tv Key Capitol Hill Hearings CSPAN July 8, 2015 8:00am-10:01am EDT
really loved what they did. along with a bishop speaks to the. whereas other shows i worked on i can think of a sitcom or two that only lasted maybe a season where everybody was at each other's throats. the lead person. i come on for a guest park for one weeks i didn't do i get to see and get out of there. to the person is complaining and you can kind of see this isn't going anywhere and pretty much as what happens. ..
even though they want me to be the boys. note this job is really not for us because there is more to this. >> we still have some basic principles about what you'll taken what you won't take, what works and what doesn't work for the quality of your project and your team. if you've got a baghdad check, don't do it. i still think there is a level of integrity levels of decision-making that you know if you are headed down the wrong path for a right path. you've got to stop yourself and say this isn't worth it. i'll go to the next client for the next opportunity. there have been times in my life where he made the decision i make it halfway down the path and this isn't going to work out. he started stop yourself at any moment in time and say i'm not going to continue this.
i think you do have to go with your guy. >> i think that god is right, but also particularly for young folks, it took me time to learn not. when i first started my business like with anybody you're trying to keep the light on in that sort of thing. someone might call and say can you design an advertising plan. can you rider per share. i would be like yes of course i can do that. what i have learned was i actually can't do that. that is not what i'm good at. being able to stick and focus on what you feel like your strengths are it's important and equally important to make sure as you move through life and this myth as well is that you move through that with a set of values and principles and six
and integrity. at the end of the day your work has to rest on that. >> the same for me. for one thing i've heard in my field to a career shaped by what you say no to which is an interesting way of looking at it. certainly in my case thank you note when i'm on the right path. everything works out and i end up making a living at it. you say true to yourself. keep the focus on what you know is right for you. and my business every job finishes one project and you don't know what the next project is going to be. even then you don't know how long that's going to last forever. pretty much every new project i really look at is the miracle. that intention is there and i know i've be true to what i i
enjoy being true to my heart. that is where the longevity comes in. >> how did you make a decision to get involved in government in the first place? >> i am about service, always have been. it is the reason why i do crisis because i like helping. i like solving problems. i like fixing things. it has always been for me about surveys in ways that you can help. there was a time that i thought i might be interested in politics and to run for something. i was quickly squashed. but it's about surveys. to me when you look back at your life it is not what you get for
what you have. the bout but you gave. that's always been important. >> the way i initially went to washington and got involved in politics. i went to loyola university in new orleans. a big vice president my junior year and a couple of chances to take trips to d.c. i was planning on going to law school but you were at the president of the student body at texas a&m as well. you know it's a full-time job basically. but my plan was to go to law school i tried and expected but i'll take a a year or two off. i thought that may build a
resume tear. i was interested in politics and then go to law school. once i got to d.c. one could job after another kept coming up in all the more reasons to stay and i loved being there, so law school is out the window even though i ended up working with a lot of great lawyers. >> you make an interesting point that it seems like you can play the best strategy is plans, and that it feels like the things that are the most mx right to bear what lead you down the path. it is how we all got where we are. >> i wish i could stay sent in as kind as judy. i graduated with a biochemistry degree. that was my sort of long-term plan. i took a year off and ended up working in the elevators and
then you get hooked by the dynamic opportunities that we all got to see when we served with world events and public policy in the formation of conversation and it's a very stimulating place both in washington both in washington d.c. and in the both in washington a cnn mistake i. worked in. you really are making a difference and you can see that feel that much faster than a lot of the stuff you see in the prospect. i think that is what intrigued me to stay and go back to government. i also have a great deal of respect for people that serve leave and come back because you had more of a time. government is an opportunity to serve an impact real people's lives. i think if you can't let the refocus our experience, you understand what the end goal is a new marginalized everything you can to accomplish that.
every time i go back into government it's been more exciting and more fulfilling. i have to say i really do enjoy the private sector. >> so think about and share with us the most comical or outrageous thing that has happened to you in your career. it can be starting from the elevator or whatever along this continuum. i'll give you a few seconds. >> via some time. >> this will age me tremendously. this is long before we had cell phones, long before they had anything but having do delta -- which is about the briefing books for the next day's strip and a delta -- take it to break in airport to wherever he was going to be.
doubtless the night there was some incident was some incidents at the washington monument. the white house was closed. we couldn't get a car to leave big east executive dr. and get the delta -- box now. we are up there five or six of us on the second floor, the old executive office building. we look at the car to go on 17th street and store these boxes the window. and so we did it. 10 seconds later i get this call where it does the national security card. they are throwing boxes that of the vice president sweetie. good job got done but we're
sort of a lockdown at the white house for another hour before we could leave. i did tell him later that what we have to do. i think there's only three boxes. people reporting this huge box has been thrown out of this window. >> that's good. [laughter] >> i don't think i have anything as funny as that. let's see what i remember when we must abandon, correct me if i'm wrong, we must abandon japan and i think there was a tennis match with the president. i was prime minister of japan and i remember all the press corps was solid dinner. we had the reporters and their communications group back when we had pages.
so all of our pages were going on at the same time and we are all trying to sit there like nothing's going on. the price were right there. they're like somethingis going on. something is happening. we were all kind of moving, what's going on. >> either way, these pages didn't have numbers on them. this was just a silver object. i dropped something. they didn't know what was going on. finally the reporters started coming. you have 10 people standing there and at one time we all got up because we were trying to raise so they could find out what was going on first before they got there. what had happened is an incident where the president -- might
have thrown up on the press event. there was something that occurred. we were all talking about it and said maybe we could just say to the press that they were bonding. not going to work. you don't bond like that. so you know, it's just one of the situations where this is what the situation was basically. you had to go through all of that. no time did the president lose control. no transfer of power. >> this is one of those things where you did a story in your mind and i'm like don't tell her, don't tell it.
>> a couple of stories came to mind. one thing in politics is on the white house beat up the phone white house badge and u.k. too late at night show friends are friends of friends the oval office. i got to give it to her one night to barbara eden, i dream of jeannie. it was funny. i didn't know until the last minute. a friend of mine is in pr than they said it does to show you through the west wing tonight. >> that's pretty cool.
>> good man. >> statute of limitations. >> we've got some mics and the audience and we've got some time for you guys to throw a question that my friends here. so make your way to the microphone. there we go. we've got two. i'm going to repeat your question because the sound issues that don't worry about it. >> thank you for coming tonight. your stories have been very entertaining. >> thank you for coming tonight. -- [laughter] >> my question is how is the vendor at the bush school of the classical international management and the first lesson of leadership in crisis we have been taught is to be present. are there any others you would describe or say you stick to when you deal with the crisis?
>> yes, certainly one being president is a key one. taking leadership. the other thing is making sure you have all of the facts. and a big believer as you can tell in truth a nascent strategy and you need to execute on it. most of the time being able to push past the crisis. when you read into trouble it has been trouble it is being consistent and messaging execution. that is key. >> hi thanks for sharing today. i am also a student here at the bush school. my question is for all of you all. if you could go back to yourself at 25 and give one piece of advice, what would you tell yourself?
