tv Supreme Court Attorneys and Reporters Review 2016-2017 Term CSPAN July 10, 2017 9:13pm-11:06pm EDT
>> next a review of the major cases from the recent supreme court term and a preview of the travel ban case the court will take up next term, which begins in october. from the heritage foundation, this is an hour and 15 minutes. >> we of course welcome those who are joining aus on our heritage.org website as well as c-span. and of course those watching outside of heritage you're welcome top send questions and comments to us at speaker.heritage.org throughout our programming. immediately following the first panel our second group will be led by liz belizabeth slatary w
serves as legal foalo. please join me now in welcomic john malcolm. john. >> thank you, and welcome everybody to heritage for our annual event. this was not exactly the biggest blockbuster term. but nevertheless there were a few cases of interest and a few cases the court has decided to hear next term for interest. so i'm delighted we have a distinguished panel to discuss this. and a few preliminary thoughts on a couple of the cases for next year. so to my right here is will. he's a graduate of monument
college, will clark on the fifth circuit court of appeals. he represents clients in cases covering constitutional issues civil rights disputes, administrative law and a variety of other matters of civil lit dpagz. he's argued cases before several courts of appeals and also before the u.s. supreme court. he's a member of the edward coke appellate court and a co-director of the supreme court appellate. next to will is kyle duncan. he's argued several federal cases. he's a graduate of lsu law school and got an lml in law
school. before starting his own firm kyle was louisiana's first solicitor-general and also served as council at the becket fund and recognized public interest law firm. joe got his under graduate degree from harvard and jd and masters degree from the university of virginia. he also served as deputy general council at the federal chukzs commission for three years. and for five years he served as an assistant solicitor general at the department of justice. he's argued ten cases for the u.s. supreme court and primary author of briefs in over 150 other cases of the high court. so let's jump right into this.
so, will, the court heard two pretty significant redistricting cases. why don't you tell us a little bit about those cases. >> i'd be happy to. and thank you for having me here today. this is a great event. i will not get into the weeds of the various districts mostly to keep you from falling asleep and keep me from messing up. but tboth cases -- but happens s a state has a variety of objectives they want to achieve in redistricting. traditional district lines, some political issues which we'll be talking about later, but also the state must consider race. and why is that? because of sekz two of the voting rights act. it requires states to ensure voting representation.
in the mid-1990s the supreme court explained to these states if you use race too much and it becomes the dominant factor in redistricting, you violate the equal protection clause. so what's going on here is the states feel, and i think with good reason that they're sort of caught in between. if they use race too little, they have a potential section 2 violation. if they use race too much, they have an equal protection violation. these cases are both about drawing that line. in bothicateses, both north carolina and virginia argued among other things they used race appropriately. in both cases democrats challenged them for using race too much. they did not want states to draw majority districts that had majority populations well over 50%. they wanted those lines to be close to 50% and have those
voters spread out. although those vets look ather divided, what i want to mfsz today is these cases prodly stand for the proposition and i think unanimously in both cases that the court is going to be very skeptical about the use of race. the democrats prevailed in both cases without a dissent on the basic proposition. so i think the headline coming out of these cases is that democrats won challenges that were arguing that republicans use race too much to form minority districts. but i think what the untold story of the case is and what i want to emphasize a mome or two longer, this is really a win for justice thomas and justice kennedy. if you go back to the shah cases from the mid-90s, the liberals dissented in all those cases. groups like the lawyers
committee for civil rights 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 safe seats for minority representatives. and any argument that using race too much violated the equal protection rights of other citizens, should not be made a constitutional right. they have now come full circle. those majorities were made in the north carolina case because justice thomas provided the decisive vote. so i do think it's important to keep in mind how radically transformed the debate is. and lastly, i would say what makes that interesting is what the next round of litigation will be. i think the next round is about
whether using section 2 itself is subject to scrutiny, and whether it may violate the equal protection clause. and we will see whether the majorities in these cases that were so critical of the use of race will be equally critical when it is a challenge of section 2. >> before i turn to your fellow panelists and ask them if they have any views on this, i want to touch on a related matter with respect to tex term. so the court has greed to hear another redistricting case involving a partisan out of wisconsin. i was wondering if you could talk a little about that. >> i think the theme will be -- well, next term has really interesting cases even if this term didn't. 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 bare majority to say that it
is unconstitutional. what the court has struggled with is finding a manageable standard for that. the trial court here in wisconsin thinks they found that standard. wiflk does not believe they found it. it's on direct appeal, so i don't think it's a huge surprise the court took it. i will be sort of maybe the minority here. i think it will likely more fizzle than be a big decision. one, the court granted a stay of the lower court decision 54. that is at least a preliminary indication that he might be able to find the manageable standard he's been looking for. two, i think there's some rather technical issues about whether you can challenge these things on a state wide-basis that have to be challenged before you reach the big ticket situation.
and then third i would give this sort of a lesser billing, in north carolina in the redistricting case i was togging about, he went out of his way to talk about -- not as a social good but as something that's been around since the time of the framing and recognized as political practice. i don't think that necessarily tells you all that much, but i think for those who think this is the case that will finally recognize a durable, clean, i would say i'm not quite there yet. >> do you think they will find it significant that political meanderring is part of our nation? >> i think justice s kennedy joined it. so there's some reason to think that. but 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 here is in the past these claims have
come up when a minority of the voters in the case have such a big political control. i don't think that's fack actually true of wisconsin. it's a majority republican party has entrenched their political power. that's not quite the same thing of what's been going on in the past. kyle, you have anything to add? >> i thought one of those redistricting cases was interesting for one reason will pointed out, that it was justice thomas joining up with the liberals. that's not something you often see. justice thomas on occasion does surprise. i think the last case was the texas license plate case where he joined with the liberals to reject the challenge to the state of texas limitation on what groups could sponsor license plates. that was something interesting, and i think will makes an observation that justice thomas is playing a long game here.
>> kyle, the court has seen a pretty significant number of state church cases. i was wondering if maybe you could talk about those cases. >> sure thing, john. the state lutheran case and the advocate health care case are both important religious liberty cases, although they get at religious libertiy in different ways. trinity lutheran being a health care case -- although the advocate health care has a great deal of practical significance for church affiliated health pens plans. trinity lutheran is one of the -- this as we said a term that didn't have blockbuster cases. but trinity lutheran is an extremely mornt case under the
trinity exercise clause. the court finally took it up. the issue is whether a state policy of denying grants because of the religious affiliation of a potential grantee, whether that violates the free exercise clause of the first amendment. the facts of this case are very simple. missouri has a program called the missouri scrap tire program that offers, quote, reimbursement grants to schools, day care centers, and the like. when they purchase playground services that are made from recycled tire said, chief justice roberts has this memorable line for me, that the petitioner in this case is a day care center that's affiliated with the lutheran church that has pea gravel on its playground. and chief justice roberts says pea gravel can be unforgiving.
