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tv   Supreme Court Attorneys and Reporters Review 2016-2017 Term  CSPAN  July 7, 2017 4:14pm-6:07pm EDT

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unemployment rate increased to 4.4% from 4.3%. >> cspan, where history unfolds daily. in 1979, cspan was created as a public service by america's cable television companies. it is brought to you today by your cable or satellite provider. >> the heritage foundation yesterday hosted the conversation on reviewing the major cases from the most recent supreme court term and previewing next terms travel beyond case. we will hear from sick cream court attorneys and reporters in this discussion. it is about two hours. >> we welcome those who are joining us on our heritage.org website as well as cspan.
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we ask everyone in house to check that your various mobile devices have been silenced or turned off as we prepare to begin, and of course those watching outside heritage are welcome to send questions or comments to us at speaker at heritage.org throughout today's programming. our initial panel will be led by john malcolm. immediately following the first panel. [inaudible] please join me in welcoming john malcolm. welcome everybody it was a good year to be a patent lawyer at the supreme court. this was not exactly the biggest blockbuster term but
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there was none the less a few cases of interest and a few cases that the lower courts decided to hear that are of interest. i'm delighted that we have a panel here to discuss this and offer some thoughts on the case cases. is a graduate of mammoth colleg college. will clark for judge edith jones on the fifth circuit court of appeals and for justice clarence thomas on the supreme court. we represent clients in cases covering constitutional issues. there's other matters of civil litigation. he is a member of the edward kalk appellate court and he is
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the codirector of the supreme court at the scalia law school and he's been in for several years running as a rising star in appellate law by law 360. next to will is kyle duncan, kyle is a founding partner in shared duncan and has argued over 30 cases including the united states supreme court. he is a graduate of lsu law school and he clerked for judge on the fifth circuit. before starting his own firm he was louisiana's first solicitor general and he served as general counsel for religious liberty. to the far left is joe palmore. he is the cochair of the practice group. he got his undergraduate degree and his graduate degree from the university of
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virginia. he clerked on the eastern district of new york, and justice ruth bader ginsberg. he served as deputy general counsel for three years and for five years he served as an assistant poster general at the department of justice. he has argued ten cases before the u.s. supreme court and was the primary author of briefs and over 150 cases in the high court. will, the court heard two significant redistricting cases this past term. cooper. whether you tell us a little bit about those cases. >> i'll be happy too. thank you for having me. the supreme court did hear two major redistricting cases. i will knock it into the weeds of the various districts. mostly to keep you from falling asleep and keep me from messing up. but, both cases was about the
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intersection between traditional districting principles. what happens is a state has a variety of objectives they want to achieve in redistricting. district lines, some political issues which we will be talking about later, but the state also must consider race. why is that? because of the voting rights acts in the mid- 1990s however the supreme court in a series of decisions explained that if you use race too much and it becomes the dominant factor in redistricting, those are known as the shoreline. the states feel, and i think with good reason that they are sort of caught in between. if they use it too little violation if they use it to
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too much ever court violation. these are both about drawing that line. in both cases, both north carolina and virginia argued that they used race appropriately. in both cases democrats challenged them for using race too much. they did not want the state to draw minority districts that have minority populations well over 50%. they wanted those lines to be closer to 50% and to have the voters spread out so they could influence other districts. although the votes looked rather divided because of differences in reasoning, what i want to emphasize is that these cases broadly stand for the proposition and i think virtually unanimously that the court is going to be very skeptical of the use of race. the democrats prevail in both cases without a dissent on the basic proposition. i think the headline coming out of the cases is that
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democrats won challenges that we are arguing that republicans used race too much to form minority districts. what i think the untold story of these cases may be and what i want to emphasize is that this is really a win for justice thomas. if you go back, and to a lesser us accent justice kennedy. if you go back to the shop cases and the supreme court said if you use race too much it will violate the 14th amendment. many of them dissented. they opposed the creation of this line of cases. their argument is, making a really strong minority district with well over 50% of the people being minority was what the congressional black caucus wanted. they wanted saved seats for minority representatives and any argument that using race too much violated equal protection rights of other
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citizens should not be made a constitutional right. they have now come full circle. those majorities were made in the north carolina case because although justice kagan wrote it, justice thomas provided the decisive vote. i do think it's important to keep in mind how radically transformed this debate is, and lastly, what makes it interesting is what the next round of litigation will be. this round was about republicans using race too much, i think the next round will be about whether using section two itself is subject to scrutiny and whether it may violate the equal protection clause. we will see whether the majorities in these cases that were so critical of the use of race will be equal critical when it is challenged us section two rather than the republican creation of district. >> before i turned to the panelists to ask them their views, i want to touch on a
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related matter with respect to next term. so the court has agreed to hear another redistricting case, a different variety involving gerrymandering. i was wondering if you talk about that. >> it's certainly one of the more interesting cases. i think it's really fascinating, the supreme court has struggled with this issue, to put it mildly. at one point there was probably a clear majority to say that it's unconstitutional. a lot of those have since retired so it's only a prediction as to what others will hold on that. what they struggled with is finding a manageable standard for that. the trial court here in wisconsin think they found that standard. i don't think it's a huge surprise that the court took a. i will be may be in the
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minority, i think it will b fizzle rather than be a big decision. one, the court granted a stay as a lower court decision and that is a preliminary indication that justice kennedy may not be optimistic that he can find the standard he's been looking for. two, i think there is some rather technical legal issues about whether you can challenge these things on a statewide basis that have to get decided before you reach the question and i don't know of the challengers will be able to get there. third, and i would give this sort of lesser billing, in justice alito's dissent in the north carolina case, he went out of his way to talk favorably about political gerrymandering not as a social good but something that's been around and recognized as a legitimate practice. i don't think that necessarily tells you all that much, but i
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think for those who think this is the case that will finally recognize a durable claim against gerrymandering, i would say i'm not quite there yet. >> to think they will find of. [inaudible] >> i think the four justices that have consistently opposed it will, justice alito's opinion emphasize that. he has gone out of his way other times to say if you could find a durable standard, he might find the claim. i think what's unusual is that in the past these claims have, when the majority of the voters in the state have gerrymandered it such that they can take control. i don't think that's actually true of wisconsin. i think it is a majority republican party that has entrenched their political power. that's not quite the same thing. >> do you have anything to add. >> no. >> one quick comment, i
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thought that one of those redistricting cases was very interesting because it was justice thomas joining with the four liberals. that's not a lineup we often see. justice thomas, on a occasion does surprise. i think the last case was where he joined with the liberals to reject the first amendment challenge to the state of texas limitation on what groups could sponsor license plates. that was interesting. i think will makes a good observation that justice thomas is probably playing the long game here. >> kyle, the court decided a couple recently church cases and the trinity lutheran church case but i was wondering if you talk about those. >> sure. thank you. thank you for having me on this panel. they are encased in the advocate care case and they're both important. we get religious liberty in different ways.
