengers. They have put the map on hold in order for the state to draw a new map, so the state went to the Supreme Court this winter exiting asking them to put the lower courts order on hold. The Supreme Court granted that request, put the order to require the new maps on hold, and set the case for oral argument in october. That means that alabama went forward in the may 2022 primary with the new map that will go forward in the november 2022 general elections with the new map. The four Justice Group in the dissent yielded two separate opinions that staked out different points on merits that could be going. Justice kagan wrote an opinion that said the District Court properly applied section two and i am not sure why we are putting this case on hold. Justice john roberts wrote his own opinion. He too granted the request to put the districts ruling on hold and would have required the election to go forward using the new maps to match with the concurrent Voting Rights laws, but he says there is uncertainty about what the proper standard is in a vote dilution claim. Justice Brett Kavanaugh filed a concurring opinion and said in addition to the questions surrounding section two, i am also voting to put this order on hold on the principal of the purcell principal, the idea that federal courts should not interfere in state elections too closely to the election. Justice kagan said in her dissent that it is four months until the may 2022 primaries, nine months until the general election. This is not too close to the election. Alabama frames the argument before the Supreme Court as whether or not the Voting Rights act requires alabama to intentionally create a second majority lack district. Black district. One of these key questions is under section two of whether the political is open to all and to show that a district is not equally open, plaintiffs would have to show that the districts diverge from race neutral principles from a neutrally drawn map. The second one is focused on the idea that places who show that they can draw a geographically compact map, and for the first jingles factor, places cannot draw their own maps by prioritizing race. You need to show that you can draw this second majority minority district. Related constitutional argument they make is that requiring the state to prioritize race when it is drawing the map is unconstitutional. The challengers are supported by the Biden Administration. They stress that the state is polarized in its voting and say that alabamas argument would have a significant effect on the majority representation across the country. They say that by requiring plaintiffs to show that this plan is not neutrally drawn, the state is proposing a requirement that congress rejected in 1982. Talking for a couple of minutes about the cases on the long conference, this is a reporters Worst Nightmare with thousands of petitions that are before the justices. It used to be that every time the court had a conference, you could figure out what the most likely cases were, but these days, almost all of the conferences that decide the long conference, the courts have only granted review in cases they are interested in. There are a couple of these that were key players that have been around since the summer before the court took its summer recess. One of the interesting ones i am following is a case called salas versus google. Section 230 of the Communications Decency act provides that no provider or user of Interactive Computer Service shall be treated as the publisher or speaker of information provided by another information content provider. Congress passed this law in 1996 after a new york court held an internet Service Provider liable for messages on its message board. Two years ago in a statement regarding the denial, Justice Clarence thomas suggested it was time to revisit section 230. He said the court should contender consider whether the statute aligns with the current state of immunity enjoined enjoyed by internet platforms. The question the justices have been asked to decide is whether section 230 protects internet platforms when their algorithms target users and recommend content. The lawsuit was filed by the father of a woman who was killed in an isis attacked in 2015 and says that google assisted and aided isis recruitment by recommending youtube videos to its users through its algorithm. The ninth circuit ruled that section 230 protects these recommendations as long as the internet Service Provider is treating all of the content on its website similarly. But it said we feel like we are bound by another ninth circuit case on this topic, and if we were to decide it with a clean slate, we would rule that section 230 would not prevent the providers content recommendations. Joseph, you talked about the American Household association versus the sarah case today. There is a trio of cases carried over from the Previous Term involving the chevron doctrine, one called brockington versus mcdonough, the case of an air force veteran seeking security seeking benefits. In favor of veterans before finding the law ambiguous. He says if you decided that it is ambiguous, you should overrule chevron. And there are two cases that are challenges to machine gun regulation. They did not ask the court to overrule chevron directly. The question is whether the courts should defer to chevron when the Central Government has affirmatively disavowed chevron deference and whether chevron should apply to statutes like these with criminal law application. Last term, the Supreme Court in the american outflows Association Case turned down an invitation to over 10 chevron and ignored it. I am interested to see what they do with these petitions at the petition stage. And we are about to hear a lot about term limits at the Supreme Court, which i am looking forward to. There is a michigan case challenging the ins constitutionality of term limits for michigan lawmakers in the 1992 amendment to the Michigan State constitution, voters enacted two sets of term