Guided by policy as to who should and who shouldnt access it. Rep. Foster do you have any comments about when you engage with some of your foreign colleagues in this . Do they face a very different set of attitudes as in the United States . Dr. Romime certainly that is true. For example, as you know, the gdpr in europe envisions a different way of approaching protections for privacy than we currently have in the United States. That said, one of the reasons that the privacy framework that we have developed is regulation agnostic and Even Technology agnostic is we want it to be adaptable, usable around the globe and be able to provide assurance that if you follow these guidelines you have evidence to support you are complying with whatever Regulatory Regime you happen to be in at any given time. Rep. Foster thank you. I will recognize representative obernolte for five minutes. Rep. Obernolte a couple of interesting things have come up like how do we safeguard privacy . From a 30,000 foot view level . Some things could work and some things probably wont work. Dr. Ross, you were mentioning disclosure. I used to think that that was a great idea, and then i started looking at enduser license agreements for software. There are pages and pages that people scroll through and click agree at the end. What good would it do to add another paragraph that says heres how we will use the facial data that you give us. There was an episode of south park a few years ago, a parity of one of the characters. I have inadvertently given apple the right to do experimentation on him. His friends were like, you clicked on that and signed it without reading it . Who does that . The answer is everyone does that. I think maybe control over who has access to the data. If i give my data to apple for use for a certain purpose, the fact that apple should not give that dated to someone else to use very different purpose, i think that data to someone else for a different purpose i think is closer to the market. We wont find a real regulatory solution to the problem without looking at the things we are trying to prevent. What attorneys called the parade of horribles. Someone asked about that. We are entering into this era when anonymity is a lot less than it used to be. That will be true regardless of what approach we as a government take to privacy. Can you walk us through the worst things that we have failed that, like the worst things that can happen . Those are the ones we have to try to prevent. Dr. Romime fair enough. I will say figuring out with the worst things are might take some time, but some of the things that ive alluded to is the idea of organizations making decisions based on inferences from biometric data that disadvantaged certain groups over others. Rep. Obernolte let me stop you. We have had that problem. There is ethics around ai algorithms that we are dealing with. I think the solution is you focus on the fact that that behavior is already illegal. So, if im going to kill someone it is equally illegal for me to kill them with a knife and a gun. The tool doesnt matter, the act matters. Why is that different in the case of privacy . Dr. Romime i dont think it is so much different as it is a consequence of the lack of privacy or privacy compromise. Privacy in this case or the compromise of privacy, a privacy event, would lead to that activity. There are other things that i can imagine. There are aggregates, societal decisions that are made that might be predicated on aggregate data that violates privacy consideration. Policies may be instituted and culture certain populations as a result of certain issues related to privacy or biometrics. In all of these cases what we have discerned is that there is no technological solution to solve the privac problem privacy problem and no purely policy that will solve the privacy problem. It is providing and improving privacy protections and massing those matching those with appropriate policy that can prevent some of these tragedies. Rep. Obernolte i agree with you, but i definitely think in crafting policies we need to look at, asking ourselves the question, what problem are we trying to solve, what are we trying to avoid . Merely focusing on anonymity i think is a fulls foo ls errand. We have less anonymity and theres not anything we can do about that. The parade of horribles, the government has the power that other entities dont. If you want the parade of horribles, look at what china does with the personal data that they have for people. That is the top of my list of the parade of horribles, but i dont think that we will get there from a policy framework standpoint without thinking of the problem we are trying to solve. It is a discussion im sure we will continue to have over the next few years. I yield back. Rep. Foster we will now recognize our lawyer in residence for five minutes. I think mr. Obernolte is focusing on the question of the day. I remember serving in the state senate 20 plus years ago. We were just trying to have an internet within the colorado legislature, and something came up and we were talking about Social Security numbers, should we release them, all that stuff, for privacy purposes. I was being cavalier and i said, there is no such thing as privacy. Your point, there is no such thing as anonymity. It has only grown in the last 30 years. The question is, from a policy perspective, technologically we can address things. As ms. Wright says you give up some things to get some things. You can make it tougher for a cyber criminal or someone to use your data, but you are giving up some efficiency or ease of use in the process. The Supreme Court made several decisions, none of which i like. The one that i like the least is the reversal of roe v. Wade, but they basically say under the United States constitution there is no such thing as a right to privacy. And i dont know. I want to feel secure that when i go buy something spontaneously that that doesnt alert everyone under the sun to something. Or when i walk by a Grocery Store or gas station all of a sudden that doesnt send out in the neighborhood lets send him x, lets get him. This is for everyone, including my two colleagues. To jays question, what are we trying to solve . What do we want . Do we want to create a right to privacy that the Supreme Court says there isnt such a thing . We can legislatively Say Something like that. How far do we want to take it . Then for the technologists, help us put that into play knowing that technology will evolve and change, and things that we thought were in place will be replaced. It is Ed Perlmutter thinking based on jay obernoltes line of questioning. Ms. Wright, as the director of the agency that thinks about this stuff, from a technology standpoint we can do some things if you guys give us clear direction. I think that bill is trying to do that on some of his digital legislation and jay has some stuff too. Dr. Foster, i will turn him back to you and you can do with my two minutes whatever you wish. Rep. Foster that is an interesting you know, this is i will ask a question. So much of this will have to do with our cell phones. Dr. Romime, is there good coordination communication with the manufacturers of the cell phones . There is incredible ai built into the next generation of smartphones, but not all of it is in the secure enclave where you have some idea it is trusted computing. Are you having thoughtful interactions, or do you get that they are just trying to set up a Walled Garden and keep everyones privacy information under their control . Dr. Romime we work with a very large crosssection of technology, including cell phone manufacturers and providers. Having further reflection on Ranking Member obernoltes question about significant harms, one of the significant harms i can imagine is through cell phone tracking or face recognition. Cameras, street cameras and so on. Someone trying to access safe and reliable medical services, whether it is psychiatric or something else, suddenly that becomes public record. Someone has now been outed because of biometrics information because it tracks the information trying to obtain services. This is another very serious potential