tv Supreme Court Attorneys and Reporters Review 2016-2017 Term CSPAN July 6, 2017 11:02am-1:05pm EDT
crowd. that is what the word is. president duda thank you for and myself.lania together, we can make the partnership between our 2 nations stronger than ever before. special people, special place, it is an honor to be here. to theake you live heritage foundation in washington. supreme court scholars will be talking about cases decided this year. live coverage here on c-span. heritage.org throughout today's programming. the initial panel will be led by john malcolm. he also serves as vice president for our institute for a constitutional government. following the first panel the
second group will be led by elizabeth flanery, legal fellow and program manager. johnme in welcoming malcolm. [applause] everyone to our annual scholars and scribes event. it was a good year to be a patent lawyer at the supreme court. it is not exactly the biggest blockbuster, but there were a few cases of interest and a few that are decided to hear the next term that are of interest. i'm delighted we have a distinguished panel. a few preliminary thoughts for next year. it graduated the george mason school of law.
circuit. before starting his own firm, kyle was louisiana's general counsel for religious liberty and nationally recognized public interest law firm. ,o the left is joseph palmore the cochair of the practice whop from morrison foerster got his undergraduate degree from harvard and master's degree from the university of virginia. he worked with judge gleeson in the eastern district of new york. judge jacobson on the second circuit and for justice ginsburg on the supreme court. he's served as deputy general counsel for the federal communications commission for three years and five years as assistant solicitor general at the department of justice. he has argued 10 cases before the u.s. supreme court and is the primary author of 150 cases before the supreme court.
let's jump right in. redistrictingcant cases. why don't you tell us a little bit about those cases. the supreme court heard two major redistricting cases. i will not get into the weeds, mostly to keep you from falling asleep and me from messing up. theoth cases, it was intersection between traditional principles. perspective of the state, they have a variety of objectives. lines, political issues which we will talk about later, and the state must consider race because of section 2 of the voting rights acts
requires the state to ensure minority representation. in the mid-1990's, the supreme court explained to states that if you use race to much it becomes a dominant factor in come you violate the equal protection clause. what is going on is the states feel, and i think with good reason, they are caught in between. if they use race to little, they have a potential section 2 violation. too much, and equal protection violation. these cases are both about drawing that line. north carolina and virginia argued among other things that they used race appropriately. in both cases, democrats challenged them for using race to much. they did not want the state to drought minority districts that have minority populations over 50%. they wanted the lines close to 50% and have voters spread out
so they could influence other districts. divided because of differences in reasoning, i want to emphasize these cases broadly stand for the proposition. unanimously in both cases the court will be skeptical of the use of race. the democrats prevailed in both on theithout a dissent basic proposition. the headline coming out of these cases is that democrats won challenges that were arguing that republicans use race to minority districts. the untold story of these cases, and what i want to emphasize, is justices is a win for thomas. if you go back to a lesser extent, justice kennedy. cases from the mid-90's when the supreme court said you use race to much. justiceginsburg,
stevens dissented, groups like proposedrs committee the creation of this line of cases. the argument is making a really strong minority district with well over 50% of the people being minorities was what the congressional black caucus wanted. they wanted to save seats for minority representatives, and any argument using race to much violated the equal protection citizens should not be made a constitutional right. they have come full circle. the majorities were made in the north carolina case, justice thomas provided the decisive vote. it is important to keep in mind how radically transformed the tenor of this debate is. lastly, what makes it interesting is what the next round of litigation will be. this round was about republicans using race to much.
the next will likely be about using section 2 itself is subject to scrutiny him and if it will violate the equal protection clause. we will see if the majority in these cases that were critical of the use of race will be equally critical when it challenges section 2. touch on at to related matter in respect to next term. the court agreed to hear another redistricting case of a different variety, gerrymandering out of wisconsin. i wondered if you could talk about that. >> it is one of the more interesting cases. the next term has interesting cases, even if this one didn't. it is fascinating. has struggledurt with this issue. at one point there was probably
a bare minority to say gerrymandering is unconstitutional. it is only a prediction as to what others will hold on that. what the court has struggled with, particularly justice kennedy, is finding a manageable standard. the trial court in wisconsin thinks they have found that standard. direct appeal. i do not think it is a huge surprise the supreme court took it. i will be in the minority. i think it will more fizzle. thecourt granted a stay of lower court decision, five-four, a preliminary decision that justice kennedy may not be optimistic he can find the manageable standard he has been looking for. i think there are technical legal issues on if you can challenge these things on a state-wade basis before you get the big ticket question. i do not know they are going to
be able to get there. i would give this lesser billing. hethe north carolina case, went out of his way to talk favorably about political gerrymandering. social good, but something that has been around and recognized as a legitimate practice p or justice kennedy joined that opinion. i don't think that tells you that much, but those that think this will be the case that will recognize a durable claim against political gerrymandering, i am not there yet. think the 4 justices that have opposed it will. there is some reason to think that. he has gone out of his way at other times to say if you could find a durable standard he would claim.