>> 25, i would say don't be afraid to be yourself. that is very good if i said 25. >> i completely agree. be true to yourself, do what you love and you know that it will all work out. there is no doubt. they are being true to yourself in the place where you belong. >> you can't go wrong. >> i would say speak out. you're often time in a room with people who are older and wiser and you might have an observation. as long as you engage respectfully, speak up and offer your opinion because it's important to get new fresh ideas at every table. >> yes, ma'am. >> at evening. i'm also a second-year student at the bush school.
he is spoken of skills you have transferred to your respective careers. i wonder if he could talk about the biggest hurdle or difficulty you face to stay private. >> i think for me the biggest challenge was starting your own business and what a wiki paid, every two weeks? not having that, being responsible for staff. being responsible for making your company around and making it work. that is a big transition. >> yeah. for me the hurdle was more of the environment was very different. politics was a little bit -- a little more intense to l.a. which life is easy in groovy.
but the little different sort of climate to be in. i think i had to really let go of that intensity and adapt to being in a new place. i think in general and the observation that was then, i have to definitely loosen up a bit. >> the consistency of government is to get paid regularly, you show up and sometimes the view from the private sector standpoint is a safe place. anyone who works in the white house or the executive branch on capitol hill and the committee is back. a lot of government jobs or received a safe and routine. the private sector you have to figure out how to pay rent how to pay staff, what are my clients, what is my business plan come a stepa, b. c. went to map it out and it's on a piece of paper and you stick to
the plan you will be successful. there's a gut check moments where you are out there going what if there going what if i don't have a client on friday. how will i pay my rent or how much can i put on a credit card. you will get there if you stick to what you focus on what you wrote on the paper. >> yes ma'am. >> been in the charlotte. i'm another student. we are particularly interested obviously in service. i was curious having been on the outside and two of you having worked on shows that showed the teamwork that go on within an administration. how would you say the reality compares to what we are shown on the outside and are there any critical things you wish the rest of us understood that doesn't come across a lot of times in these more entertainment-based programs.
show and a great project to work on and i have to start working on that this is three and four before the show aired and work all the way to the very last episode and i got the show from the inside. i have to say reality is in a lot of ways more interesting than fiction. to put that together and tell us worry too what it was like, but nevertheless reality is a rich place target for a period having seen it from both sides come i
have to say reality is more interesting. >> i think we have one more. >> at evening. cheryl jackson bush class 2011. >> and star of 41 on 41. >> very kind. thank you. i currently work in public affairs in dallas and came down today for the full program. thank you for being here. having spent about 10 years of public affairs is or is in the regard for someone who's thinking about it are currently in a widescale or white areas of focus for someone half is currently in public affairs to survive a shift in the marketplace in the next 20 to 30
years. >> when i think public affairs as a response to what is happening in the world or the space of public policy. and then you add a crisis on top of that in the defense of position versus an often position. i am now on an offensive position buying and selling a business. jean is in defense of because she responds to client in a crisis situation. public affairs is becoming more and more important to breakthrough with the truth where are the facts and who can claim this is the path we will take and stick to it. the hard part is picking a path and sticking to it. from a corporate perspective because there's so many vehicles within information flows and not a lot of checking.
>> at my pressure up on matt. i would echo that because i think the current climate makes it so much more difficult to get their message out and there's so many other vehicles but i do think it is a tremendous opportunity because you can also be much more creative. also on the public affairs side i see more and our public affairs being done on the international front. >> things. >> ladies and gentlemen, thank you offered being with us this evening for this forever. i hope you enjoy it. a little bit about the careers of these three fine public servants who are doing things that are different now from what
significance of the high court reasoned decision at an event hosted by the american constitution society. thomas goldstein, founder of trend six moderates. this is an hour and a half. [inaudible conversations] >> hello everybody. we are going to get started. obviously there was a term that provides a great deal of interest to a lot of people. nice to see such a great turnout for the event today. i would like to welcome you to the american constitution society for the annual supreme court preview. and carolyn fredrickson president of the american constitution society. many of you may know and hopefully all of you know acs was founded in 2001 and is a national network of lawyers, law students, judges and policymakers who believe the law should be a force.
acs works for positive change by shaping the debate such as the ones we will discuss today. it seems every june i stand up here and remark on the blockbuster quality of the supreme court turned that has been made. this is no exception. from the challenge of the affordable care to the continued viability of the disparate impact discrimination suits to marriage equality moore could not have been at stake for millions of americans. as we head into the 2016th presidential election, no one needs reminding about the importance of the court and who is nominated to sit on them. said to get us started in the examination of the october 2014
term, let me introduce our moderator someone who is no doubt already extremely well known in this room. tom goldstein is an appellate advocate. he's known as one of the nation's most experienced supreme court practitioners. he served as counsel to the petitioner responded and roughly 10% of the marriage cases for the past 15 years. personally arguing 35. in addition to practicing law thomas.supreme court litigation at harvard law school since 2004 and previously the same subject to stand or for nearly a decade. tom is also the cofounder and publisher of scotusblog, the only weblog she received a peabody award. in 2010 the national law journal
named him one of the 40 most influential lawyers that the decade in the legal times named him one of the 90 greatest washington lawyers of the last 30 years and praised him for transforming the practice of law before the supreme court. who could be better than tom to navigate the term for us? please join me in welcoming tom goldstein. [applause] >> thank you also match. on the behalf of the panelists i appreciate you a lot taken the time to come do it best about supreme court about supreme court turns the just concluded. it's an extraordinary thing we been doing for roughly 10 years. this is the first time it will be the federal society are cap but. it was an incredible turn. i've learned a great deal about it and i'm not required for
same-sex marriage. both my partner and i will receive reduced subsidized health care and everything else which we need because the record has not required and is juries to put more mercury in the air. such a sale in the details we have an extraordinary group of people, folks who know a ton about the supreme court. i'm very excited to hear what they have to say and we have one particular approach that we think you are all people who know what's going on with the supreme court and with respect to the biggest cases we are not here to tell you what happens. we are here to analyze and tell you what will happen in the features that you can have a broader appreciation of what the courts do and what can be active in the coming years. 30 dominant cases but lots of important ones. let's start with same-sex marriage. we could not be more for to have
someone other than bill eskridge but more than that perhaps the nation's foremost scholar authority russian related to school minorities can you talk to us about this? >> justice canady for the majority makes a choice. they rest upon fundamental rights and not on the denial of protection that kennedy's earlier decision. so he goes at the griswold and specifically the lawrence motive analyses. why do i think justice kennedy did this? to begin with a repo birder filed as the personal enthusiasm it occurs elsewhere but in deep
admiration or marriage which appeals as transcendent, sacred. the nation of government without which end quote and there would be neither civilization nor progress. marriage is a unique form of commitment. quote responding to the universal fear that a lonely person might call out only to find no one there. the three women in the majority none of whom is married. as justice thomas points out in his dissent, liberty has traditionally been good as freedom from government. thomas points out that the case