meaning kids, i have some kids and kids fall down and get hurt and scream and cry. the and the purpose of this program is to prevent that prom happening. it's a health and safety program and also a an environmental program because it reimburs playgrounds only when they use recycled fires. so the petitioner in this case is a church that uses a day care center and applied for the program. it appears the church would have received a grant. it was ranked very high ploong the applicants, but it was denied a grant. why was it denied a grant? it was a denied a grant because of missouri's interpretation of its provision. it prohibits the granting of funds to any person or organization, quote, owned or controlled by a church, sect, or
otherligious inty. this provision may be among many state constitutions which were lashlg largely anti-catholic state amendments that came up in the late 19th century. so the question is when missouri applies this kaungsitution to deny the grantee's ability to get the grant, does it violate the free action clause sphand the court bides a vote of 7-2, yes, it does violate the clause by imposing a special liability solely due to their religious stat mc stat. as i said, the vote was 7-2. justi justi justice -- with the exception of a notable footnote, footnote 3,
which only four justice joined. and we'll return to that in a second. justice thomas and gorsuch were both at separate opinions in which each joined the others concurrence. and justice brieer wrote a separate concurrence, which is also significant. very briefly, what's the reasoning of this case because it's important. i'd say the theme of this case is that apparent agreement across seven justices really masks some underlying potential disagreements about future cases and how about the free exercise clause will apply to other kinds of public benefits. the basic reasoning of the case is that when a law targets religious persons or organizations for special disabilities based on their religious status, strict scrutiny applies. such laws for those of you who are familiar with the free
exercise rubric, such laws are not generally or apcotable laws under the smith and employment division case. the missouri policy expressly discriminated against applicants based on their religious character, and seis therefore subject to scrutiny, which the law failed. the court made short work of the tailoring part of the analysis and basically said missouri's desire to have a church separated organization -- couple of other notable things about the case. missouri argued this really isn't a burden on religious exercise. instead it's only a denial of a
subsidy. on its face you can argue the case has some facial plausibility. missouri is not telling the church what it has to be believe, how it has to worship, not even telling the church it can't a playground or dicare center. it's simply telling them we won't subzdize and replace. the right is the right to participate in a government program without having to disavow one's religious character. finally, and i'll talk quickly about footnote 3, missouri relied heavily on a previous decision of a court i think in 2003 or 2004 called lock v. davy of denying scholarship funds
based on one wanted to use those scholarship funds to prepare for the ministry. and the court read lock very narrowly and said lock is not about the status of the grant ruseepiant but instead about the particular use the grant recipient wanted to use the public funds, and that is to use them for the ministry, which they said are unique public spending clause. and so the court narrowed lock v. davy. a brief note, footnote three is not joined by majority of the courts, joined by only four justice. footnote 3 says this, quote, this case involves express
discrimination based on religious identity with respect to play grpd resuffering. we do not address religious uses of funding. we do not address religious uses of funding or other forms of discrimination. now this is another attempt to cabin the reach of opinion and lead off for future cases. as you can read in the concurrence justice thomas and gorsuch will have none of this. they don't think this a principled way of reaching the limits of the case. on the other hand, the other justice aren't necessarily telling in their view school vouchers, but they're saying we don't want to address that right now. very interesting. how am i doing on time? >> yeah, if you could quickly summarize the arista case. >> i'll go quickly.
arissa, now i'm not an arissa attorney so please forgive me in advance for stumbling over all this. but arissa which is comprehensive set of requirements for pension plans has an exemption for church plans. originally this was for pension plans planned and established by a church. but because there was incontroversy how that order would apply to a pension plan established by an order of catholic nones, congress amenned the church plan in 1980 to broaden it. to include a plan, quote, maintained by an organization, end quote, whose principle purpose is to maintain plans. the important part here is these are not churches but these are sort of church affiliated organizations. now, ever since 1980 all the agencies charged with enforcing this arissa exemption have read
the exemption the same way. that is to say that if a plan is both established and maintained by a nonchurch principle purms organization, which is what the court referred to it in shorthand, that's okay. you still qualify for the church plan exemption. this was the uniform interpretation of the irs, the department of labor and the acronym i can't remember what it means, the pgbc. the public benefits guarantee corporation. see, i studied for this. they all have read this exemption the same way, and hundreds of letter rulings by the irs that said, yeah, it's okay if the plan wasn't actually established by a church provided if it was established by a nonchurch inty, provided it's maintained by this qualifying organization. what caused this case to go to the supreme court is that three
circuits reached the opposite conclusion on what this church exemption meant and said, no, the plan has to be actually established by a church. and this had ramifications, potentially for many, many plans. and they ruled that in fact the agencies had been correct all these years, that this amendment to the church plan should be read exactly how it's written. and that a church plan that's both established and maintained by a nonchurch qualifying organization does qualify for the exemption. this is a significant case in terms of its impact or potential impact of the opposite rule, the opposite rule would have been a bad impact in many people's views on pension plans that are established and maintained by church affiliated but nonchurch organizations. the last thing i will say is
that although this sounds very dry -- two, things. this was an opinion written by justice kagen. she made this case interesting to read, even though the arissa stuff is dry as a bone. and she sticks very, very closely to the text of the amendment. and really this thing for purposes of statutory construction comes down to the meaning of one word, which is includes. what does include mean when a statute says we have a church plan here but it includes this other thing. and i found it a really entertaining and engaging read. the other thing is where is the religious liberty aspect of this case? it's all under the surface. some briefs including one filed by my firm pointed out that the original amendment to arissa was enacted by congress in order to
avoid a couple of religious problems that were caused by the original definition, to make a long story very, very short, we didn't want agencies determining what a church was. and so, for example, we didn't want an agency determining that a religious order of nones running a pension plan was not actually a church. and we also didn't want an agency determining that a religious order of nones running a hospital is not a religious function. we didn't want that because it would create all sorts of religiou religiou religious autonomy problems, who in effect who want to have pension plans run by church affiliated but not hierarchical church organizations. so underlying this amendment are
actually very serious problems. and the court alludes to those in its very limited discussion of legislative history. but that's underlying the surface of this case. >> i want to ask the fellow panelists if they want to add to anything you just said. i'm just wondering if you could take a moment and offer some preliminary views on that. >> very significant case. i have to say the organizational lines defending freedom represents petition in this case and these are both very significant cases. masterpiece cake shop presents two very serious under the free speech and free exercise clause. very briefly, it involves a quote, unquote cake artist. someone who designs and produces
these elaborate artistic cakes for various occasions. his name is jack philips, and his religious face informs how he runs his business on which cakes he'll design and which cakes he won't. for example, he won't design halloween cakes or cakes with alcohol in them,o no bachelor party cakes. and he has declined to make cakes for a same sex wedding. in part of the petition he claims it is not discriminating for same sex patrons. but where he's drawn the line here is he refuses to design a cake for a same sex wedding. he was found liable for a sexual discrimination provision for a human rights commission to design same sex welding cakes
and do other things. the lower courts all rejected his defenses under the free speech clause and the free exercise clause. and so after many, many realized the supreme court granted petition to decide the application provision violates the free speech clause or the free exercise clause -- i don't get into it right now, but the arguments and petition indicate many different lines on free speech and free exercise. and depending on how the court resolves the case it could be very important for either free speech doctrine or free exercise doctrine. >> anything you want to add? >> i think it's just a little bit below the surface because of the unamty of the decisions. but he played a really important
role in the term over all. she thinks she said i dissent. so an indicator of the intensity of her disagreement. i think she's entitled to her view. but when justice brie arand justice kagen joined that opinion, it's hard to think the opinion was quite that high. and in the church plan case, at oral argument if you read the transcript, he dominated that oral argument. he absolutely went after the challenger's council and saying i think this makes no sense, this will be a disaster for religious orders. and i thought someone like justice briars could have an
