tv Key Capitol Hill Hearings CSPAN April 22, 2016 10:00am-11:27am EDT
commission systematically underpopulates those districts , those ability to elect and , overpopulates other districts. justice kagan: i guess i'm just not really sure. let's say that there's a policy that says we want to respect county lines. and we also know that we want to do one person, one vote, but we think we have some leeway, up to 10%. and there's a policy. we want to respect county lines, even though that's going to cause a little bit more deviation on the one person, one vote metric. are you think that that is impermissible? mr. brnovich: justice kagan -- justice kagan: it's a policy. it's an intentional policy. mr. brnovich: i guess the road to hell is paved with good intentions. and so our position is regardless of their intention, if they are doing it in a systematic way, intending to overpopulate certain districts,
under populate other districts that is unconstitutional. , the voting rights act then -- justice kagan: even though it takes you from 4% to 5% or from 7% to 8%. you're not crossing the 10% threshold. but as long as you're going up and you are doing it purposefully in the sense of we have a policy to maintain county lines, that's impermissible. mr. brnovich: yes, justice kagan. the position of the state is that when it is done in a systematic intentional manner when you create essentially , barrios of certain folks and then you overpopulate other districts, that violates the 's one person, one vote principle. justice scalia: as a matter of curiosity, how do you end up being on this side of the case? you were a defendant in the district court, weren't you? mr. brnovich: the secretary in the state thought the principle of one person and
one vote upholding that principle was very, very important. that's why we felt compelled to be involved in this case. justice scalia: but only on appeal. you didn't argue this side in the district court, did you? mr. brnovich: that is correct, justice scalia. justice scalia: what happened? was there an election in between or something? [laughter] mr. brnovich: yes, and i won overwhelmingly. justice scalia: i knew it! [laughter] mr. brnovich: thanks, thank you very much. i will be up for reelection in three more years so the -- anyway -- justice ginsburg: do you agree with your colleague that it doesn't make any end result, the legislature, the republicans were disproportionately advantaged to -- had a disproportionate share of the seats? mr. brnovich: yes, justice. our position is that that really is irrelevant as far as the numbers ultimately, whether the percentage -- justice ginsburg: they would have ended up, if you're right, an even greater disproportion of greater disproportion of , republican representatives. mr. brnovich: ultimately, the number -- this is not a line drawing case.
this is an overpopulation overpopulation/underpopulation case. so how the lines are drawn and what the representation is in the statehouse or the state senate is not important or not key to the argument. the key to the state's argument is that this intentional and systematic one-way ratcheting of underpopulating minority to ability to elect districts is one what undermines the one person one vote principal and what makes the action of the irc unconstitutional. justice roberts: thank you, counsel. mr. smith? mr. smith: mr. chief justice and may it please the court, there's no basis for concluding that the minor population variances in the arizona map violate the equal protection clause. justice scalia: do you accept the fact -- speaking of accepting fact findings, do you
accept the fact finding that at least part of the motive was partisan? mr. smith: i don't think that's a fair characterization of what the district court found, your honor. justice scalia: oh really, why? mr. smith: the district court found the predominant motive -- is said there may have been two of the five commissioners who as to one district, district eight, had some mixed motives in urging that that district be made more competitive, but did not find the commission as a whole acted even in that one instance with partisan motivations, and that district is not one of the ones that's significantly underpopulated. the decision to move population around to make that district somewhat more competitive, even if it was motivated by partisanship, has nothing to do with what we really talking about here which is the 8.8% , deviation. justice scalia: well, i would be very upset if there was any motivation of partisanship. i wish this case had come up before the case we had last term which approved your commission , despite the text of the
constitution, because this commission was going to end partisanship, get politics out of redistricting. and here -- the very next term , we have this case which asserts that there has been a lot of partisanship on the part of this supposedly divine commission. mr. smith: with respect, sir, not a fair characterization of what happened and not a fair characterization of what the district court found after a full trial. what it found after giving them a full opportunity to try to prove their claim that there was hideous to termination is simply not what happened -- discrimination is civilly not what happened. these population deviations emerged in the final part of the process as they worked to make sure their map would pass preclearance, on the first try. something that the stated of arizona had failed to achieve. justice alito the district court : found on 79 a of the appendix to the jurisdictional statement. partisanship played some role. so you want us to interpret that
to mean that if there was no partisanship, everything would have come out exactly the same way, it had no effect whatsoever on the districting? mr. smith: what the court said, largely republican leaning competitive district, that two of the commissioners may have had mixed motives. they were talking about bringing the democratic party closer to parity. they still did not get the parity. i think -- justice alito that's a red : herring. we don't need to discuss this issue of parity. if you have the system of proportional representation, you get 55% of the vote, you'll get 55% of the representatives but in the kind of electoral , system we have in the united states with single member districts and winner take all, a neutral -- a neutral districting plan will never produce exactly the same breakdown of legislators as the breakdown of the votes in the election.