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trinity lutheran being a free exercise case and advocate healthcare thing a statutory case. trinity lutheran we will spend a little more time on that although the advocate healthcare has a great deal of significance for affiliated pension plans. trinity lutheran is one term that didn't have blockbuster cases but it's an extremely important case under the free exercise clause. this is an issue that has been simmering for many years in the court finally took it up. the issue is whether a state policy of denying grants because of the religious affiliation of the grantee, whether that violates the free exercise clause. the facts are very simple. missouri has a program called the missouri scrap tire program that offers reimbursement grants to
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schools, day care centers and the like when they purchase playground services made from recycled tires. chief justice roberts has this memorable line, at least for me that the petitioner in this case is a daycare center affiliated with the lutheran church that has peak gravel on its playground and chief justice roberts says that peak gravel can be unforgiving. kids fall down and get hurt is famous i, and the purpose of this program is to prevent that from happening. it's a health and safety program and it's also an environmental program because it reimburses churches, playgrounds only when they use recycled tire material. in this case is the church that runs a preschool daycare center and apply for grants. it seems clear from the opinion that the church would
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have received grants. it was ranked very high among the applicants but was denied a grant. why? it was denied because of missouri's interpretation of a provision in its constitution, article one section seven they prohibit the granting of funds to any person or organization owned or controlled by a church or other religious entity. this provision may be among many state constitution provisions known as the blame which were likely anti- catholic state constitutional amendments that came up in the late 19th century. the question is when missouri applies this constitutional revision to deny the grant, their ability to get the grant, the court said by a vote of 7 7 - 2 yes it does violate
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the free exercise clause by imposing a special disability on potential grant recipients solely due to the religious status. status is sort of the keystone of the court's decision. as i said, it was 7 - 2. justice of the mayor and justice ginsburg dissented. it's the opinion of the court with the exception of a notable footnote which only four justices joined, not just justice thomas or justice gorsuch. they both wrote separate concurring opinions in which each joined the others. very briefly what the meaning of this case? i think the theme of this case
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is that an agreement across seven justices about how the free exercise clause will apply to other kinds of public benefits. the basic briefing of cases that when a law targets those for special disabilities based on religious status, strict scrutiny applies. such laws are targeted disabilities on religious status such as the law in the santa clarita case. the missouri policy discriminated against applicants based on the religious character and so therefore subject to scrutiny.
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couple other notable things about the case, they argued this isn't really a burden on religious exercise. instead it's only the denial of a subsidy. you can see this argument has some plausibility. missouri is not telling the church what it has to believe, it's not telling the church how it worships, is not even telling the church a can have a playground, simply telling the church we won't subsidize the replacement of your plug a ground surface. the right were talking about is not public subsidy.
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they participate in a benefit program without having to disavow one's character. finally and i'll talk quickly about number three, it was a case in which the court upheld against free exercise and challenge the state of washington's policy of denying scholarship funds based on one wanted to use scholarship funds to prepare for the ministry. they read lock very nearly and said it's not about the status of the grant recipient but instead the particular use they wanted to make of the funds and that was to use them to prepare for the ministry which the court said was sort of a unique establishment
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causing problems on spending public money to prepare for the ministry. they urged the court to do just that and others did as well. so the court. [inaudible] a brief footnote three, interesting, footnote three is not joined by the majority of court. only four justices. it's interesting and a little bit amusing. this case involves express discrimination based on religious identity with respect to playground resurfacing. we do not address religious uses of funding or religious uses of funding or other forms of discrimination. this is an obvious attempt to cabin the reach of the opinion and leave certain things off the table for future cases.
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the current justices will have none of this. they don't think this is a principled way of limiting the reach of the case. on the other hand, the four justices are necessarily telegraphing their view of how the rule in this case would apply to school vouchers which will certainly come up very soon in the future, but they are saying we don't want to address that right now. it's very interesting. >> all go quickly through the case. it's a statutory interpretation case. arisa, i'm not an erisa attorney so please forgive me for stumbling over this. [inaudible]
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congress a member amended it in 1982 broadened to include to be maintained by an organization his principal purpose is to maintain plans. these are not churches but church affiliates. they have read the exemption the same way, that is to say if a plan is both established and maintained by nonchurch organization, that's okay. you still qualify for the church planning exemption. this is the department of labor.
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the public benefit guarantee corporation. they had already us exemption the same way and hundreds of letter rulings by the irs have said yes, it's okay if the plan wasn't established by the church provided that it's maintained by this qualifying organization. what causes case to go to the supreme court is that three reached the opposite conclusion on what it meant and said no, the plan does have to be established by a church and this has significant ramifications for many plans.
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none on the last thing i will say is although this sounds very dry, this is an opinion written by justice kagan. i have to say, justice kagan is a very engaging and entertaining writer. she made this case interesting to read even though the arisa stuff is dry as a bone. she sticks very closely to the text of the amendment and
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really for purposes of statutory construction, it comes down to the meeting of one word which is includes. what does include mean when a statute said we have a church plan that includes this other thing. i found it really entertaining and engaging read. the other thing is where is the religious liberty aspect of the case? it's all under the surface. certain briefs pointed out that originally the amendment to the arisa was enacted by congress in order to avoid a couple of religious liberty problems caused by the original definition. to make a long story short, we didn't want agencies to determine what a church was. we didn't want an agency determining that a religious order of nuns running a pension plan was not actually a church and we didn't want an agency determining that a religious order of nuns running the hospital was not a
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religious function. we didn't want that because it would create all sorts of religious autonomy problems. agencies entangling themselves with what churches are actually doing and it would actually create dissemination, in effect when you have certain churches that are like the catholic church who want to have pension plans run by church affiliated but not church organizations. underlying this amendment are actually some very serious religious liberty problems. the court alludes to those in the discussion of legislative history, but that's underlying the surface of this case. >> that's why asked the fellow panelists whether they have anything to add to what you just said. on the last day of the term they agreed to hear another religious liberty case and wondered if you could offer some preliminary views.