issue. Yes, we are working in discussion with cell phone manufacturers and other advanced Technology Firms all the time. Rep. Foster thank you, again. We could go all afternoon on this. I suppose i have to close the hearing now, but before we bring the hearing to a close i want to thank our witnesses for testifying before the committee. It is really valuable for us in congress as we struggle with all of the policy issues on biometrics of privacy that we have access to real, quality expert so we can understand the technological reality of the feasibility of things and dont generate legislation based on Wishful Thinking than technical reality. The record will remain open for two weeks for additional statements from the records or additional questions that the committee may ask the witnesses. The witnesses are now excused and the hearing is n by the amen Constitution Society we ensure the law is enforced. If you arent already, i would encourage you to become a member of acs and you can join and find more information on our website. Before we get started, a few housekeeping notes. Additional information on cle material can be found on the invents page just on the events page. There will be time at the end of today for audience questions. Two semitic question use the q and a box at the bottom of the zoom screen but do not use the chat to ask your russian as we will not be monitoring it. If you are a member of the press asking a question, please identify the outlet for which you are reporting of the top of your question. Now lets turn to todays discussion. Each year, the Supreme Court term draws to a close and the summer begins. We host a discussion with academics, practitioners and advocates about some of the most controversial consequential topics in the turn. This year is no different step in a minute, you will hear from this years distinguished panel who will provide context for some of the most watched and anticipated decisions of the term. This year is very different in other ways and it was the first full term that just as Amy Coney Barrett served on the board in a first full term for the conservative super majority. It was a term that was conducted across the street from where the confirmation battle took place for Justice Ketanji brown jackson, the first black woman nominated and confirmed to the u. S. Supreme court. It was a term conducted immense calls for court reform that ranged from ethics rules to term limits for justices and adding seats to the court. It was a term in which the full draft opinion of one of the most consequential decisions in the past halfcentury was late to the public, not before the decision was released was leaked to the public before the decision was released in the fight of reproductive rights and offering a glimpse into how this conservative super majority might handle other cases. It was a term in which many Court Watchers have paid close attention to all of the cases the court has heard to get an idea of what these decisions say about the court today and where it might be headed tomorrow. To delve more into these cases and issues, im pleased to introduce our moderator, tom goldstein. Tom is best known as one of the nations most experienced Supreme Court practitioners. He has served as counsel to 150 merrick cases that the court and recently argued another. Tom has taught Supreme Court litigation and art for law school since 2004 at hartford law school. He also runs over website to receive the peabody award for coverage of the supreme port. The Supreme Court. In 2010, the national a journal named in one of the nations 40 most in financial most influential lawyers of the decade and we are delighted to have him as the moderator for this event. Welcome and to the panelists. Tom thank you so much and while. And while. Wow. A lot of peoples worst fears about the Supreme Court term has come to past and at the same time, a celebration because Justice Jackson took her seat on the court today. We have an incredibly accomplished panel, academics and practitioners, who are specialists in the field of the courts major decisions from the term. They are able to talk to us about what it means for later cases, later controversies that are sure to come up as decisions continue to come to the court and to this conservative super majority. We will walk through the major decisions of the term including with respect to abortion and with respect to gun rights, immigration, citizenship, environmental law including major decisions that were just issued a couple of hours ago and we will try to put those in the context of what this court is doing and where it is going, the broader rulings its making its implications for any attempt at progressive legal developments. And related controversies including of course the question of the lead opinion and just the leaked opinion and what it means for the court going forward. We will an incredible specialist in carolyn corbin. She is at Miami Law School and formerly an attorney with the aclu reproductive rights division. Maybe you can start some of those conversations. Caroline the first thing i want to say is it was a devastating decision. I will be conducting constitutional analysis its truly dreadful realworld consequences. First, i will summarize the majority opinion and that i will consider the possible consequences and other fundamental rights and finally , i will offer some advice. Mississippi cut off abortion at 15 weeks. Previous decisions including roe v. Wade only established a right to abortion. Dobbs declares the constitution does not check to the right to abortion. According to the court, the constitution only protects fundamental rights either listed in the constitution or that are deeply rooted in our nations history. The text of the constitution does not mention abortion and according to the court, the right to abortion is not deeply rooted in our nations history or tradition. State statutes and state legislation, the history of the court is different. Court writes that [indiscernible] the 14th amendment was adopted and is the amendment that provided action for fundamental protections. When the 14th amend was ratified, then the right does not exist. What about [indiscernible] the principle that should follow precedent . The Supreme Court gave five reasons went over really roe was just. Normally, these reasons do not match the list of reasons traditionally considered in deciding whether or not to follow precedent. In other words, in overruling a president on portion, the Supreme Court ignored precedent [indiscernible] what are these reasons . Most significantly for the court, roe was egregiously wrong the date was decided. Just as brown versus board of education was right to overrule, dobbsright to overrule roe v. Wade. It was an exercise of raw judicial power and making up a new right. I know i am in the summary phase but i want to pause because i have to underscore the chutzpah of complaining about the exercise white judicial power in roe given that dobbs is the poster child for the exercise of raw judicial power. To compare roe, there was a case the constitutionalist segregation and insured black americans were secondclass. Roe [indiscernible] back to the reasons why it was right for them to overrule it. Another reason was that existing doctrine was unworkable. This is one of the factors thats often considered courts cannot apply things to make sense for it to be revived. How a Court Applies it is just rubbish like so much of the opinions. The rule that all previability bands are unconstitutional, the rule that could easily have divided this case, thats about as simple a rule is you will ever find in constitutional law. To summarize the majority opinion which is the controlling opinion because it has five votes, the right to abortion is not deeply rooted in our nations history were traditions and to conclude otherwise is so egregious, we have to overrule the cases they give the right to abortion. Justice kavanaughs concurrence does not argue neutrality. The majority holds the constitution does not check it but it did not hold the constitution prohibited either. We should be thankful for this neutrality. Chief Justice Roberts, who