outside wall, and i think it came through this time. >> the court decided a property rights case. >> it actually breaks a streak that property rights owners and property rights advocates had enjoyed in taking cases in recent terms. it involved land in the state of wisconsin. and the state of wisconsin is an active issue to preserve. the murr family has long owned two lots, lot e and lot f. and they had a house on lot e. they decided they wanted to move that house and that would require an expenditure of money. and they wanted to sell lot f in order to finance the moving and
renovation of the house on lot e. but they weren't allowed to do that because of environmental regulations the state of wisconsin had imposed. the state had said that one couldn't build or sell individual lots. it couldn't build on a lot unless it was more than an acre. it had gran fathered in smaller lots that had been owned the bill was adopted in 1786. but there was also a grand fathering in for adjacent lots. and you can't separately build on them. and that was the murr's problem. the state of wisconsin viewed them as a single lot. so they filed a takings claim,
which lost in the lower courts. and i think most in this audience will know that the takings clause of the fifth amendment prevents the taking of property without just confirmation. and there are two kinds. the direct appropriations claim or if the government just takes your property, they've got to provide compensation. that's the only case i ever litigated that was subject of a daily show skit. you can look it up. but this case is different because the state of wisconsin wasn't actually physically occupying the land or taking it. it's what's called a regulatory taking. and a claim is that when the government goes too far in limiting someone's ability to alienate or use his or her property, that can functionally be the taking of the property. so that was the taking here, it
was a takings claim. but the key question, the key analytical question is what the court wanted to review is what's the relevant unit for considering a takings claim. what the state of wisconsin said was, well, the relevant rue of property is the two lots combined. and it's not a taking if you look at it that way. you can sell them, build a house on them. there actually were appraisals showing that the value of the combined was only slightly less than the value of the two if sold separately. and the mr's said know no, the value of the property is lot f, the property we want to sell. and if you've categorically prolibted from building on that lot and selling that lot. sethat was the question that
came up to the court. it's kind of a technical analytical question at the threshold of the takings inquiry. and what did the court do? the court ruled for the state of wisconsin in a 5-3 opinion. this was was a more traditional break down of justice kennedy joining with the courts for liberals to rule for the state and against the murr's. justice gorsuch didn't participate, but it wouldn't have mattered because the vote was 5-3. it said that the court has never had or applied bright line rules in this context. it always done kind of ad hoc multi factor, kind of we know it when we see it inquiry, a regulation that goes too far. and the court's analytical move was importing that over all ad hoc multi factor test into
this denominator question. so it rejected the argument by the murr's that deciding what the relevant property is we should look to the lot lines, and then once you assess that then you go onto look at whether the regulation goes too far. the court rejects that approach and says, no, we're going to apply a multifactor ad hoc test to that relevant factor as well. and so he said we'll look at the treatment of the land under state and local law, the physical characteristics of the land, and prospective value of the regulated land. and he applies that test and says basically here we're going to look at these two lots together as a combined inty. and having made that move, he said there's no taking. interestingly the chief justice
in dissent said, quote, the bottom line of conclusion in majority does not trouble me. the the majority says the murres can still make full use use of the lots. but he rejected the way of getting there, that that analytical move the majority had made in terms of providing a multifactor ad hoc test had kind of -- could have a lot of bad consequences and lead to litigation unsernts down the road. and so chief justice roberts said we should look to the lot lines. that's an easily identifiable category under state law. and then he suggested they my find there wasn't even a taking that was the relevant unit. but he thought it important to
lay thought out as an analytical marker. i think justice kenied, there are kind of competing impultss. he definitely has a he's opinion with conservatives on a lot of takings cases. he's a believer in federalism. sometimes cases like this one are painted at least as putting federal courts in kind of superintendents over local zonizon zoning decisions. that may be something he didn't want to see happen here. you want to talk about the slant case? let's talk about it? . >> i think finally interesting facts. so this is -- this could have been a block buster case. we'll talk about in some ways it is and in some ways it ended up not being. the slants are a rock and roll band and they want to register their name as a trademark. unfortunately for them a federal
law precludes the registering of any trademark that's disparaging. essentially it's known as the disparagement provision. they found this name was disparaging to people of asian dissent, refused to register it. now, the slants understood that, and, of course, their position was we're trying to reverse the meaning of this. we want to make a positive role model for people of asian dissent, but that didn't matter to the office. they had to judge it based on the name alone and the tests they derived to determine whether or not it was disparaging. the federal circuit held it violated the first amendment. here's the holding of the case. speech may not be banned on the ground that immaterial t expres something that offends. exactly why that is so is left
for future cases. he's what happened. four justices in an opinion, again, i think it shows how important he was this term, went one way. justice kennedy joined by justices ginsberg, and sotomayor went a different way. i'll explain why it's a interesting split. one justice walked through the state step by step. the government made a series, almost an endless series of argument under why under different kinds of exceptions under the first amendment this statute was okay. they argued it was government speech. the trademark registration program was government speech. all eight justices agreed it's not. that was the one area they all joined each other. was it a subsidy? no. was it a hybrid program
government? a little of government speech and subsidy but it's ours not theirs? they said no there too, and they said is it a limited public forum? we can discriminate because it's a very limited free speech zone? again, the justice said no. finally, one said is it commercial speech? he said we don't have to decide that because even if it is commercial speech, the government's arguments don't meet this test for it being narrowly nonor there's not a specific government interest. it's a block by block every argument taken on. it would have been an interesting majority opinion in that it would have narrowed, i think subsidy law in some important ways, but it never really anchors the opinion explicitly to viewpoint discrimination. there are threads in the opinion that rely on viewpoint
discrimination, but there is a footnote that expresses he is ten si to do that. that group of four justices was hesitant to say this is viewpoint discrimination. it loses every argument on that ground. not so for the justices with justice kennedy. they say this is viewpoint discrimination. i don't care that it bands all disparaging speech. that itself is a form of viewpoint discrimination. it takes a defensible but very broad view of what constitute viewpoint discrimination and says, therefore, i don't need to reach any of these arguments. i don't have to figure out the ins and outs of subsidy law and limited public forums. this is a silver bullet that ends the case. if we had a ninth justice, there would be a holding for the court. we didn't and we don't. what i think is interesting here is i'm having myself a hard time
figuring out which is the broader an narrower opinion. in some cases justice kennedy is broader. it's a broad view of viewpoint discrimination that destroys every argument but it doesn't get into the various kinds of different kinds of first amendment arguments that could have a lot of affect in other areas of the law. the other is hesitant on viewpoint but would have shaped subsidy law and reshaped it in a fairly dramatic way, emphasizing the cash payments really are what matter for subsidy cases and these kinds of programs don't quite fit into that box so well. but 4-4. so for another day on which theory of the first amendment will control in these kinds of cases? >> dan snyder, the owner of the red skins doesn't care which was the broader. >> that's right. >> if you think about the hallmarks of the roberts court
in terms of all nine justices, one is they take statutory texts carefully. they're careful of broad claims broad and vague constructions that advance by the united states, all nine justices, and they're receptive to first amendment claims as this case shows. >> i want to time always flies when you're sitting up here. and i want to make sure we have a little bit time left for the questions. i'm going to -- i want to address the elephant in the room which is are there any preliminary views about the travel ban case? >> i think it's a difficult case to game out. there are so many moving pieces. the parts of it that i've been focusing on in a technical lawyer way are probably not the ones that have gotten so much attention which is how if at all can the president's campaign statements be attributed to