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>> has a very significant case. the organization represents addition and should be congratulated. they're both very significant cases. they presents it to very different questions. it involves a quote on quote cake artist, someone who designed and produces these elaborate cakes for various occasions. his religious faith informs how he runs his business, and which cakes he'll design in which he won't. he won't design cakes with alcohol and no bachelor party
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cakes. he has declined to design a cake for a same-sex wedding. he maintains he is not discriminating against gay and lesbian patrons. he doesn't refuse to bake cookies or cakes for them but where he draws the line is that he refuses to design a cake to celebrate a same-sex wedding. he was found liable for sexual orientation discrimination in colorado and ordered by human rights to design the wedding cake and do other things. the lower courts all rejected the free speech clause and the free exercise clause. they granted the petition. the arguments have many
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important lines of authority. it could be a very significant case for speech doctrine or free exercise doctrine. >> anything you want to add. >> also i think it's a little bit below the surface. justice breyer played an important role. i think they got it right, personally but when they join that opinion, it's hard to think that the stakes are quite that high given word justice breyer has been historically on ten
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commandments monuments and things like that. in the church case, if you read the oriol oral argument, he dominated that here is. he was after the challengers council and told them straight out that your argument makes no sense and this would be a disaster for religious orders and have an impact even though doesn't show up in the opinion. someone like justice breyer will have an outside opinion and it came through. >> they cited an important property case. you want to talk about that. >> thank you. it's a property rac rights case that breaks the streak that property rights owners have been involving land along the st. croix river in
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wisconsin. they want to preserve the river as an environmental resource. the merck family has long owned two lots along the river and indicated they were lot d and lot asked. they had a house on one of them. they decided they wanted to move out house and that would require expenditure of money and they were going to sell lot asked in order to finance the moving and renovation of the house but they weren't allowed to do that because of environmental regulations that the state wisconsin imposed. they said one couldn't build or sell individual lots, couldn't build on a lot unless it was more than an acre. it had grandfathered in smaller lots that had been owned at the time the regulation was adopted in 1976 but since then if there was an
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exception for adjacent lots that were under common ownership and what state law says his work in a look at those as one combined lot and you can't separately alienate them or build on them. that was the problem. because they had common ownership of these two lots, the state of wisconsin viewed them as a single lot and said you can't sell one of them. you can sell them both together and build a house on the two but you can't sell them separately. they filed a claim which locked in the lower courts and i think most of the audience knows that the taking clause prevents the taking of private property without just compensation. there's direct appropriation claims under eminent domain if the government just takes your property, it's often land, and
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there's also one about taking of raisins, believe it or not that was subject of a daily show. you can look it up. this case is different because the state of wisconsin wasn't occupying the land are taking it, it was a regulatory taking in a claim is when the government goes to far in limiting one's ability to alienate or use his or her property. that can functionally be a taking of the property. that was the claim here. the key question, there was a key analytical threshold question that was what the court started to review and it came to be known as the don denominator question. what is the relevant unit of property for considering the takings claim. what the state of wisconsin said is the relevant unit of property is the two lots combined. it's not much of a taking if you look at it that way. you can sell them, you can build a house on them, there
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were appraisals in the record showing that the value of the combined lot was only slightly less than the value would be if the two lots had sold separately. they said no, the proper denominator is lot f, the lot we want to sell and you've categorically prohibit us from selling us and building a house on that lot so it's functionally unusable to us as a separate piece of property and that's the proper denominator. that was the question that came to the court, it's a technical analytical question at the threshold of the takings but it's really court determined that an outcome like this. they ruled for the state of wisconsin in a 5 - 3 opinion. this is the more traditional breakdown of justice kennedy joining with the courts for
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liberals to roll for the state and against the murders. justice gorsuch didn't participate but his vote wouldn't have mattered because it was 5 - 3. what the court said was it laid out the framework for regulatory takings cases and said the court has never had or applied rules in this context. it's always done an ad hawk multifactor inquiry of regulation that goes too far. what the court mean analytical move was importing that overall ad hoc multi factor test into this denominator question so it rejected the argument that for deciding what the relevant unit of property is that we should just look to the lot line that provides an easy bright line rule under state law and once you assess that you go on to what the regulation goes too far.
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justice kennedy rejects that approach and says no were going to apply a multi factor ad hoc test to that denominator question just like we do at other stages of the takings inquiry. he said we will look at the treatment of the land under state and local law, the physical characteristics of the land and the prospective value of the related land and then he applies that test when says basically, were to look at these two lots together as a combined entity and having made that move he said there is no taking. interestingly the chief justice in dissent said the bottom line conclusion of the majority does not trouble me. the majority presents a fair case that they can still make good use of both lots in the ordinance of the commonplace tool to preserve scenic areas, but he rejected the majority's way of getting there. the chief and other dissenters thought that analytical move that the majority had made in terms of adopting an ad hoc test for development and
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determining what the unit was was, could have a lot of bad consequences in other cases and could lead to uncertainty down the road. so the chief justice roberts said we should just look to the lot line, that's an easy readily identifiable category under state law, and then he suggested he would find there actually was in a taking even taking that is relevant unit but he thought it was important to lay that out as an analytical marker. what a claims justice kennedy's vote, they're kind of competing impulses definitely is a property rights impulse and he's been with other conservatives but he's also a believer in federalism and sometimes these taking cases as putting federal courts in local zoning situations and that may be something he didn't want to
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see your. >> let's talk a little bit about this lance case. interesting facts. so this could of been a blockbuster case. we will talk about in some ways it is and in some ways it ended up not being. it's iraq 'n roll band, called the slants, and they want to register their name as a trademark. unfortunately for them, or federal law precludes the patent and trademark office from registering any trademark that is disparaging. they found this name was disparaging to people of asian descent and refuse to register it. the slants understood that and their position was we are trying to reverse the meaning of this. we wanted to make a positive
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role model for people of asian descent but that didn't matter to the patent and trademark office. they had to judge it based on the name alone and to determine whether it was in fact disparaging. they did hold that it violated the first amendment. they confirmed 8 - 0. what here's what i can tell you. speech cannot be banned on the ground that it expresses an ide idea. why that still under the first amendment precisely, you cannot get them to agree on. so exactly why that is so is left cases. here's what happened. four justices went one way. justice kennedy and justice ginsburg, again and so the mayor went a different way and all the ways they went and why it's an interesting split
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given the two opinions. what did justice alito do he basically walked through the case step-by-step. the government had made a series of arguments as to why there are different kinds of exceptions under the first amendment. they argued this was okay. that the trademark registration program was government speech. actually all eight justices agreed that it's not government speech. that was the one area they all join each other. was the subsidy? they said no. was it a hybrid government program, little government speech a little subsidy but basically hours not theirs, they said no they are and then justice alito said is it a limited public forum such that you can't discriminate because it's a very limited free speech don't. again they said no. finally justice alito said is a commercial speech. he said we don't have to decide that because even if it
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is commercial speech the government argument doesn't need this test for being narrowly drawn or government interest. it's very block by block, every argument taken on it would've been an interesting majority opinion and not a would've narrowed subsidy law in some important ways, but what it never does is anchor the opinion explicitly to viewpoint discrimination. there are threads that rely on viewpoint discrimination, particularly in the limited public forum aspect but there is a footnote that expresses hesitancy to do that. that group of four justices was hesitant to simply save this is viewpoint discrimination, we don't care what your arguments are, it loses every argument on the ground. not so for justice kennedy and the justices that joined him. justice kennedy said this is viewpoint discrimination, i don't care that bans all disparaging speech, that itself is a form of viewpoint
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discrimination. he takes a very broad view of what constitutes the discrimination and then says therefore, i really don't need to reach any of these other arguments. i don't have to figure out the ins and outs of a silver bullet that ends the case. it could have a lot of effect in other areas of the law. it's more hesitant on viewpoint but really would've
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shaped subsidy law and reshaped it in a fairly dramatic way, emphasizing that cash payments really are what matter for subsidy cases and these kinds of programs don't quite fit into that box a while. but, for another day on which theory of the first amendment will control in these cases. >> the owner of the redskins doesn't care. >> that's right. do either of you have anything you want to add. >> a quick, and this shows, if you think of what are the hallmarks of the roberts court in terms of all nine justices, i think there are a few things. they take statutory taxpayers seriously. in criminal cases they are often very skeptical of broad claims of federal criminal laws advanced by the united states. time always flies when you're sitting appear.
