Transcripts For CSPAN Supreme Court Term Review 20170810

[applause] good morning. Im from the school of law and pleased to welcome you to the seventh annual u. C. I. Law Supreme Court determined review event. Our first event was held in the closet. So were expanding. This event brings together the law school, the university, and the larger and broader Orange County community to talk about one of the most important but most publicly neglected institutions, the United States Supreme Court. We have a unusually bright group of scholars to talk about the changes to come in the terms ahead. I ore turning to the program want to thank the organizations that made it possible, the irvine buckley theater, the special events Team Including Amanda Stegall and from the law school on new interim dean, son richardson and colleen, and ryan hadusk, jimmy lee, javier miranda, lou alvarez and Victor Quadros and for cspan for recording this event for the first time. I also want to single out for special thanks the man in the middle of the stage, u. C. I. Ounding law school dean, irvin chemorinski. [applause]. I left to take a position at the u. C. Berkeley school of law. Its no exaggeration to say none of us would be here today if it were not for you. Neither at this event nor the law school with such a reputation for excellence, commitment to scholarship and teaching. It was your vision that brought the school to life, your hard work that made it flourish and your kindness which made it a joy to go to work each day and well always be in your debt as a community so thank you for everything youve done. [applause] years ago at this event, the dean commented on some of the surprising liberal decisions of the Supreme Court, including the berkenthol versus hodges recognizing a right to same sex marriage and team versus birwell from saving what might have been killed by a grammatical error. And the term of the jedi in the 2015 term would be the Empire Strikes back. And including a case that would have greatly affected Public Sector labor unions but then stice Anthony Scalia and a concerted majority on the Supreme Court died suddenly in 2016 turning that term upside down. President obama nominated d. C. Chief judge and objected to obama filling the seat and justice quarter land did not get a hearing and after the election president obama nominated neil gorsuch to the bedge and confirmed by the senate this spring. Justice gorsuch is already making his mark on the court. And retirmente rumors continue to circulate about Justice Kennedy so more movement at the court could be coming in the near future. So the Empire Strikes back may have had its release date pushed back but theres every reason to believe the eventual sequel will be a blockbuster. Joining us to sort out what the court did this past term and what its likely to do Going Forward is our stellar panel. Ill keep the introductions brief so we can get to the program and this remarkable rm knowing the full speakers bios are online or in your program. Greg stohr has covered the Supreme Court for Bloomberg News since 1998 and Bloomberg Radio law program. He covered the bush versus gore and the election and the society of American Business editors and writers breaking news award for the 2012 health care decision. The honorable Leandra Kruger has been a justice of the Supreme Court since january of 2015 and immediately before joining the court she served as the United States department of justice as Deputy Assistant attorney general for the office of legal council. From 20072013 served in the department as an assistance to the pulitzer general and acting solicitor general. During her tenure in the office of solicitor general she argued 12 cases in the United States Supreme Court on behalf of the federal government. Dean at erinski is berkeley law and is from the california Irvine School of law and previously taught at Duke Law School and the university of Southern California school of law and is one of the countrys leading experts in constitutional law. The honorable alex kazinsky was appointed circuit judge for the ninth circuit u. S. Court of appeals in 1985 and served as chief justice on that court from 2007 until 2014 and he graduated from ucla after law school and he clerked for chief Justice Warren berger of the United States Supreme Court and Justice Anthony kennedy. Prior to the appointments to the appellate bench served as chief judge of the United States claims court and finally Professor Leah litman of u. S. I. Law and writes on constitutional law with a focus on federalism and post conviction review and clerked for George Jeffrey sutton of the United States court of appeals for the sixth circuit. He was a member of our panel two years ago and clerked for kennedy on the u. S. Supreme court and was gracious to join the panel. Judge litman joined where she was a lecture on law. To keep the program moving i asked the panelists to speak for no more than seven minutes on one of the courts cases as well as a theme from the term and will leave us with half the time for the panelists to engage with one another and to take questions. Well take questions from the Live Audience and well take questions on twitter using the uci law scotus. Given this venue and press of time we changed our format for audience questions and rather than have audience members step up to the microphone there is should be cards you can fill out when professor litman is done speaking after everyone has had a turn speaking ill make an announcement you should pass your cards to the aisles and theyll be collected and ill ask questions from there. You can have a general question directed to all the panelists or a question directed to any one of them. Please keep your questions short and keep your writing legible and please keep them questions. Also to keep things moving, id like you to please save your applause until the end of the program except for now as we welcome our panelists. [applause] im going to talk about the travel ban. Rick said he has only given me seven minutes to talk about it and id like to talk upwards of an hour but because of the time ll skip over some things. I presume youre familiar with the political context so ill focus on the political decision from the Supreme Court in maybe what it says about the court and its relationship with this president. The facts in the background ill skip over largely including a provocative and very readable opinion by judge kazinsky along the way. The executive order as it came to the Supreme Court, the second one the president had issued, president siey, National Security, with people from six mostly muslim countries for 90 days from entering the country and the executive order says the purpose of that is to reduce the burdens on the department of Homeland Security as they review the vetting procedures from people from that country from those countries. It comes to the Supreme Court, you have two more courts that have blocked the ban, decision out of the Fourth Circuit says that the rationale its rationale is that this is unconstitutional discrimination on the basis of religion, that is shows animus towards muslims. Another court, the ninth circuit says we dont need to reach that constitutional question. Were going to uphold an injunction against the ban because the president exceeded his authority under the federal immigration laws and gets into the wording of the federal immigration statutes. So coming up to the Supreme Court, the president asks for basically two things. He wants the court to hear the appeals of both those rulings but not hear arguments until the fall and to block the travel ban in the meantime. And because of the temporary nature of the ban, the fact its only 90 days, it creates had really unusual dynamic where the stay application and the merits question intersect in an unusual way, whatever the court does on the stay