had feature. marriage is actually the highly regulatory institutions with lots of restrictions for lots of people. so kennedy is using liberty and much broader steps than the original framers as thomas pointed out, but in a sad but the freedom to construct? choices in a government framework similar to everybody else briefing quality is part of it. second thing here is another image of justice kennedy from his point of view choice of fundamental rights. some kind of heightened scrutiny, not very well accessorized that enables the majority to avoid any discussion that was prominent invention
also to some extent and webster. kennedy goes out of his way to be respectful to traditional marriage. he recognizes explicitly but clearly that the traditional marriage vote are priced to data but they will be associated with bigotry and their grandchildren will see them as the george wallace's of their generation. justice alito in particular worries it is vilified. i don't think it is so much because it just is kennedy's region. justice thomas points out that the government does not do a very good job. here's the third reason why i think kennedy but with fundamental rights rather than a straight equal protection clause
analysis. they might have brought sexual orientation out as a cause i classification. either explicitly or by implication. kennedy wants to keep the court option though. to respect religious and traditional marriage libertarian right to exclude or discriminate. remember just as kennedy was the fifth vote in the hobby lobby case last term and years ago in the boy scout case. justice kennedy has closed all those options. notice i didn't say mr. ginsburg is coming from. justice kennedy will deliver the fifth vote and go with the bride who brought you. some disadvantages highlighted by the amendments in this case. for example, a process which
much of this sounds like it's much more controversial because unlike the equal protection clause does not clearly rooted in the marriage never mentioned reason a lot of rich original meaning that would support the same ruling here. they therefore got it down. chief justice robert ray says and celebrate the ghost of loughner, judicial pushes the way scalia decide what the majority is engaged in. i must say kennedy does say they take it very seriously. they are part of the rule of law in america. you apply them. it's very hard to deny this. 20 years ago i relied on the majority opinion as
to which this response is kind of democratic liberation and in this case the beginning and luxembourg. you can see the arguments now use. it's an argument to exclude lesbian and gay couples. lake kennedy sees this as a cleanup operation. the democratic process has worked. it will not work very well in arkansas and some that are still outstanding and therefore it is seen as the supreme court went to a number of states to clean it up. i see a lot of things until i get yanked on time watch. the big take-home point or trend gunmen is how broadly or we are
going to understand the due process clause. i would read the majority similar to the way i would read war and in this case. that is an understanding of government. so let's see clarence thomas. the government exists to create a structure for americans in midlife choices which allowed them to flourish. this is libertarian. they understand it and further where kennedy the idea cannot be arbitrarily denied and would include religious minority. religious minority going forward. same question. the choice issues in court such
as state laws successfully that close at abortion clinics cannot have a regulatory understanding as well as immigration cases as we saw 30 years ago 35 for children of undocumented immigrants excluded and struck down. that's the first point going forward. second point what about the rights of religious and traditional marriage persons. anthony kennedy as i said voted to protect his right such as the boys got case which is the free exercise in title vii. i would emphasize however that moving forward for religious minorities and marriage people refer as and the state level and
not unemployed may title vii as well which provides protection. quoting justice kennedy and mrs. language that will influence later cases to what extent i do not know. the first amendment ensures religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so essential to their lives into their own deep aspirations to continue the family structure that they have long revered. i would add to that is in the wake of obergefell and more gay marriage religion as i have been saying for decades has already changed and will continue to change. maybe not because of government action. it will not be because of obergefell. it'll be because of young people in shifting cultural norms.
religion moving from hostility and lesbian and gay or hostility and "don't ask, don't tell." finally i can't help but say this is a bad day for the hard right judicial conservatives. roberts and scalia in their dissent the dissent reads exactly like a harvard law school on brown v. board of education and herbert wexler is a harvard ally. if you substituted brown for obergefell come you can mentally let one of the chief justice rhetoric including his fulsome alliance on oliver wendell holmes it was a true critic of loughner but homes is also the author of the notorious
sterilization decision for justice homes not only upheld a scurrilous denial of liberty but then added insult to injury three generations. one of the most infamous sentences in a judicial opinion almost matched justice scalia's dissent, particularly for no 22 where he wants to hang his head in a bag and where he ridicules the majority opinion. original meaning jurisprudence on obergefell today. i will conclude with what is the future for the algae bt rights movement. i think we will see another rapidly from course to legislatures and operative officials to administrators. re: seem not their focus has to be antidiscrimination laws
health care name and a structuring mechanism. one not so good mining for the decision is moving forward there will be overwhelming pressure for antidiscrimination laws to include conscience alliances, broderick today and would have been felt appropriate three years ago. thank you. [applause] >> that is fantastic. the second kind of major case from the end of that term is of course the subsidies challenged to the affordable care act. to talk about that we have just logged, head of the practice which is obviously an incredibly prominent international law firm who previously served in the solicitor general's office.
his rv 10 cases himself and his involved in hundreds of others. jeff can you talk about the case for us? >> thanks, tom and for the acs to help us. i think in this crowded his good news of course i did with the administration in king v. burwell. when you say it's a major case is due to be the other way but having affirmed the administrations position probably took a lot of the air out of the debate over the case. a handful of things the opinion that matter for several top ruefully about both in the other pending challenges to the affordable care and what this might mean for those cases. the one really doctrinally significant thing in the opinion is the course starts by saying the chief justice says this is too important to apply chevron.
this is an irs ruled that was an issue. you would normally think it would get chevron treatment, at least the analysis under the two-step chevron structure. the chief justice has look of congress had one of the irs to decide this, surely it would've said so. that is an important clarification another cases where they've invoked brown and williamson a very tobacco for mci or laster medullary country already seemed like part of the analysis. it was part of what the court was using to find a statute was not ambiguous and has there is no-caps for an agency to fail. here is not what the court says. before it even gets to the two-step analysis and looks at whether it is ambiguous it just says it is too important to do the normal chevron analysis.
i don't know how much there is to recommend to that approach. i am not sure what it is that makes the policy questions so significant that it shouldn't get the normal chevron treatment. this case certainly qualifies. it is just not clear what else comes underneath the umbrella. i am not sure by the court is so sure congress would not want the irs to decide it. we now know the mandate opposes the tax credits for individuals on a federal subsidy. if the administration was right on the marriage that congress would've never contemplated these individuals in federal exchanges could not get the tax credit under the act. what i thought there wouldn't be that much controversy over the irs said so in the face of ambiguity on this score. i have some doubts about whether
this too important for chevron doctrine is too important going forward and i'm not sure it will matter too much. invoking cases for most of us are more comfortable with the justices making decisions agency administrators. certainly that is an intuition in this case. i also think having upheld the affordable care act i suspect there will not be an academy. at the end of the day the only thing i will say if some folks have allotted the chief justice opinion as one of judicial modesty. the notion that some questions are so important that they have to be decided by we the
justices. i don't think that the conception of the judicial role fairly described as modest. i hope dodge i think they're really saying on marriage they agree with the court statutory analysis and they think the court should not have disrupted the current wave of the affordable care act functions. i don't think it is really a claim about the lower judges. on the merits my own view is a disconnect between the case and a lot of the commentary over the case. a lot of people sat and wrote this was an easy case. i'll be curious to see what the other panelists seemed. my own view is that it's a harder case than people give it credit for. if you believe fantastical purpose come or high water it is an easier case.