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i want to make sure we have time. the point that i've been focused on. [inaudible] i'm watching to see whether it will even be decided. i want to see if they will enable a review of security
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procedures. that review is underway. there is a question about whether the case will even present a live controversy. another issue i think is very important from a government litigation perspective is whether the district court's are appropriately issued nationwide injunctions, and this is an issue that's not really a partisan issue. the same thing happened during the obama administration when there were other chip states challenged and there is a single district judge an injunction against the policy. why in maryland issued statewide injunctions even though there was just a handful of plaintiffs before them. that is a recurring issue that
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i think is important for the supreme court to resolve in a case like this. then the third question is whether this could actually go back up to the court in the next few weeks or even days because there is now a dispute between the parties about the scope of the injunction as narrowed by the u.s. supreme court. briefly they said policies of the executive order could go into effect with respect to aliens who had no connection to the united states but cannot go into effect with respect to those with a bona fide connection to the united states. the parties are now back in hawaii in the district court fighting about what counts as a bona fide objection and the government in its filing said we think you should adopt our view, but if you don't we want you to stay your ruling immediately so we can go back up to the supreme court get clarification. there could be emergency stay litigation back into the
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supreme court in a matter of days on this court. >> you have anything you want to add. >> everything you said, i think there's a lot going on for the lawyers beyond an issue that dominated public attention. i think it's a real concern. one thing i would say as a word of caution is the past term. we were focusing on issues which were camping statements are generally on the line now in
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these kind of constitutional challenges what does that mean for the scope and intent of litigation going forward beyond this controversy with this president. i think some of the votes the justice will certainly think about that no matter how they end up ruling on the case. i'm barely smart enough to know how they'll get from this one. >> i know you pointed out in your brief your living possible what you go back to college papers and try to find some hidden intent. we have time for a couple of questions and i'd say given the fact that we have a second panel we got started a couple minutes late -- please announce your affiliation. keep it very short and ended with a question. >> thank you, john. joe, your analysis -- you left some important facts out of the analysis. the denominator and enumerator
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much further than kennedy in his opinion which is a lot. the two were bought separately in 60 and 63 and they were dated separately and they were text separately and that remains the case right to the present. the 1975 ordinance changed that. why does that matter? by combining the two. it matters because under penn central you have to take parcel as a whole and why is that important? because under the lupus case you have the wipeout rule which you are entitled to compensation only if you lose all value in the property. if the two parties, if the two lots are combined then, of course, they lose. if you keep them separately as they've always been treated under the regular law than the plaintiffs prevail. the problem here is that as a result of the 75 ordinance
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wisconsin changed the rules in the middle of the game, so to speak. in doing so, got out from under the requirements of the takings clause and that, indeed is the core of the problem. only thomas saw that in his concurrence when he said when he sided with roberts because the court had applied the courts president and the problem was, of course, in the courts presidents in both lupus and the disaster that is penn central. >> what your question? >> it seems to me that you cannot use the denominator enumerator because that was the problem right there. i wonder if you agree? [inaudible conversations] >> i thank you raise a good point which is to the role of
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justice thomas in his case and many others and many clerks wrote separate opinions were justice thomas like this. he often write separate opinions where he says i join the majority or the defense because it faithfully applies president asked and no one has asked us to overturn president asked in an appropriate case i would consider doing that but no one has asked me to do it here so i will do it. this is a case like that where he said he raised a question about whether any of this regulatory taking jurisprudence make sense but he said we are taking this case and deciding as it comes to us knowing it will overturn it so i join with the dissent. >> troy mayfield. in the past four or five terms we've seen a number of the justices dropped hints that they're willing to start capping the administrative states through difference et cetera et cetera and it's been a quiet term.
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did any justices dropped those hints this time? and we see anything in the search rain that seems might bring those issues up next mr. mark. >> i'll take that one. i have a case in that that will be filed or positioned soon. it wasn't a lot going on in administered about this term. sadly, nothing like the past couple terms were justice thomas and justice scalia in that case, took an issue forcefully. two things i would note. one, the addition of justice portrait to the court, he on the tenth circuit expressed skepticism and urged the court to reconsider and is now in a position to better the court to reconsider. secondly, the court did deny search in an hour difference in the timing was unfortunate with the court not justice scalia's unfortunate passing and that may have played a role in whether
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the court not taking it. justice alito and justice thomas have all in separate opinions and justice scalia before he passwords the court to take a hard look at and my firm will be styling filing a petition on that soon. so, you may find out more. his dissent is from denial and no one else joined it but again, i wouldn't read too much into that given the timing of when the petition reached conference. so, i do think in the short term there won't be chevron on the table but i think whether we'll see our is. we'll get a signal the start whether the court is generally interested in our or whether the court has decided to let it go. >> i would just add the court did grant certain a case for my firm is representing the petitioner called gloucester county versus gg that presented the outward about whether we had
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asked the court to overrule and to take certain whether ours should be in the court declined but it did grant whether it was appropriately applied in that case to an opinion letter from the department letter of education. we are preparing for inordinate case when the new administration change the regulatory guidelines and they remanded to the fourth circuit. we would've heard something about our differences but we didn't get to. >> first of all, thank you for coming. my question is for. [inaudible] justice breyer was asking whether the case was new because earlier it had been come out that it buried and that the grant would be denied on the religious leanings of the group. however, friends of the earth was brought up and justice breyer said that future
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political winds could shift and that's why it wasn't new. do you think that could apply to travel than where you say because the executive order might be done by the time couldn't political winds of change and it bring it back up again or is it all off the table? >> that's an interesting question and it's a question that would lurk. the court might view it as the actual executive order and if it's moot then these issues could be fought another day but i think will is right that there might be a competing urge to do some injustices is the overbreadth of the court of appeals so they leave those in place because the supreme court or do those get vacated and there's a lot of computer rules about when it comes moot. if you put your finger on an important issue smack what about the fact the injunction that was listed in part parts of the order never went into effect and at the end of the 90 days.
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[inaudible] there still the 120 day suspension for the refugee program and it still parts of the case that will still be around when the court hears oral argument. >> yeah, there could be moving pieces and complications and even 120 days will be a timeout around the time of oral arguments. the ninth district court in hawaii originally said enjoying those reviews in the ninth circuit vacated that and allowed that review to presumably underway right now and that was the rationale for at least part of the executive order. i don't know how that issue comes out because they asked for a briefing on it and it's clearly friend of mine for them. >> any closing thoughts. please join me in thanking the panel. [applause]
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candleligh[inaudible conversati]
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we have just heard from an impressive panels of lawyers who argued some of the biggest cases at the supreme court and now we will hear from some of the three top supreme court reporters in the nation. theirs is not an easy check. trying to find the people with the supreme court complex and very opinion confusing opinions mean. we are fortunate to have us today jeff craven, kevin daly and adam and in order to get to know i'll keep their instructions brief. he covers the supreme court the wall street journal after reposting as the united nations correspondent and editor of the water street journal weekly. is the author of the book terra-cottas and an award-winning account of military troubles in guantánamo bay. prior to joining the journal he worked for other publications including the washington post,
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harper's bazaar and he is a graduate of harvard and the university of cal berkeley law school. he covers the supreme court, judicial nominations and other matters related to the judiciary. before entering the field of journalism he taught high school theology and work for the federalist society. he's a graduate of the study political science and catholic studies. finally, adam was the supreme court correspondent for the new york times. he began covering the court in 2008 he also has written a column called sidebar on development on the lot since 2007. he joined the new york time is a copy boy after graduation from yale university and he returned to yale to receive his law degree and then practiced at one of the nation's premier first amendment law firms. return two times legal department and spent a decade there advising the company on defamation, privacy and other issues.