application may end up being the entire ballgame because the travel ban might expire before the court ever hears arguments. Ok. So it comes up to the Supreme Court. I need to move my page down here. Cutting to the chase is probably most people know the court lets part of the banta effect and it issues this opinion, which is theres a opinion not written by any one member of the court. In fact you can search through this entire law document here and look for the names robert kennedy, Briar Ginsburg and solder h other and soda mayor. And it says little of the merits and isnt focusing on the merits. Usually when the court takes a stay application, it looks at a list of four factors and the first one is likelihood of success on the merits and it y gives a little talks about who is going to win. Well see which side will be hurt more if they lose here and the broader protection of the interests and looking at the equities, probably again most ople know this but the court decided for people who had outside the country from those countries who had a connection to the u. S. , whats called a bona fide connection to the u. S. , the court said the equities the court said the travel ban cannot apply to those people and remarkably in evaluating that and looking at the equities, it described what the lower courts did and described how the lower courts talked about the impact on these people if they couldnt enter the country. The court didnt actually decide whether the lower courts got that right but said were going to leave that in place and not disturb that so the travel ban cant apply. When it came to the people who didnt have a bona fide tie to the u. S. , this is actually what i think is the medias part of the courts opinion. The court still cast it as were not looking at the merits, this is the equities were looking at but it had a statement in here that said that the president s interest in enforcing the travel ban and, quote, the Executives Authority to do so are undoubtedly at their peak when there is no tie between the Foreign National and the United States. From my standpoint it sounds like the court is pretty much saying that with regard to people who dont have any preexisting connection to the u. S. , the president has unfettered authority to say you cannot enter the country. There is a separate opinion by Justice Thomas, joined by justice leto and justice gorsuch, not Justice Ginsburg that suggests the court hasnt made a discussion on the merits this case and it says there is an implicit conclusion the government made a strong showing and is likely to succeed on the merits. He also says what is unquestionably the right way of describing a majority opinion, e calls it the compromise. And sur surely this must be right, this opinion must be a product of people on the courts who for differing reasons did not want the public descent from it so i can imagine Justice Ginsburg and chief having a hn roberts conversation whats having a conversation whats going in and whats not going in. And for the court to decide in the fall, i think theres an excellent chance event will overtake the argument, the 90 days will expire and the president may well issue some superseding executive order and its possible the case goes away and then theres ongoing litigation in the lower courts now, the District Court in hawaii over what had a bona fide connection to the u. S. Means and in particular, the Trump Administration has taken the position only a limited number of family members notpar Administration Position is only that limited number of people can enter the country and theres a fight over that. And that could certainly make its way back up to the Supreme Court to clarify what it meant sometime in the next couple weeks. Interestingly, there was a poll that politico did that seemed to sst kind of liked the vote the court got to in this case that may be sort of the court sometimes has a sixth sense about what will be an acceptable decision and maybe in trying to avoid the big confrontation they gravitated towards that. Rick also asked to talk about themes for the term. I think this court has been mostly in a Holding Pattern since Justice Scalia died in february of last year. There were not a whole lot of blockbuster case this is term. Well have some interesting cases were talking about here. But to a large degree, the court managed to or the lawyers didnt bring the highest profile cases and at least one big case involving transgender rights, the case went away. But thats about to change. Were going to have some very big cases coming up in the fall and hopefully well have a chance to talk a little bit about those later. In a term characterized by an uncharacteristic degree of sleepiness, one of the higher profile cases was probably the most important of the three, First Amendment cases the court decided which is a case called can you not hear . Is this better . A case called netall versus tan. For most of the life it was known as lee versus tam and perhaps better known in public discussion as a kind of proxy fight over the cancellation of the trademark of the Washington Redskins football team. The question had to do with the constitutionality of the landaum of the 1946 act which forbids the registration of marks found to be disparaging, to persons, to institutions, to beliefs or to national symbols. The argument of the redskins case was of course that the term redskins has long been understood as a slur that is disparaging to native americans. This particular case arose in a very different factual setting but raised the same legal questions. It concerns the use of the mark the slant or a dance rock group trying to reappropriate a term that had been used as disparaging to persons of asian descent for the purposes of reclaiming it as a badge of pride. It was found by an companier at the patent and Trademark Office to be disparaging and therefore not registerable because of the likelihood it would be found offensive by a significant portion of the group that it ascribed. And the member of the band challenged that decision and prevailed before an onbank federal circuit and unanimous Supreme Court agreed and the unanimity i think was something characteristic of the eight justice Supreme Court for the lengthy period in which it served shorthanded. But the unanimity about the result masked the fairly significance of the proper mode of analysis for reaching that result. The governments central argument in the case rested on having a certain understanding of what exactly federal trademark registration does and does not do. Emphasized that federal registration is not necessary to the federal registration, what it does is the government creates a list of those registered marks that makes it easier to defend the mark defense against other users who might want to use the same mark to identify their different goods or services. The government said theres nothing that bridges speech about the federal governments choices of what marks its going to register or not register but what the government is really doing is adding additional Legal Protection against other people using that same speech. Its providing something of a monopoly power for the holder of the trademark and as such but what really matter is whether or not theres a reasonable relationship between the various kind of criteria that the government uses to decide whether to register the mark and the purposes of providing that enhanced protection. A contrary conclusion would not only call in question the constitutionality of the antidisparagement provision but other criteria the government uses like whether or not the mark is justice descriptive, whether or not theres a risk that the registration of one mark might dilute the power of another mark. The Supreme Court by and large was not moved by the governments framing of the case in these terms and notably and ill just