for the moderate justices, they are reluctant to ignore text in order to look at larger claims the purpose just as they are reluctant to read words and ways they think they would accomplish what congress did not intend in the statute itself. bill and others made some clever and good arguments about why this was not a case about tax versus purpose. i do think bubbling up for the chief justice and i suspect justice kennedy. there didn't seem to be a real poll between what the statute seemed to say and what we all seem to believe congress was intending notwithstanding the drafting of the provision. as you know the majority said look if the exchanges that pushed by the state means just
that only stayed exchanges and not the federal exchange both in the provision directly at issue in the case and other related provisions the affordable care act it would really it seems that the statute at all with itself because none of the individuals on the federal exchange that the act clearly contemplates a number of provisions of individuals from all the exchanges whether state or federal or eligible individuals can get the tax subsidies. that is enough the majority says to make it ambiguous and then it turns to resolving the interview is that by looking at the structure of the act. when you boil it down with court says is context and structure it amounts to a set of arguments about purpose and consequences and as the chief justice says in
his opinion the act was passed to improve health insurance markets, not destroy them. it really turns on the fact the chief justice and justice kennedy and members of the court did not think the challengers have a very compelling story to tell about why exchanges established by this date would need only stayed exchanges. you can tell a story about why they would have wanted to induce dates to create their own exchanges but there certainly was not ample evidence of that in the legislative record of the act and that the court didn't say it it almost felt like a dog that didn't bark case. if that were the way the act had been structured and what they were attempting to accomplish you got the feeling he would've seen more evidence of it then some after-the-fact comments by folks who played some role in the legislation.
i think at the end of the day it did turn more on this very about purpose than it did about these arguments and the administration have a more compelling story to tell about why the interpretation must've been the one congress had intended in good flavors about when you say look, there's a lot of drafts are at the statute. the dance dissent as luck would change the rules again and again in order to uphold the affordable care act. is that a fair criticism? part of it is an part it isn't. i am not sure it is right to say the court had to strain to create ambiguity here any more than it does in a range of cases that get far less attention. is there more to a strain to find ambiguity here than it is to say if the court didn't need that a fish is not a tangible
object that can be destroyed or concealed. skeptical. i always thought fish were tangible objects. other than the intensity of the spotlight i'm not sure the court had to work a lot harder to find ambiguity than any number of cases where he was all statutory questions. i think it is fair to say whether or not the chief justice or justice canady.this is ambiguous they did think it was the drafting error and another context has been much less hospitable. i am not worried about how we come out because maybe congress can fix it. the argument seems to have a lot more sway in other contexts than it had here. it is a pretty benign and useful fiction. here it would've seemed ridiculous because everyone
i think that case, the house brought by a house of representatives i think that case got a bit of a boost from the arizona decision. they were standing questions about whether the house can bring the suit. it's only the house, not the entire congress that the arizona case allowed for standing, and sure enough a house sent a letter to judge collier yesterday saying we think the arizona decision helps us on the standing piece of it. i don't see much on the merits but it may make it more likely that judge collier has to reach mayor. there's the case brought by west virginia that's been reassigned on the administrative fix regarding individual plans. i don't know that this case helps the secretary, a chevron discussion actually may hurt the administration a little but i think there's no denying that
atmospherically their three much of your now that the challengers have gotten their day in court and it's hard to think that that will not influence some of these pending cases. [applause] >> thanks so much can just. we will now turn to really want are three big buckets of cases bodies of law that the court confronted in a number of decisions. the first is going to be the first amendment. we have a great fortune of having nadine was no to all a professor at nyu but is really one of the nation's foremost experts on almost any civil liberties question. from years she was the director of the aclu. can you talk to us about the first amendment? >> i'm going to start by century one word in your introduction to is not nyu. it's new york law school. ii have a couple of student research the students.
i want to thank. i'm delighted to be here at acs which i've been an enthusiastic supporter of from the very beginning. i'm thrilled at how this organization is doing but i have to say i also am a frequent speaker and debater before another organization that tom mentioned in his introduction. every time i have the opportunity of speaking to the group i thank them for what i considered the single greatest achievement, which is stirring the foundation of the american constitution society. [applause] coincidentally the last time i the great good fortune to speak before this group at an annual convention couple years ago was also on the roberts court and free speech decisions. i stressed the point that still
not nearly as well as it should be. nami that the roberts court overall has a very mixed record on freedom of speech and a surprising because of me as the courts marquee free speech cases a big name media heavily covered cases, the court has indeed protected controversial and unpopular speech. its overall record is very mixed and the current term illustrates that. they were two major free speech cases, one of them upheld free speech cases in a way that expanded an important speech are connected theory. the second one contracted and rejected free speech rights in doing so it in a way that expanded a speech suppressor through the both of those cases was big ongoing implications. the first case was read versus town of gilbert which was a case
that struck down a down side regulation ordinance after distinctions on the basis of the content of the sign. the court reached the result importantly by expanding the concept of content-based speech. this definition of content-based speech regulations that will never automatically trigger strict scrutiny, therefore almost automatically condemning unconstitutionality the regulation. it did so undermine past rulings that had a narrow concept of regulations and, therefore a loud unpopular controversial speech. the second case in contrast walker v. sons of confederate veterans upheld state power to deny the selection of messages
by private speakers on specialty license plates. worse yet did so under a criterion, i'm going to read it, if the design might be offensive to any member of the public. how was the court able to allow what we generally think of as the most blatant viewpoint discrimination completely contrary to the core first amendment principles. they did so by describing this expression as the governmengovernmen t speech from a relatively recent category that is completely exempt from any constitutional free speech protection at all. this is an expansion of the governmengovernmen t speech sanctuary from first amendment production. we got these two contradictory rulings really on the one hand, reid contracting the governments ability to discriminate on the
basis of content and viewpoint, but walker don't exactly the opposite. that's the bottom line from now on until my kind of the author i'm going to ever fight a bit on each of these cases, starting with the walker specialty license plate case. the bad news for free speech. in terms of how far that case was a retrenchment on existing free speech protections, i want to stress we at eight circuit court of appeals have ruled on this issue and if all seven of them sustained the free speech right. so the supreme court was only bringing up a backward direction. i want to quote my friend and a great first amendment advocate bob, who is in the audience, somewhere in the direction, bob said and gave me permission to quote this the walker opinion began with the eighth scariest
words in first amendment law quote, justice breyer delivered the opinion of the court. [laughter] to be true, to be sure justice breyer is generally less speech productive than other justices because the issues categorical rules which tend to be speech protective. for example, in reid he reiterated his unique view that content-based speech regulation should not automatically trigger strict scrutiny. and walker, ironically justice breyer's majority opinion database itself specifically on a formal categorical rule. namely, that once speech is categorized as government expression it is completely exempt from the first amendment,
period. to hide the irony, the last time the court discussed the government speech exception as they have called it the newly minted government speech exception from first amendment protection was 2000 in any case where justice breyer had disavowed precisely this categorical approach to government speech which even supports and, ironically come in the walker case. in 2009 justice breyer concurred quote on the understanding that the government speech doctrine, which that include to indicate he doesn't think it's a fix of doctrine is a roll of film, not a rigid category. even more pointed in his concurrence, he says if the government discriminated in the selection of private messages on political ground the action may
well violate the first amendment. i say this is a front because and walker the government did discriminate on political grounds in deciding that it was not grant a specialty license plate to one license one message but it would to another on the very same day, no less. this is a factual aspect of this case that is mentioned in justice alito's dissent it but to my surprise it's gotten very little national media attention at all. of course, it's well known that the texas department of motor vehicles, in question denied the particular license plate at issue in the case, namely one that featured the embattled so to speak confederate battle flag but what is much less well-known -- and let me say the reason is that was given was that many members of the public find the
design offensive. of course,. offensive speech is constitutionally protected. what's much less will do this on the very same day the very same board, despite testimony from many other members of the public that the design was offensive did agree to issue a specialty license plate celebrating the buffalo soldiers. the buffalo soldiers as many of you know of an all black cavalry unit that fought in the indian wars in the late 19th century. many native americans said, and i testified, they felt the same way about the buffalo soldiers as african-americans felt about the confederate flag. when you american leader said when we see the u.s. cavalry uniform, we are forced to relive an american holocaust.
