Transitions and segues from one issue to another, even though they werent in the same order he would have wanted them to be taken up. Decisiondable care act almost looks like the cards were shuffled, in the sense that he was able to form one majority on the Commerce Clause issue and then segue to the taxing power issue. It shows an enormous skill in counting to five and seeing what positions he can espouse that will get him to victory, even if its a small or incremental steps. Its very effective and will continue to be. The only other big thing that is tote dramatic if you come the court, i will show you around. The remarkable thing is to look three women. See left, center, and right on the court. It has had a tremendous effect on the court as well. Mayor are and soto very forceful justices. Theyre both going to make it difference over time. Sotomayor still thinks she is on a threemember court, which she was on the Second Circuit, because she tries to dominate the argument with questions that interrupt the advocate, interrupt the other justices. More than once chief Justice Roberts has had to tell her, tell the advocate, answer the first. Usticess question she has proven herself to be very effective in teasing out important issues through the question, as aggressive as it is. Kagan has also been very strategically important in a number of cases, and very effective in her questioning. Shes a great writer. The issuea case where was whether a drug sniffing dog can be deemed to be reliable in a Fourth Amendment search, and she said, a sniff is up to snuff by my lights. That may not sound like great prose, but it passes for humor at the Supreme Court. [laughter] those are a few thoughts. We will talk more about the cases that are coming up. One prediction about the samesex marriage cases. The Supreme Court issued a ruling that allows californias proposition 8 to go into effect. Perceivedom lines are as favorable rulings towards samesex marriage. They did not resolve the fundamental question of whether there is a constitutional right for samesex marriage. Given whatdiately, seem to be a huge green light, couples around the country including from conservative Southern States filed challenges to state laws that ban samesex marriage. These cases are coming today Supreme Court on a Freight Train to the Supreme Court on a Freight Train. The couples want equality and justice vomit and think they have a receptive environment in the u. S. Supreme court justice, and they think they have a receptive environment in the u. S. Supreme court. They are wrong. No country has ever recognized a constitutional right to samesex marriage. When Justice Scalia said that an earlier gay rights ruling would lead to a recognition of gay marriage, people thought that was absurd. Parts of the country have moved very quickly. Advocates of lgbt quality have developed a sense that the Supreme Court is there, ready to help and create equality. The real message of proposition eight is that the court did not want to get involved in deciding whether there was a right to samesex marriage and was trying to avoid issuing a ruling. The court was almost begging you can read this in some of the in Justice Kennedys opinion about doma. Justices are conservative ideologically, disposition only. They dont know what this will mean for the country. Its a foundational thing here. Samesex marriage advocates are headed straight towards the Supreme Court. The Supreme Court will feel that it has to take up the question. It is going to present them an enormous dilemma. The justices will be unable to avoid the question here i. The Gay Rights Movement can suffer a massive setback from the Supreme Court in a ruling that there is no such right, which can slow them down in state legislatures. The moral message sent to the u. S. Population. What has been perceived as a great step forward for that community and that they have a friend in the Supreme Court and get turned around in the opposite direction. Justice kennedy was in favor, but we dont know what he was going to say because of the standing decision. Do you agree with toms assessment . I am not sure whether they would take the case. They dont have to. The Supreme Court with only a few exceptions takes unlike the Supreme Court of georgia only takes the cases it wants to. Unlike the defense of marriage act, that was a case the Supreme Court had to take. It was not forced to, but he feels compelled when an act of congress has been declared unconstitutional. There were institutional reasons why the court found it hard to dodge the doma case. There would be no such reason that the Supreme Court would feel duty bound to take these questions. If the court thought it was too early, they could pass. Thats the only thing im not sure about. Perry was not a sure thing for the court to take in the first place. You have to wonder. It is something we will not know. Im trying to picture the point at which the court voted on the case and whether or not they voted on standing first. It was such an unusual lineup of justices on other side of the standing issue. Nobody was sufficiently sure what tony kennedy was going to andith the case to go ahead go to the merits, even though he would have gone to the merits. The reasoning is sound. In momentum and appearances. Said that this marriage. To gay in this ruling this past term, he said you are providing states for makingueprint gay marriage constitutional. Im not certain what the cases are. I had better start watching the Freight Train. I have one more question. Are marked in your comments about the shifting dynamics of the court. We are losing the middle ground. I would love to hear if you have any thoughts on how those dynamics are shifting among the justices, are there any new leaders emerging . Talk about lot of them being consensus builders and being able to reach across and bring people together. Are they shifting in a polarized way . Are we losing the middle . Have you noticed anything about dynamics . Are there strange bedfellows connections going on . Any thoughts on who we should watch in terms of emerging leaders . Roberts doesice have the skill to bring together unusual coalitions. If they feel like they have been snookered into it, that might cause some ill feelings down the road. Thats an important thing. The kind of alliances we have had in the past, scalia and ginsburg and breyer and oconnor i dont see those happening. E have people like alito. E have a lot of loners someone like scalia seems to have been giving up on trying to build alliances. He would rather lob grenades from the sidelines. Breyerink that justice envisions himself as being able to create a new center in the board. He would like to be able to reach across the aisle. He has some novel and unique views on the constitution how to look at different areas of law. He really would like to be that guy. If the court were to move one step to the left, he would step into those shoes. Say, strangeo bedfellows, you can envision the court in one of two ways. We have got the court to the right and left. The ideologues in questions that lineup that way. Justice kennedy is conservative but in the middle. You can envision the court as being tried magic pragmatic in the middle and realistic on the wings. The middle of the court wants the law to work. There are areas of the law where you get five idea lists. Liberals and conservatives come together to make a five justice majority. This will happen in various areas of criminal constitutional law. Justice scalia has a strong view of the Fourth Amendment. When it comes to the jury trial, Justice Scalia along with Justice Thomas have come together with most liberal justices. We have to give powers to judges, and the edges of the court will say no, the sixth amendment is going to guarantee you a jury trial. Thats the place in the Supreme Court you are most likely to see strange that follows bedfellows. Justice would a be, i dont have faith in them. Long on a justice is, i want to invest in this justice. Conventional wisdom would be, and Justice Kagan and roberts being relatively young. They have a sense of how to align themselves, move the court around. People dont get appreciate it appreciate Justice Sotomayor or. If you look at her concurrences and dissents. Deepvery deep fall and thoughtful. Justice thomas is out there by himself thinking what the law might be like 50 or 100 years from now. Justice sotomayor is closer to present day. She is not really appreciated for her deep legal thinking yet. Over the next five or 10 years, more of those opinions have a chance to become the law and she will be recognized as more influential than she is today. I would love to open it up to questions. I hope i dont phrase this in a convoluted way. Hollingsworth,t it was the most socially controversial case, at least in the media, and the court seemed to throw that back to the appellate court. At the other controversial cases that were not as widespread in the media, they seem to be taking small, incremental steps to a more conservative position in the law. With this upcoming Abortion Case , it seems to be likely it will be a Strong Social case and very widespread and defensive divisive opinions. Do you think the court will throw it back to the states like they have been, or do you think they will try and make those small steps to restrict the rights of it . Those of you who dont follow the Supreme Court cases by name, we are talking about the proposition 8 case from california is the one the court tossed back. This term was unbeatable in many ways. Not only the decisions themselves. It was extremely dramatic, the day in december when the Court Granted those cases. There was a question about, are they going to take doma . We thought they would. On the doma case itself, there was a question about which case they were going to take. There were several doma case is pending in the Supreme Court. It ended up being a very. Ramatic case in new york there were other cases pending that would have made a difference if they had taken different cases. That was interesting in and of itself. Shocked when the Supreme Court decided to take the prop eight case from california. I could not figure out why they would do that. Apparently neither did they by the end of the term. You have to say to your self, why are they doing this . The liberals dont want to take this case because they dont want to risk it. For thetakes four votes court to decide to take a case. The whole thing was very dramatic. They did not just toss it back to the court of appeals. They raise the court of appeals decision and left only the Trial Court Ruling standing, which declared a state constitutional. It was only good for california. Is it a sign of thinker mentalism . Incrementalism . You could say that. The court is taking up the abortion the last 10 they did so was called partialbirth. Time they did so was called partialbirth. The justice voted to uphold the federal ban on partialbirth abortions. Any time the Supreme Court opens for box, there is potential a ruling that could be significant. Is the court here said to the state of oklahoma, this is a case about the two haveregime you can take to a medical abortion in the early stages of pregnancy. What the Supreme Court has done is said, we have this case. We are not sure what the law says here. To thent it back oklahoma Supreme Court and said, explain what the law means. What really is at stake here . It is a bit different in that sense. We dont know if theyre going to take the case. Do, in theory, it could be limited to this question of medical abortion. Went to go down that road, who knows . Once you go down that road, who knows . There is another big louisiana case that was decided yesterday. Beenife advocates have reading strong signals from the u. S. Supreme court to bring cases to the Supreme Court. My take away from the last decision is that Justice Kennedy had changed his mind about roe. Three part of a group of justices who in the famous katie case had voted to save roe versus wade. The take away from kennedys is that he believes on some level he got snookered, and people love over read his willingness to preserve the row right. Roe right. It does seem likely that there are four members of the Supreme Court on the right who would be very willing to significantly right,cribe the roe although perhaps they would want to be incremental about it so it doesnt seem like they are being too aggressive. Each Abortion Case that gets to the Supreme Court, you should expect the Supreme Court to materially restrict roe. It in a they will do way that does not seem entirely overt, but will send a strong signal to state legislatures that additional restrictions are constitutional. Fact, Justice Oconnor was a big champion of the undue burden test for abortion restrictions. , the wallr on their of support for roe is crumbling. Without getting too much into the nittygritty, its not that the law outlaws medical abortion in oklahoma. It tells doctors how they can prescribe particular pills. Doctors dont like to prescribe it the way the law would require it to do. It gives the opponents of abortion on the court the opportunity to say, we are not getting rid of all medical abortions in oklahoma. Were not getting rid of surgical abortions. This one particular option has been eliminated. Part of what youre thinking is, the incremental approach helps keep the media and public glare of what is happening. Is that one of the reasons why they do things slowly . Sort of. Its not just the headline. Early on with the Voting Rights act case, the Supreme Court was not ready to say, we had the act enough. S by giving congress a chance, they were not so reluctant to come around the second time. They did say in the opinion, congress, we gave you a chance. Challenge to the Voting Rights act said, this time around. Congress did not propose a single bill. We gave you a chance and you blew it. . Anymore questions amyhis question for tom and. Do you have any thoughts on whether or how the court would handle what appears to be an imminent case between georgia and florida over the chattahoochee river . For those in the state, this is georgia versus florida. The water wars are long standing. I dont think the justices have any sense of how they would resolve this question. Its an interesting procedural example. Florida will sue georgia in the u. S. Supreme court. What the Supreme Court has the power to do is order and equitable apportionment of getrs and say, georgia will it willhe flow above enter this complicated degree allocating water between the states. There is an overlay of environmental litigation between the states and another overlay of the involvement of the u. S. Army corps of engineers. It is really another illustration of how interesting the u. S. Supreme court is, that they decide samesex marriage and the Voting Rights act and then they will have to figure out in different sections of the chattahoochee river how much of the water should be going to florida versus georgia. We wont know for a long time. These water cases go to the u. S. Supreme court, and they have been there for 30 years. Entire generations of lawyers have put their families through college on the basis of long standing cases like that. It will have to be referred to special masters. I want to tell you about a case coming up this term that is interesting. It is not one that will change the course of mighty rivers. Who have those of you felt this as well, the experience of reading a curis case that goes before the Supreme Court you read the challenging the decision, you read their briefs. You think, thats a pretty good argument. Then you read the briefs on the other side and say, thats a pretty good argument too. I want to tell you about a case where i think no one should win. That involves the following provision. Article two gives the power to allpresident to fill up vacancies that may happen during the recess of the senate by granting commissions that will expire at the end of the next session. In january of last year, there were three vacancies on the National Labor relations board. Some namesbama sent and the senate did not act on them. He said, the senate is out of session and clearly in recess. Recessng to use this appointment power to put three people in the National Labor relations board. Took a different view of whether it was in recess or not. The democrats borrowed this playbook from the republicans. They go into pro forma sessions. If the senatorial equivalent of rattling a bag of chicken bones. They call the senate into session and gavel it to order and say, we will be in recess until tomorrow at noon. Because we do that, we are not in recess. The Supreme Court has to decide, exercise aismanic real recess or not . During which the president can use the recess appointment power . Remember what the article of the constitution says. Has the power to fill up all vacancies that may happen. Thesecond question is, does vacancy have to arise during the recess . Can you use the recess appointment power to fill a vacancy that arose a long time ago . Why do we have this in the constitution . Used to be out of session for months at a time. They would be farflung and have to ride horses to get back into town. If you did not have a secretary of agriculture, the president could use this power. In the recent decades, this has been a controversial thing. The Supreme Court will have to settle this dispute. I hope both sides lose. Both their arguments are wrong. Its a huge deal. It could invalidate a ton of prior decisions. Everyone knows our political system is broken and the Senate Confirmation process is broken. This is the president s way of trying to evade the breakdown. These Supreme Court holds appointments are the u. S. Onal Supreme Court will decide for itself likely to rule that the recess appointments are unconstitutional. Could create even more of a catastrophe. It will really strengthen the hand of the senate and minority , and may put enormous hydraulic pressure on the Nuclear Option. The Nuclear Option to get rid of filibusters on appointments the Supreme Court, because its not actively involved in the political process and doesnt feel