highlight a few aspects of the courts opinion. The first is that the court really didnt engage very deeply with the governments attempt to characterize federal trademark registration as a kind of special sort of government program. And the court was extremely careful in both elite opinion written by Justice Alito for four justices and a separate concurring opinion by Justice Kennedy that was also signed by four justices to avoid making broad pronouncements about what the right framework is for thinking about trademark law is in general. And was very focused to the extent possible just on this one provision. The antidisparagement provision. The central theme that emerging from the various analytical approaches from these two separate opinion is this, no matter what you conceive of the federal trademark Registration Program as a kind of government subsidy to mark holders or whether you consider it a regulation of commercial speech any other kind of a docturnal program, what the government cant do in that program is attempt to suppress speech on the basis of view points that it expresses. And the central move the court makes and the central First Amendment takeaway from the case is that giving a sense to people is the expression of a viewpoint. The government argued it wasnt ban se the disparagement applied across the boorts and you cant disparage republicans or women like you can men. And the court said regardness law it suppresses more view points doesnt make it less viewpoint discriminatory and thats the one thing the overnment cannot do. Interestingly, there is some suggestion in Justice Alitos opinion the result might have been different if the disparagement bar had applied more narrowly to ethnic spurs and alike in the governments interest in protecting the commerce that might be impeded by discriminatory speech. But the court said Justice Alito said in his lead opinion at this is not such a clause or narrowly drawn to serve any purpose but what he calls to create a kind of happy talk clause where its possible to speak positively about persons and institutions but not negatively. And theres no adequate justification for the government attempting to draw distinctions on that basis. But Going Forward in the short term what it means is that the disputes that have centered on the disparagement bar is over and the government filed a letter of surrender in the redskins litigation and presumably well see more registration of similar marks in the future. Wed like to see additional questions arising how the courts reasoning applies to other aspects of trademark law including theres a provision that bars registration of marks that are scandalous and presumably will give rise to additional questions about how to think about the governments role in making judgments about what counts as scandalous speech for purposes of federal trademark registration. But the unanimous fullthroated message that comes through from the courts decision in this case is really a fundamental principle of that giving a sense is not a sufficient reason for the government to attempt to drive particular views from the marketplace and that the appropriate response is instead ore speech rather than less. Its wonderful to be here, rick. Thanks for those kind words. I would be remiss if i didnt thank rick for this program. Rick came to u. C. I. And had the idea of doing a Supreme Court review program each summer. Each year hes put together this program. Its not only the best attended event the law school puts on but i think one of the most attended event on the entire campus. Thanks for doing this and thank you for including me. [no audio] what i want to talk about is Trinity Lutheran of missouri versus polly. The state of missouri has a program which aids the schools in the state. The state takes tires and makes a substance for the bottoms of playgrounds. The kid falls in a soft landing spot. The state gives it to Public Schools and secular private schools but it wont give the aid to religious schools. Thats because of a provision in the missouri constitution that prohibits the states giving aid to religious institutions. And in fact, the majority of states have similar positions in their constitution. There was a time that congress insisted on such positions as a condition for statehood. Ne of these schools, the columbia of missouri, it denied free exercise of religion to keep it from receiving the aid that secular schools were able to get. The United States court of appeals for the eighth circuit in a 21 decision was in favor of the state of missouri and ruled against Trinity Lutheran church. The context of this case is relatively unusual for the Supreme Court. Most Supreme Court cases to aid of religion is of the question of when does a forecast form of assistance given to Parochial School establish the clause of First Amendment. Its about when is the denial of aid in access of religion . Prior to this there was one Supreme Court court case on issue, the decision called lot versus davies and involved the state of washington giving scholarships to students within that state who had excelled in college in the state. Joshua davey had received one of these promised scholarships and wanted to attend a seminary in washington to be ordained as a minister. The state of washington based on a provision in its constitution refused to allow the scholarship to be used in that way. Davey sued saying it infringed his access to religion to keep him from using the scholarship that way. The Supreme Court in a 72 decision ruled in favor of the state of warningt. Steve Justice Rehnquist wrote to the court and Justice Scalia and thomas dissented. The key decision in the brief and argument and opinions is that in lot versus davey is distinguishable in the fact of Trinity Lutheran versus poly. The United States Supreme Court in a 72 decision thought lot versus davey was extinguishable and ruled against the state of missouri. Chief Justice Roberts wrote the opinion for the court and it was the opinion of the court except for one footnote. Three justices joined his entire opinion, justices kennedy, briar and alito, thomas and gorsuch said they would join all of it but for the three and Justice Ginsburg said the way i read it, vehement dissent drawn by Justice Ginsburg. Chief Justice Roberts said the discrimination against rnl must meet the most exacting scrutiny. Supposed to meet strict scrutiny meaning Government Action must seem to be necessary to achieve a compelling government purpose. The court here found strict scrutiny wasnt met. And said missouris goal was to stay as far as possible away from violating the establishment clause by giving aid to religious institutions. He said thats not a compelling government interest. They said the key issue would be lot versus davey distinguishable . And chief Justice Roberts said yes. He said first in lot versus davey, the aid was being denied because of what joshua davey was doing, going to seminary. This is denying aid because of what the institution is, a religious institution. In lot versus davey, its about training someone to be a minister and anything would violate the establishment clause, the for him to be trained as a minister. The Court Concludes and Justice Roberts says it is odious and was his word to dim nate religion in terms of the aid it receives. The key issue is going to be how far does this extend . Does this mean any time the government provides aid to a secular private institution it has to give the same assistance to a religious institution . Chief Justice Roberts addresses that in footnote 3 and he says this is just about aid for a playground but nothing more than that. Justice briar write as separate opinion saying this is just about aid for a playground. As i mentioned Justice Thomas and gorsuch dont join footnote 3. Each of them write a separate opinion in which they sharply criticize