limits for the state legislature. For the house of representatives, you can serve no more than 23 year terms. For the senate, you can serve no more than a total of eight years. The group of former legislators went to the Central Court and said that this violated their First Amendment right of individual expression. The lower courts disagreed with them, so now it is coming to this court hearing. Thank you to all of our panelists. I am going to take a couple of minutes to talk about cases that have not been mentioned yet. That is holland versus recount, the application of the indian Child Welfare act and its application. This has long troubled the criminal courts. The indian Child Welfare act was tossed by congress that the state governments had trampled on the rights of parents and had taken away their children without good cause. This granted power to Indian Tribes over questions of child custody. It is not terribly controversial, but there are some cases involving adoption late justice once said that in a case called holyfield, that case was the most troubling case he had ever had to rule on in his 10 years at the court because the planned meeting of the statute which was in favor of the tribe and its right, and yet the individuals before him, including not just the infant but also the indian couple who wanted the adoption to go through but could not make it go through because it would take away their own rights and aborted the rights to their tribe instead. In that case, he was at the law in response to what he thought was fairness. If issue did not go away because there is the issue did not go away because there is this tension between the General Court ruling, which says that the government hardly properly takes race into account, and the general course of ruling on indian law, which has said that because of Congress Plenary power over indian law, it was appropriately taken into account of the indian status. Whats makes what makes the issue in question is eligibility for membership in an indian tribe is a racial matter. It is typical language which works. You have the Supreme Court declaring what are possibly two things in the statutes in which individual rights are infringed on by the membership but in the case of eligibility for tribal membership in the case of infants who have never lived in Indian Country or had tribal relations and his parents may not have either. The Supreme Court last dealt with this in 2013. What they did, you may not be totally surprised to learn. They used the constitutional avoidance which says if you can twist yourself to avoid taking on apposite unconstitutionality by interpreting on it, it is ok to do that and Justice Scalia wrote for the majority and played soft and loose with some of the statutory language. Justice center mayor sotomayor in her dissent thought that Justice Alito would not take with the statutory terms, but it would be with the constitutional ruling. 10 years will have gone by when the Court Decides on nick cannon and some of you have already noticed that one of the big things that has happened in the 10 years is that the justice has thought about indian law with his justices in the modern area who have ruled majority elsewhere. We will be waiting to see how he transforms because he is likely to transform the courts ruling on indian rights. We also have the case filed by the Global Institute of arizona and the texas Public Institute foundation. With that, i will turn to our panelists and see if they have reactions to those comments. One thought occurred to me as amy was talking about reporters being difficult with the long conferences. We divvy up the various cases. It is an interesting question. What happens is that everyone has their own approach in terms of what cases they think are likely to be taken and then how you approach them. We cannot accept that scholars blog is a paper for resources, so petitions to watch where to go. As a practitioner, we always go to petition. Can i ask ilya a question . If you can play out more what you think a middle ground in the harvard cases might look like. Since harvard and unc took a different way, this is one way in which you could see potentially different opinions. It is a black box of how to use race. You can see the vacating Lower Court Opinion for Factual Development of how harvard uses race. That would punt the eventual overruling of bucky. Looking at justice oconnors 25 year look at the shot clock, he says in 25 years, we might not be able to justify the constitutional deviation over 19 years into that. That is the most obvious way. The 25 years sense is fascinating to me because in 2003, i was a sophomore in college, so i wonder if there is any such thing as a throwaway line to the court of opinions. How seriously do you think the justices will take that . I do not think any buddy on any side of the question will take it seriously. I had one thought which was listening to the presentations which struck me of how many of the cases we were talking about first came to the court on the emergency docket to the other ones i discussed when the other amy said, and the other thing we were trying to see last year and continued to see is that the court be more creative in how it deals with this deluge of cases coming on the emergency docket. It has received a lot of criticism in recent years about how it resolves these cases and i think that we saw it respond to that criticism implicitly last year by taking cases from that docket and moving them to the other docket. Expedited everything for some of these cases, and now the case involving the challenge to the immigration guidelines having the court deny the stay but then take the case and move it up directly, this is a creative way that the court might be thinking about dealing with some of these challenges. I think it is a challenge for the court to deal with these cases. That is an interesting wrinkle, the difference between the emergency and regular docket. That difference makes its appearance on some have