motivation to enact the ban? is that relevant? i'm watching for one, whether the case will be decided or whether there's a mootness issue that the court -- asked the parties to address. the vision for the suspension of immigration from these countries, as articulated in the executive order was to enable review of security procedures in vetting. that review is now underway and will be completed before oral argument is even held. there's a question about whether the case will even present a live controversy at the time. another issue that i think is very important from a government litigation perspective is whether the district courts here appropriately issued nationwide injunctions, and this is an issue, this is kind of a government institutional lit gags issue that's not really a partisan issue. the same thing happened during the obama administration when there were texas and other
states challenged. the president's immigration policies got a single district judge to issue a nationwide injunction against the policies. here the shoes are on the other foot and district courts in hawaii and maryland had nationwide injunctions despite there were just a hand full of plaintiffs and the government teed up that issue as the third question in the petition. that's a recurring issue that's, i think an important one for the supreme court to resolve in a case like this. and then the third question is whether this could go back up to the court in the next few weeks or even days, because there's now a dispute between the parties about the scope of the injunction as narrowed by the u.s. supreme court briefly the court said that the policies of the executive order could go into effect with respect to al yens who had no connection tot
united states but could not for those with a bone if ied connection to the united states. the party are now back in hawaii in the district court fighting about what counts as a bone if ied. >> they want clarification. there could be emergency litigation back in the supreme court in a matter of days in this case again. >> discussing the justices, do you have anything you want to add tonight? >> i would say i think joe is right about everything you said. i think there's a lot going on for the lawyers beyond the issues that dominate the public attention. i think witnesses are a real concern. one thing i would say, though, as a word of caution about the case is if you look at this past term, this is true for the long view. the supreme court is much concerned about what this looks like in future cases. can this rule, can we create a
durable rule that's not going to devour the law, so to speak. much more so than i think appellate panels are. appellate panels are focussed on their case. the question that i think a lot of this case will hinge on, and i'll show we did it because it's on behalf of the united states focusing on issues which is if campaign statements are generally on the line in these kinds of challenges, what does that mean for the scope and tenor of litigation going on beyond this controversy with this president? i think some of the justices will certainly think about that no matter how they end up ruling on the case. and i'm barely smart enough to know to hazard how this turns out would be a huge mistake. >> you pointed out in the brief, what limiting principle do you go back to? try to find some kind of hidden intent. we've got time for a couple of questions. i would say given the fact that we have a second panel, i know
we got started a couple of minutes late, so we might run a couple of minutes past. announce your affiliation. keep it short, very short, and end it with a question mark. microphone down here for roger. >> thank you, john. joe, you left some important fact out of the analysis of wisconsin v mir. the denominator imgray or the only muddies the water. the lots were brought separately. they were dated and taxed separately, and that remained the case right to the present. in 1975 ordnance changed that. and why does that matter? by combining the two lots? it matters because you have to take the parcel as a whole, and why is that important?
because under the lucas case, you have the wipeout rule that you're entitled to compensation only if you lose all value in the property. well, if the two lots are combined, then, of course, they lose. if you treat them separately, as they have always been treated under the regular law, then the plaintiffs prevail, and the problem here is that as a result of the 75 ordinance, wisconsin changed the rules in the middle of the game, so to speak, and 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 the court, he sided with roberts because the -- because the court had applied the court's precedents, and the problem was, of course in the precedents in
both lucas and in the disaster that is pen central. >> roger, do you have a question? >> the question is it seems to me that you cannot use the denominator enumerator thing because that's the problem. i wonder if you agree? >> i think we got it. >> i think i fore bear from saying whether i agree or disagree, but you raise a good point, the role of justice thomas and many others. justice thomas often writes separate opinions where he says i join the majority or the dissent because it faithfully applies precedent x. no one has asked us to overturn precedent x. in an appropriate case, i would, but i was not asked. this was a case like that. he raised a question about whether any of it makes sense. he says we're deciding it as it
comes to us. so i join with the dissent. >> we have a question over here. >> troy bayfield asking for self. in the past four or five terms we've seen a number of the justices drop hints that they're willing to start capping the matterive state. i realize it's been a pretty quite term. did any justices drop those kinds of hints this time and do we see anything in the train that might bring those issues up next term? >> i'll take that one, because i have a case in that train. it will be petition will be filed soon. there wasn't a lot going on in administrative law this time. not like in the past couple times with they really had taken the issue on forcefully. two things i would note. one, just the addition of justice gorsuch to the court. he had expressed skepticism and
urged the court to reconsider. he's now in a position to better urge the court to reconsider it. secondly the court did deny sert in our case challenging our deference. the timing was unfortunate with the court not being in justice sl scalia's unfortunate passing. that may have played a role in the court not taking. the chief justice and justice thomas have all in separate opinions and justice scalia before he passed urged the court to take a hard look at -- my firm will be filing a petition on that soon. we may find out more. again, i wouldn't read too much into it given the timing of when the petition reached conference. i do think in the short term, i don't think chevron is on the
table, but i think we'll see a signal whether the court is genuinely interested in it or whether the court has decided to sort of let it go. >> anything else? >> i would just add the court did grant sert in a case where my firm is representing the petitioner. it presented the hour deference issue about -- we asked the court to overrule, to take certain on whether hours should be overruled. it granted sert on whether hour it was appropriately applied in that case to an opinion letter from the department of education. we were preparing for an argument when the new administration changed the regulatory guidance in the court vacating it to the fourth circuit. we would have heard something about hour deference, but we didn't get to. >> one more question down here. >> hi. first of all thank you for coming.
second, my question is for many pal mor ri. one of the interesting parts in the oral arguments was asking whether the case was moot informal earlier the government had come out of missouri and said that the grants wouldn't be denied based on religious leanings of the groups. however, friends of the earth was brought up to justice briar to say that future political winds could shift and that's why it wasn't moot. do you think that could apply all to the trump travel ban where you say because the executive order of the review might be done by the time, could programs change and he could bring it back up again. is that at all on the table? >> it's an interesting question, and that's probably an issue that would lurk. i think the court might view it as what's before us is this executive order. and if it's moot, then those issues could be fought another day. but i think will is right that there might be a competing urge
that some justices are concerned with what they might see as the overbredth. do they leave decisions in place or do they get vacated? there's a lot of complicated cases about what happens, but you put your finger on an important issue? . >> what about the fact that the injunction was only lifted in parts. parts of the order never went into effect and it's a review but at the end of the 90 days, parts may be continued, you can never tell if it's proper vetting or not, and there's still a 120-day vetting. there will still be parts of the case that will still be around when the court hears oral argument. >> yeah. there could be. obviously there's so many moving pieces. even 120 days is going to be -- going to time out around the time of oral argument. the night the district court in hawaii enjoined the reviews and the ninth circuit vacated that and allowed the reviews to
start. so they're presumably underway and that was the rationale for at least parts of the executive order. i don't know how that mootness issue comes out but the supreme court asked for briefing on it. so it's clearly front of line for them. >> sure. any closing thoughts? >> all right. please join me in thanking the panel. [ applause ]
all right. we've heard from an impressive panel of attorneys. now we'll hear from some of the top supreme reporters in the nation. they try to explain the complex and sometimes very confusing opinions mean. this requires an equally profound knowledge of the court and its cases. we're fortunate to have with us
today a few people. jess braven covers the supreme court for the wall street journal after early postings. he's the author of the book "terror courts". prior to joining the journal jess wrote for other publications including the washington post, har harper's baa very. kevin davey is the legal affairs reporter where he covers the supreme court, judicial nominations. before entering journalism he taught high school theology. he studied political science and catholic studies. finally adam livetack. he began covering the court in 2008 and also has written a column on developments in the law since 2007.