in the past the claims have come up when a minority of the voters in the state have gerrymandering so they maintain control. i don't think that is true in wisconsin. i majority republican theirentrenching political party is not the same thing going on in the past. john: do you have anything to add? mr. duncan: one of the redistricting cases, justice thomas joined with the 4 liberals here to there used to seeing kennedy sometimes as being a swing voter here justice thomas on occasion does surprise. last case was when he joined with the liberals to reject a first amendment challenge to the state of texas limitation on what groups could sponsor license plates. that is a good observation that justice thomas is playing the long game. john: the court decided recently
.ignificant church-state cases the trinity lutheran church case. mr. duncan: thanks for having me on this panel. andtrinity lutheran case that health care network case are important religious liberty that, though they get religious liberty in different ways. trinity lutheran being a free exercise case. doctrinally important, china to lutheran, i will spend more time on that though the advocate health care has practical significance for health pension plans. is a term thatn did not have blockbuster cases, it is an important case in the
free exercise clause. it is an issue that has been simmering for many years. the issue is if a state policy of denying grants because of religious affiliation of an official grantee violates free exercise clause in the first amendment. missouri has a program called the missouri scrap tire program that offers reimbursement grants to schools, day care centers, and the like. when they purchase services made from -- surfaces made from recycled tires. case is aon in this day care center affiliated with the lutheran church that has pea gravel on the playground. peaf justice roberts says
gravel can be "unforgiving." kids fall down, get hurt, scream and cry. the purpose of this program is to prevent that from happening. it is a health and safety program and an environmental program. the petitioner in this case is a church that runs a preschool day care center that applied for a grant in the program. it seems clear from the opinion the church would have received a grant. it was ranked high among the applicants. theas denied because of misery interpretation of a provision in its constitution, article one section seven prohibits the granting of funds organization or owned or controlled by a church, sect, or religious entity.
this provision may the among many amendments known as blaine amendments, which were largely anti-catholic amendments that came up in the late 19th century. when missouri applied this , thesion to deny the grant grantee's ability to get the by the freeit exercise clause. the court said by 7-2 it exerciseate the free clause by putting a disability on grant recipients solely due to the religious status. the religious status is the keystone of the court's opinion. the vote was 7-2. the opinion that chief justice roberts wrote is the opinion of the court with the exception of a notable footnote, footnote
three, that only four justices gorsuch andjustice justice thomas. they have separate concurring opinions, which each joined the others' concurrence. very briefly, what is the reasoning? it is important. the theme of the case is that apparent agreement across seven justices masked the important potential disagreement for future cases about how free exercise clause will apply to other public and if it'-- benefits. base reasoning is when a law targets religious persons or organizations for special abilities based on religious status strict scrutiny applies.
for those of you familiar with the free exercise rubric, they are not generally applicable under the smith v. employment division case. they are targeted disabilities on religious status such as the santeria case. the missouri policy expressly discriminated against applicants based on their religious character and was therefore subject to scrutiny which the law failed here the court made short work of the strict scrutiny analysis saying that missouri's desire to have a greater church-state separation is not a compelling interest, particularly when it runs afoul of the free exercise clause. a couple of other notable things, missouri argued it is not a burden on religious exercise. it is the denial of a subsidy.
you can see this has some plausibility. churchi did not tell the how to believe, how to worship, not even telling the church that it cannot have a playground or a care center. it is only saying we will not subsidize the replacing of the playground surface. the court made short work of that and said the right we are talking about is not the right to a public subsidy. it is a right to participate in a public and if it program 'sthout disavowing one religious character. footnote three, missouri relied heavily on a previous decision in 2003 or 2004, which was a case in which the court upheld a free policy of denying scholarship funds based on
whether one wanted to use the scholarship funds to prepare for the ministry. the court read it very narrowly is not about the status of the grant recipient, but instead about the particular use the grant recipient wanted to make of the public funds. that was to use them to prepare for the ministry, which the court -- they are unique establishment clause problems on spending money for the ministry. there is a full disclosure filed urging the court to do just that , and others did as well. locke v. narrowed davey. , and i willee says read it to you, it is interesting, this case involves
express discrimination based on religious entity with respect to playground resurfacing. we do not address religious uses of funding or other forms of discrimination. this is an obvious attempt to cap and the reach of the opinion and leave certain things off the table for future decisions. you can read that justices thomas and gorsuch will have none of this year they do not think this is a principled way of limiting the reach of the case. the four justices that joined it are not telegraphing their view on how the rule would apply to say school vouchers, which will come up soon in the future, but saying we don't want to address that now. very interesting. i will go quickly. on the surface of statutory
,nterpretation case, orissa please forgive me in advance for orissa,g over this, but a comprehensive set of requirements for pension plans has an exemption for church plans. originally, the exemption was for pension plans established and maintained by the church. because of controversy over how that applied to a pension plan supplied by an order of catholic nuns, they amended the plan in "maintained a plan by an organization" whose principal purpose is to maintain plans. the important part is these are not churches, but church-affiliated organizations. 1980, they started enforcing the orissa exemption
have read it the same way, to say that if a plan is both atablished and maintained by nonchurch principal purpose organization that is ok. you still qualify for the church to exemption. that is the uniform interpretation of the department --b labor and thegc department of labor and the b pbc. they all read this in the same way. hundreds of rulings read that it was ok if the plan was not established by the church provided it was established by a nonchurch entity that it is maintained by this organization. reached the opposite
conclusion on what the church exemption meant and said the plan has to be established by a church. this had significant ramifications for many plans. the supreme court ruled unanimously that the agencies had been correct, that the amendment to the church plan should be read exactly how it is plan thatnd a church is established and maintained by nonchurch qualifying organization does qualify for the exemption. this is a significant case in terms of its potential impact of the opposite rule, the opposite rule would have had a bad impact onmany people's views, pension plans established and maintained by church-affiliated nonchurch organizations.