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his work is appeared in the new yorker, vanity fair, rolling stones, and a number of law review articles. jeff, i want to start with you. chief justice roberts included a footnote in his trinity lutheran decision explaining that the decision didn't address religious use of the funding or other forms of discrimination aside from the playground grant program issue. you wrote that footnote three exposes divisions regarding the religion class because they wouldn't join that effort. what you think was going on there and do you foresee a showdown of on the horizon? >> not only was there a separate opinion significant so was the dissent by justice where you saw the footnotes seeming to be the glue that held the majority together in that case. it went too far for thomas opinion but not far enough for the soda meyer opinion. clearly, that is not the but know that would arise in the
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initial draft of the opinion and it seems to be something inserted to make clear that this was a case going so far but no further. i think that it is different in character from some of the other cases that are sometimes lined up with it like the voucher, school voucher efforts. it really was portrayed by many members of the court including breyer and kagan again to excluding religious schools or religious church sponsored schools from general social services like police and fire protection or having a sewer hookup for this kind of thing. that was the framework they looked at and again, it basically content free framework and that is just a citizen like any other citizen just like an institution like any other institution is entitled to basic services like applying for a
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grant for a completely secular purpose. i don't know how relevant it was to the decision but the school did say it was clear that the school did not discriminate among the students it took. it didn't have a religious test even though his church sponsored and the playground also was open to the public when not used by the school. i don't know if those factors played into it but it seems that from the left side of the court, at least the two justices that joined the majority they saw this as being very different from the kinds of gray area engagement between the public and religious spheres that some other people were aggressively promoting the case might have hoped. >> so, you mentioned the school voucher contacts. the day after that decision came out the trinity lutheran decision, the court granted and remanded a number of school voucher cases and what do you or
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any of the other paleness think in light of the trinity lutheran case will happen with those and you see them coming back to the supreme court in the next term? >> you never want to read too much into a dvr. it's a fairly mechanical move but the standard is a reasonable probability will alter the outcome. that said, when you send a case like that back to a lower court's the lower code is often dug into where they began and will find a way to reaffirm their earlier decision. that means that those cases will come back to the court. soon. >> other thoughts. adam let's stick with you. this term the court ruled in favor of trademarking ethnic slurs and allowing sex offenders to use social media websites but a couple terms ago it was ruled against having the confederate flag on state specialty license plates. how would you sum up the roberts court free speech jurisprudence of part? >> on the whole it's a free-speech court. generally, in these unpopular speech cases by lopsided
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majorities in the campaign-finance setting by a thin majority but on the whole, a very pro- speech court and as will set in the earlier panel, it's confusing. they very often end up in the same place but you can't tell what their rationale is. the confederate license plate case, five-four with justice thomas joining the liberals was unconvincing. the idea was that i was government speech and i suppose it's a texas specialty lifemate program where there were objections to a specialty license plate showing the confederate battle flag was too much for some people to stomach and is it plausibly government speech? i don't know. there were 300 of these license plates and some of them said things like i'd rather be golfing and it's hard to know that that the official position of texas. [laughter] >> there are a couple other
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exceptions that come to mind, holder burst the law project where laws were said to survive strict first amendment scrutiny. i think those are the outliers. i think in general the court is very interested in very pro- speech but not sure exactly why. you have a couple terms ago in tilburg had a very broad proposition and justice thomas opinion was all continent base for subject is correct screening it's hard to believe the court means that. that would do away with security costs. this is a court that knows where he wants to go but is in search of theory. >> if i could piggyback. justice alito has made the point that the court speech jurisprudence is rather confusing and his view is that the speech out of the court has been robust about protecting speech and the peripheries and they protect the right to create and disseminate videos that
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depict violence against animals but that the court has been much more divided when it comes to protecting some of these more poor speech areas like campaign-finance horse beach and abortion that are more political in character. his view is that the court is very robust about protecting things at the very edges but a bit more confused when he gets into some of these more core speech areas and that's probably right. >> on that point, the liberals on the court were not so keen on protecting abortion clinic protests were striking a campaign-finance relation and that's because they say it's not really speech. were talking about conduct. justice even said what was financed with campaign sponge. they don't accept the premise that it is speech. that may well be an important issue in first amendment law what is speech and it comes up all the time. it seems that they take the view that speech that these doctrines that apply to speech are being expanded to also cover forms of contact that go beyond that and
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have influence beyond your persuasion. >> so, let's turn now to our newest justice, neil gorsuch. you will that justice course it might shift the balance of power among the five conservatives quote away from the soft institutional toryism of chief justice thomas. original is. can you elaborate on this a little bit and are there any areas of the law that might be particularly affected by the shift? >> have always liked the word tory to describe the chief justice. he values prudence and sees a pretty minimal role for him and his court in public life. he is willing to accept new developments he might not care for personally in the interest of maintaining stability. we have these kind of murky and characteristics. justice gore such, does not seem to be of that persuasion at all and that could affect the tenor and scope of conservative majorities in a number of ways. in the first place, in cases
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where the court fractures five-four along ideological lines i think that gore such could compare the chiefs ability to command majority if we assume that justices thomas, justice alito and justice gore such are taking a more maximalist position. the chief have to find some way to accommodate his more strident colleagues and it will affect both the substance and the assignment itself. there were such could play a great role and qualified immunity is one such area. justice thomas came right out and said this term that he believes qualified immunity jurisprudence is entirely divorced from its historical analogues. justice course which has not gone quite so far in his own writings but one of his few dissents, on the tenth circuit, concerned an application of qualified immunity and this was his famous so-called burping descent. in that instance, he broke with
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his colleagues on the tenth circuit who awarded qualified immunity to a police officer who had arrested a seventh-grade student for disrupting his gym class while burping. we at least know that judge gorsuch is careful indiscriminate in his grants for a qualified immunity and if these are more expensive than that then he and justice thomas could affect a few change in this area. i think that possibility holds in the forfeiture area as well. by way of pending cases i would point towards carpenter the us. this is the case about constitutionality of the warrant and seizure of historical sulfate data. the courts, the fourth amendment's abilities have been drawn up by others and i won't dwell on them here but i would say there was an interesting case of his on the tenth circuit called usb ackerman in which he
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made some passing remarks about the third-party doctrine that we are interesting in it. i mention that because a number of people have suggested that this case might afford the court an opportunity to revisit the third-party doctrine and there are some justices, so the meyer who is expressed interest in doing so. he puts distance between himself and the third-party doctrine and he emphasizes the courts have not yet determined how the third-party doctrine might be applied in these novel technological context. given that, it seems that he's a good possibility for a fifth vote with the liberal block in this case. of course, there's the possibility that justice gorsuch presence but in peril or in some weekend at the conservative majority if he continues to write by himself in the manner of justice thomas, at least in the short term, there's a possibility that we'll see five for results and whether their united in result in a fraction as to the rationale. that could diminish the force
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and effect of those rulings from the lower courts. >> to the extent that people are disappointed that justice gorsuch was shy in expressing his view that his confirmation hearing, i think he's working hard to make up for that. just to add to the point about the fourth amendment and i think it's also true with some amendment context. that was where justice scalia truly diverted from standard line order type of theorizing and given the police the benefit of the doubt. justice ginsburg said you he was the strongest on the fourth amendment issues on the court and i think that will be an early test for where corset comes out on. thomas started initially being very close to scully on those issues. for the end of his life, justice scalia complained that thomas was getting wobbly on those. in fact, had been devolution
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where he goes from being in strict alignment with scalia to distancing himself somewhat in those kinds of cases to being on the other side and siding with the state against the defendant. whether gorsuch turns out to be more like scalia or more like thomas now i think it'll be more interesting thing to watch. >> -underscore one point which kevin made. which was quite right. on the right there is a much larger ideological spread and much different introvert ' much more disagreement even when the results is the same desired result on the left. on the left the ideological space is very narrow and there's a discipline where in many many cases the liberal justices speak with one voice and on the right, historically and now i see quite likely with gorsuch as well, many separate opinions and more of an effort to find a unified theory. >> that is interesting. not only when they're in the majority vote in the senate, you
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think of. [inaudible] all disagreeing on my the majority was wrong. you have a very competent justice on the right -- >> and a majority sorry to interrupt you, none of them loved the kennedy opinion but none of them saw a benefit to themselves to do it separately. >> right, or their goals to the law. if the roles were reversed you might see several different opinions by the conservatives and one to send by the left. >> so, adam, you will that new justices take years to find their footing and justice gorsuch a hurry to make his mark. what are your impressions of him in his first two months on the job? >> so, on the one hand his voting was quite conservative. we saw many examples of this, including in spots where he did have traces planned say campaign finance where he wanted to know probable just jurisdiction.