lot versus davey and indicate they really want to overrule lot versus davey. Ice society a high other Justice Sotomayor said its the first time in history the Supreme Court said the government is constitutionally required to give aid to a religious institution. But the distinction the court gives makes no sense. She said with regard to the first distinction that it is based on joshua davey was doing, whether he was it doesnt mean any time the government doesnt give aid to religious institution, its discriminating against it because of what it is and would violate the constitution. And the second distinction, money is fungible, and this is giving money to a religious institution, a institution thats all about religious devotion and prayer. If you give money to the playground, thats aid for Something Else. This isnt just going to be about the playground. Here the justice is likely pathetic. Youll see an enormous amount of litigation in any instance the government is giving aid to secular institutions and not religious once and the religious ones will sue and say it rights our right to religion. I dont think footnote 3 will have much effect in the future and there are likely five justices on the court who rule in lot versus davey. Let me include with my major theme of the court and that is that its still the Anthony Kennedy court. Justice kennedy voted in the majority in 97 of all the decisions. The most of any justice. Even if you exclude the many unanimous cases, Justice Kennedy was in the majority 93 of the time. Second was chief Justice Roberts, 10 Percentage Points below that 83 of the time. In fact, for lawyers that are litigating before the Supreme Court, my advice is to make your brief a shameless attempt to pander to Justice Kennedy. The clerk of the court will allow it put Anthony Kennedys picture on the front of your brief and thats of course why theres so much attention to the possibility Justice Kennedy might retire. If he retires between now and january 20, 2021, replaced by President Trump, well have a dramatic ideological shift on the court, the most conservative court since the mid 1930s. Irwins last comment, and when it was said i clerked for Justice Kennedy, it was not correct. I clerked for judge kennedy. I clerked for Justice Kennedy when he was in the ninth circuit. Just make that perfectly clear. So the case i want to talk united turn versus the states. And you have to understand its the application of a earlier Supreme Court case called brady versus maryland and i assume you know the case, but not everybody. I need to summarize it, it was a case decided 54 years earlier and what it held was a matter of due process, a criminal defendant is entitled to have handed to him by the osecution any expull 5 tore exculpatory evidence, proving lack of guilt or innocence, or by impeaching the governments witnesses. And i want to spend a minute talking about brady because it is not like miranda or the exclusionary rule where you have rules and criminal law that show some other purpose. We have, for example, the rules suppression in the case of Fourth Amendment violation to protect each of us, from intrusive government searches. Brady is actually geared to the criminal defendants. Nd there is a huge disparity in access of information the defendants have as opposed to the prosecution. Theres a crime, the police come in and cordon off the area and they gather up, sweep up all the evidence and tamper the rest of it and they sweep up and the rest of it they make sure its unreachable. They can have access to witnesses. They can subpoena them and the police can call them in and they can put them in front of a grand jury. There are also advantages to access information the government has that the defendants dont have. O providing so they come up with exculpatoryy evidence and provides that it serve as due process, it serves to make the trial fair, unlike civil cases, theres usually no discover discovery in criminal cases and the Constitutional Rights to discovery, so there is a real need for prosecutors to look up brady. Its been 54 years, half a century, and theres strong evidence out there that brady has been sort of more in the breach but many prosecutors dont live up to brady. And theres a loophole in brady and the question is, the Supreme Court said the government must turn over everyday that is material to the defense. And in turner, the case decided by the Supreme Court and passed on views was what does it mean to be material . Now, this case, turner was based on event that happened in 1984. 1984, this was before i was appointed to the ninth circuit. I was actually living in d. C. A few blocks away, in southeast. This happened in northeast, only a file or two by my house. What happened is a young woman was abducted on the street, taken into an alley and then in. A garage and dragged she was beaten, robbed, odd onlyized sodomized with ither a pole or an iron pipe and killed. The government brought a case against nine or 10 defendants and the theory of the government was that a group of youth had decided to abduct this lady and drag her to the garage. There was evidence to that effect. Two of the group, the alleged group testified for the government for a lesser sentence. There was some other witnesses that testified in support of that. What the government did not disclose, and i should note this is not an oversight, this is a willful nondisclosure, that the body had been found by a Street Vendor and turned out the Street Vendor told police two other people he he had seen two people rushing away from the crime. It turns out a guard by the name of mcmillan, though when the defendants asked for the names, the government willfully refused to provide the information. How time flies. Any event, there was an observation and it was not disclosed to the defense and the majority looked at the situation and said look, the government has a strong case it was done by a group and really nothing the defense could have found based on the evidence. Justice kagan writes an unanswered dissent saying the reason all the defendants accepted the idea this was a group killing is because they did not have this information. And it would have looked different had the defendant has this information. And she explains quite convincingly, i believe, why this the government should have turned over the evidence. But four takeaways from this case and theres much more i can say about it but four takeaways. It leaves the decision as to whether or not to turn over evidence in the hands of the prosecution. The prosecution always sees the case from its perspective, even in good faith, they view it as a group killing and they found evidence that its not a group killing and simply is not convincing so theres no reason to turn it over. Most brady cases we dont know about it because most cases involve guilty pleas or evidence that comes to life because its held by the prosecution. Here it came to light 24 years after the event, after theyd been in prison for 24 years. The second thing to take away is mcmillan, the guy whose name was not disclosed, seven years after the event, he was involved in another in fact guilty of another killing of a young woman, a killing and sodomizing and robbery a few blocks from the scene of this crime. So the second takeaway is whenever the government fails to turn over exculpatory evidence theyre risking convicting a guilty person but also rather than convicting an innocent person, theyre allowing somebody to go out there who might go out and do it again. This has happened again and again, many documented examples of this. The third thing is theres nothing in the Supreme Courts opinion that casts any as persians on what the government did here. No naming of the prosecutor, no attempt to say what happened here was wrong or shameful. And finally, the government the Supreme Court mentions that