but that, i mean that's a side , issue. what do we do with this statement partisanship played some role? partisanship by itself cannot affect the constitution. you have that inflated by the judges that wrote the opinion. the case of daphne versus cummings dealt with the dominant factor. justice alito this is what : interests me about the case. if we assume, as the district court did, that partisanship is not a legitimate conversation, consideration, it is not like respecting county lines. and if we interpret the district court's opinion as finding that partisanship was part of the reason for the plan that was adopted, then is the test the
test, which is what we normally apply in a constitutional mixed motive situation? so that if an illegitimate constitutional consideration is one of the reasons, the burden shifts to the defendant to show that things would have come out the same way even if that factor had not been in the case? or is it what the court said in bush v. vira and a few other cases that in this particular case, that is not the test. the test is whether the ill leaget factor there, race, was the predominant conversation? that seems to me turns on the choice between the two. is that wrong? mr. smith accepting a lot of the : premises of the question, i think is counter, it seems to me even if you're going to make partisanship something i will legitimate, it ought to at least have to be predominant. i mean, in a situation where you wouldn't want to say that the
line drawers have to act with complete purety of heart. justice alito: -- justice kennedy are you saying : it's permissible to use as one anctor and illegal -- standard if there are other factors that are also in play? that it's permissible to use an illegal standard in part? is that what you want us to write in this opinion? mr. smith nobody thinks it's : illegal. justice kennedy that's one of : the issues in the case. we'll talk about that later. if you want to say it doesn't make any difference because partisanship is a valid conversation, fine. that's your point. but my question is it sounds to me in response to your answer to justice alito, that you're saying that it is all right to use an illegal standard in part to reduce equal representation. mr. smith: for all the times we have said racial consciousness is not an evaluation unless it
predominates, even if you are going to adopt parity of these considerations, it makes no sense. this should be about deciding whether it is race or party. when you come to the conclusion it is party, it is ok. justice kennedy: can i put in my notes that you're arguing that partisanship is a valid conversation in redistricting? mr. smith you certainly can, : your honor. you said it last year in the alabama case. political affiliation is one of the criteria that line drawers always can consider. justice breyer: how do you -- how do we write this? there are two areas that are difficult to write. one is, i know this 10% rule. but it doesn't say we don't look at it at all. we institutionally can't review thousands of pages of records in every redistricting case. so what are the words there to
describe the standard we should bring to this? and the second, which is a direct application of the first, is you are quite right. , how can we say that partisanship can't be used at all when you're doing one person one vote but the sky is the limit when , in fact -- of course, i dissented there. when the sky is the limit when you're drawing boundaries. now, how do we reconcile our -- how do we reconcile our institutional ability with the need to have some policing here? and how do we reconcile what we say in this case with what we've held in the line drawing area? ok, now those are two questions in the back of my mind. mr. smith can i answer the first : question first? justice breyer: 50 words or less. [laughter] mr. smith: it seems to me not defensible to adopt a rule that says partisanship in creating minor
population deviations is acceptable whereas in the line drawing area, you have always insisted that there not always be a bias affect, but it is very large. justice breyer: i didn't ask you what we shouldn't say. i asked you what we should say. mr. smith what you should apply : is the rule that has been applied in all of these cases. is there a rational and legitimate policy that the state can articulate which is the reason why they arrived at this difference? and here we have the voting rights act. justice roberts let's talk about : that for a second. if action in redistricting overpopulation would constitute legitimate racial discrimination can the answer that we're , doing that to comply to get preclearance from the justice department legitimatize that? mr. smith yes, your honor. : this court has said a number of times that voting with the voting rights act is a compelling state interest. justice roberts my question is, : if the action that is taken would otherwise constitute illegitimate
discrimination. i'm trying to find out if the justice department's procedures can trump the requirements of the constitution. in other words, it is an issue of, you know, we said in reachie versus stefano it is not an excuse, it is not a liability you are trying to avoid under title vii for discrimination. i'm wondering if it's somehow different. if the justice department is insisting on conduct that would constitute a violation, if they're insisting on more than they should be is that a defense , for the redistricting commission? mr. smith well, your honor, the : one thing that is clear is that the voting rights act does require people drawing lines to consider race. section 5 required it to, section 2 requires it right now. justice roberts but it doesn't : say all bets are off. mr. smith: no, your honor. the line this court has drawn is between map which go too far and map which don't. map in which the racial
conversations predominate and subordinate all districting principles here. and what you have in this case is the quintessential map where that's not true. justice roberts: it seems to me you're avoiding my question. what if the requirements that the justice department asks for for preclearance go too far? mr. smith if the justice : department reads the voting rights act in a manner that requires them to do something that would go too far in the predominant sense, that might be a constitutional problem. there's no indication here that that is what happens. justice roberts so whether or : not preclearance is a defense depends upon whether the justice department is insisting upon too much. mr. smith: it could be, your honor. but there's no indication of anything like that here. this is a case where they simply said no retro gregs. this is not like the 1990's where they were saying you have to create new districts. breyer look at the : finding. while partisanship played a role in the increased population deviation associated with changing district 8, so too did
the preclearance goal in motivating the change. it is the first half of the sentence which is raising the issue that i think people are trying to get you to say how we right that. you see? because it says it played a role. so we're going to be asked here by the other side to expand on what that means, play a role. and we have to write an opinion. and if you win this case, there will have to be words that support you. and so how do we take this? what would you say about the word play a role? ,mr. smith: i would say two things, your honor. first of all, it's a tiny role in this case. but second of all, even if it were the only reason why you had a population deviation under 10%, i think it would be not defensible for this court to say that by itself is unconstitutional. there's so de minimus effect in
representation some , bias in the way the districts elect candidates that it's something that ought to be taken seriously as a constitutional problem. but here, where the predominant motive is to try to make sure these districts pass preclearance, and less than 50% of the commissioners may have had for one district where they increased the deviation slightly like 0.2% may have had some partisanship as well as the voting rights act in mind for district eight, not one of the 10 over to the justice department. that's a tiny tiny sliver of partisanship for less than the full commission. justice alito what if there were : a case that the commissioner whoever was responsible for producing the plan produced chose between two plans? plan a as a deviation of.1%,
plan b's 9.9%, and they said it can down to these two plans and we chose b because we want to maximize the representation in the legislature of republican offers democrats. and you would say that would be constitutional? mr. smith i think if that's the : only thing that was problematic about the map, you might well say that's constitutional. but that's not this case obviously. justice alito no. :mr. smith and you've gone as : far as lair i don't see. you said a map that's an egregious gerrymander massive , disparate incumbents plus the potential abuse of 10% rule, all of that together you affirmed the finding. but by itself i don't know that i would even say -- justice scalia that's because : there's no constitutional criteria on for where you draw the district lines. there is a constitutional for how you w
eigh voters district by district. one person one vote. there's no such criterion where a line needs to be. mr. smith: but this court has said we want to give leeway because representation is better if you give them a chance to make districts within the 10% band and if you allow them to do what's being suggested here. they can get to federal court and they can get to trial just by that exactly what you said is , going to happen in your dissent. everybody with a political motivation to try to do something to undercut a map is going to come in. it's easy enough to allege partisanship. here, the only evidence they have of partisanship is leaving aside the story of district 8 is simply the pattern. the hispanic districts they underpopulated and the native district happened to vote democratic. so you have this pattern. the chart they .2 on -- they .2 112a. point to on
but that's not evidence. it's equlely consistent with what the court found happened. they wanted to make these more persuasive as ability to elect districts so they can get preclearance. and they got preclearance. this is a case where you wonder where's the beef? what exactly are we here for? there's no problem for this map. it is not a partisan gerrymander , it is not a racial gerrymander. it's within the 10% boundary. they did everything open. everything that's being complained about here was done unanimously by all five commissioners who adopted the goal of getting preclearance, who adopted the idea that they districts, not eight districts. that every single change to those ten districts that increased their underpopulation was unanimously voted by all five commissioners. this is a case where there is simply nothing seriously being argued here that could possibly amount to a constitutional violation. and it seems to me that we can talk about whether a pure partisan case ought to by itself, if the only problem is deviation via unconstitutional, i would recommend you not do that for
the reasons that you said in their dissent in larios. but this case is so far from that, i mean, the republican commissioners are voting for the re-think that they are complaining about because they too want to get preclearance. the state of arizona wants very much to have its map go into effect for the first time since the 1960s when it became covered by the voting rights act rather than having a federal court put in effect because preclearance was denied. and they hired lawyers who worked in the justice department told them how many , districts they needed. if necessary, they could go up to the 10% limit. they then tried hard to minimize that. and one of the things that's important to recognize here is you listened torobably the population and gotten districts to the same level of population. but you would have had to draw tentcalsf the kind the court has criticized. there's lots of hispanic people in the state of arizona not in these districts because they're spread out all over the place.