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the people on the right who wanted a concert of justice or are happy and the people on the left but they get someone different are unhappy and that's unsurprising to me. i thought he bought a kind of brash quality to the court which isn't typical of a new justice. many justices say it takes them years to find their feet. prior, thomas, said it took them three years, five years for the really felt competent doing the work of the court. frankfurter said of brandeis that even an intellectual giant like brandeis took three or five years. there was not none of that with gorsuch. he dove in, wrote very vividly, wrote about the role of the supreme court in a way that you might be a little surprising by someone who been there for a month and a half. i don't know whether this might whether it was a matter of strategy or interpersonal relationship if you want to move the past. >> but, in terms of being the
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candidate that he was promised to be, i think that's a very consistent. i remember leonard leo saying and asked if gorsuch is going to be someone who he envisioned bringing together a new majority or building coalitions to get his views across or being more of a go it alone guy, he said that that was important to him and important to the president have someone who was strong and courageous and willing to stand alone, if that's what it is. so far, he is certainly willing to do that. he's not been alone and everything but his although, i don't know, the justices might have had rhetorical portions that he added for about the role of the court and all the tremendous implications in his opinion. >> so, just you said this term is one marked by caution emanating from the court center
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and that the justices relatively modest manner as they sought consensus on high-profile the cases. it is exhibited to the fact that they were down for rest of the term or is it a trend of measured consensus that we might see next term? >> well, i think it's absolutely comes out of the unexpected situations that the court was in when justice scalia died. i think they had a sort of group their way to a new way of doing business. he had several justices come in a public about that, justice kagan and justice alito both said at the new dynamics of an eight-member court, one with a very predictable decision required them to move into cautious ways and giveaways and we saw that could draw more votes to find majority. there were two cases that were set for the argument and no four-four split this term and that shows that government institution is work to do and
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products to deliver and they manage to adjust. i think that whether it continues that way in the futury know that justice gorsuch, thomas and justice alito are now fully committed to the consensus being the number one priority of their jurisprudence. not what they came there to do. regarding the chief justice and justice kennedy, i assume they are aware of the little bit of turmoil that we occasionally hear of going on so the other branches of government and the idea that this institution continues its solid, attempting to be a political, to the extent that it can, attempted to show stability in the legal system, even as the gloves come off in the political branches. i think that will be very high
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in the mind of the chief justice and also to justice kennedy who saw his own court go through and unstable. announcing this kind of unusual situation with the president and congress. if that motivates those two center-right judges to maybe seek more common ground for the last so that this divided country maintain some level of competence in the court they may see that as a priority. i don't know, of course, when things really matter, they matter and the court will move the majority takes it. >> kevin, adam, any thoughts. >> i would add to that. i wonder if the chief was not substituting you colleagues to a certain extent of the remarks he made at a conference in pennsylvania. he reentered his long-held view that he likes to avoid justices writing on their own as much is
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possible that he prefers the justices do not see themselves as justices but members of a nine-member court and the court should speak with one voice as much as possible. >> his voice. >> i wondered if that remark is not in some way directed at justice gorsuch. >> i read it the same way. i thought it possible that justice gorsuch is already under the chief justices skin. >> looking to next term, kevin, i'd like to get your thoughts on the next case? they've taken up permissive ex- brooch to free exercise and is not restricted to the four walls of church. do you think the justice will view the case in this way where the storeowner is arguing that the states proceeded to choose between his operating business and belief? >> if you look at the qb from the owner of the cake shop they are lawyers are framing this as
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course of speech and if you look at the question presented on the circuit petition from the other side they view this as a public accommodation and antidiscrimination issue. so, obviously the way is that the court frames this will drive the outcome of the case. in looking back, previous cases, you mentioned in passing i can see a hobby lobby playing a role here. justice alito and the opinion expresses his deep concern for protecting small businesses or closely held corporate entities in these which liberty areas and, i would think, small bakery that's operated by a bare-bones staff is probably the kind of institution that he had in mind when he was writing this. i would also note that in that case justice kagan and justice breyer declined to join that section of justice ginsburg's dissent that argued corporate
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entities cannot bring claims under at all so we have two members of a liberal block declined to say that one fourth of the religious liberties were operating in a commercial context. i can see the difficult to imagine these two joining the conservative majority, in this case, but i think that's mentioned. >> hobby lobby with the statutory case and interestingly constitutional claim here and operates under a week or standard by free exercise. i'm not unsympathetic to the speech claims but i do wonder about this hypothetical but let's say for reasons i oppose interracial marriage. is it possible to think the supreme court would endorse my rights to decline to make a cake for an interracial marriage? it is if it is, then i can see that the bakery wins but i'm not sure it is. >> that i think is the wisdom of justice gorsuch brief concurrent/dissent in the trinity lutheran case. he took issue with the chief
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justice footnote that dropped the distinction between status and use and he says if a person a religious man. [inaudible] is a score religious practice and it's untenable line that he undermines the virtue of gorsuch as view. >> it'll be a great case for us to watch both to see how it's argued and how it comes out. take into a further extent there were cases like that when the bob jones university case is a religious institution that does not believe in race mixing. they were denied federal aid and there's all kinds of implications for this case could go. that the hobby lobby case there were some ring which in there saying that the government's interest in promoting seamless access to contraceptives through
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employer-based health insurance is not as compelling as some other things like and anti- dissemination loss where we have a state anti- dissemination law and is the court going to say that this form of discrimination the state has put on an equal playing with racial or gender discrimination is that a lesser form of discrimination or how will they draw the distinction if they do or do they open the door to greater, i guess, diversity of compliance with all sorts of statutes. >> the bottom i take away point is this is a gift to journalists. it's a great case and it's easy to understand people people have strong feelings either way and it's not a. [inaudible] [laughter] >> amen. following up, this is a case
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where everyone will be watching justice kennedy and any predictions on how he'll approach the case. in one hand he is the architect of the constitutional protection for gay rights movement and he's been a pretty strong component of speed proponent of free speech and religious freedom. >> last time this came up was in the martinez case and he seemed comfortable enforcing the viewpoint neutrality in limited public forum and it's not quite in analogist situation but maybe that gives us some hint. >> yes, adam. >> i think he put it exactly but that's one of the reasons it's such a great case to watch. you see several of the themes that have been marked justice kennedy's jurisprudence coming into conflict with this and having to decide whether which takes persons will see if there is a smoke coming out of his years in oral arguments or not. really, no, he's been free speech is one of the hallmarks and so has the right and so has making accommodations for religious practice. yet, he's absolutely the one to watch. i don't think -- until another
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extent where the majority built but this may be a case where we see several opinions rather than one or two. >> the earlier panel said this case was relisted like a record number of cases. >> fourteen times. >> that makes it think justice kennedy wasn't eager to hear it. it took someone else to come around to find the fourth vote. precisely for the reason that i don't know if he knows what answer he wants to get. >> right. they turned down a very similar case in new mexico a couple of years ago involving a photographer but the issue is hard to distinguish from this one and it's not something that seems to have confused the state courts interpreting their own state constitution. so, yeah, something changed at the court in the intervening time and i wish i could put my finger on what was. [laughter] >> let's talk about the travel ban case. do you think the court showed