the Justice Department has new guidelines that avoid this problem now because they have general discovery. Theres an article by jessica bradden in this issue of slate that documents all the cases that the justices failed to live up to the policy and read sydney powells book license to lie of all the instances of the United States government, the Justice Department, failed the policies ince 2006. Ok. So rick gave us seven minutes to talk about one case. Im going to try to hit two cases in that sevenminute period but i promise to abide by it and i want to talk about these two cases together because they both raise the same two questions. The first question is when can you sue a federal official for damages for violations of your Constitutional Rights . That is, when are you actually allowed to sue federal officials . The second question is when you can get damages for violations, that is when an officer is actually liable for damages, assuming that you are allowed to sue them. The two cases that raise these questions from the past term are zigor versus aussie and hernandez versus mesa. I should note at the outset just to disclose it i was among the lawyers on the brief for the Hernandez Family in hernandez versus mesa. The case, the first one involved a group of men undocumented in the United States and they were all or are all south asian or arab and many of them were muslim and were arrested in the course of f. B. I. Investigations in the wake of september 11. These men were not suspected of any terrorist activity and the courts examining the case found they had no connection to any terrorist activity. But at the time the s. C. I. Had a policy of holding until detaining. Persons of interest who were undocumented. And individuals were deemed of interest partially on the basis of publictives that the f. B. I. Received and many of these tips were about purportedly dangerous looking middle eastern men. The men were detained in conditions i think can fairly be described as horrendous in small styles for 23 hours a day, whenever they were allowed out of the cells they were subjected to strip searches and verbally and physically abused as well. The second case is hernandez versus mesa. In that case the customs and Border Patrol agent was policing the texasmexico border at the el paso, juarez culvert. The culvert is a fenced in space that includes portions of both el paso, texas, and juarez, mexico and a bridge runs over the culvert and on that bridge people actually pass between the two cities and countries. So were some kids running around in the culvert, its not exactly clear what they were doing. The Hernandez Family, the plaintiff alleged they were playing games and the customs and Border Patrol agents says they were perhaps trying to enter the United States. The agent grabbed one of the boys. The others run away. One of them hides under the leg of the bridge that spans the culvert. The officer shoots him and kills him. It turns out the 15yearold is a Mexican National standing on the mexican side of the border and the agent was standing on the u. S. Side of the border when he shot and killed him. There is actually video of this event that you can find on the internet. So the first question both of these cases raise is can you sue a federal official for damages . For constitutional violations. Theres no statute that allows you to sue federal officials for violating the constitution. Theres a statute that allows you to sue state officials for violating the constitution but not federal officials. In a case called bivit, the Supreme Court said you can sue federal officials for damages, too, because if you cant you often wont have a remedy for constitutional violations at all. And indeed thats likely to be the case in both of the cases. And in hernandez, for example, there was not going to be a trial given that Sergio Hernandez was killed, judge kazinsky mentioned the exclusionary rule is usually the way to remedy a violation of a Fourth Amendment, a Fourth Amendment rule against unreasonable searches and seizures but it if theres no trial the rule wont recommend eddie the slilings. Another way to remedy the violation or enforce your Constitutional Rights is go to federal court and ask the court to give you an order or injunction preventing a federal officer from violating your Constitutional Rights but of course Sergio Hernandez, the 15yearold Mexican National couldnt very well run off to federal court or call the federal court when the officer was pointing a gun at him and shooting him. D similarly, the plaintiff henabossy didnt have alternative remedies available to them as well. Before they were detained they didnt know how or where they would be detained and after they were detained were held in isolation and largely without communication from the outside world. First question, are you allowed to sue a federal official for damages, hibossy said no. The men detained could not sue for damages in a 42 opinion written by Justice Kennedy, justice sotoamayer and Justice Kagan didnt participate. They said yes, its true there are older cases that says you can sue federal officials to damages, were not sure we agree with those cases but were not overturning them but would say unless your case is very similar to the three prior cases in which you can sue federal officials for damages for violations of your Constitutional Rights, then youre not allowed to sue federal officials for damages anymore. The other case, hernandez didnt ultimately define whether Sergio Hernandez and the Hernandez Family could sue the customs and Border Patrol agent for damages, it instead directed the Circuit Court of appeals to decide that question in the wake of hibossy. The second question is assuming can you sue a federal official for damages, when is the officer liable under oath in the qualified immune pit. You cant get it from them unless they establish rights. In hibossy they said the officers violated a statute and the court said it wasnt clearly established the officers did in fact violate a statute. And therefore it didnt allow damages to proceed on that theory. And hernandez said the officer wouldnt have been entitled to qualify because at the time he didnt know the facts that perhaps meant his actions were legal so he didnt know at the time he was shooting a 15yearold Mexican National standing in mexico. The court doesnt decide whether the Fourth Amendment prohibition on Excessive Force or unreasonable searches and seizures applies to the officer under those circumstances and the lower court may do so. So those were the cases that i wanted to discuss and as far as a theme, i think they underscore something noted at the outset which is the court is one of the most important but publicly neglected and these cases werent exactly headlinemakers and you might not have heard of them before but are incredibly important and likely to be consequential moving forward. Now if you do have a question you can pass your question cards to the aisle and there will be people coming through to collect the questions. I want to say thank you to all the panelists for keeping time. Its very unnerving for me to be telling a judge that he has no more time. Its usually the other way around. While the cards are being collected let me open this question to the group. We only have a little evidence did justice gorsuch, the Supreme Court justice. Before you do can i comment on gregs presentation . Sure. I cant speak to the merits because thats a case thats coming to my court but i do want to mention one issue i think is important the Supreme Court has addressed but now will be a bigger issue coming up and were keeping an eye on and that is the problem of nationwide injunctions, of district judges, meaning a single judge in a court, in a city, in a circuit or in a state or circuit and the country issuing injunction joining the fellow