palpably how it is that its decisions will play out their job is to interpret the constitution. This is a very significant ruling. It is Like Campaign finance. They set these ships and motion and the entire country can change. This is not necessarily an issue that breaks down on traditional ideological lines. The battle has been going on so long. I know this because we were involved in challenges to recess appointments during the george w. Bush era. The Bush Administration defending the recess appointments. Petitions filed challenging recess appointments during the Bush Administration. The court denied them all over an opinion by justice stevens, not dissenting from the denial but regarding the denial in which he said, we are not going to act on this right now because its not going to be used that often. [laughter] new administration comes in, a new set of pressures to make these appointments. This is what john elwood writes. The people who take into account all these things that can happen, and those who interpret the constitution come what may. I have a question about judicial activism. In spurt gave an interview in gave interviewrg in which she accused her colleagues of judicial activism. Political er he introductory Political Science classes, we teach that. Does it have any value beyond a rhetorical tool that the left and right throw at each other . Or does it have a value in modifying behavior from the pragmatist or the center . Everybody knows that word is so overused. The definition of an activist judge is a judge who ruled against your point of view. Interviewtion in the was how many laws the court has overturned or declared unconstitutional. Even that is a tricky measure. There are some laws that deserve to be overruled. Ity dont necessarily mean is an ideological bent, pro or against any bench of government. Rhetorical. I agree. Backtoback, the Supreme Court invalidated section four of the Voting Rights act and the defense of marriage act. Both sides screamed activism at the other. There is no objective way of knowing. The constitution tells us about equal protection of the laws, which is at play in both those decisions at some level. It doesnt tell us what those terms mean. When the court strike something down, if for going to believe in have thereview, they responsibility to enforce the constitution. There is no way for anybody faithfully or objectively to say this is what the constitution really means. If you exceed that, you are a judicial activist. Its interesting to note the waves ways in which that term is used. Andervatives used it talking about the war in court. Warren court. The left really appropriated the phase phrase of judicial activism. All of that illustrates its emptiness. When you are talking about something so complicated as a Supreme Court decision to the general public, you have got to figure out a way in which you can say what you are going to say in the form of a bumper sticker. It has real utility in that way. Why you thinkain the majority in the Voting Rights act case is wrong, but the defense of marriage act is right in three sentences or less is nearly impossible. . More questions would you comment on the Campaign Finance case . Will that be a significant extension of Citizens United . If we can increase the overall limits on contributions. This is a case the Supreme Court will hear. In federal elections, elections for president , members of congress and the senate, theres a limit on how much you as a person can give to an individual candidate. Muchs also a limit on how you can give to all candidates in that election. You can only give 2500 per candidate per election. There is an aggregate limit as well. Tot applies not only candidates, but Political Parties and other kinds of political committees. Aggregate limit is what is being challenged before the supreme by a businessman from alabama who wants to give a lot of money to one candidate, and the Republican Party as well. Anytime the Supreme Court takes up this question of campaigns and money, theres always the question of whether it will get back to the 1976 decision in which it said, spending money is one thing and contributing is another. One is protected as First Amendment speech. Citizens united is campaign spending. Thats another distinction there. The rule the Supreme Court has used in the past to uphold limits on Campaign Contributions is that they have a tendency to be corrupting. When you get elected, you will help me with my project. That is still the justification used to peter late by the Supreme Court repeatedly by the Supreme Court. Now you have the people in this you let any individual give unlimited amounts of money to pacs. You let corporations and labor unions spend as much as they want. Questionhe fundamental. Kennedy takes this question very seriously. The question is, will the court continued to hold to that analysis and say, there is a reason to limit the amount of money people can throw in the process because the more you throw in, the more likely you are to get favors back. This provision of the law has not a prayer in the world. It will look like you are bribing the candidate or you will be bribing the candidate. The core is equally committed in the Citizens United context to it is not just Junior Varsity speech. It is the speech at the heart of the First Amendment. Its the most important speech. The difference in perspectives could not be more stark. The rationale of Citizens United, you need to be able to spend money to speak in the electoral process really runs up hard against the idea that prohibits you from dipping to a candidate in texas when in giving to a candidate in texas when in california. Nobody thinks that by giving to the candidate that you are somehow getting a quid pro quo from them. Nobody thinks that. Nobody who really understands the Supreme Court. Congress thought it. There are people in favor of Campaign Finance restrictions, but they believe a majority of things the Supreme Court does not. I cannot see the Supreme Court upholding this restriction and i think it inches in the direction incrementally of taking a harder look at the amounts of money that our individual are individual restrictions. I dont see it breaking down the wall and getting a ruling that you can now contribute unlimited amounts of money. I suppose thats right. The Supreme Court is rapidly going away from any support for campaignfinance restriction. The line between spending and contributions is blurred. There are still heading in the direction of dismantling everything. Even the corruption justification is in trouble. . More questions im wondering but the courts approach to information rights. You might think of the Industrial Revolution and urbanization as taking off this and withong struggle, cases such as west coast hotel affirming a new regulatory era, a new approach to policing those baselines. Age, theinformation most important Capital Assets now are idesaas an dinform ad information. Im thinking of a case where after losing the case, larry wrings his hands and says, i could not make them feel the importance of having access to these digital materials, this information which is now locked up in copyright. If this case is the lochner of the information age. Lochner protected information by being active. We protect existing capital through eldridge. Im thinking patent, copyright, information privacy. Google and privacy from lowes companies, and the government. It seems like we are in the middle of this political storm those companies, and the government. It seems like were in the middle of this political storm. The Supreme Court used the constitution to protect a lot of Property Rights and said, there is a due process right that invalidated a bunch of laws that restricted your ability to enter into contracts for your labor. The Supreme Court has gotten out of the business of broadly reading the due process cause. The notion of a broad substantive due process right to protect something that might be regarded as a property or liberty interest, being able to engage in contracts for child labor as the most extreme example. What are you going to do with new kinds of property . Its an idea. Will that be constitutionalized in the same way . The answer to that question is no. Congress passes a law that says, i gave you a copyright. Now im going to give you an extension to an extension of the copyright. It is the walt disney law, which is the Disney Company has the cartoons and wants to be able to exploit them longer and longer and longer. Situation where an argument was made to invoke the constitution against the Property Rights. Congress recognized the property right. It wasnt the Supreme Court using the constitution to protect the property right, it was rejecting an attempt to knock down the property right. The Supreme Court is not getting into the business of recognizing new rights. When it does get into these cases, it is dependent on the kind of property. The most significant cases the court gets into is patent cases. I come up with a new drug, the new machine. The Supreme Court has been in the business