would prefer to eliminate womens rights incrementally, laments the fact that the work that the court did not eradicate the right to abortion nationwide. Justice thomas would burn it all down and finally as he is concerned, due process is an oxymoron and he would eliminate all fundamental rights including the right to contraception. [indiscernible] notably, the court does not need to adopt thomass approach to other fundamental rights. Majorities new test is enough to put them at risk. Remember, if the right is not deeply rooted in the Supreme Courts history, then it is not protected by the constitution. I think we can all be fairly confident the Supreme Court can readily revise its history were neither contraception or sexual participation [indiscernible] there are obviously wide criticisms that highlight things like rape. It is ludicrous to make 19thcentury history a touchstone for our fundamental rights today. As the defense pointed out, if this means met women in the 21st century should not have a right to a version as men in the 19th century, it does not it did not let women vote or have the right to abortion. That is no way to do fundamental rights. Should not be relying on history so that racism and sexism and homophobia can determine our fundamental rights today. Second, given its history, the courts conclusion that abortion is not constitutional is contestable. Even if the court went by history, it framed the rights and the most narrow way possible. For example, when has the Supreme Court decided that Marriage Equality is protected by the constitution . Didnt ask whether samesex marriage was protected. It asked whether marriage was protected. Here, the court did not have to ask whether abortion is constitutional. It could have asked is the right to a top autonomy protected or you to control your own medical treatment for the right to make decisions about procreation or your family for the right to own your own body. The dobbs majority did not. In other words, [indiscernible] third, what is the majorities leitmotif . Is it abortion from other rights because abortion is murder . It did not use that broad language that thats what they implied. The major reason why roe [indiscernible] of course, this idea that a fertilized egg as a person or a moment at the moment of conception and it stands as consideration as an actual person is ultimately a religious one. Its not the universal one. In the u. S. , its the view of [indiscernible] one synagogue is challenging abortion ban on the grounds of abortion is often a religious requirement. The Supreme Court took a religious viewpoint as a ruling or to put it in a way, just as lochner read into the constitution a view of economics, [indiscernible] it was a religious view. There is a lot to be said about quality about equality but im on a strict time limit so i will and. Tom thanks so much, caroline. Very impressed that you are able to stick to the timeline in such a momentous decision. Let me pause and see if anybody else from the panel wants to raise an issue or ask a question. Im particularly interested in whats the next generation of controversies will be, those with respect to reproductive rights and do prices due process and privacy in general. Where did they go next . If there is a fixed justice majority in the chief justice is holding back from timing, not the out come, where does a super majority that really is convinced that prior doctrine was wrongly decided and that the constitution has nothing protective to say that any of this . What comes next. Caroline or anybody. Caroline what comes next is the issue of rights [indiscernible] they determine whether there is a due process right and weather is deeply rooted in our nations history and tradition. I think that leaves many of the rights we now enjoy. Certainly, i think the right to contraception could very well be next because, again, they can look to history and cherry pick what they want to and conclude that this was not a right that was recognized by the men who made the laws and wrote the constitution and decided court cases and therefore, it is not protected by the constitution. Tom what about with respect to reproductive rights specifically . Are we looking at different forms of contraception that conservatives use . Caroline if you are setting aside what else will get restricted heres how we think it will unfold. They have already eliminated abortions. The next thing to go will be abortions even if they are medically necessary because doctors would err on the side of caution. Some judge will secondguess their decision about whether abortion is necessary. The next thing that will be attacked will not be contraception. It will be deemed inaccurately so plan b will no longer be available. Next will be medicines that might cause miscarriages because doctors who dont want to be accused of inducing an abortion themselves, they will er on the side ofr caution and stop prescribing them. Also, does life and that abortion . I might be [indiscernible] [indiscernible] [indiscernible] start incurring criminal penalties on women as well as Health Providers because womens are the only ones they can get their hands on. Then states will try to prevent women from going to other states to get abortions. You already see states drafting laws to do that. Next, miscarriages will be investigated as abortions. They are fairly common and everyone knows one someone who has had an abort who has had a miscarriage. The difference between a miscarriage or an abortion [indiscernible] any time a woman seeks medical care, she may be investigated and possibly violating the law. Again, [indiscernible] theyve already established a precedent that the fetus has more rights than the women. All these things have already happened or are in the works. Its a Dystopian Nightmare come true. It is based on the idea that embryos are people and who knows what may come from that . You asked me what comes next in terms of womens access to control their bodies. There are so many things. Tom what do you think can be done if the constitution does not provide this protection . Do you think there is a realistic aspect of federal legislation, the president saying he would support a filibuster restricting a fellow bayes or restricting a filibuster or statutory rights, state Constitutional Rights . Will or just be battles everywhere . Will it be a ground where the goes on for decades . Caroline yes, it will because there are so many lessons that have been raised by this. Everything from can you stop someone from traveling to another state . You talk about abortion in a state that doesnt allow it and you advertise abortions in another state. Will there be endless litigation . Yes. Even when it comes to whats medically necessary. Whats to be done . Possibly there will be a federal law and the federal government will establish clinics on federal property. Perhaps, it will make medical abortions easier to obtain. I dont know. I dont know what the odds are of that happening. The next focus is what happens with the states as to what they will allow. Half of them want to eliminate the right to abortion. There are some states that have gone out of their way to protect abortions. There are some states like florida for example, that actually has constitutional protection for abortion in their own state constitution. Now the litigation in florida avows what happens there when a Republicancontrolled Legislature tries to take away a right that a more liberal judiciary deemed protected by the florida constitution explicit right to privacy. Tom darrell, do you want to raise this issue of states protection . Darrell this says nothing about the problems about the protection not being nationwide and what the legislative fix is. The parent in me says that what we might see is a whole new round of abortion rights politics playing out in state judicial races. Thats because state judicial races in most states are statewide races. So you cannot gerrymander an outcome with respect to the elected judiciary and some of the states and await the state Legislature Might be gerrymandered to insulate it from unpopular abortion restricting legislation as we have seen