government, across the country. And that is a new phenomenon. It started in the last administration, during the course of the last administration and the conservatives were very happy and were in texas enjoying some aspect of for deferred deportation. Deportation. I forget exactly but some deportation issue. The Obama Administration policies and now of course to focus on the shoe is on the other foot, and the conservatives are all unhappy with this and liberals, of course are very happy about it but i think its a serious problem. One of my students at n. Y. U. Has just written an article that will be in the n. Y. U. Law review and did a editorial on the l. A. Times you can find in the last month or so online talking about the dangers of federal nationwide injunction. Essentially what it means is one judge and one circuit gets to control the law until the Supreme Court intervenes. This is contrary to centuries of federal policy in that you have dueling views in the lower courts before a matter percolates of the Supreme Court and the Supreme Court can choose among different views, so i just think this is an important issue, Supreme Court did not take it up but keep an eye on it because this is going to be a big issue coming up. Just as a followup and anyone can answer this question. If you dont allow nationwide injunctions for things like the travel ban, say you have one rule in Washington State and a different rule in massachusetts. How is the federal government to respond when it has a single immigration policy . Same as tax. You can have tax bills in different circuits until the government acquiesces, they simply have different social security, all sorts of policies, federal policies that operate differently in different circuits. Thats the way, if its important enough, the Supreme Court takes it im sorry, the government, the solicitor general and takes it to the u. S. Supreme court and says look, we need a nationwide policy, you need to take this case. Supreme court hardly ever says no, and the government says look, we really need one answer. Particularly the situation where the question concerns the constitutionality of government to action, the Supreme Court can be fairly but most policies, believe it or not, there are different policies and many areas of the law that operate differently in different circuits. And, you know, we muddle on. I was remiss because i did promise the panel id give them a chance to respond to each other. Really not a response, but i think this is does anybody else want toes. Respond to anything that the panel says . My first question is justice gorsuch, i think he was only there for the april sitting. We have some sense of him. How do you think he is likely to change the court waste on the little bit that we know . What would our conversation look like have justice garland and on the court instead . That is open to any of you. I predict that liberals who scalia years as the good old days. [laughter] wristsld i just slit my now . [laughter] yet to remember that what we have seen in the last 18 months is unprecedented in u. S. History. In 21 out of 24, the senate confirmed. In three, the senate denied confirmation. Never before has the senate said no hearings, no vote. This will set a precedent for the future. I think now on when the president , the majority of the senate, of different Political Parties given the electoral maps, it is highly unlikely the democrats will take the senate in 2018. If they do, President Trump will not confirm them those last two years. Never before has there been a filibuster of a Supreme Court nominee. Senate republicans changed the rules to eliminate the filibuster. It is clear neil gorsuch is going to be a very conservative justice. He is 49 years old. If he reminds on the court until he is 90 he remains on the court until he is 90, he will be a justice for 40 more years. To a large extent, neil gorsuch , ilacing Justice Scalia think it is that appointment that will ideologically shift the court. I have a couple things to say about justice gorsuch. It is remarkable, most new justices are justices on the court. They talk about when they first three,and say they took 4, 5 years to know what they were doing. He shows none of that. He has been extraordinarily assertive. Im trying to come up with a neutral adjective, confident. People call him aggressive. In Justice Kagans first two years on the court, she wrote seven separate opinions. Andurring opinion dissenting opinions, neil gorsuch wrote that many as in his first two months in court. They were of the opinion on technical points. They challenged other members of the court on how they were doing things, when they were deciding. How they were reading statutes. I saw a couple of indications at least in my mind, watching an argument where he , got some pretty firm pushback from Justice Kagan, who is a justice who seems like as much as anybody can get along with anybody on the court. She heard something he said and she used a word like radical to describe argument he was making. He is definitely a justice to watch and i am interested to see the interactions between him and the rest of the court. Not just for liberals, but other. Embers of the court i would echo erwin. If it changes anything it will be the confirmation process itself. I do not think his confirmation to the court will change the court. I do not think he will be that different from Justice Scalia. Although, i also share judge kaczynskis impression that he will perhaps be more conservative than Justice Scalia was. In usinglso echo greg the trilogy of adjectives he used to describe gorsuchs writings. Not only the frequency, but also the tone that was used. And also the substance of his. Ositions. Adical or revolutionary he is not has in it to reshape the law. And you know, borrowing on the statistic of the other justices , taking a little more time and may be moderating among colleagues erwin mentioned the , trinity concern. In a case i talked about, Justice Speier also wrote a notable dissent. Those were notable because they do not often use the rhetoric they used in those cases to challenge the majority opinion or their colleagues. Judge gorsuch use that rhetoric in a most every opinion he wrote. Let me just correct i dont want to say correct, but let me just react to what you said. The reason the Nuclear Option was used for the first time by the democrats. It was harry reid who used the Nuclear Option in the confirmation hearings. We had other times in the past where we were on the brink with the bush administration. Before, when there was talk about the republicans using a Nuclear Option, they pulled back. The confirmation con process has changed, you need to send a thank you note to harry reid. I want to follow up on the gorsuch question. If any of the panelists could opinionut his separate the question of birth , certificates and samesex marriage couples. Can you describe the case . It is an unusual case. It was decided by the Supreme Court without briefing oral argument. Oregon law has a law that says if a woman who is married has a child, this husbands name will be listed on the birth certificate. It is an elaborate procedure to have Something Else someone else listed on the birth certificate. The case involved two lesbian couples. They received the child through artificial insemination. They were married and acquired both names on the birth certificate. The arkansas Supreme Court ruled against them. The Supreme Court in a 63 and theversed Supreme Court does that from time to time. The Supreme Court said in 2015 that not only gay and lesbian couples have the right to marry, but they have the right to go along with marriage. That means both spouses sign of the birth certificate. Justice gorsuch wrote a dissent joined by justices thomas and alito it was surprising because of its sarcasm. It seemed to be mocking the lack of