so now thanks to this decision, government has carte blanche to pick and choose not only between certain battles signs in uniforms between certain minority groups who are offended and others who are offended but also between any other controversial messages including pro-life and pro-choice which in fact, have been selectively denied and approved in various states. now to be sure if it is the government itself that is in fact speaking, of course as a practical matter the government may pick and choose its messages, accountable not under the first amendment but only through the electric. but the problem is, a case like this, the government is selectively endorsing and disfavoring private speakers and private messages which the supreme court has repeatedly said violates a bedrock
principle of the first amendment. the government may never censor just because the majority of the committee, even the overwhelming majority of the community finds the message offensive. the supreme court said the government speech doctrine must not be used, mode, as a subterfuge for favoring certain private speakers over others based on viewpoint. so walker seems to be inconsistent. is a better expert to make that point in justice alito who number one wrote the majority opinion and writes a dissenting opinion in walker so there's special force to his critique in walker when he says the majority badly misunderstands it. to give me examples to illustrate one key point which no reasonable observer is going to look at the hundreds of
specialty license plates that has these issues as conveying a government message. one example he gives is if you're driving at 8:30 a.m. and you see a car with a plate that says rather be golfing, which you think this is the official policy of the state? better to golfing to work. that brings us to the good news on the first amendment -- >> i would eventually get to all the topics so hopefully we can come back and talk about the good of the first amendment. thank you. [applause] >> there were a number of really significant criminal law, criminal justice cases of this term. the personal take is that -- to that is cynthia jones codirector of the criminal justice practice at the polls
institute. she was my instructor in glasgow. she gave me my first grade which was an f. [laughter] and so i would like to air some grievance is. [laughter] afterwards. and so we talked to us about the criminal law docket? >> thank you. back when you must in europe known as tommy. if you keep the bring out that as i will call utah meet again. [laughter] the supreme court in three cases i'm going to talk about really expand the space between the ability of the state to administer criminal laws and the constitutional protection afforded to people who are accused. the supreme court tackles and eight amendment and challenge to an oklahoma statute dealing with lethal injection drugs. and in ohio versus clark the court tackles the issue of whether the sixth amendment confrontation clause protects a defendant from a statement given by a child complaining of abuse
when a child doesn't testify at trial. and in north carolina, the supreme court deals with a scenario you would think improbable but not very improbable with the police officer arrest someone come to stop a car at a traffic stop at stop and the basis for the stop is actually conduct that is not illegal. so they stop the car saying you should have two working brake lights when actually under the law you are not required. is that an unreasonable seizure if, in fact your conduct didn't violate the law and there was no legal basis for the stop of the defendants lose in all three cases. i think each case said very important precedent and gives a somewhat of a roadmap where things are going in these three areas. starting first, there is no i came in 12 minutes fully cover the scope of this event but i'm going to try to do justice and move onto the other two.
the court took on what appeared to be a strategy of death penalty abolitionist and that was if we keep eliminating or making unavailable the drugs needed for the lethal injection cocktail states will not be able to administer the death penalty to the blood they forget the trick. will not work with the manufacture. we which are people are shipping it in from overseas, we will attack their ability to get the truck that they need. the strategy appeared to be working and they have successfully eliminated two of the cocktails needed in this three-drug cocktail. let's be clear. three drugs are needed. the first drug is the drug that basically puts the person in a coma, or makes it so that they can no longer feel pain, at least that's what it's supposed to do. the psychotropic causes paralysis which would be painful if he did not the first drug. and the third increases cardiac
arrest. so the sequence of events is how to administer the death penalty. the first drug is a drug under a tight. the death penalty abolitionist and a death-row inmates said this drug does not, in fact cause the sense of callousness and put the person in a state where they cannot deal the pain of the paralysis end of the cardiac arrest. it doesn't work. the supreme court said they took great pains to know you unlimited the other drugs that were working. almost as if you take your not be heard to complain prepared to go that far but they take great pains to say there were two other drugs on the market that were being used and you effectively get rid of those trucks. the court said in order to mount an effective eighth amendment challenge to this lethal injection cocktail, you not only have the burden, condemned
prisoners from oklahoma, you not only have the burden of showing the drug being used actually does needlessly inflict severe pain, you also have to show that there is no other reasonable and available alternative that would be less painful and less cruel. the court articulates that second prong as if it's always been the law. the dissent takes attack and think that is up in the placed in eighth amendment challenges. it is no. the majority makes clear that if you're challenging this you have to show both things. the court says that neither of those were met that would justify an injunction. you didn't show that the drug as administered did not cause the condemned person to experience no pain prior to the other two parts of the cocktail. even if they did the court said even if you managed to show that, you have to prove in order to prevail that it was the other available drug, that there isn't
and the fable of the drug on the market that is another drug that could have been used and that they are not using. effectively what that does is it makes the eighth amendment almost completely out of reach. if this is your strategy to challenge the death penalty, in order to prevail that burden makes it extremely difficult for abolitionist and condemned prisoners to prevail, that you have to show that there was this alternative. in glossip, the court notably says there's going to be something involved in administering the death penalty. that's not what the eighth amendment prohibits. it's this needless suffering and torture that is prohibited. i think in the end glossip will be known more because the defects -- defense and it is because of the majority. in the dissent shock of shocks, two justices state pretty definitively, breyer writes a
dissenting opinion and ginsburg agrees with this opinion, that it's now time to examine whether the death penalty is constitutional. pretty definitively they go on to say we put it is not. causes school he had to almost explode. [laughter] just about exploded. the debate now going on them and i think it will invite litigation, invite other challenges to the death penalty. abolitionist know they have a couple of those, perhaps more votes on the supreme court now. i think that this case will be known for two justices coming out and saying i believe at this point i'm no longer tinkering with whether this part of the death penalty works out whether we can fix it with this patch. i believe at this point it is a violation of the eighth amendment because it is cruel and unusual punishment. i suspect going forward we will
see more cases involving the. onto the second case ohio v. clark ohio v. clark deals with something that scalia hold very dear and give. he basically gave defendants the right to confront any person who's making a testimonial statement against them out of course. the sooner that exists is an individual here, a child goes to the teach-in says i was physically abused by my mother's boyfriend. a child does not testify at trial. the teacher testified at the defendants as i have a right to cross-examine or confront that child. the supreme court says no. if the statement was made out of course that you don't get to confront at trial was testimonial in nature that is come at the time that statement was made it was pretty clear that that statement was going to be used in a criminal prosecution then you have the
right to confront tested. the government will not be able to use that statement against you in trial unless the child testifies, provided you didn't have a prior opportunity to cross-examine the child. the defendant says this is the scenario come when the teacher basically went to the child and sent who did this to you? what happened? they were conducting the kind of investigation pursuant to a mandatory reporting statute in ohio. the supreme court said that does not convert the statement into a testimonial statement. there was an ongoing emergency if that becomes significant because in a series of cases since about 2011 the court has begun to erode away the protections that scalia provided under the confrontation clause in crawford and the cases in the immediate aftermath of crawford and the court has expanded this ongoing emergency exception. so before an ongoing emergency occurred when a person calls 911 and says help help my