already. Im kind of wondering what you think the future is when we talk about state constitution rights to abortion. As people on the panel know, this would not be subject to federal judicial review. The state Supreme Court is the last word on what the state constitution rights guaranty. Tom dawn . Caroline i think it will be the battle to be fought at the state level. We will find out as time goes on. Tom darrell, why dont we stick with you . Among his many specialties is the Second Amendment. Obviously, this term we have an absolutely momentous Second Amendment decision which takes us beyond the threshold question of whether there is an individual right untethered from militia in the Second Amendment in the followon question of whether that is in a braided in the states now or down the road. We have the majority of the Supreme Court willing to take of gun rights cases and could determine what it means. Can you take us through that . Darrell absolutely. Thank you very much for the opportunity to speak to you today. The case that i will talk about is called new york state rifle and Pistol Association versus bruin. It was billed as the blockbuster Second Amendment case of the last decade. There is no doubt that it delivered. The gun rights forces put all their ships on this case. They came up with a trifecta. They wanted the Supreme Court to say that the Second Amendment right to bear arms extends beyond the home. They won this says they want the Supreme Court to say the licensing rules that require some showing proper cause, sometimes known as may issue laws reap our offer because are good cause to chain a license to carry a gun in public was unconstitutional. The court said that as well. The big issue that i think most people that were casually watching which i thought was deeply interested in and wrote an amicus on behalf of Neither Party was this methodological issue. Gun rights people wanted the court to say that the method of figuring out whether some thing or regulation violates the Second Amendment is by a text history and tradition only approach. They got that as well. They really did hit the jackpot this majority of this court on these issues that has been close to the heart of gun rights advocates for the past 20 years. Briefly, before a recap the case, what does this mean . I think it means that some of the states that have these may issue rules will have to go back and revise them. The court was fairly clear that the states that have objective metrics for issuing licenses, that that is constitutional. I think the states that have may issue licenses like new york, california, new jersey and so forth will go back and revise their laws. The big issue is this text history and tradition only roach. Only approach. It affects the narrow issue about licensing that it affects how the courts are supposed to approach every regulation whether we are talking about regulations in the of guns in the hands of 18yearolds, regulations on large capacity magazines or ar15s, or the socalled sensitive places doctrine for schools and government buildings can presumably bar guns from the property. All of these things are now up for grabs that the court has endorsed this text history and tradition only approach and there is no with and there is no other way to say it, we are in a brandnew world with respect the Second Amendment and its effect on our lives. Let me recap the case briefly. It involved a challenge by two plaintiffs to the new york licensing law. The law had been in place for over 100 years. The antecedent was the sullivan law. This required having an unstructured license to carry a gun in the state of new york. You had to submit an application to the Licensing Authority which was either local Law Enforcement officials or a judge and show proper cause. According to new york, proper cause was some kind of need thats different than just the general need to have a gun for selfdefense that is shared by everybody. You carry a lot of money or you have a credible threat against your life, youre a Government Official like a judge that might be in peril because of the nature of your job. That was the kind of proper cause that the licensing law required. This was challenged, as i said, as a violation of the Second Amendment. The justice conservative super geordie delivered for the plaintiffs and gun rights advocates. The first thing that thomas wrote for the majority, he said to carry is to carry the gun outside the home. He said history is the metric by which is decided whether you can carry guns are not. He says that history showed a fairly robust tradition of allowing people to carry guns outside their home for purposes of selfdefense and that there was no unequivocal tradition that limited that to a good cause showing. He also rejected what was the predominant form of review of Second Amendment cases that ever since the Supreme Courts big Decision Holding that there is an individual right to keep and bear arms for purposes like selfdefense in 2008, rejected the kind of approach that the later courts had developed for over a decade. That approach was the twostep framework. The first step of this framework was a categorical or historical approach where the court would look at categories or history and try to make a determination about whether the kind of issue that the party had brought up and even raised a Second Amendment claim at all. A person saying i want to be able to keep this shoulder missile does not present a Second Amendment question. Its categorically outside the Second Amendment. There is a ban on unusual weapons and a shoulder fired missile is a dangerous and unusual weapon. The second prong of this framework in the lower courts was what we might think is a conventional scrutiny analysis which allowed governments to proffer some kind of evidence about why they are regulating, what legitimate purpose they are trying to achieve through the regulation and how much that actually impacts otherwise constitutionally protected activity. This tended to arise in the conventional scrutiny context that is familiar in other areas of constitutional law. Justice thomas writing for the majority opinion says this is one step too many and that only the text history and tradition approach is the way to figure out whether something is a Second Amendment violation or not. He was quick to add that clearly, we live in a different era than in 1791 when the Second Amendment was ratified. What he assumed was that lower courts will take modern regulations from the 21st century or the 20th century and look at them and see if they are in some sense analogous to a historical regulation. He says you dont need an exact twin but you have to have some kind of analog and that determines whether or not the regulation is constitutional. Justice alito wrote a conference mostly taking on justice writers dissent but he stipulated that the only issue being decided in the case was about the licensing rules, nothing about who can possess guns or who can buy guns or the kinds of weapons that are available. Justice kavanaugh with chief Justice Roberts also reiterated that holding was limited to this question about licensing. It was just about may issue versus shall issue and the discretion versus lack of discretion of issuing these licenses and reiterated the right is not absolute and even cited prior Supreme Court decisions in haller and mcdonald versus city of chicago which of the corporation case. It properly interpreted that there would be a regulation available and that nothing in the and you and cast down longstanding oblations of guns in the hands of felons or the mentally ill or taken guns into sensitive places for on the commercial sale of arms and quoting a prior decision, it says these are examples of many others. There was a concern they was a concurrence questing the length of time of what the history is Justice Breyer wrote a dissent which said look at the real costs of gun violence in america. You are shackling regulators and the people and representatives and being able to address it with this hidebound history only approach that is a rejection of what would set precedents in the lower words and is a type of approach that