though it sounds very dry -- this is an opinion written by justice kagan. justice capen is a ve -- justice kagan is an engaging writer. she made this interesting to read. textticks closely to the of the amendment. ly, it comes down to the meaning of one word "include." what does include mean when it says we have a church plan here, but it includes this other thing? i found it an engaging and entertaining read. where is that religious liberty aspect of this case? it is under the surface. amendment tohe orissa was enacted by congress
to avoid a couple of religious liberty problems caused by the original definition, to make a long story very short. we did not want agencies .etermining what a church was for example, we did not want an agency determining a religious order of nuns running a pension plan was not actually a church, and we didn't want an agency determining that a religious order of nuns running a hospital was a religious function. it would create baton of m -- it would create autonomy problems and discrimination. when you have certain churches that are not like the catholic church and want pension plans run by church-affiliated but not hierarchical church
affiliations. the court alludes to those in its discussion of legislative history. that is underlying the surface of this case. on the last day, there is another religious liberty case. couldwondering if you take a moment to offer preliminary views on that. a very significant case. very significant that the court granted. the organization represents the petitioner in this case and in uther, they should be congratulated. two very serious issues under free speech and free exercise clause. artist."es a "cake
summative designed elaborate -- someone who designs elaborate cakes for occasions. i was revealing the petition. example,ot design, for halloween cakes or cakes with alcohol. relevant to this case, he declined to design a cake for a same-sex wedding. he maintained he does not discriminate against gay and lesbians patrons. he does not refuse to bake cakes for them. he draws the line in designing a cake to celebrate a same-sex wedding. he was ordered by the human rights commission to design same-sex wedding cakes and do
other things. the lower courts rejected his defenses under the free speech clause and the free exercise clause. the supreme court granted the whether to decide application of the colorado antidiscrimination provision clause.s the argument it locates important lines of authority under free exercise. depending on how that court resolves the case, it could be an important case under speech doctrine. >> anything you want to add? >> i think it is below the surface in the decisions, but bryere --rior --
was important. it is an indicator of the intensity of the disagreement. rightk they got it personally, but when justice join and justice breyer the opinion, even when he met -- and in the church plan case, an the argument, he dominated argument. he went after the challengers' counselor. i think it will be a disaster for religious orders and had an impact. in an eight-justice court, justice breyer will have an
outsized role. >> the court decided an important property case. >> thanks for having me here. murr v. wisconsin is a property rights case. it breaks the property rights owners and property rights advocates -- in the supreme court in recent terms. along the st.nd croix river in wisconsin. murr family has long owned f, and theyts e and had a house on lot e. they decided they wanted to move that house and that would require an expenditure of money. f to wanted to sell lot
finance it. they could not do that because of environmental regulations the state of wisconsin had imposed. a said one could not build or sell an individual lot, did not more than ant acre. it had grandfathered in smaller lots it owned at the time the relations were doctored in 1976, but there was the exception for adjacent lots that were under common ownership. they said they would look at those as one combined lot. was the murrs' problem. the state of wisconsin treated them as a single lot and said you could not sell one of them. you could sell them both together, but you cannot sell them separately. they filed a takings claim which
lost in the lower court. most in this audience will know that the takings clause prevents the taking of property without just compensation, and there are kinds.ferent one where the government just takes your property, and gives you compensation. the only case i ever litigated that was the subject of "the daily show." look at up. this case is different. wisconsin was not occupying the what was called a regulatory taking, when the government goes too far in limiting someone's ability to alienate or use his or her property that can functionally -- of the property. that was the claim, and it was
the takings claim. analyticion, the key threshold question that was what itscourt -- rendered review, and it became the denominator question. what is the relevant unit of property for considering the takings claim? what wisconsin said was the relevant unit of property is the two lots combined. it is not much of a taking if you look at it that way. you can sell them, build a house on them, there were appraisals in the record showing the value of the combined lot was only slightly less than the value would be if a few lots were sold separately. what the murrs said is the property denominator is lot f, the lot we want to sell, and you have prohibited us from selling a lot, from building and house on that lot, so it is us as aally unusable to separate piece of property, and that is the denominator.