clarity. It was clear that these three justices not only disagreed with the majority here, but also with hodges. This is an the same day the Supreme Court granted review for about whether or not a business can refuse to serve a gay and lesbian wedding on the grounds of the beliefs of the owner of the business. Intervene. Im not sure that is correct. There were three dissenting justices. Per curium,ion was because the case was disposed of on the brief, the justice who defend it does not necessarily have to note their dissent. It is possible that this was a 53 decision. With one justice electing not to have their dissent noted. It is possible it was 54. But i would not necessarily say it was 63. I would have to disagree with that. I think you have a opinion and a justice does not note dissent or perhaps concurring, does not note then presume that the justices are supporting the majority opinion. Those were the rules when i ed. K i am not sure they are any longer the world. There was a post about this on the take care blog. Also someone in chicago wrote an article [laughter] and Justice Mcconnell doesnt think there is a norm that requires a judge to never vote. I am really curious, judge even if there is no opinion, do we assume as a reporter i deal with this all the time. Is this unanimous . It works by subtraction. Anybody who does not join a separate opinion or as an the old days, it used to be justice of dissent. Even in order with no opinion attached . No doubt about it. I am not sure about that. [laughter] what is it like in your court . It depends on the kind of order you are talking about, so your inndard order denying cert. A case, for example, the fact votes are not ordered, does not mean everyone agrees. Were talking about a summary reversal yard it may well be that there are different norms involved. I cant speak to exactly what the norms were. There is no doubt about this. I agree denial of cert and hearing is not knowing differences and doesnt mean anything. But there if there is an order that takes an action per curiam, failure for dissent means you have joined. Justice kagan may be on twitter with an anonymous name. [laughter] now is the time, Justice Kagan, if youre watching [laughter] here is a question from the audience to everyone. Rumored toe kennedy retire anytime, can we talk about respect for precedents. Will it relate to how the court can revisit roe v. Wade . That is a famous abortion case. There are law overview articles and even books written on stari decicis. They always say that resident should be followed except when it should be overruled. [laughter] it is the only possible answer. We also believe there are types edent overruled. I personally have no doubt that if Justice Kennedy or Justice Ginsburg or Justice Breyer is replaced by President Trump, there will be five votes to overrule roe versus wade, and it will be overruled. I do not believe that chief Justice Roberts or thomas or alito or gorsuch will carry it will care at all when it comes to something that matters deeply to them. Maybe we can have a discussion about john roberts. To find anyone something in John Robertss career, that leads them that he might leads them to believe he might overturn roe versus wade. Let me just take you up on that. When you see has votes in the obamacare cases, that is an institutional type of vote. Overturnings that roe versus wade would be terrible for the Republican Party electorally. I do not have the view that his votes in the obamacare case were institutionalist. Ause had he voted to strike down obamacare, 50 would support and 50 oppose. I believe john roberts voted because he got the governments argument. That it fit within congress powers. Second, i think there are issues were john roberts cares very deeply. Hodges, his dissent in i thought he would go along with the majority, but he wanted to be on the right side of history. Instead he wrote a blistering defense. I think race and affirmative action is another area where he is a true believer. Are places when he will be an institutionalist, but not in the areas where we care so deeply. Not to drag us back into the discussion we were having, [indiscernible] could it apply if the chief justice was under that majority, does that mean that he has accepted that as a precedent . It is interesting, when i was listening to this discussion. It was really just about was john roberts going along with the majority . There is no doubt that the five justices who found a right to Marriage Equality would have voted to overturn the decision. Does that mean john roberts was going along with them or not . I tend to agree with judge kozinsky here. Um is ana per curi opinion of the justices, but that doesnt mean he wouldnt overturn roe versus wade. This is an important distinction. It is one thing to go along because you know you are outvoted or convinced and you do not have the votes to overrule it, so you do not make an issue of it. Quite different from saying that if you have the votes you would not join that decision. Im not saying anything about chief Justice Roberts, but i think it is a matter of arithmetic. Other comments on this one . I would say something. Overturning roe could mean two things. One is there are five votes on the court to write an opinion saying we overturn roe versus wade, and discontinue planned parenthood. The decision to end a pregnancy is no longer a protected liberty interest. The other way to overturn roe without explicitly doing so is to apply that standard the Court Announced for determining whether restriction on abortion is constitutional or not, but to uphold every restriction on abortion you come across, thereby effectively rendering roe and casey no longer the law on the ground. That would be another way in which the court could potentially chip away at roe, if there is an appointment. I guess i share judge kaczynskis intuition that with one other appointment, they could overturn roe. I did not say that. [laughter] sorry. I do not know that will happen. I was just agreeing it is possible in a situation like that for a justice to go along in this situation and not be bound to do the same in the next case. I am not at all convinced that overrule . Will i have no proof of this. It is important to note that Justice Kennedy is the only remaining justice of the three that provided a bridge opinion and casey, the one that said we will not overrule as a matter of precedent. The other justices both retired. Here is a question from twitter. We talk about Justice Kennedys parts in gerrymandering views. Court will hear next term legislative he district as unconstitutional gerrymandering. Whos in play in that case. To weigh in that . Unlikely the chief would be part of that. I say that because he is a an ice who especially argument. E hates line wheres you cant igure where to start to the case this is a numerical way to ay here where its becomes two partisan. I think chief justice. This is not something the court in. Ld be involved decent. These political decision made by not by l branches and judges. I want to disagree with judge then say it all comes down to Justice Kennedy. When earl retired as chief justice what was the most on the court. E said baker verse carr and sims. These were the cases that said equal protection as one person, one vote. Ow in our political context theres no issue more important han partisan gerrymandering will continue. The Political Party that controls the legislature are the districts to maximize each party. Its more rtisans effective than ever before. Will depend onch wade y kennedy in 2004 in said these ear they are political questions something not to be resolveed by because theres no standards. Ust as kennedy were separated we dont have a standard but maybe we have one in the future door. Houldnt close the wo years in Arizona State legislature Steering Commission wrote for