judges are not equipped to handle. They might not know the historical materials. Its incredibly judge empowering to do this by analogy which depends on level of the generality. Its a new world. What do i predict for the future . Certainly, i think the future is about figuring out what kind of regulations can survive this kind of text history and tradition approach. A lot of what we had assumed about the data on gun violence or criminological data will now have to be repackaged and explained to courts about how it relates to this analogical work that the court is supposed to employ. Dangerousness has to do with the historical regulation. I certainly think that issues like training and the issue of where guns can be prohibited because they are sensitive will be the new front of both litigation and legislation in the future. Tom thank you so much. Does anybody on the panel want to raise something . I would be curious, you mentioned Justice Kavanaughs concurrence which i thought was interesting because he and the chief justice have this concurrence. They joined the majority opinion but then its hard to reconcile what the concurrence is saying with the majority opinion. The concurrence seems to limit the rationale for striking down this new york law to the standard of discretion in the new york regime. As you mentioned, it has this long quote from the heller opinion that lists the kind of regulations that were considered presented lee lawful, whatever that means. Some of those regulations dont seem to have nearly the kind of historical degree that this new york statute had. If the new york statute could not cut it, how do things like prohibitions on the mentally ill or sensitive laces are the kinds of laws described here like schools and government oldies, how do those get upheld. Im wondering how you see the litigation playing out on this. These two justices joined the majority opinion but they also seems to be sending a strong signal to the lower courts that a lot of these kind of regulations should be upheld. Caroline pres. Biden its an Darrell Darrell excellent question and i can imagine a couple of directions. One might be that regulators who are trying to defend laws essentially say that the five justice majority were six justice majority to the court, you have to incorporate these caveats from cavanaugh and the chief justice. The most aggressive version of that would be to Say Something like the methodology, the tradition approach was only deployed as to the the specific issue about licensing, that we should take heart in the fact that all these other regulations may be subject to more conventional present evidence about their effectiveness and thats what we are doing. Thats an aggressive way of reading it but its a plausible way of reading it. The more likely outcome is imagine Justice Alito and certainly Justice Kavanaugh and the chief might be actually thinking about levels of generality. They might be imagining a world in which there is plenty of room for regulation because the levels of generality are so high. There are tons of regulations in history, some with noxious pedigrees that are about disarming or keeping guns out of the hands of dangerous people. If its at that level of generality, these are historical regulations keeping the guns out of the hands of dangerous people, then a regulation on keeping guns out of the hands of persons in a mental crisis or the mentally ill is just part of dangerous people. But this is one of the things that my colleague and i are concerned about. The justifications for these will be obscured below this weird kind of analogical dance that we will do as opposed to this is the reason. The reason why we are doing it is because it has affected this and has an effect on people carrying guns which was much more transparent when the twopart framework was still in place. Tom thank you so much. My one addiction is that the Supreme Court will uphold restrictions on bringing guns into the Supreme Court just as it upheld mask requirements for coming into the Supreme Court even if those didnt fly in other contexts. Darrell what will be interesting is, in a world in which sensitive places become important, how will sensitive places float . Its one thing to have people on the doorstep of the Supreme Court building with an ar15 protesting and its another to have them outside your home. Its floating the idea of sensitive places so that will be an interesting dynamic. Tom thanks so much. I will turn to the professor at fiu. He is an expert on citizenship law, immigration, territorial related issues and we had not just a major immigration decision today but also major ruling with respect to the right to Indigenous People and people and territories. Thank you so much, its wonderful to be here. I have to say how much i appreciate the previous issues presentations. Unlike those, i dont have one case to review. In those instances, those two cases, were looking at scenarios that we will likely discuss for months on and if not years if not decades, examining five cases that while not capturing the media attention. Today, we saw a lot of discussion concerning the case of the policy of mexico. The point i want to make is that these cases are somewhat of a harbinger of things to come in light of this course. Tom raise the question of what will likely be seen in the future with respect to jobs. Two jobs. To dobbs. Not only did Justice Thomas provide a syllabus for future issues and attack but just for the next term under the framework in dobbs, we will see the end of affirmative action as these first salvos in the new philosophy with either a textual standpoint for the notion of a right being ingrained historically at the time of the framers. As you might suspect, its a position that causes me great pause given the somewhat sacrosanct to be a of the constitution that the court seems to have notwithstanding the excellent point that caroline raised with respect to the nature of the constitution and its limiting view of so many of us within society. Getting to the issue at hand, with respect to these five cases, there are a host of ways to examine them. We can look at them from a stand of separation of powers, we can look at them from a standpoint of the administrative procedure act, we can look at it for of them in terms of administrative roles. In terms of those standpoints, it would be hard to reconcile these cases. The way we can reconcile them on the immigration cases is to look at it in a general philosophical standpoint in terms of judicial philosophy of deference to the executives. I think that is the best way to examine these cases who have a somewhat conservative view of the role of the court and the role of the executive step thats the best way to examine these cases. I will take a slightly broader look at these cases to an operate the territorial case in terms of these issues. I will examine them in the light of how it was examined in terms of deciding who are the we in we the people in our constitution thats how i would like to examine immigration and territorial cases. I look at them as membership cases and how we decide them. Lets examine them briefly because there are five of them and i wont go into great detail with respect to the facts but i will examine them briefly and try to reconcile them and perhaps raise a couple of questions concerning them. For example, the very first question raised, how did you view these decisions . Im happy to address that in the q and a afterwards. It that are to be challenging because i have an answer to that up until this mornings decision. The first case i want to mention ever so briefly is basically examining the question whether the government can essentially detain immigrants for months or years during immigration proceedings without providing them due process of a bond hearing. This case does away with anything that immigrant advocates have raised in the recent past, the possibility procedure or substantive due process coming into play or being a vehicle to provide rights for immigrants. In the decision, the court held that the immigration and nationality act bars federal courts from hearing or detaining immigrants request for