so if you're going to draw districts, if you are going to draw districts that respect county boundaries, and tracts and communities of interest something has to give. , and what gave here was this modest, tiny, small amount of population variation that seems to me just not a serious canned candidate -- serious candidate for any kind of constitutional invalidation on the fact that this case which aren't even challenged here are clearly erroneous. the court has no further questions. thank you. john roberts thank you, counsel. mrs. harrington. mrs. harrington: may it please the court. the question in this case is not whether section 5 can compel deviation from a perfect population standard. the question is whether to minimus deviations are
permitted by the constitution. this court has made very clear that when they are in 10% from a perfect population equality standard, those plans are presumed to be constitutional. that presumption is a substantive rule. justify can briefly take them off. the first is such deviations do not by themselves violate equal protection. the second is that giving states a 10% leeway actually enhances citizens fair and equal representation by allowing states to pursue other important districting principles. and the third is that limiting federal court intervention in inimusimus -- de m deviation cases protects state'' sovereign rights. justice roberts: is 10% really de minimus? i think you can say it's minor. but strikes me as misleading when you're talking about 10%. mrs. harrington i don't mean to : be misleading about a term this court has used. justice roberts: i know it has.
mrs. harrington i would never : accuse the court of being misleading. the point is these 10% deviations don't have enough of a dilutive effect to affect any citizens' right. justice scalia does anybody : contest that? i don't think that's contested here. i think the other side is willing to concede that it's presumptively ok, which means they have to come forward to show there were invalid reasons why there's this discrepancy. mrs. harrington: and i say the case should begin and end at the prima fashion case. facie case. so the district court's factual findings about the motives aren't relevant. justice scalia i thought a prime : facie case means -- if you haven't made a prima facie case, it means you have to bring in other evidence. it doesn't mean you're out of court. mrs. harrington if you haven't it, it means the state
doesn't have to justify its reasons for the deviations. so in this context in order to make a case what you have to do is put in enough evidence from which an inference of discrimination can be made. what that generally requires is that the challenger has to put in enough evidence to rebut the presumed reasons for the challenged actions. in this case, the arizona constitution sets forth the criteria for redistricting lines. so at a minimum the plaintiff should have come in and demonstrated that the deviations that they observed were not explainable as in in-service of those -- justice scalia -- justice alito let's assume the : opinion of the district court found that partisanship was a conversation. so are you saying that that finding can't be sustained because it wasn't based on sufficient evidence brought forward by the plaintiffs? mrs. harrington: first as a point of clarification. the opinion you read was talking about district 8. if you read on in the paragraph, the district court said that the amount of deviation attributable to the attempts was less than 1%.
i think it was 0.7%. and so it is really a small very , small -- justice alito was it a factor or : not? was partisanship just irrelevant? it played no role? everything would have come out the same way without partisanship according to the , district court's findings? mrs. harrington with respect to : one district two of the five commissioners were motivated in part by partisanship motive. but again our position is that this court doesn't need to get to what the actual findings were as to the motive because the plaintiffs needed to come in and demonstrate at the front end that the lines on the map couldn't be explained as an effort to comply with legitimate redistricting criteria. justice roberts: is that -- what is the position of the united states on the question of whether it's permissible to intentionally take partisanship use partisanship as a guiding principle in
redistricting? is that permissible or not? mrs. harrington: we haven't taken a position on that -- justice roberts: i know. it seems very unfortunate. it's a little difficult for us to address since that's one of the main questions in the case. mrs. harrington the united : states has never participated in the gerrymandering cases. there are lessons that can drawn. the court indicated certainly conversation of politics and partisanship does not necessarily make a plan unconstitutional. but again in this case, i think in order to get to the question of what the state's actual motives were, there has to be demonstration that the motives were not. justice roberts so you're : unwilling to tell me whether intentional use of partisanship and redistricting is acceptable or not? mrs. harrington: i think this court's decision indicates it can be permissible. the districting body in gatchni was driven by a desire to equalize. justice breyer: i took it that
the position of the united states is at least as many commissions are nonpartisan because they have two people who are more partisan on one side two people on the other side and one newt ral. -- one neutral. so at the least the commissioners don't account for a majority. the partisan vote is not held by a majority of the commission. then it is constitutional. so some members of the commission, to take partisan considerations into account where they are not a majority and where the result is under 10%. mrs. harrington i think that was : the district court's conclusion. justice breyer: it was your conclusion representing the united states. mrs. harrington we haven't taken : a position on how to analyze the partisanship if there was a finding that you get there. justice breyer well, two members : of the commission out of five
did have a partisan motive in part. so i have to -- you have to i think have to say well do you think that is that situation is constitutional or not? mrs. harrington let me make a : pitch one more time for having acie case.rima f what the plaintiff needs to do is come into court and say here is a map that can't be explained. the very first criterion listed in the constitution is compliance with the voting rights act. if you look at the map and you look at which districts are underpopulated and which have the ability to elect districts there's almost a perfect , correlation. i think that's perfectly legitimate for why there are deviations in the case. justice scalia: i don't understand this two out of five. do you think if four of the justices of the court voted a certain way in a case because they were racists the opinion , would still be valid? because, after all, five of us weren't. would you even consider that? and why is it any different for a commission like this? the mere fact that two of them
-- if partisanship is indeed bad. mrs. harrington: well, we don't have a position on how one would analyze. justice breyer well, this isn't : racist. number two, it's not this court. number three, i don't know any court like that. and number four, if we're going to say that no members of a redistricting commission can ever have partisan views, i don't know where you're going to get your membership from. i mean, that many of these commissions, i would think, would balance people who know about districting and who are also republicans with people who know about it and are also democrats. and then you have someone of undoubted neutral -- justice scalia which is not the : case here. which place as lot of weight on selecting the fifth person who is really white pure.