the court with congressional seats in it sharply criticized partisan said it ering and should be people choosing representatives just as kennedy joined that opinion. This in coopernd verses harris. Endorsing w its an partisan gerrymandering as being kennedy joined that so the tea leaves pointed that. I think its about kennedy. Let the esnt it democratic process work when the gerrymanderinghe to maximize power. Objectivelyently or any worse about that than having ome objective standard that turns on what a particular ustice had for breakfast morning of opinion . The case is argued, yeah. On. Then well move okay. Then you would say the Party Controls the legislature wants to draw the districts in away that not only helps the party is totally apart from one person one vote that you have varying sizes. Car ats what baker verses and others were wrong. Know. T all of you to t just tears the majority apart. These are political questions. Theres been no equal voting at all. Question. We work it that way. [laughter] does oral argument matter at the Supreme Court. Aybe the judges want to start with that. You having had argued a number of cases. The thing you have to tell arguing cases for the Supreme Court is depending what it matters quite a bit or not at all. You sort of, when justices have been asked this theyion in public settings give the rough answer and it comports with my other side of e on the other the bench that oral arguments dont change the outcome of cases. Occasionally it does and occasionally they reveal a new the sion to the case that judges hadnt fully thought but gh before argument byandlarge the Supreme Court of time have had a lot to read and review briefs and spent a lot of time thinking of issues and oral argument is kicking the nd of tires on how the case should come out and in the united tates Supreme Court the first time all the judges sit down to talk about the case so oral function of es the them talking to each other sometimes through council, council to lay the ground work for kinds of onversations theyll have when they actually cast their vote. I think one argument matters in terms of how opinions are written. Often a time is when some of the hazards of resolving ays of cases come to light. Omplication that may indicate to the justices that theyre entering what may be more than they erritory andicipated or often raised you often see some efforts to be rather than mental pre judging a wide swath of have not been up in particular case ultimately reflected in the courts opinion to lay the ground work for on the ng conversation other issues. A long time. In ot, 76. This was a long time ago. What i was struck by when i when i, circuit for judge kennedy i thought it was a thoughtful court and much more influenced by the argument the oral than when i got to the Supreme Court. Made up. Their minds logically on the ideological lines. Justice ve changed was kennedy bringing some of the circuit in myinth little. Ings changed trying to get through a few more questions. This one is for greg. The executive order case will be dismissed as travel ban will be dismissed as moot in october . The dismissing meaning the court ill never fully decide if it was constitutional . Well, stay away from the word moot because as a legal meaning. But there are plenty of ways you can see the case goes away. This earlier d to so the ban, so theres also eparate vision regarding refugees that last 120 day but he ban on entry from the six countries only lasts for 0 days o by the time the Court Hears Arguments those days will have elapsed and one has to think something will replace it, possible certainly the president will say we looked at the vetting procedures and but at least likely probably more likely that the say, weve looked at the vetting procedures and theres all sorts of problems we need to permanently ban people from these countries and countries and then that becomes and there will be sure, buts to that im thats really a new case and ts hard for me to see the Supreme Court even if they hear deciding ultimately they want to rule whether or not its legally moot but hard for issue ee if they want to a big ruling involving the immigration and establishment other reallylot of big issues in a case where the implications are very all. Le if any at yes. So like i also think the court ultimately issue an issue on the legality of the 90 entry banter 120 suspension of the Refugee Program for those reasons. Purpose, the stated purpose the government had for those allow them to devote the time and resources to of governments own review refugee procedures and in a line of the courts opinion the court said that they anticipated the government would complete its review within the 90 days it aid was needed for those procedures so theres every indication it expects the complete the internal review process. Duration that was tied to the suspension of the Refugee Program. Point was to allow the overnment to review existing procedures and generate new ones and if the government does that same case if the it just allows the ban to expire longer alive controversy for the court to do nything about and the compromised nature of the way he court disposed of the staff applications and the petitions for tertiary meaning the injunctions in place and in some respects modifying them is away to avoid this and fours for h two much all those indicators. Absence significant change before the court heres the case in october its likely wont get a Supreme Court opinion that determines the egality of the provisions for the executive order. Governor never does anything on time. Seldom. This is a serious question. The government comes in and gets close to the 90 days this much rns out more difficult than we thought and we now anticipate six months . Rather than 90 days. What happens then . I am one thing that efinitely interested is if the government really thinks its going to win. To i am not suggesting they are tied. Hard process is a nd theres low suspicion of manipulation. One of two things could happen i think. Actual if there is evidence that the government made its best effort of the it would f the period take and could not complete the process in the stated window may have to find a way to address the merits and away similar to the application and seeking minimal to which some number of justices can agree but i also think if the government does it will create issues for he government because when the president signed the first it was e order that existing procedure but the government never started that internal review process had never been joined order he First Executive so by the time the government created this it should have on how long the propose to review existing would have lasted. It did not modify that time court seemed to think the government should be held to it so i guess i dont operating see that to the governments benefit even if it might be that way. Thats a great question. The only thing i add to what eah said which is very informative, i really thought this through but i think that case. Be a new i guess what they would do echanically is say were amending the executive order but then since a big part of the a ate is whether theres National Security for what the assessment d the might be different six month as something 0 days or the Supreme Court wanting lower first crack e the at. Its possible. Ultimately that this probably going to come down leah eludeed to how interest they are in deciding this. Do they not want to issue Something Big or do they feel is something to find the suspect shes right. Right. I had a great big last limits and were out of time. No. Youll have to come back for the annual. I want to say before we take our ass i want to say there as reception right behind you and so please feel free to enjoy and as es some room outside well. Join me in thanking our see you next well year. [applause]