classwide injunctive relief. The court went to great pains to come to that conclusion because the language of the ina could be reasonably read to involve such challenges. So much so that the court in an ironic twist said that these classwide claims were unavailable with individual claims that are available. A deference point to the executives and their stance and Agency Stance with respect to that but on the statutory interpretation, the remaining interpretation of the ina and a very specific reference to one section but we wont go into that level of detail given that i have so many cases. I can discuss it further in the q a. Then we go to the next case, johnson versus martinez. In this case, were looking at the question raised after being detained for several months, the petition of files for writ of habeas corpus to the District Court challenging on statutory and constitutional grounds, its continued detention without a bond hearing. Implicit in this question of due process rights, does the touche and provide some basic rights . Here the court once again came to the conclusion with respect to deference to the agency that the ina did not require the government to provide noncitizens detained for six months or even more with a bond hearing, notwithstanding the language of the statute that suggests these matters have to be addressed within a timeframe. The court basically provided wiggle room which is consistent with a strict reading of the statute. Now we move onto to yet another case dealing with deference to the executive and the immigration context. This one is patel vs brawley and we would look at a question of the courts ability or jurisdiction, like the two other cases, to review a claim that, in this context, this is a scenario where an individual basically made a misrepresentation with respect to a drivers license application and by virtue of that, became disqualified from subsequently applying for citizenship. The petition that challenge that administrative determination argued that it was a discretionary determination and the court should look at the entire facts with respect to that argument. As you might suspect, the federal court, much lot the prior two cases concluded that federal courts like jurisdiction to introduce facts as part of this discretionary relief proceeding. The three cases are entirely consistent with respect to deference, with respect to an almost overreaching to support the administrative decision and limiting the rights of the courts. Now we get to todays decision that many of us heard about in the news a couple of hours ago. I read up about it but i have not completed my analysis. It seems somewhat inconsistent. The only way i can find consistency with this case is once again the deference to the executives. Infighting versus texas, the supreme word addressed in biden versus texas, the Supreme Court addressed protection protocols better known as you remain in mexico policy. The Supreme Court this morning ruled that the Biden Administration on basically what was viewed by most of those to be controversial immigration policy, had the authority to reverse the trump euro policy that we buyers asylumseekers to remain in mexico while there cases are reviewed in the courts. This case well consistent with respect to deference to the executive causes me some pause. This reversal set forth by a Prior Administration seems to run in the face of the administrative procedure act normally would require a comment opportunity as well as a full administrative procedural rule associated with creating this new rule in terms of revoking the prior rule. This is a matter that i will be happy to address further in the future. I know the media is here and im happy to examine it. Other than looking at the issue of deference, the decision was viewed as immigrant advocates in terms of a windfall to change a heart a harsh policy and is at least questionable with respect to the administrative procedure act. The only way i could reconcile it is to look at the prior decision, the protocols to remain in mexico as not a rule but as a policy. Then it would withstand some apa scrutiny. This would still be in the framework in who are the we in we the people. It doesnt capture those of us who are individuals in the territory as well as the over 2 million in the states affects them directly. Thats the u. S. Versus valero in which the Court Essentially summoned up by saying that congress has more oversight over the u. S. Territory under the territorial clause of the constitution. And by virtue of that, procedures or rights such as the due process of the fifth amendment do not apply to citizens of puerto rico in his essence and in essence, they can be discriminated against. Notwithstanding the fact that they are u. S. Citizens. Ironically, we have a rift between kavanaugh and gorsuch. Kavanaugh used the stated or longlasting language of frankly the racist decisions of the insular cases around the 1900s. Just as gorsuch was not having any of it. He basically attacked kavanaughs sophistry and called for the overturning because of the unequal treatment of u. S. Citizens in the territory. I will summit up by Justice Gorsuch aptly observing the cases being fundamental. We have in essence a set of decisions that gave us a very narrow view of who are the wet deference to the executives. Thanks. Lets now turn to the environment, and potentially a couple of other significant decisions. As the director of strategic litigation for earth justice. Today we got a major ruling with respect to climate change. I think this presentation will echo two things. One is that this is a case where the method of how the court decided the case is quite important, along with the bottom line impact it will have on climate. This decision came out four hours ago. For more more digesting will certainly need to happen. I will do my best. This case has complicated procedural history. But, knowing at least a little bit of it is helpful to understand the case. Very briefly, the case is West Virginia versus epa. The case is about authority under one pacific the Clean Air Act. The provision that applies when two other major programs of the Clean Air Act are not being used to regulate a specific kind of from a specific kind of source. Relate Greenhouse Gas emissions from power plants. The way the statute works is that once epa made that decision to regulate power plants, this provision was triggered and epa was required to regulate existing power plants too. The way epa does that is the statute tells epa to identify the best systems of reduction in the universe. Costs, energy consequences, all of that, and then to set a topline number to reduce emissions. Epa to states which develops plans to implement that standard. What the Obama Administration did in 2015 was issued this regulation and said that system of emissions reduction, looking out over what the industry is actually doing, involves both improvements the plant can make, like tweaking efficiency, but also took into account the way plants were reducing emissions by shifting away from coal. The most Greenhouse Gas intensive form, to completely renewable sources of energy. When epa issued that regulation which told states to come back with plans by 2018 to meet those standards, the Supreme Court stepped in in 2016 and saved to the regulation. The first time the court had ever regulation before any court had ruled on the merits. It took effect. The Trump Administration formally repealed the Clean Power Plant, saying the epa had interpreted the statute too broadly. Put in place its own rule, which was incredibly narrow and basically only took into account the minor efficiency improvements you could make, then issued which was immediately challenged. States like West Virginia and Coal Companies came to defend going too far or to defend the rule. The d. C. Circuit judge struck down the Trump Administration, and at that point the decision meant the power sprung back into existence. Because that was 2021, the states couldnt meet the deadline by 2018. All of the guidelines, the standards that epa was asking states to figure out could be met by industry alone without any regulation. At the time of