called it the 333 court. The three democratic justices, and the other three on the centerright you do not see that with the main docket with her you look at the top cases. Occasionally, roberts moves judgment, but you do not see it on the 333. You see some cases where robinson cavanaugh joined the liberals to vacate that stay. As we go postcovid where a third or half of the highprofile docket cases came from that tendency or narrative, i do not know if it will continue. We are hopefully postcovid, but we are also coming up on election season, which is another sweet spot for lots of emergency appeals. One of the conditions that i did not have time to talk about in detail is our attorney from the shadow docket, the biden versus missouri petition about whether or not the Biden Administration could impose Vaccine Mandate for Health Care Workers at federally funded facilities. As amy said, that was one of the complaints on the shadow docket for a long time and they can actually fasttrack cases when they feel like it and they fast tracked that case, issued a decision in favor of the Biden Administration relatively quickly, but now that case has gone back to the lower courts and is back up at the Supreme Court that i think is scheduled for the long conference. Will we see them fast tracking the appeals of former president trumps past troubles in south florida . It is hard to imagine that they wouldnt. If you are trying to keep up with areas where the Court Documents are changing with it is frustrating that it is these emergency cases on the emergency docket covered cases who have to turn because they are not being argued in the full thresh of mentor. Manner. Is it significantly different than when they last ruled on some of the issues . I will add one more thing on the shadow docket, the issued case which was a roller coaster and will continue to be a roller coaster because initially, Justice Sotomayor put the lower courts order on hold and referred it to the full court. We got some opinions several days later, and today she has announced that it is going to all of the groups that are on hold for now. Wow. With religious liberty, i do not think any of the panel has covered this, but the praying coach case last term where Justice Gorsuch and the majority opinion announced we have long ago abandoned another 70s throwback and eventually said that all of the jews has been squeezed out of the lemon and we now throw away the right juic e has been squeezed out of the lemon and we now throw away the rind. We will turn to general questions now and fees will come from the Live Audience and online these will come from the Live Audience and online. You can join the conversation and submit questions on the webpage or on facebook, youtube. Use the hashtag, catoscotus. For those of you in person, we will have a microphone. When the microphone comes to you, please speak directly into it so we can get to all of the questions, but if you could announce your name first. We have someone back there with the first question. I am bill watkins. My question is on the google case and section 230. The way that you phrase the ninth circuit decision, say that however strict google was being striking down, limiting censoring videos against american conservatives, if they were not as strict as the uranian government uranian government, they would not be liable for section 230. Is that the way it worked out . The ninth circuit had held that google could not be held liable as long as it was treating other recommendations similarly. But if it were up to us, without the prior ninth circuit precedent, we would hold that google would be liable. Ok, more questions. Thank you. This is for ilya. This question has to do with the door and its claws. There are two ways this could go and i wonder which direction it might. It could go to where Justice Scalia wanted, which looks at instances of discrimination by one state against another, which has long been held the standard. The other is the way that Justice Thomas has talked about in trying to put it on immunities and just getting rid of it altogether. I wanted to know if you had some sense of how that would go. Only thomas and gorsuch are cheerleaders of the clause, although i think this is more about immunities. That is less likely. The scalia route is more likely, but again, this is hard to predict because it crosses borderlines. The statutory preemptive cases are also hard to analyze and predict. What about if there is evidence of not discrimination but wanting to interfere with interstate commerce . How do you deal with that because there is evidence of that in this case and the way that California Law operates is that golden state agents are sent around the country to inspect agricultural facilities. The intent and purpose and obvious consequence of this law is extraterritorial action. The only thing i am confident in predicting is that they will replace hike with something. I am fascinated with that case. I think that the justices policy preferences are involved in this when you think about the clause, which leads to a lecture that we do not leave things that are not there and more questions . Far table there. I am philip, i would like to shift your attention for a moment to the Supreme Court confirmation process. In the past, we always had the theater of speeches and assertions about the importance of president s. I think in the common understanding and the culture right now, dobbs has may torn the veil away from that. I would like to ask your thoughts regarding whether the next few Supreme Court confirmation efforts and processes will have a different set of conversations about president precedent and about what the candidate may or may not do. I will go first since i wrote about this. Now available and an updated paperback edition. So this could go one of two ways. Overturning roe ends and a certain sense the distortion that roe caused and we have only seen two justices consistent, Justice Thomas always votes to overturn when she when he