right? and if that person deep down is partisanship one side or the other, the whole thing goes. and that is the allegation here, by the way. mrs. harrington: i am sorry to interrupt this court has , repeatedly said that politics is always going to be a port of redistricting. so -- justice scalia: -- justice roberts: i agree with that. and that's a different point. i mean, you don't have a position on whether that's acceptable or not. the difference between saying something is a necessary evil and saying it's evil. mrs. harrington: i think this court has told us that it is fine to have partnership placed. justice alito: i'm surprised at the way you read the district court's opinion. in footnote 10, they set out the standard that they applied. mrs. harrington the page please? :justice alito: 63a running over
into 64 a. and in the final paragraph begins the bottom of the page. for decision purposes the majority of the panel have concluded that plaintiffs have not demonstrated a partisanship predominated over legitimate redistricting conversations. doesn't that mean that they found that there were some illegitimate conversations? or at least -- and they assumed --t partition was partisanship was? mrs. harrington where you're : reading from earlier, i think it's clear what they're talking about that partisanship played a role only with respect to district states. but let me say if this court allows plaintiffs to come in to point to deviations. justice alito just to clarify : your answer. you think what they said in footnote 10 only applies to one district? mrs. harrington: yes that's my , reading of the opinion. i haven't heard the other side disagree with that. if this court makes it too easy for plaintiffs to come in and point to deviations and partisan correlations, it's going to totally wipe away the 10% leeway which serves in districting principles. justice roberts: thank you, mrs. harrington. sir, you have four minutes
remaining. >> thank you, mr. chief justice. what about foot note 10 you agree with the characterization that the other side has made? mr. hearne: well, footnote 10 no i do not. the portion i would quote was not limited just to district 8. partisanship was ranked in this redistricting process and is demonstrated objectively, and also by the fact of district eight which was not submitted for plea -- preclearance. justice scalia: i want a finding. i don't want to look at a chart to make my own factual determination. what factual findings other than footnote 10 is there? mr. hearne: then i would quote from the appendix of 107a which is where the statements made judge clifton correctly finds that the irc was actually motivated by both partisan advantage. so we have a majority for that finding of fact. so that is two members of the court specifically found that
partisanship was one of the two motives to explain these deviations from one person one vote. so clearly, it was a motive at that point. as even judge silver noted, this is a mixed motive. justice scalia: the other side is going to say that's true but it's only true as to that one district discussed in footnote 10. mr. hearne: if that's so then they would have stopped and adopted the initial map and not continued to deefyate from 4% to 8% for the final map. the initial map, the draft map was a 4% deviation. dr. king, their own expert, said that this map complied with the voting rights act. and yet, they went after that and continued deviating and underpopulating districts to get to the 8.8%. that included the machinations with district 8. so, if the only legitimate reason was to obtain preclearance then they would , have accepted the draft map,
and it would have been game over. but they didn't. they went ahead and -- justice ginsburg -- justice kagan: i thought it was they wanted to make super sure they complied. i think that's why they said they kept going. mr. hearne: the explanation that was made is that they were strengthening these by continuing to underpopulate buzz their consultant said that helps us get voting rights act preclearance approval. that was the explanation. but if their own experts said the original map, the draft map , satisfied the voting rights act and the only reason to , additionally depopulate was to achieve a further partisan skew which judge wake's chart demonstrates, then that shows that partisanship was a very -- i understand two of the members said it was not the primary motive, but it certainly was a pervasive motive in the process by which these districts were drawn. and our position is a very narrow one that we ask the court to hold is that partisanship , does not justify deviating
from one person, one vote. and that a mistaken belief that preclearance was necessary to underpopulate certain districts also does not justify deviating from one person, one vote. justice roberts: where is the district in which -- or the state in which partisanship does not play a role? mr. hearne: we think it's always going to play a role. we would say there's an outer limit or certainly as justice scalia noted articulateable standard of one person one vote. that's a rule that we can cabin the partisanship. you can be partisan, and we don't fault the commission for having partisan interest. republican members, democrat members, even if the fifth member ended up being partisan interest for the democrats. that's fine. the problem here isn't that they have partisan motives. it's that they deviated from the one person, one vote principle to further those partisan motives.
justice kagan if i could ask the : question. -- i'm sorry. mr. hearne: please. justice kagan: if you're saying that even within the 10% to go 2% to 3%o 2%, and from and somebody can come in and say , that is partisanship it means , that every single plan will be up for grabs in every single place. doesn't it? mr. hearne: i don't think it does. and the answer would be it doesn't because in this case there were no other legitimate reasons to explain it. if that is the reason and the only reason to deviate only other legitimate reason to deviate from one person one vote then it , is not a constitutional plan. but that's not present in all the other cases. justice roberts thank you, : counsel. the case is submitted. [captions copyright national cable satellite corp. 2016] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] announcer: we are going to show the supreme court oral argument over the executive orders that
would result in undocumented immigrants from staying in this country. you can hear the argument in the case of texas versus united states at 8:00 eastern. president obama is in britain today holding a news conference this morning with prime minister david cameron at about 11:50 eastern. we have live coverage on c-span. also, delaware's primary on tuesday. we'll bring you live coverage of a public and presidential candidate donald trump as he talks to supporters in arrington, l aware. -- harrington, delaware. in pennsylvania is holding primaries on tuesday, we have that lives starting at 7:30 eastern. she will talk to voters in dunmore, pennsylvania. ,aturday night at 10:00 eastern we will look at speeches by president obama during his two terms at the white house correspondents dinner, one of the premier events. this year will make his final attendance at the dinner.