boyfriend is beating me up get some over here. the court said at the time to say was made no one was thinking of prosecuting the boyfriend. they are thinking about getting help for the golden. the court leaders it is an ongoing emergency because even to this child wasn't an imminent danger of being abused at the time the teachers had enough attention to try to resolve and protect the child and that kind of thing. so therefore, the ongoing emergency existed in a much broader context and for a longer time. i think you'll see more cases where the court is declining to recognize that confrontation clause right and expanding what constitutes an ongoing emergency exempting the defendant from the protection of the confrontational clause. the final case is hiding versus north carolina. and here the supreme court does an effective job of insulating police officers who do not know the law. this was a police officer who
says i didn't know that what happened was actually legal. and the court said as long as the officer was a reasonable and not knowing the law and was a reasonable misinterpretation of the law and it doesn't violate the fourth amendment. this case also led to a certain extent with cases by the supreme court that simply distinguish between whether you have constitutional protection and whether the state can administer the law the way they decide. and so in this case the supreme court has already decided that a police officer can rely on a mistake of fact. has come is not an unreasonable seizure is a police officer said i am rested you or i stopped you because you've matched the description but it turns out you were not the kind of committed the robbery but you looked like the guy. it was a mistake of fact but that's fine. the court says they can now also stop even if they said wait
a minute, you are not allowed to wear glasses after 7:00 p.m. that's what i thought. if that's the reason the effort interpretation, the courses that's not an unreachable seizure under the fourth amendment. the court was clear. it's an objective determination, not whether an officer can come in with species recent essay i thought the court says it's an objective interpretation of that's going to bite a lot of litigation in years to come over whether the officers misunderstanding of the law was objectively reasonable or not. and, therefore whether the fourth and protection covers of the defendant when the officer has seized event under the fourth amendment and had the legal authority to do so. [applause] >> thank you so much. another bucket of significant cases involved issues went to politics and voting. we have with us a litigator and
a writer director of the campaign legal center. among the many other jobs he had was as the acting head of the voting section of the civil rights division of the department of justice. >> thank you tom. thank you to acs for sponsoring this event. great organization and a thrill to be. i have to say that the people in at the beginning of the term that we would see decisions upholding civil rights plaintiffs claims in the alabama redistricting case, that we would find chief justice john roberts rejecting a first amendment challenge to judicial candidates soliciting contributions and getting contributions and applying strict scrutiny, but still upholding the campaign finance law, and if you told me that rpg stands for ruth bader ginsburg but i consider to be right bold and great would write a decision
in the arizona case upholding the right of the commission to do the power of redistricting to curb partisan gerrymandering would've looked at you with the same degree of lack of credulity that would've 20 years ago if he told me that 20 years from the a will have a black president, that all americans want affordable health care with access to it and the states recognize same-sex marriages. it's just really amazing work so my talk is i think a little bit about hopefulness. and contrast i saw rick perry is taking her to more on the cycle of hopelessness. [laughter] which i take it is not a commentary about his campaign. [laughter] so let's begin with alabama. alabama redistricting was drawn by the republicans when it took over the legislature and what they decided to do was to take all of the majority black
districts and to say that when we draw the statistics were going to draw them the same number and we're going to maintain the black percentages in each one. we are going to do that because we want to avoid retrogression under section five of the voting rights act. section five was in effect at the time pre-shelby county. the plaintiffs challenge this on a number of different ground and have to say, i was not involved in the case except for assisting with the advocates in the supreme court. i have to say that justice breyer went out of his way to give a very liberal reading to the pleadings below, so as to incorporate what he considered to be there to claims of racial gerrymandering, some of the districts, and overly reliant on race. so much so he had an appendix to his opinion where he listed all the pleadings where you could find support for the fact that the plaintiff really litigated
the case in a way that they said they did. justice scalia took integrate task in the dissent for having done so. this was a case where the plaintiff were claiming that alabama should not have applied race and the predominant way that they did, that the overly relied on that they misinterpreted section five of the funny rights act which does not require you, they said, to maintain the same racial percentage. this isn't the first time the civil rights voting rights law decried the cases since 1983 and this is one of the first cases were that utilize that weapon to bring the challenge. they had to show that raised predominate integration of these districts over traditional redistricting principles nonracial principles. there are several takeaways because the supreme court said these appear to be racial gerrymanders and sent back to
the lower court that had some strong language in justice breyer's opinion for white essentially believe that many of these district violated this doctrine. one take what is yet to plaintiffs who live in the district that your challenge and it was not clear even at the supreme court level whether the plaintiff really had met that particular goal. they said we have one of the groups was a member organization and they said we have members in all the districts. in nearly all editions. as justice scalia points out nearly all is and also maybe they don't have some in some the districts. they have to do that. they take away from the case is that it will is going to go forward and impact a number of other cases that are pending. cases out of texas and virginia but also alleged discriminatory content. in those cases before alabama was decided, the state had come in in both cases to say to avoid retrogression under
section five we can maintain these dishes at a certain percentage. the supreme court has now rejected that and said no that testers with whether or not the district continue to provide african-american voters with a realistic opportunity to elect a candidate of their choice. it doesn't require these rigid calculation or adherence to a particular percentage. the cases that are percolating now, three redistricting cases involving race in texas in addition to alabama, virginia and north carolina. i think what you're going to see because of this case has made it harder to rely on the voting rights act to achieve partisan gerrymandering, which is really i think what ultimately people think it's a safe harbor so when you deliberately packed minority voters in the district because they vote overwhelmingly democratic, are you packing into the district as a partisan gerrymandering or as a racial gerrymandering we will see. this issue was particularly
important post shelby because now in order to get preclearance you can bring people, you can build an end for preclearance by showing that engaged in racially discriminatory intent to violate the constitution. whether texas voter id north carolina a case pending, redistricting in texas, ma redistricting and virginia everybody is trying to get preclearance brought back in. so we will see. the one thing that's interesting about justice kennedy join the pain is about this is a case that hasn't has that mixed motive of partisan thinking. you may remember he was a nice suggested in the big partisan gerrymandering case from the mid-2000 where four justices said partisan gerrymandering wasn't just issuable. for said it was and it varies test. he couldn't agree with any of those test but agreed that it
was still just. the problem is no case, we are still waiting for the supreme court to come up with a theory and some since they haven't done so, maybe these are cases that kind of get at the partisan gerrymandering without the court having to come up with a constitutional theory. the other cases, bucket of cases, williams versus williamswilliams -yulee, the florida case why mentioned the judge challenged on first amendment grounds the right to solicit contributions to their campaign and the chief justice for the first time any campaign finance case that he's been on and he's been on several of them, he is struck down campaign finance laws. this when he upholds the judicial restriction and he does so because it's clear that public confidence in the judiciary really weighs heavily on the chief justice's mind. judges are different, he says. they are not politicians. they are not like politicians.