he was a copy boy after graduating from yale. he returned to yale to receive his law degree and practiced at one of the nation's premier first amendment law firms. he returned and spent a decade advising the company. his work has appeared in the new yorker, "vanity fair," and a number of leading law review articles. jess, i want to start with you. chief justice roberts included a footnote in his trinity lutheran decisions saying it didn't address other forms of discrimination aside from the playground grant program at issue. you wrote that the footnote exposed the divisions regarding the clauses because others didn't join the footnote. what do you think was going on there and do you foresee a show down between these visions of the religion clauses on the horizon. >> i think not only was there
separate opinions significant, so was the dissent by justice sotomayor where you saw the footnote seeming to be the glue that held the majority together in the case, but it went too far for the -- for thomas, for the thomas opinion, but not far enough for the sotomayor opinion. that's how i think you can see the divisions. clearly that's not the kind of footnote that would arise if -- in the initial draft of the opinion. so it seemed to be something inserted to make clear that this was a case going so far, but no further. and i think that it is different in character from some of the other cases that are sometimes lined up with it like the voucher, the school voucher efforts. because it really was portrayed by the -- by many members of the court including briar and kagen as akin to excludeing religious
schools or religious church sponsored schools from general social services like police and fire protection or having a suer hookup. that was the framework they looked at it. and in a content free framework that is just a citizen like any other citizen, an institution like any other institution that is entitled to basic services like applying for a 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 for who could attend the school even though it was church sponsored and playground was open to the public when not used by the school. i don't know if those factors played into it. it seemed from the left side of the court, at least the justices who joined the majority, they saw this as being very different from the kinds of greater
engagement between the public and religious fears that some of the people who were aggressively promoting the case might have hoped to see. >> so you mentioned the school voucher context. the day after that decision came out, the trinity lutheran decision, the court remanded a number of school voucher cases. what do you or any of the other panelists think in light of the trinity lutheran case, what do you think will happen with those and do you see them coming back to the supreme court in the next few terms? >> you never want to read too much into a gvp. it's a fairly mechanical move, but there's a reasonable probability it will alter the outcome. when you send a case like that back to the lower court, the lower court also dig in where they began. that means the cases may welcome back to the court fairly soon. >> other thoughts? >> no. >> okay.
adam, this term the court ruled in favor of trademarking ethnic slurs and allowing six offenders to use social media websites. it ruled against the confederate flag on specially plates. >> on the whole, t a pro free speech court, and generally in the unpopular speech cases by lopsided majorities in the campaign finance setting by thin majorities. on the whole, a very pro speech court, but as will said in the earlier panel, but confusing. often they end up in the same place, but you can't tell their rationale. the confederate license plate case, 5-4. thomas joining the liberals struck me as unconvincing. the idea was that that was government speech. i suppose it's a texas specialty
license program where there were on skr objections to a specialty license plate was too much for some people to stomach with the confederate flag. is it government speech? i don't know. there were 300 of them and some of them said things like i'd rather be golfing. it's hard to know that the the official position of texas. there are a couple of other exceptions that come to find. a project where laws were sent to provide first amendment scrutinies but those are the outliers. in general the court is pro speech but not sure exactly why. so you had a couple terms ago reading town against gill ber. there was a broad proposition. all content based restrictions are subject to scrutiny. it's hard to believe they
believe it. i think this is a court that knows where it wants to go but is in search of a theory. >> one justice made point that the court has been robust about protecting speech at the peripheries, protecting the create to create and disseminate videos that depict violence against animals but the court has been divided when it's come to protecting some of the more core speech areas like campaign finance or speech near abortion clinics. it's political in character. his view is that the court is robust about protecting things at the edges but more confused when it gets into more core speech areas. i they that's probably right. >> i think on that point, it's the liberals on the court who are not so keen on protecting abortion clinic protests or striking on campaign finance regulations. they social security not really speech. we're talking about conduct. justice stevens said a burglary
financed with campaign funds is not speech. they just don't accept the premise that it is speech. that may be an important issue to -- in the first amendment law. what is and isn't speech. it seems that they take the view that speech, these doctrines that apply to speech are being expanded to cover influence beyond mere persuasion. >> let's turn now to our newest justice, neil gorsuch. you wrote it might have shifted the balance of power. away from the soft institutional toerlism, can you elaborate on this and are there areas of the law that might be affected by this shift? >> i've always liked the term tory to describe the chief justice. he value prudence and sees a
minimal role for himself and his court in public life. he's willing to accept developments he doesn't care for personally. justice gorsuch does not seem to be of this persuasion. i think that could affect the tenor and scope of majorities in a numb of ways. in cases where the court fractures 5-4 along ideological lines, i think gorsuch could impair the chief's ability to command a majority if we assume that the others are taking a maximalist position. the chief will have the challenge of finding a way to accommodate his strident colleagues. it will affect the opinion assignments. there are a couple of specific areas of law where gorsuch could play a decisive role at the
chief's extension altogether. i think qualified immunity is one such area. justice thomas came out and said this term he believes qualified immunity jurisprudence is divorced from the historical analogs. one of the fu dissents on the 10th circuit concerned an application of qualified immunity. in that instance he broke with his colleagues on the 10th circuit who awarded qualified immunity to a police officer who had arrested i think a 7th grade student for disrupting his gym class while burping. we know he's careful in discriminating in his grants of qualified immunity and his views are more expansive then he and justice thomas could affect a sea change. i think that possibility holds in the forfeiture area as well.
by way of pending cases, i point toward carpenter versus u.s. this is the constitutionality of the seizure of historical data. i won't dwell on some things here, but there was an interesting case of his on the 10th circuit called u.s. v ak roman. he made remarks about the third party doctrine that were interesting. a number of people suggested this case might afford the court an opportunity to revisit the third party doctrine. some have suggested interest in doing so. in this case he puts distance between himself and the third party doctrine, and he emphasizes that the courts have not yet determined how the third party doctrine might be applied in these kind of novel technological contexts. given that it seems like he's a good possibility for a fifth
vote for the liberal block in this case. but then there's also the possibility that justice gorsuch's presence would imperil or weaken the majority if he continues to write by himself in the manner of justice thomas, then there's a possibility that we'll see lots of 5-4 results where the conservative are united for a result and a fracture as to the rationale. that could diminish the force and effect of the rulings in the lower courts. to the extent people are disappointed that justice gorsuch was shy in expressing his views at his confirmation hearing, he's working hard to change that. to add to the fourth amendment, and i think it's true with some fifth amendment context. that's an area with justice s e scalia truly reverted from law
and order theorizing and giving the police the benefit of the doubt. justice beginberg said she thought he was the hardest on those issues. that's an early test where gorsuch comes out. thomas started close to scalia on those issue. toward the end of his life, justice scalia complained that thomas was getting wobbly on those and had j there was an evolution to distances himself in those kinds of cases to siding with the state on the defendant. whether gorsuch is more like scalia or thomas will be interesting to watch. >> on the right there's a much larger ideological spread, and a much different interpretive philosophy, and much more disagreement even when the result is the same desired
result than there is on the left. on the left the ideological space is narrow. and there's also a kind of discipline where in many many cases the four liberal justices speak with one voice, and on the right, historically now i see likely with gorsuch as well, many separate opinions, and more of an effort to find a unified theory. >> yeah. that was interesting. that's true also in dissent if you think of obergfell, there were four different opinions. really there's a very confident justices on the right. >> and a majority where none of them loved the kennedy opinion, but none of them saw a benefit to themselves to writing separately. >> right, or as to their goals for the law. if the roles were reversed, you might see several different opinions by the conservatives and one dissent by the left.