obama: jeb bush identified himself as hispanic back in 2000 nine, which i understand, innocent mistake. reminds the of when i identified myself as american back in 1961. [laughter] announcer: join us saturday night at 10:00 eastern and be sure to tune in for live coverage of the white house correspondents dinner at 6:30 eastern. the president met with queen elizabeth this morning during his visit to great britain. cbs producer tweeted out pictures. the obamas atwith the helicopter on the castle grounds. they took the car to windsor castle where she escorted them to the oak room. she told the president that this of errors.l those were the media was waiting, and queen elizabeth and the president and the first lady posed for pictures before lunch. he is now meeting with prime
minister david cameron at the 11th meeting between the two, not counting group summits according to mark noller. while we wait for that conference scheduled for 11:50 eastern, a look at this morning's "washington journal. " >> we want to introduce you to hannah smith, a law smith for little sisters of the poor, and why are we talking about this? >> the little sisters of the poor are a very wonderful group of nuns, and they haven't serving the elderly and poor for 100 years. -- they have been serving the elderly and poor for 100 years. they will talk with you until your dying breath. they do this as their ministry. they begged door to door to collect money for their ministry
, and they serve the people who otherwise would fall between the cracks. they are really important who have devoted themselves to the service for their entire lives. not only important because they have kids for the supreme court. host: on march 2 three, the case was heard. what is the nuggets, what are we talking about here? hannah smith: the government created a contraceptives mandate, and they decided to impose this on all employers and say that you have to cover certain people. this goes against the convictions of many religious groups. they tempted some churches -- exempted some churches from this mandate and a whole bunch of entities, pepsi, exxon, visa. a bunch of corporations that
have exempted for legal business so they can be in for other reasons. they decided not to exempt a whole group of religious ministries who have exemptions -- objections to these and told them. the government tried to solve this with accommodation, but it was not accommodating at all. and so these ministries were forced to go to court. very reluctantly. imposed something on women's exercise, which is against the civil rights law freedom of restoration act. there was an op ed in the wall street journal, little sisters of the poor say yes to the court, and she is the mother of provincial. the ceo of little sisters of the poor. she writes in here that some
might be surprised we do not object to this court. this course of being that they are supporting that the government to provide other services to our employees without violating the conscious. what is this? hannah smith: the supreme court came out with an unprecedented order less than a week of oral argument. they came up with a solution and said, we think we found a way both the -- to accommodate both the religious objectives and the government. we have a solution to all of this. the government was not quite sure what to do with that. andappened -- hemmed hawed, but the little sister said yes, we accept this solution the court has offered. lorraine, her op
ed in the wall street journal really lays out why it is that little sisters have agreed to this proposal by the court. she said essentially as long as it is truly separate, as long as the contraceptives only go to employees, it is separate policy, enrollment, communications from our insurance plan, as long as it is separate, then we are ok with it. we agree to the court solution. so i think what you see is the little sisters being very reasonable in responding to the court's order in a reasonable way. but the government is not being as reasonable. the government is saying we are not quite sure about this. we want to do it our way and not change anything. host: why do you think the government is saying that? hannah smith: well i think the , government is saying that because they have invested a lot of resources in litigating this
case for the last five years. and telling the lower courts of appeals, this is the only way we can do this. the way we have set it up through the accommodation is the only way we can achieve our interest. but quite frankly, that is just not true. and the supreme court, through its order, shows it is not true. because the supreme court has come up with another way to accomplish the government schools without impinging on the religious liberty interests of the little sisters. and so, because the supreme court has found this less restrictive alternative, the government has to use it. host: why is a chevron exempted from this mandate while the little sisters of the poor is not? hannah smith: so there are a , variety of groups that have been exempted because they are grandfathered plans, which means they haven't change their insurance plan after 2010. if they are grandfathered in, they are not subject to the
mandate. there is another group of employers who are not subject to the mandate that are also accepted. those employers that have 50 or fewer employees. there is a small business exemption. so between the grandfathered exemption and the small business exemption and then of course the church exemption which was also added, all of those exemptions added up, one in three americans are not subject to this mandate. that means about 100 million americans are not even subject to this mandate. and yet the government insists , on in forcing this mandate against the little sisters of the poor. host: here is a little bit from the case. ul. called zubeck vs. who is zubeck? hannah smith: one of the catholic priests, one of the parties before the d.c. circuit. host: this is for march 23 of this year. here's a little bit of the supreme court argument.
[video clip] >> what's the petitioners do not object to the fact that the people who work with them will have the services provided. they object to having them provided through the mechanism that they have set up. they think whether you or i or , anybody else thinks, they think that that complicity is central. >> i understand that, mr. chief justice. i understand that is their position. let me engage with you on the question of whether that constitutes a substantial burden. we think it doesn't constitute a substantial burden because the way that this accommodation is structured, although you're quite right, it seeks from the perspective of the employee to ensure the employee gets the protection that congress designed, that from the perspective of the employer, that this is provided through a separate program. >> you were saying don't worry, religion, you're not complicit. that is what you are saying. >> no we are saying judgment , about complicity is up to you. but that there is an objective limit that we recognize on what
is a verdict. smith, what did youah hear in that argument? hannah smith: there is an exchange going on, whether or not there is a substantial burden under the religious freedom restoration act. this federal civil rights law sets a standard. it says if a government action imposes a substantial burden on a religious entity, then the government has to prove that it has a compelling interest and that it is furthering that compelling interest in the least restrictive means possible to that religious exercise. so here, they are talking about whether or not this is a substantial burden on these religious organizations. and the government below and in the lower courts have said that the little sisters were fighting invisible dragons. that there was no substantial burden here because it was just finding a piece of paper, just signing a form and that is all , it was. clearly, there was push back on that at the supreme court.