of cutting back on those rights and saying, too many things are being patented. There is an area where the Supreme Court has said, were going to allow more competition. When it comes to copyright this may owe it to Justice Ginsburgs interest in the area. It has refused to knock down copyright. This is an area by area thing. I dont see it as an area where the Supreme Court is going to get deeply involved in recognizing new rights. Amy mentioned the cell phone cases coming up. Whether the government can search your cell phone without a warrant. We remember the gps case where the government was able to follow you around. The question is whether they had to get a warrant to put the gps on your car. That is how the justices are going to conceive of informational issues, in terms debates over your ability to keep things private from the government, not your ability to exploite itdea and economically. Thank you for being here. I have two questions about the Health Care Decision, the chief justices opinion in a case. There was a lot of reporting on bad feelings caused by the chief justices ruling on the taxing basis for the socalled individual mandate. Have there been any aftershocks from that . Effect duringny the most recent term . The second question is, as to arecommerce power, there two points of view. One is that the chief justices opinion was written narrowly. The chief justice concluded there was not a basis for the individual mandate. The other point of view is that this was something of a trojan can expect in the future the conservative wing of the court to be more aggressive in fighting acts of congress beyond the commerce power. Which is the more accurate characterization . The meaningless ruling characterization, or the trojan horse characterization . One of the odd things about being a Supreme Court justice is to sit on the bench and have your colleague call you an idiot one day and then vote with you the next day. You just have to get used to that, especially if you are a Supreme Court justice. They get over it. We heard the same thing after the bush v gore decision, there were very strong decisions feelings and they were mad at each other. It went away pretty fast. The same john roberts who voted with the liberals to uphold the Affordable Care act was the john roberts who voted to strike down the Voting Rights act this term as well. They need each other the next day. I have not seen any sign that it has affected the alignment of justices on issues, or that they are mad at each other and wont go to lunch or anything. I dont think it is persisted in persistent in any way. They get mad at each other and then go away for three months. Life tenure has an impact. They realize theyre going to be in this bunker for many years together, so they may as well get along with each other. Recessus the summer helps bygones be bygones. Unlike a lot of institutions in washington, d. C. , there is genuine respect between the justices. One senator may respect half a dozen senators, but there are a bunch that they think there are idiots. Really doustices recognize that each of the other one is acting in completely good faith. They work super hard. They are completely committed. They are polite to each other. Stronglyisagree very with the views of another justice in another case, but it doesnt cause you to lose respect for them in a way that would cause them to have them andt you grind at you you carry it in two other cases. There is a part of the Affordable Care act decision that while the individual mandate gets upheld, the main theory that Congress Gets to regulate commerce and health hear whywe even are we here the majority of the court says, it is the commerce power. On risk is to regulate commerce. Congress what is happening Congress Gets to regulate commerce. What is happening exceeds congresss powers. The question is, is that interpretive ruling going to later rear its head as a landmine successfully laid by chief Justice Roberts in the health care case. Time will tell. Predictions,hose im reminded of the bbc show with her one atkinson the many of you may know. That many ofnson you may know. They have been cranking away at the Commerce Clause for a long time. I thought some of that was overblown. I agree. [laughter] casehole premise of the from the view of the challengers was, this law is completely unheard of. Congress never before has required you to buy a product. Of thisthat comes out is, congress cannot require you to buy a product. If you believe that this congress is not in this business, the final rule is one that does not have a lot of consequence because it annuls a set of laws. The longerterm conservative outcome is on the spending cause. Teethe first time ever, congress is not able to order the state of georgia, you must do x. It can say, we would like you to do x. But we are going to take away 8 billion of highway funding. Do whatever you think is best. Court in the Health Care Decision with respect to medicaid funding said for the first time seriously, no. It said congress could not revoke all of a states medicaid funding if a state refused to expand the roles. That is a place where you could see real consequences coming, where later on Congress Wants to make the states do something and that set of law is something we could see more of. We are out of time. I want to thank our panelists and thank you all for coming. [applause] [captioning performed by the national captioning institute] [captions Copyright National cable satellite corp. 2013] the Supreme Court chief and thejohn roberts archbishop of washington departed st. Matthews cathedral in washington, d. C. This morning after the annual red mass that is traditionally held the day before the first monday of october, when the Supreme Court begins its new term. The Service Dates back to 1928 and is intended to invoke the blessings on those responsible for the administration of justice. It is attended by members of the court and other washington officials. Heres a look at the activity at saint matthews. The red mass, justices will be hearing cases involving affirmative action, Campaign Finance, and the First Amendment. Up next, attorneys and legal experts will preview the new term and upcoming decisions at a held by the Federalist Society. Thank you all for coming today. I would like to say a special thanks to the Federalist Society for assimilating another all star group of attorneys to analyze some of the major cases of this term. They do a spectacular job of raising issues that are fundamentally important in bringing people together and passed them all out from a variety of viewpoints. As you all know we are going to be talking about the upcoming term, which we assume will be starting on the first monday of october. H the Government Shutdown does anyone know . Rain, shine, snow, and shut down. Not term may not ed may the the obamacare term or doma. Ofre is a wide array significant cases, abortion protests, legislative prayer, and then a number of key Environmental Business and criminal decisions already on the docket. Of course, the court will continue adding cases until it gets a full docket, probably another 35 cases to conclude the docket for this term. And to analyze some of the major cases we are going to tackle about 15 of them. Seeanked them, the ones we as having the most widespread potential significance and interest. Panelists. Ed by five those of you that follow the court, you know who they are because they are the top of what they do in terms of advocacy and analysis. I am going to go ahead and briefly give you a quick canoduction, otherwise i spend 30 minutes talking about them. With mike carvin to my left. I dont knowed how many i can count. Theends to shy away from really controversial cases. He only likes to argue cases , votingirmative action rights, Campaign Finance, health care, and that really bland case called bush vs. Gore. Cases that page one we all like to talk about. Mike started out in the Justice Department during the reagan administration. Have the distinct honor of saying i witnessed i was standing next to mike when chief Justice Roberts came up to him and started giving him a hard had beenuse carvin quoted saying Justice Alito was his first choice for the Supreme Court. Not an active brilliant public diplomacy. An act of billion public diplomacy. Brilliant public diplomacy. Next toad and is him is mary beth buchanan. Is a goodow if this thing, you are the first woman to hold that position in the state of pennsylvania. She worked in the justice years. Ent for 22 i will make sure we are going on brown, partner at wiley rein. Worked as a counsel for to attorney generals in the Bush Administration. She is wellversed in some of the issues we are talking about today. She was named recently as one of tcs rising stars by superlawyer magazine. She is going to be a true force and already is. Katyal,megan is neal acting solicitor general in the obama administration. He worked in the Justice Department for many years, advising eric holder back in the previous administration. In the course he has argued cases ranging he stays