>> justice gorsuch hurried to make his mark. what were your impressions of him in his first two months on the job? >> on the one hand his voting was quite conservative, and we saw many examples of this including in spots where he didn't have to raise his hand, like campaign finance where he wanted to note probable jurisdiction in a soft money case. the people on the right who wanted conserve tiative justice happy. 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 take them years to find their feet. briar, thomas, said it took them three years, five years before they really felt confident doing the work of the court. frankfurter said even in the intellectual giant it took three or four years.
there was none of that with gorsuch. he dove in, wrote vividly, wrote about the role of the supreme court in a way that might be a little surprising by someone who has been there for a month and a half, and i don't know whether as a matter of strategy and interpersonal relationship you want to move quite that fast. >> other thoughts? >> well, in terms of being the candidate he was promised to be, i think that's very consistent. i remember leonard leo saying when asked if gorsuch was 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 it was important to him and important to the president to have someone who was wrong and courageous and willing to stand alone if that's what it took,
and so far he certainly is willing to do that. he's not been alone on everything, and his first opinion had a majority, although, i don't know if the other eight justices would have had some of the rhetorical flourishes he added about the role of the court and the tremendous implications of his made an opinion. >> so, jess, you summed up this term as one marked by caution emanating from the court's center and that the justices moved in a relatively modest manner as they sought consensus on high profile cases. do you think it had to do with being down a justice, or is it a measured consensus that we might see next term? >> i think it comes out of the unexpected situation the court was in when justice slee ya died. and that they had to sort of grope their way to a new way of doing business. you've had several justices commented publicly about that.
they said that the new dynamic of an eight-member court, one with a fairly predictable division, required them to move in more careful ways. we saw that could draw more votes to find a majority. there were two cases that were set for reargument, and no 4-4 splits this term. that shows that the extent that it's a government institution that has work to do and products to deliver, they manage to adjust. i think that whether it continues that way in the future is -- well, we certainly know that justice gorsuch, thomas, and alito are not fully committed to consensus being the number one priority of their jurisprudence. that's not what they came there too. regarding the chief justice and justice kennedy, i assume they're aware of the little bit
of turmoil that we occasionally hear maybe going on in some of the other brarchgs of government, and the idea that this institution continues it sort of solid attempting to be a political to the extent it can, attempting to show stability in the legal system even as the glove come off in the political branches. i think that will be very high in the mind of the chief justice and also to justice kennedy who saw his own court go through an unstable period and now seeing this kind of unusual situation with the president and the congress. so if that motivates those two sort of central right judges to maybe seek more common ground with the left so that this divided country maintains some level of confidence in the court, they may see that as a priority. i don't know when things really matter, they matter, and the
court will move where the majority takes it. >> kevin, adam, any thoughts? >> i guess i would just add to that. i wonders if the chief was not sub tweeting his new colleague to a certain extent in remarks he made at a conference in pennsylvania. he reiterated his long-held view that he likes to avoid justices writing on their own as much as possible, that he prefers the justices see themselves as a nine member court and that the court should speak with one voice as much as possible. >> his voiz. >> his voice. and i wondered if that remark was not in some way directed at justice gorsuch. >> i read it the same way. i thought it's possible just possible that justice gorsuch has already gotten under the chief justice's skin. >> looking to next term, kevin, i'd like your thought on the masterpiece cake case. it's not restricted to the four
walls of a church. do you think the justice will view the masterpiece cake shop case in this way where the store owner is arguing that the state's forcing him to choose between his religious beliefs and operating a business. >> if you look at the qp from the owner of the shop, he and his lawyers are framing this as an issue of coerced speech. if you look at the question presented on the petition from the other side, they view this as a public accommodations and anti-discrimination issue. obviously the way that the court frames it is going to drive the outcome of the case. in looking back at previous cases, that you kind of mentioned in passing, i can see sort of like a hobby lobby playing something of a role here. i think justice alito in the opinion expresses his concern for protecting small businesses
or closely held corporate entities in these area, and i would think that a small bakery that's operated by a bare bones staff is probably the kind of institution he had in mind when he was writing those things. i would also note that in that case two justices declined to join the side that argued that corporate entities could not bring claims under it at all. two have declined to say that one forfeits all of their religious liberty rights when they operate in a commercial context. it's hard to see them joining, but i think that bears mentioning. >> and hobby lobby was a statutory case. and it operates under a weaker standard on the free exercise side. i'm not unsympathetic to the speech claims but i do wonder about this hypothetical.
let's say for rjts reasons i oppose international marriage. is it possible to think that the supreme court would endorse my right to decline, make a cake for an interracial marriage? if it is, then i can see the bakery wins, but i'm not sure it is. >> that kind of evinces the wisdom of justice gorsuch's brief in the traded lutheran case when he took issue with the chief justice's footnote that draws the difference between status and use. he says if a person prays before dinner, is it just a religious man praying before dinner or is this really a core religious practi practice. that line is untenable. the point you raised undermines the virtue of gorsuch's view. >> i think it will be a great case for us to watch to see how it's argued and how it comes out. i mean, take it to a further
extent, there were cases like that. the bob jones university case, a religious institution that does not believe in race mixing. they were denied federal aid. there are all kinds of implications of where this case could go, and that it is the hobby lobby case, there was some language in there saying that the government's interest in promoting seamless access to contraceptives through employer-based health insurance is not as compelling as some other things like ant anti-discrimination laws. here we have a state anti-diskril nation law and is the court saying this form of discrimination that the court has put on an equal plate with gender discrimination. is it a lesser discrimination? how do they draw the line? how do they make greater compliance with those sorts of statutes.