that is the question that came up to the court. it is the technical analytical question at the threshold of the takings inquiry, but the court recognized the outcomes in that case -- and what to the court do? the court ruled for the state of opinion. in a 5-3 this is a breakdown of justice kennedy going within four liberals. justice gorsuch did not persist the paint, and his vote would -- did not participate, and his vote would not have mattered. appliedt had never bright line rules in this case, it was an ad hoc we know what we see when we see it inquiry. what the court's main move was importing that overall ad hoc
test into this denominator question. so it reject it the argument by the murrs for deciding what that relative -- relevant unit of the was, and- plot line then once you assess that, you go on to whether the regulation goes too far. justice kennedy writing rejects that approach, saying, no, we are going to apply a multi factor ad hoc the nominative .uestion to that as well he said we will look at the treatment of the land under state and local law, the characteristics of the land, and the value of the regulated land, and he applies that and says basically here we are going to look at these two lots together as a combined entity. he having made that move, said there was no take. interestingly, the chief justice in dissent said the bottom-line
conclusion of the majority does not trouble me. the majority presents a fair case that the murrs can make good use of the lots. but he rejected the majority's way of getting there. the chief dissenters said that analytical move that the majority had made in terms of adopting and ad hoc -- was that the property would be taken, was determinative that would have bad consequences in a lot of cases and lead to uncertainty down the road. said westice roberts should just look to the lot lines that are recently identifiable, and it may be he would find that there was not a that as the relative use, but he thought that was
important to lay out as a marker. what explain justice kennedy's justices, there is a property rights impulse and he has been with other conservatives in the takings case, what he is a believer in federalism, and sometimes it takes cases like this one that are painted at least as putting federal courts over zoning decisions, and maybe that is something he did not want -- >> either of you want to comment on that? >> let's talk about the -- interesting facts. have been a blockbuster case. we will talk about that in some ways it is and it is not. are a rock 'n roll band, and they want to register their name as a trademark. federal law precludes the patent
and trademark office from registering any trademark that is "disparaging." disparagement provision. they found this name was disparaging to people of asian descent, refused to register it. understood that and their position was we are try to reverse the meaning of this, trying to make a positive role forel for asian dissents -- people of asian descent. the federal circuit held that the disparagement clause violated the first amendment. the supreme court affirmed 8-0. here's the holding of the case. each may not be banned on the ground that it oppresses an idea that offense. why that is under the first amendment precisely i cannot get
them to agree on. why that is so is left for future cases. here's what happened. four justices in an opinion , anden by justice alito, justice kennedy went a different way, and i will explain the way they went and why it is an interesting split. what did justice alito say? he walked through the case. the government had made a series of arguments as to why the different kinds of perceptions under the first amendment the statute was ok. the idea was that the trademark registration -- all justices agreed that -- was it a subsidy? was it a hybrid government
program, a little bit of subsidy, but basically ours, not theirs. justice alito said, is it a limited public forum? you can discriminate because of the limited free speech -- justice alito said he did not know. he said is a commercial speech. he said we did not have decide that because if it is commercial speech, the arguments do not meet -- four ring narrowly brought. block by block, every argument taken on. it would have been an interesting majority opinion in it with have narrowed subsidy law in important ways, but what it never does is anchor the opinion explicitly to viewpoint determination. are opinions that -- that
in the limited public forum asked back it, but there's a a hesitancy.essive if you point to discrimination, we do not care what your it losesabout it is, every argument. not so for justice kennedy and the justices who joined him. justice kennedy said, this is discrimination. a -- a veryis broad, defensible view of what constitutes you point dissemination and says, i do not need to reach any of these arguments. this is a silver bullet that
ends the case. it would have been nice to have a ninth -- nice justice. -- a ninth justice. i'm having a hard time figuring out which is the broader opinion and which is the never opinion. it is broader. it has a broad viewpoint of discrimination that destroys every counterargument of the government, it does not get into the intricacies of the kinds of different first amendment arguments that can have affect in other areas of the law. the justice alito opinion is more hesitant on viewpoint, but would have shaped subsidy law and reshaped it in a dramatic way, emphasizing that cash payments are what matter for subsidy cases in these kinds of and these kinds of programs do not fit in the box so upward for another day, on --ch the reality
>> dan snyder does not care. >> either of you have anything you want to add? >> if you think of what are the hallmarks of the roberts court in terms of all nine justices, there are a few things. texts -- secretary statutory cases. in criminal cases they are ofptical of broad claims criminal laws advanced by the united states. they are receptive to first amendment claims. -- time always flies when you're sitting up here, and i want to make sure we have time for questions. ve short shrift to the other cases. do you have any views about the travel ban case? >> it is a difficult case because there are so many moving
case -- pieces. the parts i have been focusing on in a technical lawyer way are not the ones that have gotten so much attention, which is how can the president's campaign statements be treated to motivation to enact the ban. whether -- the case will be decided or there will be a mootness issue that the courts ask the parties to address. for the suspension of immigration from these countries as articulated in the executive order was to enable a review of security procedures and defending. that review is under way and will be completed before oral argument is held. there is a question about whether the case will percent a live controversy. at that time -- another issue that is very important from a government litigation perspective is whether the district courts
have issued nationwide injections. this is a government institutional litigation issue that is not a partisan issue. the same thing happened during the obama administration where texas and other states challenge the president's immigration judge toand got a issue a nationwide injection. here the shoe was on the other foot, and you had courts in hawaii and maryland issuing nationwide injections despite the fact that there were a handful of plaintiffs. the government has teed up that third issue, and that is a recurring issue that is an important one for the supreme court to resolve in a case like this. and the third question, whether this could go to the court in the next few weeks or days, because there is now a dispute between the parties about the scope of the injunction as narrowed by the u.s. supreme