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its cards by allowing most of the executive order to go into effect? >> depends what you think its cards are. that decision was consistent with some of the other observations had about the court trying to be a force of stability and to have and to not dispose of the competence of any large segment of the population. i don't know whether they allowed most of the travel ban or not because i think of who the foreign citizens from the six countries most likely to become the united states may be that most of them were large portion of them are already contact with the us rather than being leisure travels or explores on a trip for young people trying to find himself. it seems like people coming from yemen, libya and so on, apart
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from refugees may have already some kind of connection to the united states, relatives, study abroad, business or what have you. but the supreme court's opinion was quite notable not only because it was at least a partial win for the initiation unlike the lower courts but the language was completely straightforward. there was no commentary, nothing in it suggesting that they were reading any kind of political motivation into the administration or the challenges for that matter. it was very dispassionate, calmly written, items which tried to explain why they were drying the distinction that they did. that's also true of the concurrence for you have the three justices would've gone further and allowed all the van to go into effect. they were really avoiding the kind of language that might inflame the already existing controversy over this policy.
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now, in terms of what happens, what they would decide to do in the fall when the case is argue. at that point, if the case is still alive, other issues may come into play in the kinds of equities they may have thought were important now may be different than. so, i don't know. i do think they will come up and work hard with the decision that doesn't further add to the fire. >> i add that what the administration asks for in terms of the injection was at most limited to the parties. limited to the couple of individuals in the state of the way and what the store gave was no party asked for was the kind of class action treatment. you can argue about whether it sweeps in a lot or a few people and i tend to think a lot but that's an interesting move on
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the part of the courts. that's not what the trump administration wanted. then when it comes back administratively to figure out who is the bona fide relationship and who doesn't and they decide grandparents aren't good enough this week it does occur to me that one member of the court was raised by his grandmother and called his memoir my grandfather's son. i'm not certain he agree with the proposition that a grandfather is not a close enough family. >> kevin, speaking of the channel man. you reported on house republicans sending a letter to justice ginsburg asking her to recuse herself. can you explain about why they believe she should recuse herself and is there any chance that will happen? >> no chance that will happen. so, yeah, the 60 house republicans signed a letter to justice ginsburg and the argument they say was the fourth circuit put the president's credibility and issue in this litigation and justice ginsburg made remarks this past summer in the press adding among others that if you the presence
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credibility and she's already, in their view, given a view as to the core issue in the case and therefore in her words she's gone by law to recuse herself in a make a general case that she is displayed prejudice and enmity towards present trump as a general matter and would be inclined to rule against him and the urge to recuse for that reason. as a general matter, in recent years, the justices have really only recuse themselves cases in which there is some appearance of financial impropriety or in instances where they are involved in the case before them some point in the past. we're not seen recusal's for reasons of personal bias or potential enemy and i don't think there's any reason to expect that we would see one here. >> so, do you have any other predictions for what cases might be coming for the court next term? will they hear the latest challenge to the government play speech case or perhaps the second amendment will return?
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>> they have a friedrichs case whether nonmembers of the union can be compelled to pay for the collective bargaining activities. i think they'll take the case. i see the same question they only did decide last time was because they split four-four and now there are nine. it's an already interesting shape up to see that. agency deference we they had hoped for their own petitions in that area and the court has been ducking second amendment cases like crazy. i would've predicted they would take some open carry cases and yet they don't. >> other thoughts. >> now that we have the mirror image environmental litigation with environmental groups and democratically controlled state's challenging trump policy that we saw on monday when the dc circuit halted the epa's effort to halt implementation of
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the new source rule that the obama administration adopted last year and will be seen those same kinds of cases except was reversed coming back to the support as we did throughout the obama administration. >> this is for anybody to come in on. is this one opinion that really stood out as the best of the term? or worst. >> i don't know about best but i thought the kagan opinion in the north carolina case was very interesting in a couple of ways. it was apparently assigned by justice thomas and interesting in itself. she manages to have five justice majority which is just the sort of case for thomas might concur in judgment but not go along with reasoning. he goes along with every single word in their people and this is overstated but there's something to think that she did some
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doctrinal work insane that racial journey when they can't be disentangled can be treated as the same thing. if that were true that would give you a different route to gerrymandering case in some settings. >> i thought the miami first bank of america first miami opinion was up interesting that the chief justice joined in with the liberals to expand liability under the fha to include big banks and that was part of the trend in the chief justice term in which he was voting the liberal block in these civil rights cases which does not suggest that the chief is emerging as a civil rights icon but certainly, in the last year, we've seen him make this move and we have seen him join opinions that were favorably cited even though the sections
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of the. [inaudible] ruling that were particular drawn the ire of conservative and we seen him intervene to conduct penalty and he has made interesting moves in the civil right area this year. >> let me ask you, kevin, i don't know the answer myself. in the fair housing case he cast the narrow fifth vote on the discord and said there's some kind of opinion. anna nine justice producing he goes the same way? >> i don't know. seems like the price for his vote was the remedy in the case seem to be narrowly tailored and i think he probably felt forced to try to generate some kind of opinion on the eight-member court and maybe there was nine it would be different. i think it's something he's feeling good about and that
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motivated him to do what he did in this case. >> in the arkansas birth certificate case, it's a carrion so it looks like a six-three but in a. curiam you don't always know who dissented and you don't have to know the dissent. many people read into that some kind of reconciliation between the chief justice and the same-sex marriage. i don't think it's necessarily so. >> there was an opinion that was written by justice ginsburg and immigration case that made reference to his changing times passage. >> after justice julia passed, the chief himself had a a near death of majority experience for him where the potential of a court where you had five
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(justices and achieve our tory chief justice being, at least by dispersion, in the minority. that may have affected the way he approached cases, certainly during the term, but an open question is how it affects what he looks in the future on a nine-member court. if i had to pick an opinion, again, it wasn't a blockbuster but there were lots of interesting cases, i think, in terms of dramatic timing the chiefs on opinion in the ide a case from colorado which was delivered while his future colleague was across the street testifying about just that issue and defending a result he reached that was contrary to the supreme court's unanimous view regarding the standard of education that the individuals with disabilities education act requires. in that case, as you probably
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know it, the law talks about the free and appropriate education that disabled children are entitled to and the issue is what does that mean and there was a circuit split over the level of education that they were entitled to in the tenth circuit in a gorsuch opinion had years earlier signed the lowest standard above the minimus level of education while other circuits have given somewhat more teeth to that level on this issue plays out when typically parents can test what the public schools providing their child in terms of educational opportunities. so, this report financially rejected the standard that course to chad said the law required in his earlier opinion and was reaffirmed by judge in the opinion in the instant case. that opinion had some i want the
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emotional but it was quite serious in saying that these children are entitled to more than just that. it was a unanimous opinion and delivered in a upstaging way and it certainly was not kind to justice gorsuch because he was being asked about it while it was announced and immediately was seized upon by some members of the judiciary committee and had to say i just learned about it and they handed me the companion was headed to the bathroom. he quickly explained why he had reached a different conclusion but he said apparently, i was wrong and i did my best but supreme court has spoken. >> i think he'd only been reversed, smaller than hemphill at times. >> right, he was not directly reversal this was a separate opinion that was, in large part by circuit president that he had established.