>> the bottom line is this is a gift to journalists. it's a great case. it's easy to understand. people get it. in a second they have strong feelings either way. >> so following up obviously this is a case where everyone is going to be watching justice kennedy. any predictions? on the one hand he's been the argument he's been a strong proponent of free speech and religious liberty. any predictions? >> i think the last time this came up was in the cos martinez case, and he seemed comfortable in forcing viewpoint neutrality in a limited public forum. it's not quite the same, but maybe there's a hint as to what sympathy are. >> i they you've hit it. that's one of the reasons it's such a great case to watch. you see self-of the themes that have marked justice kennedy's
jurisprudence coming into conflict and having to decide which takes precedence. we'll see if there's smoke coming out of his ears at oral argument or not. but really free speech has been one of his hallmarks and gay rights and making room for religious practice. he's the one to watch. i don't think we have -- >> another extent that the chief depending on the way the majority builds. this may be a case where we see several opinions rather than one or two. >> i think the earlier panel note third down case was relisted like a record number of times. >> 14. >> that makes me think justice kennedy wasn't eager to hear it. it took someone else to find the fourth vote for the reason that i don't know that he knows what answer to wants to give. >> especially because they tu
turned down a similar case from new mexico involving a photographer instead of a baker. the issue was hard to distinguish from this one, and it's not something that really seems to have confused the state courts interpreting their own state constitutions. something changed at the court in the time. i wish i could put my finger on what it was. >> jess, let's talk about the travel ban case. do you think the court showed its cards by allowing most of the executive order to go into effect before it hears the merits? >> well, it depends what you think the cards are. that decision, i think, was consistent with some of the other observations we've had about the court trying to be a force of stability and to have -- and to not dispose of the confidence of any large segment of the population. and i don't know whether they allowed most of the travel ban
to go into effect or not. i think who are the foreign citizens from those six countries most likely to be coming to the united states? it may be that most of them or a large portion of them are people who already have some contact with the u.s. rather than being leisure travelers or explosirer or young people trying to find themselves. it seems like people coming from yemen and libya, may have a connection to the united states. a relative or studying abroad. but the supreme court's opinion was notable not only because it have at least a partial win for the administration, unlike its, unlike the lower courts but also the language was completely straightforward. there was no commentary. there was nothing in it suggesting that they were reading any kind of political motivation into the administration or the -- the
challengers. it was dispassionate, calmly written item which tried to explain why they were drawing the distinction they did. it's also true of the concurrence where you have the three justices who would have gone further and allowed all the ban to go into effect. they were really avoiding the kind of language that might inflame the already existed controversy over this policy. now, in terms of what happens, that they would decide to do in the fall when the case is argued, that i'm not sure, because i think at that point if the case is still alive, other issues may come into play and the kinds of kwoits that they may have thought important now may be different then. so i don't know. i think they'll want to come up, work hard to find a decision that doesn't further add to the fire. >> i'd add that what the
administration asked for in terms of the injunction was at most limited to the parties. limited to the couple of individuals in the state of hawaii, and what the court gave, which is something no party asked for, was a kind of class action treatment, and you can argue about whether it sweeps in a lot or a few people. i think a lot, but that's an interesting move on the part of the court, and that's -- that's not what the trump administration wanted. and then when it comes back for them to figure out who has a relationship and who not, and they decide grandparents aren't good enough. it occurs to me that at least one member of the court was raised by his grandparents. i'm not sure he'd agree that a grandparent isn't a close member of the family. >> kevin, sticking with the travel ban. you reported on them asking justice ginsburg to recuse
herself. can there any chance that's going to happen? >> sure. there's no chance that will happen. these 60 house republicans signed a let tore justice beginberg. their argument is that the justice made remarks this summer in the press among others that impugned the president's credibility. she's already in their view given a view as to the core issue in the case, and, therefore, in their words she's bound by law to recue herself. they make a general case she's displayed prejudice toward president trump as a general matter and would be inclined to vote against him. as a general matter in recent years the justices have only recused themselves from cases in which there is some appearance of financial impropriety or in
instances where they were involved in the case before them at some point in the past. we have not seen it for potential enemy. i don't know there's any reason to expect we would see one here. >> so do you guys have any other predigss for what cases might be coming before the court the next term? is there a government employee speech case? maybe an agency deference case or perhaps the second amendment will return? >> they have a freed ricks, a question of whether nonmembers of union can pay for collective bargaining activities. the only reason they didn't decide it this time is because they split. now they're at nine. an already interesting big term will shape up. agency deference. people have hopes for their own petitions and that area, and the court has been ducking second amendment cases like crazy. i don't know what you make of
it. i would have predicted they take an open carry case. >> other thoughts? i think now we have the mirror image environmental litigation the environmental groups, and democratically controlled states challenging trump policies like we saw on monday when the d.c. circuit halted the epa's effort to halt implementation. i think we'll be seeing those same kinds of cases wept with the roles reversed coming back to the supreme court as we did throughout the maobama administration. >> is there an opinion that stood out as the best of the term or worst? >> i don't know about best, but i thought that the kagen opinion in the north carolina
redistricting case was very interesting in a couple of ways. it was apparently assigned to her by justice thomas. she manages to have a five justice majority. this is just the sort of case where thomas might concur but not go along with the reasoning. he goes along with every word. there's something to this. there are people who think she did some work in saying that racial jer ri manderring and partisan when they can't be disentangled can be treated as the same thing. that would give you a different rout to the party gerrymandering in some settings that the court is going to hear this term. >> i thought the miami bank of america v miami opinion was raeg interesting to the extent that we had the chief justice join in with the liberals to expand liability under the faa to
include big banks. that was part of a broader trend from the chief justice this term in which he was voting with the liberal block in these civil rights cases which is not to suggest that the chief is eme e emerging as this civil rights icon, but certainly in the last year we've seen him make this move. we have seen him join opinions that have favorably drawn conservatives and seen him intervene to save a black death penalty inmate. so he has made interesting moves in the civil rights area this year. >> kevin, i don't know the answer myself. in the fair housing case, the predatory lending case, he cast the narrow 50 vote on an eight justice court so there's some kind of opinion. on a nine justy court, do you
think he goes the same way? >> i don't know. it seemed like the price for his vote was the remedy in the case which seemed to be narrowly tailored. i think he probably felt forced to try to generate some kind of opinion on the eight member court. maybe if there were nine things would be different. at the end of the term, we had no 4-4 splits and only two punts to the next term. maybe that motivated him to do what he did in this case. >> and in the arkansas birth certificate case, it looks like it's 6'3" but you don't always know who dissented. many people read into that some kind of reconciliation between the chief justice and him and the right to same sex marriage, but i don't think it's so. >> there was an opinion written by justice ginsburg that made
reference to a changing of times and the chief joined that section. >> right. after justice sclee scloalia pa chief had that whole period may have been for a while a near death of majority experience for him where the potential of a court where you had five left-leaning justices and the chief our tory chief justice being in the minority, that may have affected the way he approached cases, certainly during the term, but how -- i guess an open question is how that affects the way he looks at the future on a nine-member court in cases like that. if i had to pick an opinion, again, it wasn't a block buster. there were lots of interesting cases but i think in terms of dramatic timing, the opinion for
the case in colorado this was dlied 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 probably now, the law talks about the free and appropriate education, that disabled children are entitled to, and the issue is well, what does that mean in there was a circuit split over the level of education and the 10th circuit in a gorsuch opinion had years earlier assigned it to the lowest standard, just above the level of education while other circuits had given more teeth to
that level, and this plays out typically when parents can test what a public school is providing their child in terms of educational opportunities. so the the law required in his earlier opinion and it was reaffirmed by judge tim kovich's opinion in the case. that opinion -- i won't say emotional, but it was quite -- you know, it was quite serious in saying these children are entitled to more than just that, and that it was a unanimous opinion and delivered in a kind of up staging way. it was certainly not kind to justice gorsuch because he was being asked about it when it was announced, and then immediately was seized upon by some members of the judiciary committee and, you know, he had to say, i just learned about it. they handed me the opinion when i was walking into the bathroom. so he had to very quickly explain, you know, why he reached a different conclusion. but, you know, he said, you
know, apparently i was wrong. i did my best but the supreme court has spoken. >> i think he had only been reversed only a handful of times. >> right. and he was not directly reversed. this was a separate opinion that was in large part based on circuit precedent that he had established. >> so i want to -- before we get to our audience question i want to ask one final question. any prediction on a retirement in the next term? >> i don't think ginsburg will be 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 powerful. >> i think we're all still reeling from lyle denison's
retirement as a correspondent, so another one would be a real blow to the press room. yes, you know, we're all looking for those -- particularly justice kennedy, those extrinsic clues. to my incredible surprise the rumor mill was a little off in predicting his retirement this term, but, right, i mean i don't -- i don't see anyone else on that court itching to leave under these circumstances. you know, what kennedy does, you know, we know he goes his own way on many things. >> so now we'll take a few questions from the audience. please wait for the microphone. please identify yourself and ask a brief question. we'll start down here. >> hi. i'm dennis -- >> we can hear you. >> hi, i'm dennis kirk.