away from the controversial cases, too. He has argued cases alike care, heo bay, health obviouslyues issues of crucial importance. Are arguing five cases this term . To neal forou showing up today. Enkranz. Him is nick ros were going to be looking at nick today for some supersecret code for figuring out Justice Kennedy. Worked in the Bush Administration and in the office of legal counsel. I will say that we also, in this can say that the Government Shutdown has had a positive effect in all of our lives at least in one way. Nick was supposed to be testifying at a House Judiciary Committee hearing today and that was canceled. As a result we are cant have him for the full panel. We are going to have him for the full panel. We are all very fortunate to be here. Going toere just start off i am so curious. Tot is this term shaping up be . What are you going to be looking for . That is the bottom line. Im good ask each of our panelists to give us what you see is most interesting that is coming up this turn. Turn to thegoing to cases themselves. Each panelist is going to be talking about three cases. We are going to spend 15 minutes with each panelist. They are going to summarize the case, we are going to have a little bit of discussion with that case, they will go to the next case, and then we are going to have time for questions. You guys will save your good questions and no lengthy monologues despite this one. Im going to start with you mike. Doma, areare, not there any trends you are going to be looking at . Chief Justice Roberts, is he going to be put in the hot seat again . Youre right, i dont think there is any blockbuster cases for political junkies. Those of you out there watching, it is going to be a fascinating panel. [laughter] watching,se nerds this is going to be a fascinating [laughter] what im trying to convey is it is a very important it is theportant in my mind courts trend to look at the structural protections of the constitution, to look at the first three articles of the constitution, and talk about the kind of protections those gift american citizens, not so much in terms of what the bill of rights guarantees. The two headliners there would be recess appointments clause case and the case nick is going to discuss. The circumstances can avoid idents can appoint people during recess a. It will have a profound impact, particularly in the circumstances where you have a divided congress and the war. Ess is potentially at the other issue that nick is going to discuss involves the very important question and bond about whether or not the congress, whose treaty making power can exceed delegating powers under the constitution, can it get involved in things it couldnt get under . Say the Commerce Clause and the like. I think that will have a profound effect. It involves a very jealous and vindictive woman whos trying to get back at her husbands mistress by smearing chemicals on the car handle. Whatever one thinks and now we are talking about treaties. Whatever anyone thinks about that behavior is a normative manner. [laughter] are they indicted under the chemical terrorist we have to keep moving. But then quit interrupting me. Then quit interrupting me. [laughter] the other one i will talk about in more detail is mount holly. How it can have a profound practical effect in terms of lending practices and the housing market. I will get back to all of that. Maribeth. Beth. Ry i think this is a term or we are going to see the court looking back at some of its prior decisions and answering some of the open questions that have left unanswered that have been left unanswered. They may even revisit prior decisions based on new makeup of the court. I think a good example of that is in the fernandez case, which im going to talk about as one of the two criminal cases in which the case was argued at the time that justus oconnor was that that justus oconnor was justiceourt that oconnor was on the court. We have a different makeup of the court. Case ie prior think that is a good example of that. And there are other cases that this term, we may see the difference tween roberts and alito. The difference between a roberts and alito. Court is aert goody good point in point. That is my main point. There are many cases that really can be seense or as squarely raising the validity of previous precedents. I think they will be talking about whether the roberts willing to jettison a previous precedents. I get to those cases we can talk about them in particular. People are going to be seeing if roberts is going to continue his if he willism or have the opportunity to get rid of some moderately criticized precedents. That is the most fascinating piece of it. Position ofent late, which seems to be a robust one, trying to hold the government seat on First Amendment issues. I think we saw that last term in i look for to that continuum. Is a real delight to be back with all of you again. I really treasure these discussions. I think my bottom line is that this is a term for the court to get back to being lawyers. Any of you who have read the that bookt details what alito and roberts were like his lawyers. We have beennd seeing with appointments to the court. Sometimes it gets obscured a bit when youre dealing with health care and affirmative action and Voting Rights and gay rights and all of these big hot social button issues. This is a court that really does profoundly care about law. I think this term gives them an opportunity to do so, to give guidance to industry, to other litigants, groups out there who are trying to understand what is the actual law . How do we deal with this . Patents, the court yesterday ran up to petitions. Patents and industry is really suffering under vexatious litigation. These give the court an opportunity to rein some of that in. I think from the business , this iss perspective a term that is going to give us a lot of uncertainty. Thank you, so i am delighted to be here. I will just add a little note of caution about it. I think we should be hesitant about trying to impose a theme on the term. No one is up there deciding how this be the business lot term or the First Amendment term. Theres nobody up there trying to decide on the theme or the term. It is absolutely not deliberate on their part. I give them a preview of my cases. By coincidence it turns out there are these three cases that are about horizontal separations of powers. Scope of congressional power, a case about the scope of executive power, a case about as scope of judicial power the fundamental structure of government cases. That is a bit unusual. A bit unusual to have three such cases in one term. I will be talking about those three. The record should reflect that nick did resist my efforts to express what they did see as a theme. Thank you for being a cautious lawyer today. We are going to start with mike. He is going to analyze three cases. Were going to go in order of each. The first one is potentially in a former of action is moving in a certain direction. It involves a constitutional. Mendment it turns on something i have never heard of, the political restructuring doctrine. Abi wasnt paying attention in law school. Maybe i wasnt paying attention in law school. What do you think . Heaping with the understand point keeping with the understood point, it was one of the most uncomfortable decisions that has ever emerged from the court of appeals. You guys got that . [laughter] petitionike has a pending from that circuit. Really. As dan points out, michigan, the government is not going to discriminate against citizens on the basis of skin color because it has been 60 years since the civil rights act. Maybe we should stop discriminate on the basis of skin color. The 14th amendment says that states cannot racially citizens. Te against to the nonlegal mind this may not be straightforward. As dan points out, they came up with this political restructuring doctrine, which admittedly is embodied in almost opinion. Otic it only has been used twice in the court. It has been the redheaded stepchild. That offends me. It had been the basis of decision below. Cannot decide racial issues inside state constitutional provisions. Y . Because that means you cannot lobby was lobby municipality to get a different result than is bodied in the state constitutions. Which means the state acts in an equal protection clause that is unconstitutional because i can no longer lobby my municipality to discriminate on the basis of gay marriage or discriminate it is another burden, more burdensome. Means the state cannot decide any issue because every time a state decides an issue that prevents you from seeking the kind of results from an inferior level of government. It means, therefore, that every decision made in america, with the possible exception of foreign policy, has to be decided through the municipal f it is decided at a higher level you have denied this ability to lobby. Seattle has a footnote that says this would not apply to affirmative action. Second of all, seattle says this is about preventing racial discrimination, not as michigan was trying to do. Michigans