that decision, there was no regulatory action that had any impact. Yet, the Supreme Court decided to agree to West Virginias request to take the case, with Coal Companies on their side. The reason why how the court was being asked to decide the case, was being asked to apply something called the major questions doctrine. In normal courts, when the court or any court is determining a statute, it usually starts with the text of the statute and tries to figure out meaning. Under major questions, the court starts by asking whether the Agency Action in a hazy way, but perhaps the industry is trying to do something new to address the big problem in ways that has not done before. Anything that raises the hairs on the neck of a judge, asking if the agency is going too far, will trigger the major questions doctrine. Under that doctrine, the result is the court is going to look with skepticism on anything the agency does. Instead of asking, does the statute authorize the agency to do this, it is going to ask, is there any reason for me to believe congress did mean to give the agency this kind of power . Basically, it is a very hard to overcome. You can see how groups that are skeptical of agency regulation, or do not like it, or are actively hostile might like this doctrine. [indiscernible] it only really applies when an agency tries to do something but does not help anybody who wants the agency to actually protect the environment or the public. That is why they wanted the court to take the case. That is what they got. The decision the Supreme Court issued this morning ruled against the epa and said that the Clean Power Plan, which never went into effect, they said with the epa tried to do with that regulation went too far. It triggered the major questions doctrine and the court was not convinced by any reason why the statute was clear. The dissent points out what is so noticeable about this ruling, the majority opinion spends just a couple of pages talking about the text of the statute. It really is not the same kind of discussion of statutory text that is in all the other statutory interpretations the court issued this term. The word system is broad, and therefore cannot be possibly be clear enough to authorize what the agency does. Even it might literally encompass with the agency does, because it is so expansive, it does not authorize it with the clarity we would require. That is just not the kind of textualism the Supreme Court has proclaimed as the right way to approach statutes. It is not the kind of textualism that is normally taught in law school. The dissent points out too that this is essentially a way for the court to look at a regulation that it does not like or thinks goes too far as essentially a policy judgment and to say, we are going to make it very hard for the agency to win when its authority is challenged. In this case, it takes the words take the court at its word. All it did was say the specific approach in the Clean Power Plan went too far. It is sort of ironic, or the odd result is didnt have to engage in the text with the statute means it does not otherwise limit with epa can do because it does not have any reason to get into the weeds. The bottom line of this decision is the court has taken what is the most effective way to reduce emissions from the largest source of Energy Related to Greenhouse Gas emissions off the table. It has narrowed the scope of what the epa can do and has given people that will bring the inevitable challenge to whatever the Biden Administration does a pretty heavy tool to use when they bring that ineffable challenge. We will see what epa does and how it grapples with this decision. I do not mean to downplay the effects of this decision. Both as a matter of Climate Policy and how to interpret statutes that protect the public to try to do Something Big to address big problems. This is a bad decision, but also a decision that does not go as far as people were concerned it might. I am also going to cover, briefly, two cases dealing with religious rights. Again, very briefly. The first case is called carson, about how maine funds Public Schools. Because of its geography, localities could not have a Public School next to every student. It did not have the resources to accomplish that, the way the main statute worked is that a locality cannot create a Public School that to attend nearby public or private schools, or to pay for students to attend a school of the parents choice. So long as that school is nonsectarian. Parents challenge that as a violation of their free exercise of rights. The court agreed with that claim. What that means is that public funds will go directly to religious schools that teach children religion. Justice breyer points out in the dissent, this is a seachange from a world in which states could choose to fund these kinds of School Choice programs, but were not required by the constitution to do so. And now it seems like they might be. The second decision on religion is called kennedy. This is the case about the football coach you might have heard of. The football coach wanted to engage in quiet, private prayer on School Property on school hours, but not in a way that would interfere with his job performance. On his telling, he was fired, or, not rehired because he refused to stop doing that. That version of the facts, the majority says there is a free exercise violation and also a violation of free speech rights. If you read the dissent, one thing that is incredibly striking is that they have incompatible versions of the record. Dissent points out the football coach had a multiyear practice of kneeling at the 50 yard line, surrounded by students, reporters, politicians and that leading leading that group in prayer. That is what he was asked to stop doing, not to pray in a private, nondisruptive manner. On that basis, the school had done nothing wrong. Theres another methodology point where the court also reverts to tradition and history. Thank you. The last topic we want to cover is arbitration, which has been an area in which the court has been very active. Who is a partner in his own firm and is probably the most accessible consumer advocate at the Supreme Court, at least of his generation, deepak, do you want to talk . Thanks. Thanks to the other panelists. It has been a great discussion. I wish we were in person. These are not the big blockbusters of the term, these are probably not the cases that are going to make headlines like abortion, guns and religion. I am glad tom took some time to talk about these because these cases to concern the ability of ordinary consumers, workers, civil rights plaintiffs, antitrust plaintiffs to get in the court house door. These are cases under the federal arbitration act where the court is deciding whether companies can use clauses in the fine print of their contracts with consumers or workers to block access to the Civil Justice system. The court has a steady diet of these cases almost every term, going back a decade. Those cases have tended to break down along 54 lines. Have tended to be controversial. Theres a case i argued a decade ago called at t versus conception where the court decided to allow companies to use the fine print of their contracts to prevent consumers and employees from banding together to go into class actions and enforce arbitration clauses instead. It used to be that these cases were principally 54 and the rule was that the plaintiff would lose every single case. I think there is a shift that the court that is underway at the court where that is no longer the case. The three cases i am going to talk about briefly, sachsen versus southwest, morgan versus sun dance and viking river versus mari anna. None of these were fivefour per there was far more agreement across the whole court. Two of them were completely unanimous. One of them garnered pretty broad agreement. The other thing that is notable is in two of these threes cases, the plaintiffs won. They won in ways that will matter quite a bit going forward. All three of these cases involved plaintiffs who were workers who were bringing wage an hour claims. Gardenvariety wage claims. One was a sales rep for a cruise line. One was