court. the policies of the order could go into effect with respect to aliens who had no connections to the united states, but could not go into effect with those with a bona fide connection to the united states. the parties are in hawaii in the district court fighting about what counts as a bona fide objection. the government said we think you should stop our view, but if you do not, we want you to stay your ruling so we can go back up to the supreme court to get clarification. there could be emergency state litigation in the supreme court in the matter of a few days. >> you guys have anything you want to add? is a lot going on here for the lawyers beyond issue that dominated the public attention. mootness is a real concern. one thing i would say, if you look at this past term come and
this is true for the long view, the supreme court is concerned about what this looks like in future cases. can we create a durable rule that will not devour the law? much more so than appellate panels are. appellate panels to a good job on their cases, but they are focused on their case. we did aion that -- brief on that half of the united states that was focusing on these 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 forward on this controversy with this president? some of the votes, the justices will think about that, the matter how they end up ruling, and it is smart -- it is barely smart to guess or hazard a guess. going back to college papers and
explain to what the court's opinions mean. this requires a knowledge of the court and its cases. we are fortunate to have jess adam liptak, and kevin daley. jess bravin is with "the wall street journal." he is the author of an award-winning book. jess works for other publications. je isss a graduate of harvard college and the university of california law school. kevin daley covers the supreme court and other matters related to the judiciary. he taught high school theology and work for the federalist society. he studied political science and catholic studies. began covering the
court in 2008 and has written a column on developers in the law since 2007. "the the new york times" and practiced at one of the nation's premier law firms. his work has appeared in "the new yorker" and a number of leading law review journals. jess i want to start with you. chief justice roberts included a footnote in his trinity lutheran decision explaining the decision to not address religious uses of funding aside from the playground grants program at issue. you wrote that footnote three expose divisions of the religious clauses because others
were not join. what do you think was going on and do you foresee a showdown between these visions of the clauses? you saw that footnote seeming to be the glue that held the majority together in the case. for the thomas opinion, but not for the sotomayor opinion. can see it.e you that is not the kind of foot note that would arise in the initial draft of the opinion. it seemed to be something inserted to make clear that this was a case going so far, but no further. i think it is different in character from some of the other cases that are sometimes lined up with it, like the voucher
portrayedcause it was by many members of the court, kagan akinreyer and to excluding religious schools or church-sponsored schools from general social services like police and fire protection or having a sewer hookup for this kind of thing. that was the framework they look basically a content-free framework, a citizen like any other citizen, an institution like any other institution that is entitled to basic services eyecup line for a grant for completely secular purpose. i do not know how relevant it was to the decision, at the school said it was clear that the school did not discriminate among the students it took, to andhave a religious test, the playground also was open to the public when not used by the school. i do not know if those factors
play into it, but it seemed from the left side of the course, at least the two justices who joined the majority, they saw this as very different from the kinds of greater engagement between the public and religious spheres that some of the people who were aggressively promoting the case might have hoped to see. >> you mentioned the school outer -- voucher case. the court remanded a number of school voucher cases. what do you think in light of the case, what do you think will happen to those, and you see them coming back to the court in the next few terms? >> you never want to read too much into a gvr. the standard is there is a reasonable outcome it will alter the outcome below. when you send that case back to a lower court, the lower court began and where they
will find a way to reaffirm their earlier decision. that means those cases may come back to the court fairly soon. ?s. slattery: other thoughts this time the court ruled in favor of trademarks of ethnic a couple terms ago it ruled against having the confederate flag on specialty license plates. how would use some up robert ourt's free speech jurisprudence so far? >> generally in these cases by lopsided majorities in the campaign setting, bison majorities, but on the whole, a verypro-speech court, but confusing. they very often end up in the same place, but cannot tell what the rationale is written the confederate license plate case,
, justice thomas street the, struck me as unconvincing. the id that was government speech, and i suppose the texas specialty license plate program, where there were objections to the specialty license plate showing the battle flag, was too much for people to stomach. is it possibly government speech? i do not know. it were 300 of them, and some said i would rather be golfing. it is hard to know that that is the official position of texas. [laughter] there are a couple of other exceptions that come to were said toaws survive strict first amendment scrutiny. those are the outliers. in general the court is interested and very pro-speech, but not surely -- exactly why.
you read a case where it had a broad proposition, that all content-based sessions were subject to scrutiny, and it is hard that the court would believe that. that would do away with securities laws. this is a court that knows what wants to go but is in search of a theory. >> justice alito has made the point that court speech just prudence is confusing. his view is that the court has been robust about protecting speech at peripheries, protecting the right to disseminate videos that abuse animals, but with some of these more core speech areas like moreign finance, explicitly political in character, so his view is the court is robust about protecting things at the edges, the more confused when he gets into these core speech areas, and i think that is probably right. on that point, it is
the liberals who are not so keen on protecting abortion clinic finance or striking relations, because they say it is not speech. we are talking about contact. justice stevens said -- was financed with campaign funds. they do not accept the premise is his speech. that may well be an important issue in first amendment law, what is and was not speech. it seems they take the view that speech, these doctrines that apply to speech are being expanded to also cover forms of conduct that go beyond that and have the influence the on -- beyond persuasion. to neiltery: let's turn gorsuch. you rip the addition of this justice might have shifted the balance of power away from the ism ofnstitutional tory justice thomas's original is injured can you elaborate on