law prevented racial discrimination. Id litigated a case in california where they made the exactly the same argument. Even the ninth circuit agreed that this was perfectly ok. I think this has a shelf life of 12 minutes in front of the court. The only interesting question was whether it will be unanimous. For members of the court have gone a long way toward upholding voluntary affirmative action programs. I dont think he will step up to the plate prove much more ridiculous document that the state requires to engage in that racial preference. Whether it will simply limit seattle to the fax or overturn it, i dont believe they have asked him to overturn it. One of the palace might have a different approach. I love disagreeing with mike i think he is absolutely right. This is an indefensible decision. The defense circuit had a remarkable track record of the Supreme Court did i think they had 26 cases granted in the last five years. They lost 25 of them. It is decisions like this that explain why reasonable minds on whether affirmative action is something that is constitutionally permissible. But the claim here by the plaintiff is that it is institutionally compelled cannot imagine a justice going along with it. If the court were to strike strike it down, would you see this as something that other state can look past two constitutional amendments . It isnt a way you can strain and some of the voluntary affirmative action . Sure. It is perfectly appropriate to have constitutional amendment through legislatures doing this. That is what the debate should be. It should not be Court Opposing their views, certainly not to have it paid have it. It is up to the people to decide, not the court. Any panelists want to weigh in on that one. Lets go to mount holly. This is in your opening remarks. Is there housing act. Al to disagreene on this one. This involves the effects test under fair housing. Does the fair housing prohibit things the preferred that are personally discriminatory. Prohibits things even if you havent paid any attention. This is an issue that the Justice Department in this administration is desperately seeking to have the Supreme Court not to side. The infamously led to assistant attorney general cutting a deal with st. Paul to try to get this case from out under the Supreme Court. The Justice Department suspects, quite correctly, that their view in support of this Impact Theory will be struck down. The fact this is really interesting. It is a neighborhood in new jersey that was conflated. They wanted to demolish some of the houses. Am not going to get into a lot of detail but to understand you could argue that the effects test makes some sense in the employment context. We want to make sure that the test is job related. That will help the employer, writing e that will help them get underqualified employees. If its dramatic handcuffs on both municipalities, it puts dramatic handcuffs on both minutes appellees in the banks. It is a racially Diverse Company in the diverse of community. There was this one area that had very high crime, the terrible housing, as was the bane of the area. He went through this urban renewal process, which would make the house is better and more secure and safer. Since the houses were better they were more expensive. The plaintiffs came in and said minorities are disproportionately poor or nonminorities, therefore you are access to the new and improved housing. If you do, youd literally have resident coming up to exclusively give racial preferences them and compensate. Hem at that illustrates really with the effects must be in this intext is either a quota terms of how much money i have and how much you can never diminish, or it is your straightforward racial preference. If you do diminish in any way you have to preferentially compensate only one rate. Context every time a landlord raises his record has a disproportionate impact on the minorities. They cannot pay it. Loan,time a bank makes a if it does it on the basis of mutual creditworthiness, it has a disproportionate impact on one of the which was things that was opposed particularly in the clinton administration. One of the reason we have the housing crisis is they kept banks make loans to people who were not credit worthy because of their minority status. None of this would make a whole lot of sense. Have the decision out there in the employment context. People arguing in favor of mount holly are pointing out to langleys differences between title vii and title viii, the says you cannot refuse or make unavailable or deny Housing Financing because of race. That means because of race, he does not mean because of things that are statistically correlated with race. Would operate as both a de facto quota and ed de facto preference and eight de facto a de facto preference. The good justice has pointed out that the effects test is a de facto quota, raises constitutional questions, and there is a powerful engine of dissemination. Then there was this case called smith versus city of jackson, which i litigated. Were Justice Scalia, wearing his bad chevron hat, upheld a a at determined he said that was ok in the ada context. Correctly like to think of Justice Kennedy as a human jump ball. You do not know where he is going to fall. Do think this could turn on scalia . Scilly is an under 10 and understanding of the 14 amendment. Thisn view is that since is focused directly on the consequences of interpreting the context, Justice Scalia will emerge. Justice kennedy has been, in any area, often the Voting Rights context, he understands intuitively and is articulated and has articulated that the effects test and measures of discrimination are just mechanisms for redistricting and other context, he has not been very supportive. Click say what you want about Justice Kenny on affirmative a sole voteas been with the conservative mike has promised you are going to take a different issue. The truth is i have not been on i am not all that familiar with the case. I guess i would react on an institutional level to a couple of things that mike is saying. In thenteresting that discussion he is focusing on agency regulations. This is title vii, a federal statute. From an institutional perspective it does seem to me a lot of these debates really do if we believe it as an effects test i think it should be enshrined in the u. S. Code or should be prohibitive in the code. Right now so much of the stuff gets thrown to the agencies or some bureaucrat and the agencies to come up with one way or another. I think that is it her family it is a profoundly bad idea. Thatey really seem to like this law was passed in 1968. Everyone thought we were refusing somebody housing because of race. It did not mean agencies were now going to tell you how to engage in lending practices and urban renewal. You cannot look at the legislative history. Samebody gets to make the decision, they just cannot use race as a factor. You go from that noncontroversial basic principle to something which is very different, and i fully embrace what neil just said. Those kind of profound shifts in what a nondiscrimination law says it should be done by the legislature, not by an agency. I would point out that it is right foot politics. Was the test. Now this administration is an effects test. It is the kind of thing that i dont think you should leave up to shifting administrations and a bunch of gs 12s. That is just me. And congress truly, one of the problems in American Society is Congress Issues these grand pronouncements and then does delegate all of the toughness to the agencies. Bad forthat is very democracy as well. I think they rely sometimes on the courts. They look at the courts to make the hard decisions so that they do not have to. I think that is an interesting question. Congress, you have to do your job. The last case that we are going and i know you are going to weigh in on this one as well. It is the labor union case. It is kind of a weird case. Whether or not employers can give something or offer some assistance to labor unions in exchange for them agreeing not to go on strike or supporting something that the employer wants to do whether that is illegal. It is called the unite here case. Section 302 afford vertically called the tafthartley act says that employers cannot pay, lend, or deliver a thing of value for either a union that were presents or seeks to represent their worker. The point of this law was not to allow them corrupt or bribe unions or to have an arrangement where unions representation a union cetacean is affected by external gratuities or by employer. Union cetacean is affected by external gratuities or by employer. Representation is affected by external gratuities or by employer. The employer, like in this case, says i will allow you to win representation through in the labor world it means if you get a majority of people checking the card they wanted the union, i will make you go through an election where we will really play this out. I will give you a list of names and addresses of all my employees who can come on my property, talk to them, and i will be neutral