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>> we get to our audience questions i want to ask one final question, any predictions on retirement in the next term? [laughter] >> i don't think ginsburg or pryor will go voluntarily. kennedy is possible. should president trump get another appointment it will put the chief justice into the interesting position of being both chief and the median justice which will be maybe historically unprecedented and certainly very powerful. >> yeah, i think were all still reeling from. [inaudible] another one would be a real blow to the press room but yes, we are all watching them are all looking for those particularly justice kennedy and those extrinsic clues to my incredible surprise, the rumor mill was a little off in protecting his retirement this term but, right,
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i don't see anyone else on the court itching to leave in the circumstances and what kennedy does and we know he goes his own way on many things. >> now will take a few questions from the audience. please wait for the microphone. identify yourself and ask a brief question. it will start on your. >> hi, david. i'm davis kirk and having written in government and impress and being a country lawyer i'm amused and dismayed because sometimes of the ethics of the press because sometimes you read some things from some people and it's clearly way beyond the pale and you wonder why you do what you do. where is the boundary anymore of
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what good editors and good press people should do? >> to have examples in mind? >> well, let's take the cnn rumors about russia and let's take the people. >> were confined to the supreme court coverage. >> in supreme court coverage i would say that some of the speculation might you mentioned about justices retiring or having heard things or putting them out there or articles about whether or not a justice should express his opinion and not be criticized for it or should recuse herself some of that stuff gets pretty far out there, right and left. >> if anyone wants to comment that all fair game for supreme court reporters to comment on rumors about retirements and whether a justice should recuse
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to leave it to our panelists to respond. >> if that justice will retire at newsworthy information and if we were able to nail down any information that we got commonly predicted a strong likelihood of retirement that we might have reported it but we couldn't do that is we didn't report it but as a matter of newsworthy topic, yeah, the membership of the supreme court is extremely very important. then it becomes a question of judgment about how well your sourcing is and whether you feel all right about it. we did and we didn't say anything about retirements except when it was public officials like senator grassley and them suggesting it but we didn't on her own ever. >> other questions.
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>> thank you. i have a question for mr. liptak. the decision on the travel ban might address the question of whether or not. >> that's a very interesting question. i don't imagine a majority opinion would adjust. [inaudible] but justice breyer just recently in the ziegler opinion did have a separate opinion grappling with it. >> certainly one of the lawyers in the case, gonzales is interested in rectifying and he might try to force the issue. >> other questions. >> wait for the microphone, please. >> given the extent to which the court plunged into the political thicket in the reapportionment
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cases with most people consider to be rather disastrous results do you think there's any likelihood they made say that they might listen the way they've approached these cases. the only criteria they use is the difference between the largest and smallest district that the minimum percentage to control the legislator. there was a case in 1983 involving the wyoming senate where it looked as though there might back off and but for a concurrence by justice ginsburg, i think, they would have and now you have this new case which suggests they might plunge in even further. what do you think is going to happen? >> i can only speak to that no one i think we know almost
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nothing about what they're going to do. it came up on the mandatory jurisdiction so they had little choice but to take it and even there they took it was the phrase to use? it wasn't noting probable jurisdiction it was like differing jurisdiction. >> jurisdiction postponed. >> they took it because they had to. then we have the additional information that an hour or two later the issue was stayed and that divides along ideological lines with support liberals in the sense. it suggests that kennedy was a key vote of course and may not be ready to do anything. it would be a huge step in the court recognized constitutional challenges from gerrymandering and i don't think we have evidence to do that. >> , kevin, jess, any thoughts. >> thanks. any cases that you see coming up in the next term that could be under the radar or your percolating or not taking for
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sure yet but could be pretty big cases that you're looking at? >> i hesitate to talk about it because i haven't read a word about it but i don't know the details but these sport cases have very interesting federalism issues. those cases are under the radar now they will soon be about the radar and they involve chris christie so that is good. those are good cases. there's an alien statute whether corporations can be sued under the statute. that'll be a good case. >> >> any opinion on prospects
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of a case like that?. >> it sounds interesting but i need to know more toolkit the petition to give you a review. >> any thoughts while the court has not been willing to take up another second amendment case especially coming from the ninth circuit?. >> i think that is a fascinating question because they have not said anything really since 2008 and 2010
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just expanded heller to the states and it seemed that they were setting up a process of the normal sequence of a landmark decision to have lower court opinions to come up so i would have expected that by 2013 or 2014 to see the cases reexamined the they have consistently turned away. why? i don't now certainly most of which have upheld those bad regulations have tried to write bulletproof opinions that you saw the ninth circuit opinion justice thomas was not impressed but he certainly row to that id day way to appeal to the originalist approach so that is full of
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english history so it may be that it is the best so far and they want to step gingerly but it is a surprise to me that they have not taken steps to clarify that decision in the future about how much further the right to have a handgun in the hole for self-defense may extend. >> i do think though liberals are happy with the heller ruling i'm interested to know where the chief is on this with policing the authority of the court and
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of course, they have not robustly implemented that by any means. >> it only takes four votes so it is interesting kennedy and the chief for non-voting for that and they view heller as a symbolic decision but are content to have those gun-control laws but i remember writing the day of the decision a new term is coming due constitutional jurisprudence but certainly with the supreme court there has been no testing of the scope so it is very curious. >> perhaps we will talk about that ted years from now. [applause]
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is. [inaudible conversations]
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the supreme court's said the case back to the lower court to make a new sentencing decision. >> we will hear an argument next case but converses status. >> mr. chief justice did it may please the court mr. buck corporation reported attorney did is the opinion he was more likely to have a criminal act of violence in the future because he is black this encourage the sentencing jury to make a critical and dangerous decision which was the prerequisite for the death sentence

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