having written in government, in private and in the press and being a country lawyer, i am a little bit amused and dismayed sometimes over the ethics of the press because sometimes you read some things from some people and it is clearly way beyond the pale and you wonder why you do what you do. so where is the boundary anymore of what good editors and good press people should do? >> do you have examples in mind? >> let's take the cnn, you know, rumors about russia. let's take the people who -- >> i mean confined to supreme court governance. that's what we're talking about. >> in supreme court coverage i would say some of the speculation like you mentioned about justices retiring or having heard things, et cetera, putting them out there, some of the articles about whether or
not a justice should express her opinion and not be criticized for it, some of the stuff gets pretty far out there, right and left. >> if anyone wants to comment, i think that's all fair game for supreme court reporters to comment on, rumors about retirements and whether a justice should recuse, but i'll leave it to the correspondents to respond if they choose. >> if we were able to nail down any information we thought confidently predicted strong retirement, we might have reported it. we couldn't do that so we didn't report it. as a matter of news worthy topic, yeah, the membership of the supreme court, it is certainly on our beat very, very important. then it becomes a question of news judgment about how well your sourcing is and, you know,
i feel all right about it, you know, about what we did. we didn't say anything about retirement except when it was, you know, public officials like senator grassley and others, you know, them suggesting it but we didn't on our own ever. >> other questions? back here. >> thank you. i have a question for mr. lipteck. do you think a decision on the travel ban might address a question whether or not core was still a legally binding precedent? >> that's a very interesting question. i don't imagine a majority opinion would address core matsu, but justice briar recently did and i could imagine a separate opinion grappling with it. >> certainly at least one of the lawyers in the case, neil
costellos is interested in rectifying the issues. he might try to force that issue. >> other questions? >> given the extent to which the court plunged into the political thicket in the reapportionment cases with what i think most people consider to be rather disastrous result, do you think there's any likelihood that they might say -- that they might loosen the way they've approached these cases? the only criteria they used was the difference between the largest and smallest district rather than the minimum percentage necessary to control the legislature. there was a case in 1983 involving the wyoming senate where it looked as though they
might back off, and but for concurrence by justice begins berg i thi -- ginsburg they would have backed off. now you have a new case that suggests they might plunge in even further. what do you think is going to happen? >> so i can only speak to the new case. i think we know almost 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 too it tentatively -- what was the phrase they used? it was like deferring jurisdiction. >> jurisdiction postponed. >> jurisdiction postponed. so they took it because they had to. then we have the additional information that an hour or two later they issue a stay and that divides the ideological lines with the four liberals in dissent, suggesting kennedy who is key vote may not be ready to do anything. it would be a huge debt if the
court recognized constitutional challenges to jury mannedering but i don't think we have a lot of evidence it is prepared to do that. ger . >> any cases that you see coming up in the next term that could be kind of under the radar or maybe are percolating up or just not taken for cert yet but could be pretty big cases your guys are looking at? >> i hesitate to talk about it because i haven't read a word about it really and i don't know the detail, but the sports betting cases have some interesting federalism issues. those cases are under the radar now but soon will be above the radar. those are good cases. there's an alien tort statute case about whether corporations can be sued under alien sort
statue case. it will be a good term. >> absolutely. >> thank you. following up on the question about cases in the pipeline, we have one of three cert on a compel speech case out of the state of california where the state of california passed a law requiring pregnancy centers to have abortions. nio pinion on the prospects of a case like that being taken? >> any takers? >> it sounds interesting but i need to know a lot more at least with position, you know -- >> i think we have time for maybe one more question. no takers? oh, john malcolm. >> any thoughts -- any thoughts on why the court's been
reluctant to take up another second amendment case and anything on the fact that thomas and gorsuch dissented from denial on the paruta case [ inaudible ]? >> i think that's -- you know, i think that's a vast question because they haven't said anything on it substantively on it since 2008. 2010 they expanded heller to the states, and it seemed that they were almost, you know, setting up a process by which, you know, the normal sequence when they have a landmark decision that enumerates a new right that way, to have lower court opinions come up and be vetted by the supreme court. so i would have expected that certainly by, you know, 2013, 2014 we would start to see these cases be reexamined by the supreme court and they have, you know, consistently turned them away. and why? i don't know.
i mean, you know, certainly the lower courts, most of which have upheld gun regulation, you know, have tried to write, you know, bullet-proof opinions, if you will. you know, you saw judge fletcher's ninth circuit opinion, justice thomas was not impressed by it, but he wrote it in a way trying to appeal to the originalist and texturalist approach that mcdonald and heller case took. that opinion from the ninth circuit is full of history and so on trying to justify the conclusion they reached. so it may be that it is enough, you know, so far that they haven't seen anything that's, you know, glaringly wrong and they want to, you know, step gingerly. but, you know, it is certainly a surprise to me that they have, you know, not taken steps to clarify a decision that essentially said we will clarify this decision in the future about how much further, you know, the right to have a
handgun in the home for self-defense extends. go ahead. >> sure. i would add i think the liberals are happy the lower courts have dramatically limited the scope of the helga ruling. i'm interested to know where the chief is on this. he is a person who is intensely interested in the authority of the sport and policing the authority of the sport over the lower courts, and they have not robustly implemented this ruling by any means so i would be interested in knowing what he is on this. >> it would be hard to conclude given it only takes four votes for cert. they may view heller as a symbolic decision but are content to have gun control laws in those parts of the countries that want gun control laws. i remember writing, you know, the day of heller that, you know, a new term has come into constitutional injuries prudence does a law pass second amendment
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hosted by the arab gulf states institute in washington, d.c. this is an hour and a half. >> good afternoon, everyone. my name is marcello arwab, president of the arab state gulf institute. i would like to welcome you today's program on financing terrorism, on the many aspects of the fight against terrorism, cutting off the financial flow is most critical. it is the oxygen that keeps these groups alive and allows them to recruit, control territory, plan and carry out violent operations on a global level. the issue of terrorist financing also obviously as a dissenter of the current crisis in the gcc and it remains a top priority for the u.s. as we seek to defeat islamic state and other terroristup