as to whether or not they should unionize. Says ifnge the union you do have a collective Bargaining Agreement we will not strike and we will not kick at you if it comes to it. In yourbe interested view. The employer in this case was a and wasr wanted slots an initiative that allow them to have slot machines and the union promised them 100,000 to get this initiative that was going to help the employer. If you exclude at that slot machine, the basic question is this is a typical arrangement between employers and unions, something that is really conveying a thing of value in a way that we care about in terms of correcting with the union is doing. I dont know where the court is going to go on this. From a plainly put perspective there clearing given them things of value. Was Congress Really contemplating that these things that are inherently involved in labormanagement relationships are the kind of things that we are talking about. Theres a number of competitions in terms the way the cases presented. Ill just briefly touch on the 11th circuit as in him as a motion to dismiss. Opinion was pretty narrow, it said we are not going to dismiss this bid there may be a set of circumstances in this context in which you could establish that there was valuable consideration going back and forth, and that somehow corrupted the influence of the union. They can write a relatively narrow opinion. The interesting thing is, i a few years ago there was a similar law in terms of you cannot give anybody a thing of value in terms of plea bargaining. It wased that intense. You can give somebody a plebe bargain and give them something of value. Legal. Rgains are not nobody took that burden seriously because it would have brought the criminal Justice System crashing through the ground. Different. All that i dont know really what the consequences would be for the labor movement. Again, the administration is on the side of saying this arrangement is proper. I have a tough time predicting how this will come out. It is sort of an interesting thing for people who are interested in terms of literal applications of statutory versus what Justice Breyer would call consequences and the underlying policy objectives. Like im being so boring but im actually going to agree again with much of what he says. In the sense that the precursor to the term, maybe we will have more unanimity. Last term i think the court was nimous 41 of the time excuse me, 49 of the time. A higher percentage this year. I think mike described the case fairly i am somewhat involved in the case. The chief counsel for one of the parties is here. I think he can answer the questions better than i can. I think the question about what is the thing of value is a hard one. The government and the United States thinks a few, that there is not a thing of value being promised. That is not the ordinary meaning of the word. In other contexts of the Justice Department, it has a much more expansive view of what it thinks the value includes. I do expect some tough questions for the government in this case. I do think that the challengers to this agreement have a pretty powerful case. Back, what is the significance . What is the significance . Why should we care about that . He said he could come up in another context. Why should we watch this case . Anyone. Other than it involves slot slot what is this machines. What is the potential significance . Labor partners tell me that these are relatively routine and it could have a profound effect in certainticularly industries that are looking for relatively frictionless for presentation, they can throw complete munchy wrench complete Monkey Wrench into that. Youd make a mandate with more hostility between employers and unions when employers are tidy organized. Trying to organize. Employers are generally resistant to the sorts of things. I think the point neil alluded largely for code is things of value. Obviously bribery, public corruption, all of these kinds of cases where the government takes an extraordinarily expensive you on things of value. Now they sort of shifted positions and say things that of value in any real sense need to be much more. Arrowly construed it will be an interesting way to write the opinion things of value means things of value, thats it. Conversely if you say you really had to understand the context, it might have some blowback and hurt the government when theyre trying to push the envelope in terms of public corruption and other cases. Thank you. Were going to move on now. Mary beth, we want you to weigh in on these of the discussions. Maribeth is going to summarize the epa cases, potentially significant environmental cases. Then a couple criminal cases. Im going to start with the lighter ones first, the common cases. Im going to cover fernandez versus california, which is a Fourth Amendment case, caley versus the United States, which is a fifth and sixth amendment case, and then onto the dual environmental cases, which have been consolidated for argument. That case, of course, is a lot more complex than the criminal cases. I am going to start with the criminal cases. These are included they are always the ones these both have great fax. Is trying to hire a lawyer, who is pretty expensive. Oni will do the remake first. This one is even better. And you sayoommate you cannot search my apartment. Please haul you off to jam up and your remake says go ahead, so can the cooccupant give you give consent . Fernandez deals with what is called the cooccupant consent troll consent control. It had been pretty standard in the law that if you are a co tenant with someone you can give consent because you are sharing the tendency. Georgia, the court for the first time said that when you have two cotenants, one tenant can object to the search this came out in the fernandez case. Werernandez the please looking for someone who fits the description of a man who had assaulted and robbed someone in a nearby alley. They followed him into an nearing thed apartment to hear screaming and things are breaking. They go in and they find a woman who has got blood on her clothing. She has clearly been in a fight and a man comes out in his shorts and a sweating and his very agitated. He immediately says he knows his rights and tells the police that they cannot search. As it turns out these two are the woman is the girlfriend of fernandez and the mother of one of his children. Met the Police Suspect a demented violence. They separate them and then began to question the woman and child. Eventually they spot the tattoo on his head and put everything together and realize he is probably the guy that assaulted them from the alley. They take him away to a field show up. He is identified as the assaulter. Then he is arrested. The police go back and the get the consent of the girlfriend to search the premises and they find guns and knives and other been chargede has with assault and robbery and possession of an illegal weapon. Later there is some discussion in the chalkboard about whether that consent was voluntary. It is not really the issue in this case. Fernandez is convicted, he goes to the California Court of appeals. The conviction is upheld. He then appealed to the u. S. Supreme court and he relies on georgia in which the supreme a cotenant can object and that consent is no longer valid. Exception forn not being able to take someone out in order to avoid their consent. Case, fernandez originally objected but then after he was up after he was arrested he was no longer present and so his objection was no longer valid. The court is going to be deciding this issue. When you look at the randolph case when it was originally byided, and the decision kennedy, roberts, the leah, thomas i thought it may be one of those decisions in is going toe scalia support First Amendment rights. Support Fourth Amendments right. Upon a review of randolph. Upon a review of randolph i can see that is not it at all. On somet really relied social norms about when you have people in a social situation and went them invites you over and the other one objects to you enter whenwill you one of the cotenants objects . Justice roberts wrote a really strong dissent saying that that is not the way to look at the Fourth Amendment. Youre supposed to look at whether what is the expectation of privacy. When you share a residence with some and you lose the expectation. It should not matter. You should be focusing on the person that you should not be focusing on the person passage action. You should look at whether the person has the ability to do so. The concurrence in that decision specifically said that the courts opinion would not apply if the object is no longer present. Case, when wes have fernandez under arrest with no longer a valid objection, the court is going to relook at this decision. The are either going to uphold it or theyre going to go back and say this rule that we had established is not workable. Youou object, and what if go out to answer the phone or get coffee . Do you have to remain and continue your objection . It is not a workable rule. I predict either upholding the