states can break it judicial elections differently than political ones. politicians are expected to be responsive to their supporters. judges are supposed to be evenhanded. balls and strikes, remember that from his confirmation to the many of us in a campaign finance the of wonder should we equally care about public confidence in our elected officials in our democracy as much as we can about having confidence in the judiciary? democracy only works i think when the people have faith in those who govern them as well as those who decide cases in court. the big take away be aware there's a ninth circuit case pending en banc been briefed now that's out of arizona. arizona seems to dominate the stage these days in many ways. the arkansas of ethics in paris of the prohibit judicial candidates from making speeches on behalf of political positions or candidates. publicly endorsing political candidates but also involve williams-yulee issue.
the case pending the williams-yulee case. alaska's, the arizona commission case which was mentioned by bill the interesting part about that case is it could have had disastrous consequences. everybody looked at the case as if to say if this case goes down we are going to his independent commissions to new redistricting. this was a challenge that claim under the elections clause that it had the authority to do redistricting and got taken away from them. well because it did get taken away they had standing to challenge it but they lost the case. but it had huge consequences because they were numerous time place and manner regulation and rules adopted not just with respect to independent commissions, constitutional amendments. secretary of state issues of regulation. that could be something that was done without the legislature's authorization. all of these things -- i think
the brennan center 87 examples in the publication and paprika talked about that. again to ruth bader ginsburg great decision for democracy. she says the elections clause is in line with the fundamental premise that all political power flows from the people. haven't heard that from the supreme court in quite some time. i think voters in arizona she says curb partisan gerrymandering where the court noted involved and inherit conflict of interest. politicians choose voters, that's not democracy. it's supposed to work the other way around, and so i think sink language like that from the supreme court is very, very encouraging to i think it will give encouragement to reformers and funders to go out into other states and seek reforms. the last point i want to make is that there were three state issues in the supreme court at the beginning of the term. wisconsin voter id, texas photo id and north carolina.
in each case the supreme court stepped in. in my case they granted a stay in wisconsin to a seventh circuit decision to put into place the photo id law that it previously didn't enjoy. this is prior to the election. in texas there had been an injunction issued by a trial judge just prior to the election in 2013. the fifth circuit stated the supreme court refused to vacate the stay. north carolina, the plaintiff challenged laws that were budget expected they lost the permanent injunction in the lower court. they got one out of the fourth circuit and the supreme court stepped in and dedicated that state. was to take away for 2016? potato is this. election officials make a last minute changes are going to be vulnerable to an injunction their litigants will have to go out and get injunction early but not the premature in their litigation. said that the status quo because it's clear that the supreme court has decided that instead of the usual multifactor test a
decide whether to stay will be granted it's really just one factor. that fact is are you changing something both pre-election? if the answer is yes and i suspect we'll see a lot of litigation on last minute, if you're changing something the status quo prior to the election, supreme court is likely to step in and probably the lower courts will, too. thanks. [applause] >> to you and thanks so much. i'm grateful for each of the panelists for not being just so thorough but also so concise. we made a commitment so we could finish up you about 20 minutes early so we take some questions. i'm not sure if we have a standby microphone or not. yes, it is. we will start with the press if you don't mind. if you folks want to ask a question.
>> supreme court yearbook. allall of the headlines, the wrapups, clinton the wrapups, clinton might adequate doses have stressed the court's liberal tilt during the past term. i wonder if any of you have comments on the extent to which that is accurate or inaccurate misleading or appropriate? >> i will give you my 2 cents. the numbers are as follows. if you were to take a 26 cases that have some kind of ideological close 6-3 5-4 eight of the big ten. we know these people are the same folks we've had in previous years. is not some intimate of reason to think sadly it ended up being substantially more liberal. one of two things and probably a combination of them is happy. as the cases get on the docket, that's just how does it look at next term and to think about
things like public union financing which is going to be an extremely fraught issue, affirmative action and abortion as well. you would expect to see a different set of results. the second thing is that it's possible that while the court has been moving to the right for 20 years, it's hitting the wall on some of these doctrines. we think of all the result is just a not for the conservative result. [laughter] it's like breathe a sigh of relief but it's not actually the exception of same-sex marriage a move to the left at all. a conservative court didn't strike down the affordable care act. it didn't limit the use of race and for housing in disparate impact claims when that was an accepted means of litigating those cases for 25 years. i think miller a lot more in the next year or so about whether that move to the right of the court continues or it is run out of gas to some extent. >> if i could complement what you worsen. i want to resist the question i
think that's wrong. i think what happens which is reflective is the modern regulatory state got a big shot in the arm. i think that's the thing to put together obergefell and king. king can was notable, this is all legal process, the chief justice said there's a great plan that congress put a foot. are we going to mess it up based on the scribners air? the chief justice said no. i think obergefell read along the same line. family law is the can set up a mechanism for people to make life plans for themselves. you can't arbitrarily exclude lesbian and gave people. white house looks expensive criminal cases which are different kind of predatory, and maybe the confederate license plate taste as well. i don't care how you personalize
it. i think a modern state is here to stay. and even extremely conservative justices are now internalizing that in the way they think about the sacred supreme court doctrine. >> i want to put this context in context end quote stephen colbert who says that just think i americans achieved full constitutional personhood just five years after corporations did. [laughter] >> other questions? >> i'm with bloomberg. a bit of a follow-up to that question. why did the court takes on these places? why did they take health care case for why did it take the texas housing discrimination case? >> i think for king v. burwell
it was a splitter the fourth fourth circuit on one way and the d.c. circuit on another. i think it satisfied the multiple criteria for surgery. on the fair housing act, same thing. it had been a disputed question for a long time. they settled it under ada and smith but still the across the aisle and laid the groundwork. i think it was surprising to see justice kennedy the wiki. i didn't think it was surprising the court took the case and i don't think most court watchers were surprised. they had taken it twice and both times it had been scuttled and he didn't get a chance to answer the question i don't think anyone was surprised on that when it granted the texas case. arthur surprising grants for next term i was surprised by the one person one vote grant. question for the panel, that one
is much harder for me to explain andthat either king with the texas housing case. jerry mahan of a view widely granted it. i'm not sure. >> let me explain what the case is. >> there was a case brought in texas challenging the right of the state of texas when it enacted the senate redistricting plan using total population to accomplish the one person one vote equal population requirement in each district. the plaintiff claimed they should've used a subset of the population because representation was all about voters. it's not clear whether they want to use registered voters instead or whether they want to use citizen voting age population or actually the people who turn out. all of those a very pernicious consequences for minority voters. this is that it will secretary of the law for decades, since the 1960s, the total population pretty much is the
base that is used to redistrict. it's also a number that's used to allocate congressional seats among the states. we allocate congressional seats based on total population. it's kind of a well-settled area. it is question. are only two states biggest something less than total population kansas and hawaii who both take up temporary residence for military people who are temporarily stationed in the state. they take those out of a total census population than the redraw the lines and has been upheld by the supreme court decades ago. be cases for the next term in the redistricting. it's astonishing. one person one vote case, another case out of their zone. they uphold the air as the commission's right to be a commission to do redistricting and to do redistricting and to take a guess that makes a that says we're going to review whether a challenged whether not the plan you do violated the one
person one vote rule whether you properly relied on the voting rights act, whether you allow deviations within a 10% range. a whole host of issues. a third case out of maryland where the plaintiffs brought a case of partisan gerrymandering, the district judge threw it out, refused to convict a three-judge court in the case is the up to the supreme court about whether or not that failure to convene a three-judge court makes sense. it reminds me everybody do plans in 1991 and 1992 thinking we have to draw minority/majority district about what they look like. when they all did the supreme court came down with a decision in 93 that said a parent does matter when it comes to redistricting. don't call these silly looking majority-minority districts. litigation boomed for redistricting lawyers which is good for me, but not for
democracy. >> i'm not the president am i allowed? thank you. i think everyone acknowledges that congress really isn't doing it's thing. so when the justices say if this is a problem, congress can fix it can that's a lifeline for the solicitor general. i don't know, should we operate as though there is no way to fix the law and just hope for the best? when you have one branch of government that's not working how should the supreme court react to that? >> yes, from the perspective of the justices when they say we are statutory stare decisis can will not overrule our interpretation of this case or they have a very high bar for find an absurd result and they say go across the street. do you think they really believe it? do you think congress pays attention when they say that?