this -- original is some -- originalism. >> cases and amenable role for him and his court and his court in public life. he is willing to accept new developments. burkianhese characteristics. justice gorsuch does not seem to be of that persuasion, and that could affect the scope of majorities in a number of ways. in the first place, in cases where the court fractures 5-4, i think gorsuch could impair the chief's ability to command a majority come if we assume justices thomas, alito, and gorsuch are taking a more maximalist position. the chief will have the challenge of finding some way to a comment more strident colleagues that will affect both
the substance of opinions and the opinion assignments itself. there are specific areas of law where good search -- gorsuch could play a deciding role. qualified immunity is one such area. justice thomas said he believes qualified immunity jurisprudence is divorced from its historical analogues. gone sogorsuch has not far in his writings, but one of his few dissents concerned and application of qualified immunity. this was his famous burping dissent, where he broke with his colleagues who awarded all five community to a police officer who had arrested a seventh grade student for disrupting his gym class while burping. we know that justice gorsuch is careful in his grandson of
qualified immunity and his views are more expensive than justice a sea and could affect change in this area. in theuld happen forfeiture area as well. in pending cases, i would point -- carpenter v. u .s. since these have been drawn out by others. i would say there was a case of his on the 10th circuit in which he made remarks about the third-party doctrine, and i mention this because people have suggested this case might afford the opportunity to revisit third-party doctrine, and there are some justices of express interest in doing so. have put distance between himself and the third-party doctrine and he emphasizes the courts have not
determined how the third-party doctrine might be applied in these novel technological contexts. given that it seems he is a good possibility for a fifth vote bloc.he liberal he could also weaken the conservative majority come if he continues to write. it is the possibility we will see a lot of 5-4 results and then fractured as to the rationale, and that could diminish that those rulings in the lower courts -- i think he is working hard to make up for that. about thethe point and with soment,
fifth amendment contexts, that was an area where justice scalia diverted from standard law and order type of theorizing, and giving the police the benefit of the doubt. sheice ginsburg said thought he was the strongest on the fourth amendment issues on the court. that will be an early test for where gorsuch comes out on that. started initially being close to scalia on those issues, but toward the ends of his life, justice scalia claimed thomas was getting wobbly on those, and there was an evolution where he goes from being in strict alignment with scalia to distancing himself, to just being on the other side and siding with the state against the defendant. be moregorsuch turns to like scalia or thomas is now will be one of the most interesting things to watch. mr. liptak: i underscore one point, which is on the right
there is a much larger ideological spread and a much different interpretive philosophy and much more disagreement even when the result is the same desired result. on the left, the ideological space is narrow, and there is a kind of discipline where in many cases the justices speak with one voice. on the right, historically, now i see quite likely with gorsuch as all, many separate opinions and more of an effort to find a unified theory. that was true when they were in the majority but also in dissent. all disagreeing and why the majority was wrong. onu have a confident justice the right -- mr. liptak: and a majority where none of them loved the kennedy opinion, but none saw the benefit themselves to writing separately. portugal are goals
for the law. if the roles were reversed, you might see different opinions by the conservatives and one dissent by the left. ms. slattery: adam you wrote new justices take years to find their footing, but justice gorsuch hasstice already made him smart. mr. liptak: on the one hand his voting was quite conservative them and we so many examples of this including in spots where he did not have to raise his hand like campaign finance. the people on the right who wanted a conservative justice are happel -- happy and the people on the left are unhappy. that is unsurprising to me. brought a brash quality to the court which is not typical of a new justice. many justices say it takes them years to find their feet. tookr, thomas said it
three years, five years before they felt confident. or of brandeis that even an intellectual giant like brandeis took four or five years to come to grips with the problems. there was none of that with gorsuch. gorsuch dove in, rick vividly wrote about the role of the supreme court in a way that might be surprising for someone who has been there for a month and a half, and i do not know whether as a matter of strategy or interpersonal relationship, you would want to move that fast. thoughts?ry: other thebravin: in terms of candidate he was going to be, that is rick insistence. i remember one saying when asked if gorsuch was going to be someone he envisioned bringing together a new majority or a building of coalitions or being
a go it alone guy, he said that was important to him an important to the president to have someone who was strong, courageous, who was willing to stand alone. that. he is willing to do i do not know the other a justices would have had some of the rhetorical flourishes that he added about the role of the court and all the tremendous implications of his maiden opinion. jess, you summed up this court as one of caution and that the justices moved in a moderate manner. do you think this consensus is attributed to the fact they were down a justice for most of the term, or do you think this is a -- of thevin: it comes out unexpected situation the court was in when justice scalia died
and that they had to group their way to a new way of doing business. you have had several justices that have commented publicly about this. justices kagan and alito leader an said the new dynamic of eight-member court, one with a fairly predictable division, required them to move in a more cautious way and more careful ways. we saw that could draw more votes to find a majority. there were two cases that were set for re-argument and no 4-4 splits, and that shows the extent that this is a government institution that has work to do and products to deliver, they managed to adjust. i think that whether it continues that way in the future gorsuch,w that justice thomas, and alito are not fully committed to that -- to consensus being the number one
priority of their jurisprudence. that is not what they came there to do. regarding the chief justice and justice kennedy, i assume they of the little bit of turmoil that we occasionally here going on in other branches going on in other branches of government, and this institution continues its solid, itical,ng to be apolot even as the gloves come off in the political branch. that will behind the mind of the chief justice and also to justice kennedy who saw his own court go through an unstable time and now seeing this kind of theual situation with president and the congress. if that motivates those two center-right judges to maybe seek more common ground with the