a cargo loader for an airline and one was a group of taco bell workers. The first case i will mention is the case called Southwest Airlines versus sachsen. Disclosure, our firm represented the plaintiffs. My colleague Jennifer Bennett argued the case. Our client in the case was a ramp supervisor for Southwest Airlines. Someone who loads and unloads cargo onto the airplane. The question is whether the federal arbitration act applies at all to this client. If you look at the text of the federal arbitration act, enacted in 1925, it seems to exempt workers. Congress broadly exempted Railroad Workers and any other class of worker. If you look at that language, you might think it exempts any class of worker. But, the Supreme Court in a case called circuit city had interpreted that language more narrowly to apply only to transportation workers. The question here was whether this airline worker, transportation worker, whether they were particularly like seamen and Railroad Workers, that they would qualify. That may seem like a narrow question. It is just about transportation workers. As was the case earlier, the methodological questions are at least as interesting. The courts departed quite a bit from the way it had decided the circuit city case and instead was very interested, and this was our strategy, in what the actual words meant in 1925. It was abundantly clear from the historical evidence that people who loaded and unloaded cargo would be considered workers engaged in interstate commerce. There is an abundant amount of caselaw from that period. This is an example of a progressive, original meaning kind of approach that advocates in these cases have been trying. And that has been working. This has implications for workers in the gig economy. Uber drivers, people who are employed through apps. This will decide whether they can bring class actions whether wage an hour claims will be brought. The second case i will briefly mention is a case called morgan versus sun dance. Again, the question might seem narrow, but the methodology is quite important. The never question presented in the case was whether basically im a what happens when somebody seems to have waived their right to enforce arbitration . Do you require that the plaintiff shows prejudice . Lots of lower courts had required that. The Supreme Court said, unanimously, we are not going to adopt that kind of rule that requires prejudice, a special arbitration rule. The methodology that Justice Kagan managed to get all the justices to sign off to was more significant. It rejects the idea that this special policy favoring arbitration that had animated so many of the courtss cases in this area, that policy is any kind of basis to allow what she calls special rules favoring arbitration. Instead, arbitration agreements are supposed to be treated just like any other contract. And are enforceable to the same extent, but not more so. This decision i think is going to be deployed in lots of litigation. It represents quite a shift to say that the court, although it had adopted many special rules, is no longer going to tolerate that kind of policybased justification. The final case i will briefly mention is a case called viking river cruises versus mariana. Here, the court seems to stick to the more typical pattern from past cases. Justice alito wrote an opinion concluding that californias private attorney general act was preemptive, to the extent that it had special joinder rules. That were inconsistent with the way the court understands bilateral arbitration. But, the case was quite limited and did not go as far as employers might have wanted. Justice barrett wrote separately to say the only reason this was preempted was the public attorney general act procedure california had was similar to other aggregation devices that cannot be imposed on parties through an agreement. The court is sticking with the idea that arbitration cannot be used as a way of getting around cannot be used to allow what looks like a class action. I think the court is cleaning up its jurisprudence and is not going to allow broad, policybased appeals to arbitration going forward. Surprisingly, the little guy notched certain winds this term in ways that may matter going forward. Thank. Lets use the remaining time to cover some of the questions that have come in from the audience. I think some of the most interesting ones involve stepping back from individual decisions and thinking about the court institutionally, the publics support of the justices. When we think about confirmation hearings now, the general impression of them was terrible going in. There has been enormous criticism of some of the members of the court about what they said, the settled nature of roe in light of the dobbs decision. Does this change anything about confirmations . What we think, how we go about it . Whether we pay any attention to it . Whether we bother with it . Did anything go wrong . What lessons do we learn, if any . [indiscernible] congressional leaders will continue to try to but i am not an optimist. [indiscernible] answers with a grain of salt. Now i think we are going to be taking them with a if you go back and look at the probably everyone is going to hate this if you look at what these justices said in their confirmation hearings, these were very carefully worded statements. They were about the value of precedent. There was no commitment not to take a certain action. Of course they were designed to provide some comfort to people, but i do not think it is possible to say any of the statements made were inaccurate. I think that kind of thing will continue to happen. It is difficult if somebody is well prepared for a hearing to get any kind of commitment out of them. In fact, it would be inappropriate for people to make commitments about what they may or may not decide. Hearings are going to go forward. It is a chance for senators to make love to the camera. Its not just going to be a thing of the past. Allied with this is the whole concept of if the court is willing to essentially jettison a fiftyyear settled precedent that is this salient, this popular, then what about all of the other decisions that no one has ever heard of that lawyers really care about but no one else is paying attention to . If they are willing to torch for this, i do not know what kind of horizontal will have it all. Maybe in a world where Justice Thomas suggested in gamble where basically everything is up for reevaluation under originalist principles is the new order. Can we talk about the leak for a second . What do you all make of it . What do you think it means for the institution . Are we going to see more of that . How does the Court Address it . Potentially with the staff of justices, or justices families. What does it due to the perception of the court . Do you think it was justified . This is a Wild Development in the history of the court. That is antithetical to at least its own very settled practices and procedures. There have been leaks before. The brethren as a whole book with lots of sourcing no, lets be clear about the we can stop using the word leak coming generically. This is a draft opinion overturning roe v. Wade. If you want to compare to something that has happened, give me an example. There is nothing that compares. This is a monster leak. All i mean to say is that there have been leaks before, so the idea that the confidentiality was ironclad is not true. But, this can fundamentally change things within the building. There is evidence trickling out that it breeds a lot of mistrust. If it is true that nobody knows who did this, then people have to suspect anyone. That makes it difficult for the justices to work with each other and through their clerks. So, there is no question it casts up all over not just this term, but the courts operations going forward. There is evidence just in the way that opinions were not coming out as quickly, it seemed like maybe there were some practical i am curious as someone who was under those obligations and that building not long ago, can you imagine what that have been like had you been there . Go ahead. Go ahead. When you work at the court, you get a speech from the