thinks something is wrong. Nothing they the candid ay cannot predict, no forecast, no predictions, no hints. And that is right. You dont want to effectively have judges precommitting to certain views in order to get confirmed. That is not good. Senators can ask whats the ultimate response will be the same so it could be that it becomes less of an issue and we talk about other things. Especially five years from now as the reality that dobbs is here to stay. I dont know what the next big president s are that people will focus on but it could indeed have the acute political reaction now but in the medium to longterm diffuse at least that aspect of the confirmation. I agree with a lot of that. I think so much of the conversation was about roe and they have been overruled. Justice injection justice jack should i dont know when we are going to have the next confirmation hearing. I dont expect to have one anytime soon. Who knows what the next thing is going to be. Is it going to be griswold . Im going to push back a little bit on the ginsberg rule that no hints, no forecast. She actually said a fair amount about her views on the various positions. I do wonder whether we will see more targeted questions from the senators, more followup questions. The Supreme Court can overrule president s, sort of playing out a little more everything that has been said can be said on that topic. It is hard for me to see a real change. The senators can ask more targeted questions but i think the answers are still going to be the same nonanswers and i do not see that changing. It is hard for me to see senators changing, which helps determine their behavior. Thank you. And frontier. And at front here. I would be interested in anyone else. You said in the harvard and usc affirmative action case there could be an overruling of the fisher case as well but there could also be a compromise. Do you think it is possible with a could say is diversity is still a compelling state interest and we can hire education setting but we are going to impose really strict scrutiny . We will not differ in any way. We are going to require them to act which way in how you determine which groups are underrepresented and what educational benefits they provide and why Asian Americans are favored if they are and so on. That could be a way they could strike down the harvard or unc program or perhaps both also not eliminate two precedents. Do you think that is a likely possibility or it is more likely that they will be overruled or i suppose there could be some other option . I think this is that goes to amys question about other potential compromises. I think that is a possible compromise that they in effect i dont know if it is overruling for but taking fisher one more seriously because it didnt seem like there and they sort of got too tired by the time fisher came along and let it slide. Grider and effect elaborated on bucky and said you can use race as one of many factors for this diversity interest. Fisher was supposed to put teeth into that so it is possible they do not overrule but they say we really do have to scrutinize which would entail sending the case back for more factfinding. Or maybe not. Maybe it is so overwhelmingly developed and so strong that they can rule against harvard without anyone without overturning grudder. What a b also pull what it be pn grudder . What do you put in its place . I have a hard time seeing that so i do think there could be some sort of compromise but if it goes than i think bucky goes along with it. More questions . Here is another possible split decision. I would love to hear all the panelists thoughts and have the people in this room think about it because this is an organization that very much respects private choices. Why should the rules for affirmative action be the same for public universities and private universities . Maybe charities that act charitably and so we should not allow this goes back to bob jones, that private universities should not be allowed to discriminate against historically underrepresented groups. One could take that position. Public universities have to be colorblind. The john roberts approach but private organizations should be allowed to take race into account not just for diversity but for remedies and all the rest if they are trying to improve representation of historically underrepresented groups given history of exclusion america. Why shouldnt that be a sensible approach . Can i add to that . That is exactly the position we took in the Army Recruiter case. That is right. That is exactly the position we took there. Though i cannot quite speak for him i will say exactly the point being made here, a lot of people at cato who began nodding their head because i see no reason myself wife the harvard case why the harvard case would turn out the same. What is the rationale for treating them the same . And imputes 14th amendment standards. They would have to call for further briefing on edge because that issue has not been briefed at all. Briefing on it because that issue has not been briefed at all. One more question. A followup on that, if the court was to go in the direction of treating public and private universities differently for purposes of affirmative action is the court have to then wrestle with the question of because part of the reason for that equivalent is not a constitutional holding but a statutory holding as to what the meaning is and even though in a textual matter one could argue that the court misinterpreted the statute as a general matter the court does not like to revisit or reconsider Prior Holdings . Corrects. Good point and that was a fast enough question that someone has a lightning round question, we have a few minutes left. If i dont see any. X am just glad you did not ask about the clean water act. I dont see any other questions but let me just say with two minutes left to go, please do not go anywhere. This program will be followed immediately by a lecture. 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