dividedthat this country maintain some level of confidence in the court, they may see that as a priority. know -- with things better, they matter and court will move where the majority takes it. ms. slattery: any thoughts? mr. daley: i wonder if the chief to not -- in remarks he made a conference in pennsylvania. he reiterated this view that he wants to avoid justices writing on their own as much as possible, that he prefer they not see themselves as separate but as members of a court and that the court should speak with one voice. >> his voice. mr. daley: i wondered if that remark was not in some way directed to justice gorsuch. mr. liptak: i read it the same way. i thought it was possible that justice gorsuch has already
gotten under the chief justice's skin. ms. slattery: kevin, i would like to get your thoughts on the masterpiece cake case. is not restricted to the four walls of a church. do you think the justices will view the cake shop case in this way where the store owner is arguing that the state is forcing him to choose between his religious beliefs and operating the business? mr. daley: if you look at the q.p. of the owner, he and his lawyers are framing this as an issue of coerced speech, and if you look at the question presented on the petition from the other side, they view this as a public accommodations issue. frames isat the court going to drive the outcome of the case, and looking back at previous cases, that you
mentioned in passing, i can see the hobby lobby playing a role here. i think justice alito in the opinion expresses his concern for protecting small businesses or closely-held corporate deskies in these urges us in these religious liberties area, and a small bag. -- and a small bakery was what he had in mind when writing these things. i note in that case that justice kagan and justice breyer declined to join the dissent that argued that corporate entities could not bring claims at all. so we had to members of the liberal bloc who have declined to say that one forfeits their religious liberating when they are operating in a commercial context. it is difficult to imagine those two joining the majority in the case. mr. liptak: hobby lobby was a statutory case, and the
constitutional claim here operates under a weaker standard of exercise. to thet unsympathetic speech claims, but i wonder about this hypothetical. since thator region for religious reasons i object marriage.cial i can see the baker here wins, but i'm not sure it is. mr. daley: that if vince is the wisdom of justice gorsuch's concurrence last year in the trinity case that draws the distinct joint status and use, and he says if a person prays before dinner so it is a matter -- a religious matter. is this like core religious practice? that line is untenable, and the point he raises undermines the
virtue of gorsuch's view. mr. bravin: they will be a great case for us to watch to see how does argued and how comes out. except, thereer are cases like that, the bob jones university case. there is an institution that does not believe in race mixing and they were denied federal aid. there were all kinds of implications of where this case could go. the hobby lobby case, there is language saying the government's interest in promoting seamless access to contraceptives through employer-based health insurance is not as compelling as other like antidiscrimination laws. you we have a state antidiscrimination law, and is the court going to be saying, this form of discrimination that the state has put on an equal plane with racial or gender discrimination, is that a lesser form of discrimination, or how
will they draw that distinction, or do they open the door to greater diversity of compliance with those sorts of statutes? mr. liptak: the bottom line takeaway point is this is a gift to journalists. people have strong feelings either way. erisa -- it is not an church case. ms. slattery: this is a case where everybody will be watching justice kennedy. on the one hand, he has been the architect of the constitutional beens movement, but he has a proponent of free speech and religious liberty. any productions? mr. daley: the last time this came up was in the cos martinez case, and seemed comfortable enforcing neutrality. it is not an analogous situation. jess, adam? mr.
bravin: that is why it is such a great case to watch. having sort to decide which takes precedence. if there is smoke coming out of his ears at oral speecht or not, but free has been one of his hallmarks, and so has gay rights and making accommodations for religious practice. yep, he is the one to watch. and to theink -- extent that the chief and the majority builds for it this may be a case where we see several opinions rather than one or two. mr. liptak: the earlier panel noted this case was relisted some record number of times. >> 14. mr. liptak: that makes me think that justice kennedy was not
eager to hear it. it took someone else to come port, for the fourth cicely for the reason he does not know what answer he wants to give. mr. bravin: they turned down a similar case from mexico a couple years involving a photographer. the issue is hard to distinguish from this one, and it is not something that seems to have confused the state court interpreting their own state constitutions. something changed at the court in the intervening time, and i wish i could put my finger on what it was. [laughter] jess, that's talk about the travel ban case. do you think the court showed its cards to allow the case to go into effect before it hears the merits? mr. bravin: it depends on what you think the cards are. that decision was consistent with observations about the court trying to be a force of stability and to have -- and to of dispose of the confidence
any large segment of the population. theynot know whether allowed most of the travel ban to go into effect or not because , who are the foreign citizens from the six countries most likely to be coming to the united states? areay be a portion of them people who have some contact with the u.s. rather than being leisure travelers or explorers on a trek or young people trying to find themselves. it seems people coming from yemen and libya, apart from refugees, may already have some kind of connection to the united states, relatives, study abroad, business, what have you. -- supreme court's bring it opinion was notable because it was a partial win for the administration, unlike in the lower courts, but also the language was completely straightforward. there was no commentary, nothing
in it suggesting they were reading any kind of political litigation into the -- motivation into the administration or the challengers. it was a dispassionate, call me written item that try to explain why they were trying a distinction they did. -- drawing a distinction they did. that was with the concurrence, with the justices who would have gone further and allow the band to go into effect. they were avoiding languish that would have inflamed the existing controversy over this policy. in terms of what happens, what they would decide to doequitiese thought important now may be different, then. i do think they will want to come up and work hard to find a decision that does not further add to the fire.
mr. liptak: what the administration asked for in terms of the injunction was limit it to the parties, a couple individuals in a state in hawaii and what the court gave was something no party asked for which is a type of class-action treatment. but that is an interesting move on the part of the court, and that is not what the trump administration wanted. when it comes back for them to figure out who has a high relationship and -- bona fide relationship in who does not, and grandparents are not good -- i'm not sure he would agree with the proposition that a grandparent is not a close member of the family. ms. slattery: sticking with a travel ban, you reported on house republicans sending a letter to justice ginsburg asking her to recuse herself.