the justices said this is not just signing a piece of paper for them. this is turning over their health insurance plans to the government so that the government can use the infrastructure of their plan to accomplish its ends. that is clearly a substantial burden especially when it is , backed up with the threat of millions of dollars of fines. and here, the little sisters would be fined $70 million if they don't comply with the mandate. clearly, that is a substantial burden. it was a substantial burden in the hobby lobby case when the government argued that it wasn't the substantial burden there to impose these fines. the supreme court said those kinds of fines equal substantial burden. host: 202 is the area code if you want to participate in our conversation with hannah smith. 202-748-8001 for democrats,
(202) 737-0002 for republicans 202-748-8002 for independents. , what does the fact that it is an eight court due to your strategy and chances? hannah smith: we are very sad over the loss of justice scalia. i clicked on the court and worked with him some. worked with justice thomas. i personally miss him being on the court. i think that it has changed the dynamic of this term in significant ways. because the court now finds , itself in a position where it has to find more common ground. if you will. justice kagan was interviewed at new york university earlier this month. and justice kagan said in this interview that was reported in the new york times, she said following the death of justice scalia, the court has been working even harder to find consensus and to find common ground so that we can resolve the 50 some cases on the docket to be resolved before the end of june.
that we can resolve these cases in a way that will find a definitive answer rather than if they leave it at a tie, that affirms the lower court opinion and it is as if it never happened. it it -- it is as if it never went up to the supreme court. it simply says duly the lower courts you can keep your decision in place. if you never came to the supreme court, there is no precedential value in our decision. so it would be really a lot of wasted resources, if you will, for all of these 50 cases to go up to the court and have this type incident actually -- tie instead of actually deciding the cases. for our case, and what this means for the little sisters case is we are quite confident that after the oral argument, when the supreme court issued its order and supplemental briefing, that order said we think we have a solution. parties, would you please tell us if this solution would work?
and the court said this solution will solve this problem. and the government said, we are not sure about that solution. and the little sisters said yes. so we think the solution is a path forward where the court is really committed to finding resolution in this case. and i think it means we are to get some sort of resolution that would resolve the issue. host: first call for hannah smith from bobby in mobile, alabama on the independent line. bobby go ahead. ,caller: good morning i would , like to say first that i appreciate the work you have done. what i believe we are seeing is more strong-armed totalitarian tactics by the obama administration with his man who is at the helm at the time, ezekiel emanuel, so-called dr., declaring strong-armed tactics that these are not a border facing drugs. your very worried contraceptive
mandate from the obama administration is questionable at best. the european medical association has declared these drugs are embryo sidle, the entire american that ecologists have --ided these are fecal embryocidal.d there is a huge disagreement and terminology. the obama administration is totalitarian we making us go. hannah smith: the interesting issue in this case is the government has never challenge d the sincerity of the religious belief of these religious objectors. all along, these religious organizations have said we believe that contraceptives are immoral, or we believe that these certain subsets of contraceptives, emergency
contraceptives, are immoral, iud's, ella, some of the involved in this case. there has always been an objection throughout the litigation that has varied depending upon the religious group that was making the objection. some religious groups have a broader objection to contraceptives generally. some of the religious groups have a objection to a much more narrow subset of emergency contraceptives. but the government has never challenged that sincerely of that religious objection. and so it has never been an , issue in the litigation, whether these religious objections were sincere. it has never been an issue in the litigation how these drugs operate. although the religious objectors , firmly believe that they operate to terminate a life. host: denise is in bonita springs, florida. democrats line, go ahead. caller: hi, good morning.
i think this whole thing about trying to change the health care is ludicrous. i don't have a prostate, and i don't think that -- my insurance company should cut men out because they do. i mean this whole thing is , ridiculous. everybody has the right to health care. and putting religion on it is -- not everybody is catholic. i was raised catholic, but not everybody is catholic. i think this is totally ridiculous. the more you pick and pick and pick, and take these things out, what is going to be left? nothing. what happens to the other people? hannah smith: so you raise a , good point. the point is that little sisters has never said throughout this entire litigation, they have never said it is inappropriate for the government to provide
these services to women. but they have said, you just need to leave us out of it. there are many examples you can look at throughout the state s where, for example in missouri, there is a state contraceptive mandate in an -- and an exemption for pro-religious group. s. what they have done is create a standalone contraceptive only plan that women can sign up for. it solves the problem of religious objectors not providing services on their plans, but the women still get coverage. there are a lot of ways the government could have structured this so that women still get the contraceptive coverage and the religious objectors are out of it. so it has never been the case that the little sisters have said we are going to do everything in our power to prevent women from getting these contraceptives, these jobs and drugs and devices. it has always been the case that they have said government, if you want to provide this, you need to do it on your own terms and not use our plan. host: c-span democrat tweets and
the christians are the totalitarians, wanting to impose their crazy beliefs on everyone else. embryocidal caller shows. guest: obviously, we are trying to impose our beliefs on other people. obviously, what they have said and what mother lorraine said today in her op-ed in the wall street journal is that we just want to be left out of it. and so whatever your beliefs are , on these drugs and devices, everyone can win in a sense because if the government accepts what the court solution is, what they have offered, then all of the religious organizations would have to do is purchase an insurance plan that doesn't have contraceptives in
in it, and then either the insurance company or the government could find a way to provide contraceptives to the employees separate and apart from the little sisters. they are not trying to impose their beliefs on anybody. they are just try to stay true to their believes. there is a win-win situation here that could be found. >> the most difficult yes for me, sister mcguire votes -- rights in the wall street journal, in this process was the one i said initially we decided with the help of the becket fund, religious liberty, asked the courts to intervene on our behalf. the letters -- little sisters of the poor is over 175 years old. until recently, we have lived our lives outside of the spotlight. we don't usually take political stands or attract much attention, but we felt we had no choice and believe if we pursue this case and the right spirit, it could make a difference. vivian tweets and, does the pope allowing birth control for zika virus women change the little sister defense? guest: it is a religious question that has to be resolved by the religious. whatever the religious belief
is, that is part of their belief system. then they can follow those belief systems according to their faith. whatever the pope says about the zika virus and using contraception is entirely separate from this issue because the little sisters are staying true to the catholic doctrine which is that they should not be complicit in sin. if they are providing a health insurance plan that includes these drugs and devices, then they are being complicit in this sin against their faith. i think we have to look at the fact that the little sisters are trying to stay true to what they believe and not be complicit and what they believe to be sin. host: connie and new jersey, democrat line, please go ahead, caller: good morning. i am a person -- to my interpretation of the constitution, it is separate from the state. that means you pray in your
church or whatever and the government is complicit -- completely different. i think the catholic church, the little sisters of the poor, or another religion for that matter, they should pray in the temples. they take money from everybody. many people who are not even religious -- none of the churches, no matter what denomination, they don't pay a penny. i don't think they have a say when you go into a catholic hospital. many people -- they are not catholic, or they don't have the same belief. but they pay the bills. host: but get a response from our guest. guest: you raised a really fundamental theme of american society. that is whether we want religion
to be a robust player in the public square. do we want religious people to be exiled to their homes? their churches, synagogues? do we want them to be exiled and pray in secret and a quiet just as long as they do what they believe outside of public view, then we will accept religion in our society? i think that the was clearly again -- against the history of the country and against what the founding fathers envisioned for american societies. the founding fathers clearly envisioned that this would be a rich, pluralistic religious society where people of all faiths would be able to live out their religious convictions in
the public square and because of the rich clericalism that we have, they would be able to do so free from constraints by the government. i think that is the debate we are having right now, where do we draw the line? where can we draw the line so that the little sisters of the poor can continue to be active in their religious ministry in helping these elderly poor people who would otherwise fall through the cracks and allow them to stay true to their religious convictions while at the same time allow the government to pursue its interest in providing these drugs. i think there is a balance that can be struck. i think the supreme court clearly thinks there is a balance that can be struck. i think we all need to be committed to this idea that america is the land of religious pluralism. that is a good thing. host: wild and wonderful tweets and many of us feel the same way about our taxes being used for a moral wars.