>> in the case of shelby county congress isn't paying much attention because they've had a voting rights act amendment pending since almost sense of shelby can do and they haven't even given it a hearing in a committee. i don't know that congress survey doesn't seem to take it very seriously. >> i just did an article on the collapse of statutory override. not the justices was aware. i think they are still kind of in denial about that. i'm sure they realize congress is dysfunctional and ugly that did get some laughs from the affordable care act oral argument. i don't think they internalized how fast is the underperformance of congress. one thing i would add about that, i think the big winner when congress is dysfunctional is the executive branch. we might have seen that in king
v. burwell. that puts a smidgen more pressure on the court not to break the statute realizing congress is not going to fix it for them. >> anybody can comment, i was just wondering if the term tells us anything enduring about statutory construction and use of legislative history? >> yes. no i couldn't, i think everett every single case. i think there were 76. i put the main ones. this was not a big term for legislative history. a lot of the that they cases, statutory cases like king v. burwell, that was a complicated statute. it's in artful because it didn't go through the committee process. you saw very little reliance even on committee reports
probably the high point was justice kennedy's opinion in the title eight case where he relied on committee reports. and i think senator kennedy as well and ruling that there was a disparate impact of claim for relief under title eight. what we now have is at least term as representative come is that, ma this is what i was going to say about king v. burwell. the chief justice seems to be saying in king and verbal that even if the language established -- burwell but even if you if you think that i'm in vegas for clear it's made ambiguous by the whole act and the statutory context. the only other case, reason i can think of was justice exclusive opinion somewhat terms ago. this is not the court where
whatever you have is the appropriate text, when we say look at context, what they mean is a legislative issue. i'm not talking about stilly and comes to talk about the chief justice, justice sotomayor, justice ginsburg. they are not look at legislative history. at least i will take that back. they are looking at it but they are not citing it anymore. that is an important distinction. this term is i think a nadir in my lifetime for the supreme court's reliance, they cases a small legislative terms. it's comedy by the whole act and by the judicial created canons of statutory construction. i might add by dictionary. this is a court that, and this is bizarre, that statutory language, the federalist papers
have been explained by justice scalia. telling what the constitution means. when they get similar questions statute, the current supreme court does not look at legislative history like the federalist papers. instead it looks at dictionaries which are an impoverished source of meaning, but no, because they don't look at clusters of words. they don't look at policy content. they don't look a with the democratic process is focused on. it's a really the world of bizarro superman that the supreme court has not entered into. when the respected deliberations of elected representatives are ignored in a published decision, and dictionaries are the source of authority almost universally. so there. [laughter]
>> i'm not sure to turn them because of the mix of cases tells us a lot about legislative history or maybe even the canons of construction but i do think, i used to believe that statutory stare decisis was not a whole lot more than lip service. that is certainly still to to of justice thomas but i think for the rest of them it has come to hold i think more sway. in the halliburton case last t
more to the left. they're not moving that way with respect to criminal justice. i think most people would agree that their opinions remain pretty conservative and across party lines in some of the cases. the justices did not divide into traditional in the criminal justice context. it's not across the board even if it is the case in civil in civil rights cases. >> let me add some break
speculation and others on the panel who know a lot more about supreme court justice that i do, but i think what has happened and they hesitate to reveal this top secret because i'm afraid the heritage foundation will follow my advice that would be interesting, wouldn't it? which is i think the conservative litigants have pushed the envelope so far to the right that justice kennedy has uncomfortable going there and so i think he oftentimes now as we saw in the alabama case and as we saw in the arizona commission case, i think he's just not willing to go out that far. i think that may account for some of us. instead of the court becoming more liberal, i think it's more and it all comes down to anthony kennedy these days. so that's my rank speculation. >> the atmosphere among the conservatives seemed as fascist and as i've seen it in the last 20 years.
you find justices scalia and alito sniping at each other in confrontation clause case. he won't say the name. you see justices kennedy and thomas into solitary confinement is going at it. 10 years ago justice thomas doesn't like that concurrent to take a shot at justice kennedy. he just lets it it sit and then you see the chief justice and justice scalia going at it in king v. burwell. i do the court is moving to the left or right. times numbers are better on that that i have put the conservative wing of the court certainly does not seem to be getting along very well right now. >> if i could take like two minutes. >> no. because are good for the are good for this event are here we will have to be faithful to our time. it is exactly 2:00 so we have done that. please join me in thanking both acs and our panelists. [applause] >> thank you.
[inaudible conversations] >> this week on first ladies can influence an image, we learn about lucretia garfield and mary arthur mcelroy. accretion of garfield was an educated woman and a believe in women's rights. when her husband president james garfield was assassinated she returned to ohio and ensure his legacy by making their home into an early version of a presidential library. chester arthur, a widower becomes president and his sister mary arthur fills the role of first lady and establishes the white house social etiquette used by future first ladies for decades. lucretia garfield and mary arthur mcelroy, this sunday night at 8 p.m. eastern on
c-span's original series first ladies can influence an image. examining the one who filled the position of first lady and their influence on the presidency from martha washington to michelle obama "sundays at eight" p.m. eastern on american history tv on c-span3. >> c-span to brings you the best access to congress live debate and vote from the senate floor hearings and current public policy events, and every weekend its booktv with nonfiction books and authors live coverage of book festivals from around the country and be behind the scenes look at the publishing industry. c-span2, the best access to congress and nonfiction books. >> the senate today continues work on changes to the no child left behind law. their version we get state and local governments more control over education policy and testing. centers will be going through amendments