decision or going back and rewriting it. I think you will be in jail for 14 years. Anyone else want to weigh in on that one . His girlfriend is probably gone anyway. Haley imne is as good a briefly say the fax and then maybe get to the issue. The government froze a couple of his assets and they wanted to use 500,000 and a home equity line to pay for the lawyer of their choice. What is the main issue here . What you think the significance of this case is . This is a case that i think envisionl look at and someone that we know, possibly being in the circumstances. In terms of looking at a forfeiture case and the facts of the case and see the court do something with forfeiture law is probably not a worse set of facts than kaylee. Just to briefly tell you what happened, this husband and wife, she is in the medical device business. She was accused of stealing and selling medical devices that hospitals do not want and no one has been claiming to be wronged by it and she is under investigation for two years, so is her husband. They realize theyre going to need assets for their defense, syndicate got a second mortgage on their home and borrow 500,000 and it put that in a cd for two years so it can continue to gain interest while this investigation is pending. Investigation goes on for two years, they are indicted, and they are out. They want to go to the court and have a post enticement post indictment hearing. Initially devised this request, saying that the assets were probably frozen. The District Court agrees with the kaylees saying you are toitled to impose that oppose indictment posts seizure hearing. The question is what was that hearing going to be limited to . Gave them ancourt opportunity to present evidence. Instead of challenging whether the assets were connected to the crime, they wanted to challenge the probable cause of the indictment. They took an appeal to the 11th circuit in the 11th circuit affirmed. Now before the court to have a number of circuits that all hold that individuals are entitled to some type of posts seizure, post indictment hearing. The extent of that really is unclear. The Second Circuit and one other will allow for some type of limited evidentiary hearing on the probable cause issue. The other circuits have not allowed defendants to get into that. What you think the potential significance of this one is . I think this issue occurs very frequently. Normally what happens in practice, when defendants have expensive assets, the government certainly wants to go in and see those and sees those so they are available for forged her four forfeiture and restitution. Whenhave been upheld even those funds ought to be used for counsel to the kaylees are arguing that they do not have the right to to the counsel of their choice. The court agreed and said you have not been able to show that you cannot get counsel and you cannot attack the underlying probable cause for the indictment. I think the court will use this the procedures for challenging a seizure, for challenging this post indictment so that it will be followed consistently among the circuit. When you think about this all of these post indictment proceedings that went than the kaylee spent more 500,000. This really is an issue that there should be some consistency among the circuits. But i think with the kaylees want here is to be able to challenge the probable cause of the indictment. That is just not workable. It will be welcomed to have some kind of clear rules on this so that this is just not the right case. I think it is the right case to clarify the rules for the procedural post indictment seizure. Case fort is the right that. I dont think the court is going to go as far as the kaylees would like them to and allow them to challenge probable cause. Imagine, when the grand jury returned an indictment that is probable cause. You can have a mini trial before the trial. Can take away liberty and keep defendants in custody pretrial, then i think theyre going to be able to keep their assets as well. The court wont go as far as the kaylees want them to. I do think we will get some on forfeiture. No one is going to disagree with me on this . Does anybody really want to jump in and disagree . Mike, come on. I think these Asset Forfeiture procedures by the government are really threatening to liberty. Understand why a grand jury indictment is enough to sees somebodys property to sieze somebodys property. I think there would at least be one level of due process protection before indictment. How do they get their money before trials should be entirely different question. Onto the environmental cases. Did you want to say anything you go go ahead. Anything . Go ahead. Do thesem going to environmental cases, these are really complicated. If there is any environmental specialist in the audience, i apologize for over simple find this for oversimplifying this. I had to signify its noaa criminal lawyer had to understand. A way amplify it in criminal lawyer could understand it. The epa establishes air quality standards. Is the overall new job of the epa. States, again,he to set individual regulations within its state, within its industry, to try and comply and meet the standards. Trying to do this, i think this shows howy vividly impossible it really is to congress both of these things because the epa regulations are that there are not only regulating individual states, but they are regulating how the pollution of individual upwind affect states downwind. They identified 28 states that emit the most. They are probably states that have Power Generation and things like that. They set the air quality standards and the states have to develop state implementation rules that are going to show how the states are able to comply with the epa regulations and to take into effect how their image and so are going to contribute significantly to the other states and particularly to those downwind. This term contributes significantly was never really defined. Epa has established these rules and then the state goes out and develops its implementation policies. And then the epa can come back and say we do not agree. They can establish their own set of rules if they want to. States really did not have the warning of what the epa was going to do and how they were going to define that term. There are two competing cases. Versus homer city and the American Lung association versus em e homer city. These cases and up in the d c circuit and the circuit really narrow not a narrow view. But they totally this approve of what the epa has done. They say that the epa has done this incorrectly, they have not properly defined what significantly contribute what significantly contribute means. They established their own mechanism for how this ought to be done. It is a very strong opinion both from the majority, which is written by judge kavanaugh, as well as the dissent which is written by judge rogers brown. Central issuehe here really goes to the heart of this question of what is significantly contribute . The court is going to have to the court is going to first look at this from a jurisdictional standpoint. They never defined significantly contribute. Theres no administrative review, nooks socgen of the rulemaking policies. Circuite goes to the and then the court puts in its own scheme. The court is going to have to look at this question and determine whether there is jurisdiction forward. It is going to look at the Circuit Court and whether it disregarded the prior precedents of the d c circuit what is your prediction . My prediction is that the court is going to say they do not have the jurisdiction in this case am a they are going to send it back and have administrative exhaustion and ow that to take place in take place. There was another one i knew you were going to talk about. Oing to do that one he e that one . We have 15 seconds. Why dont we move on and then we can discuss those together at the end . Do you want to do that yet though that works . That . That works . Anything else you wanted to add . Looking at the methodology is helpful when you can look at these administrative proceedings. Occurs case it did not because the administrative process wasnt exhausted. I never thought i would have myself sitting here talking about why administrative exhaustion is so important. This is one of those cases where if that had occurred than the court would have something to look at and something to review. Thing to so much. End. N circle back at the we are going to move on now. On is going to tackle megan is going to tackle three of the cases you are going to hear a lot about and will get a lot of attention, certainly in my business. One involves Campaign Contributions, one involves abortion protest, and the other is legislative prayer. You act surprised. I know you will have something to say. Everyone knows there is cast to which you can contribute. You can contribute to individuals, committees this is the amount total that you can that is the question in this case. Obviously, Campaign Finance is controversial. Will this be another Citizens United . What is your take on this one . It is