do we get to opt out of paying taxes? guest: it is a little different in this case. in this case, the government has set up a specific program that they have designed this mandate to force the little sisters to use their own insurance plan which is their own property to distribute these drugs and devices. the little sisters have set up an insurance plan. they don't have to set up an insurance plan for their employees. it is their own private plan, and it is the personal property. when they set out to this plan, they get to choose what's on the plan. they get to choose what they cover, what they don't cover, how they distribute it, all sorts of things about their own insurance plan. it is different from paying taxes where we just pay into one big slush fund and the government does what it wants without money. this is a different situation. it is the little sisters own insurance plan. it is their property. they get to choose how it is distributed.
host: andreas, maryland. caller: two things. one, i have to say -- you mentioned a couple of calls ago, the definite -- in your view, it is not just what the government put in place for the government -- the little sisters to follow, but it is that they need to turn over to the government their system. you had a couple points there that -- let me start by saying i work for the federal government. that is not how you would calculate that. that is not how you do it. that is the first issue. the burden issue you mentioned. the second thing is that as a catholic, i feel it is a little misleading to say our leader in the church has given more progressive stances on this
issue and that then, you're forcing everyone else to follow antiquated positions and forcing the government to go through hoops. i think it is wrong. it is not what the church today is trying to promote. host: before we hear from hannah smith, lorraine maguire in her op-ed this morning, the head of the little sisters of the poor talks about the fact that one out of three americans is exempt from this mandate, including military members, companies like chevron are exempt from this mandate. this group of nuns who oppose it have to pay it. have to incorporate it. caller: to my mind, that is wrong not only to the sisters but to everyone.
the reason obamacare proposed this is there was a need for -- to cover these types of medicines. the fact that one third -- it is wrong. everyone should be forced into following the same rules. having said that, i believe the reason most of these -- your guest said it, they are grandfathered in, as soon as a new change comes into the plan, they need to follow up on these new rules. i believe that's what the statute dictates. while it is true that today, it is not everyone, and i believe everyone should be following it, in the long run, i think that number will diminish.
host: let's leave it there and hear from hannah smith, burning -- burden calculations and the catholic church becoming more progressive are two of the issues that you -- that he brought up. guest: there are a lot of issues in your question. i will try to address as many as i can. i think it is really important to note that the government has exempted one out of three americans. that is 100 -- 100 million people are exempt from this mandate. they are resented for reasons of convenience, because these companies simply don't want to change their plan. they don't have to comply with the mandate. the government has not set any deadline by which those grandfathered plans have to be, on grandfathered. there is no provision on the grandfathering provision which means they could stay grandfathered forever. in theory, they could stay grandfathered forever and they would never be subject to this
mandate. all of those employees on those grandfathered plans may or may not be getting contraceptive coverage. the government says to those companies you get to choose. you get to choose whether you want contraceptive coverage on your plans or not. all we are saying is if you let all those other people off the hook, 100 million americans who are not subject to the plan, why don't you let the little sisters off the hook who have a sincere religious objection? you said the reason this past is because there was a clear need for coverage. under the religious freedom restoration act which is a federal civil rights statute that congress passed, it says that if you impose a substantial burden on religious objectors, then you have to show a compelling interest. you have to show that need for this coverage. the fact that the government has not forced to this mandate on so many people, the fact it has
exempted this mandate from 100 million americans, exxon, chevron, pepsi, that just undermines their compelling interest. it basically says you really don't have a strong need as you say you do to provide this coverage because you allow these other people off the hook. it undermines their compelling interest. it undermines their asserted need for this coverage. you also said you thought it was unfair we were forcing the government to go through these hoops. it is not us that is forcing the government through these hoops. it is congress forcing everyone to go through these hoops. congress is the one who pass the religious freedom restoration act. that federal civil rights statute says the government must prove its case. the government must prove it has a compelling interest and is using the least restrictive means. clearly, the court has said you haven't found that less
restrictive means yet. we just found it and told you what it is. we offered it up in this order. clearly, there is an alternative way. if there is an alternative way, the government, you have to use it. host: next call for hannah smith, jerry in dalton, georgia. go ahead, please. >> the lady from new jersey hit -- caller: the lady from new jersey hit on what i wanted to say. she says that the government is putting all of this undue burden on a little sisters and the government is imposing this on a little sisters. let's impose taxes on them. you talked about their property. let's tax them. i think all of these religious groups should be taxed. getting involved in politics, they should be paying taxes. they are putting a burden on all of us by not paying taxes. that was my comment. thank you. guest: our society, long ago, has agreed that there is a
benefit for religious organizations to exist in a tax-exempt way and our culture because they provide so many benefits to our society. the little sisters of the poor are a perfect example of this. they go begging door to door to raise money to fund their ministry. they care for elderly people who otherwise would die on the street area they would have nowhere else to go. all of these religious organizations that provide these critical services like the little sisters of the poor are providing a social safety net for people who otherwise would not be protected. they wouldn't get help. because they do that, they provide a critical service in our society. that is why we recognize them as organizations that are significantly treat -- contributing to society such that they should get a tax exemption. there is a great concurring opinion that justice alito wrote
that justice kagan joined p or justice kagan says these religious organizations are a critical buffer between the government and the individual. they recognize that these religious organizations form a critical layer of services that help people in need. i think it would be -- it would be unfortunate for people to think that the solution here is to make these people pay taxes when in reality, they are providing such crucial services to our society. host: the head of the little sisters of the poor rights at the same time that the government was putting this mandate to cover contraceptives at no cost to the employee, and exempted big corporations like exxon and visa. even the government's own health program for military families, tri-care and its military program for the disabled do not have to provide the services for
free. currently, one in three americans, 100 million americans are exempt. laura tweets in, she may have tuned in late, we discussed this earlier, but to repeat, why would tri-care and chevron or exxon or visa be exempt? guest: they are exempted because either they are grandfather entity which means they didn't change their insurance plan after a certain date and 2010 and therefore -- because they haven't changed the plan, they are not subject to this mandate. one in three americans, 100 million people are not subject to this mandate, either because they are grandfathered or because they fall into the small business exemption, or because they fall under the discretionary regulatory exemption that hhs created which was to exempt all churches and their integrated auxiliaries, but not exempt all of these religious organizations that provide critical services like the little sisters of the poor. host: miguel, thank you for holding and gait his bride.
-- in gaithersburg, maryland. you are on with hannah smith. caller: thank you for taking my call. this idea of insurance for birth control, i don't think that is a good idea. i think insurance, it can be expended -- [indiscernible] it sounds like equal that separate idea. the other thing you are saying, there are many ways to solve the problem. you may think the government is trying to get the little sisters of the poor -- the religious organization -- [indiscernible] i have a question, actually. when someone is exempt, it is my
understanding that religious institutions, the dollars they want to provide for a religious purpose -- why can we not do that? host: let's hear from hannah smith. guest: you start with this theme of separate but equal, but the government already does this. the government already has standalone contraceptive plans under medicaid provided to 3 million women. they can sign up in their doctor's office. the government knows how to set up contraceptive only plans when women can sign up at their doctor's office and 3 million women already use it under medicaid.
it is condescending to say to women that it is so burdensome to do this under a separate system. we have offered that it is as easy as calling the and activating or call this number and activate the plan. that is such a simple step and it is quite condescending to say to women that it is such a burden to take that extra step. it is disingenuous for the government to say it is burdensome for women to set up a separate plan when all along they been saying to the old -- the little sisters of the poor, it is just a form. it is a bit hypocritical come in my view. host: margaret in florida. independent line. caller: good morning. i'm so happy to see you on this morning. i'm very sad to hear the amount
of vitriol that comes in through the computer, the crazy christians, as usual. the lack of outrage from the general public against the government going after the little sisters -- i am a catholic and i would entertain an argument about tax exemption. it is a big issue for a lot of nonreligious people and i think that is not argument. on the flipside, what is interesting to me is no one has called in with any outrage -- grandfathered -- therefore there ornothing nefarious here -- big corporations and this administration are in bed together. the fact that they are going after this group, that is what is fascinating to me. there is a solution. i have not heard anybody call in with any kind of outrage.
and then we hear about we are crazy or the questions -- this is the fundamental right in america. what is very scary to me is people do not understand what is at stake. our pope -- whether our pope mentioned the danger for all the people who have no understanding of catholicism other than what they hear on tv, our pope is not progressive, he has said nothing different than the pope said before him. guest: thank you for that comment. the pope came to america, he visited with the little sisters of the poor and he did so as a sign of support for what they are doing. clearly, the pope thinks the little sister's case is valid under catholic doctrine.
there is a poll that came out recently within the last month, the numbers show that 53-32, 50 -- 53% of those polled felt the government accommodation here was unfair. what the government is try to do here is fundamentally unfair to the little sisters. as we talk more and more about this case and the public begins to understand what is at stake, real americans understand the government is try to shove just down the throats of the little sisters and that is unfair. host: ann, in new york city. democrat. caller: you mentioned elena kagan saying that the supreme court was going to try not to have deadlocked cases. instead of telling mitch mcconnell to do his job, someone on the supreme court would
compromise their opinions in order to not have a deadlocked case -- this is very wrong for the american people. guest: we are very hopeful the supreme court is going to find a solution in this case. the order they issued suggests they have a solution in mind. the little sister said yes to that solution. the government is still not sure. we are very hopeful the supreme court is going to find a resolution to this case that will satisfy both the religious interests of the little sisters and the government interests in providing these drugs and devices to american women. host: stephen tweets in -- guest: there's a lot of comparisons to conscious objection. a great way to respond to that -- an oral argument at the supreme court saying people want
to be a conscientious objector but the government wants us to be a conscientious collaborator. that is simply wrong. we cannot be a conscientious collaborator with the government in providing these drugs and devices because clearly, they are against our religious beliefs. when there are issues like this that are fundamentally a matter of conscience, if there is a substantial burden, the government has to prove its case that it has a compelling interest in this -- the supreme court order shows the court has found a way that is less restrictive to accomplish these goals. so, the government has to use that. host: hannah smith, what is the next step in this case? guest: we have filed all of our supplemental briefs now. we will wait for the court to
look froma live london and british prime minister david cameron and barack obama are holding a joint news conference. to the associated press, they would do, the multinational campaign against the islamic state. syria, libya, the global economy, russia's stance toward the ukraine and other issues. we saw the president and the prime minister and adding number 10 downing -- exiting number 10 downing street a few moments ago. we expect the news conference to get started shortly.
we're live in london, waiting for a news conference to get underway with president obama and -- -- and british prime minister david cameron following bilateral talks in london today. the associated press writing about the president's trip to the u.k., bearing a gift birthday greetings. president barack obama celebrated queen elizabeth the second over lunch at windsor castle, going and extra mile for a monarchy he has expressed over histtention to term. the two are also slated to dine with the queen's grandsons later in the day. britain's oldest and longest-serving monarch, who celebrated her 90th birthday a
day or, put a scarf over her head, and came out in a light, drizzling rain to greet the president as the helicopter landed on a lush, green lawn outside of the castle. here in london, a joint news conference with the president and british prime minister david cameron should get underway shortly. live coverage on c-span.