could you explain a little bit about why she should recuse herself and is there any chance that will happen? mr. daley: there is no chance that will happen. these 60 house republicans signed a letter to justice ginsburg and the argument they make is the fourth circuit but the president's credibility at issue in this litigation and justice ginsburg made remarks this past summer in the press that impugn the president's credibility. she is already given a view to the court issue and therefore, in their words, she is bound by law to recuse herself. they also make a general case that she has displayed prejudice toward president trump as a general matter and would be inclined to rule against him and they urge her to recuse without reason. the justices have only recuse themselves from cases in which there is some appearance of financial impropriety or in
instances where they were involved in the case at some point in the past. we have not seen recuse old for cases of personal bias and i don't think there is any reason to expect we would see one here. ms. slattery: do you have any other predictions for what cases might be coming for the court next term? maybe an agency deference case or perhaps a second amendment -- happy second amendment will return? mr. bravin: they have the question of whether members -- whether nonmember -- whether nonunion members can be compelled to collect these. billy reason they did not decide it last time was because they were split, 4-4. heard thatrence, we people have hopes for their own petitions in that area and the court has been ducking second amendment cases like crazy.
i would've predicted they take some of them -- some open carry case but they keep not doing it. ms. slattery: other thoughts? mr. bravin: now we have the environmental litigation with environmental groups and democratically controlled states challenging trump alessi's like we saw on monday when the d.c. circuit halted the epa's effort to halt implementation of the new source rule that the obama administration adopted last year, so i think we will be seeing those same kinds of cases except with the roles reversed, coming back to the supreme court. ms. slattery: this is for anybody to comment on. is there one opinion where majority conference or dissent has stood out as the best in the term or the worst? mr. liptak: i thought that the kagan opinion was very
interesting in a couple ways. manages to have a five justice majority. this is the sort of case where thomas might concur. he goes along with every single word and there are people that there is something to this, there are people who think she did some work in saying that racial gerrymandering and partial gerrymandering when it cannot be disentangled become the same thing and if that were true, that would give you a different route to the partisan gerrymandering case in some settings. thought the bank of america the miami opinion was interested -- bank of america v. miami opinion was interesting.
that was part of a drop -- broader trend from the chief justice's term in which he was in theseth the block civil rights cases which is not to suggest that the chief is emerging as this civil rights icon what in the last year, we have seen him make this move. we have seen him join opinions that have favorably cited -- even though there are sections of the ruling that have drawn the eye or of conservatives -- drawn the ire of conservatives. he has made some interesting moves in the civil rights area. mr. bravin: let me ask you something. in the fair housing case, the predatory lending case, he cast the narrow fifth vote on a eighth justice court so that there is some kind of opinion.
29 justice court, do you think he goes the same way? mr. daley: i don't know. it seems like the price for his vote was the remedy in that case. forced to try to generate some kind of opinion on the eighth member court. nohad no for four splits -- so maybe that motivated him to do what he did in this case. mr. liptak: in the arkansas birth certificate case, it is -- it looks like it is 6-3, but you don't always know who dissented. many people read into that, some kind of reconciliation between and -- i don'tce think it is necessarily so. mr. daley: there was an opinion written by justice ginsburg and
the immigration case that may in the immigration case that made reference. after justice scalia past, the chief himself had a sort of -- that whole period may have been a near death of majority experience for him where the potential of a court or you had five left-leaning justice and the chief being by disposition in the minority, that may have affected the way he approached cases during the term. how hen question is looks at the future on a nine-member court. it was not a term of think that ini terms of dramatic timing, the chief sohn opinion in the case
from colorado -- the chief's own opinion in the case from 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. about free and appropriate education, that disabled children are entitled , what doesissue is that mean and there was a circuit split over the level of education that they were entitled to and the 10th cert -- the 10th circuit in a gorsuch appeal assigned it to the lowest standard, just above the lowest level of education.
this issue plays out when parents contest what a public school is providing their child in terms of educational -- and wases whichrmed by judge timken -- judge tim noia -- quite serious in saying that these children are entitled to more than just that. that was a unanimous opinion delivered in a upstaging way. it was not kind to justice gorgeous -- to justice gorsuch. it was immediately seized upon by some members of the judiciary committee. you had to say i just heard about it, i hand -- they handed
it to me when i was leaving the bathroom. he had to each claim why he reached a different conclusion, but the supreme court has spoken. ms. slattery: i think he had only been reversed a handful of times. mr. bravin: and this was a separate opinion that was based on circuit precedent that he had established. ms. slattery: it from a get to our audience questions, i want to ask one final question. any predictions on a retirement in the next term? [laughter] mr. liptak: i don't think ginsburg or breyer will go, voluntarily. should president trump get another appointment, it will put the chief justice into the interesting position of being chief and the median justice. stillavin: i think we are
reeling from -- retirement as a correspondent. another one would be a real blow to the press room. we are all watching for justice kennedy. those intrinsic clues to my incredible surprise, the rumor inl was a little off predicting his retirement this term. you are right. i don't see anyone else on that court itching to leave under these circumstances. what kennedy does, we know he goes is on way -- his own way on many things. ms. slattery: now we will take questions from the microphone. please notify yourself and ask a brief question -- identify yourself and ask a brief question.
kirk and having written in government and , i am a little been abused and dismayed 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. where is the boundary anymore of what good editors and good press people should do? mr. liptak: do you have some examples? let's take the cnn rumors about russia. we are confined to supreme court coverage. >> in supreme court coverage, i would say that some of the speculation like you mentioned, about justices retiring or
having her things are etc., some of the articles about whether a not a justice should express her opinion and not be criticized for it or should recuse herself, some of the stuff gets pretty far out there in the right and left. ms. slattery: i think that is all fair game for supreme court reporters to comment on, rumors about retirement and whether a justice should recuse, but i will leave it to our panelists. mr. bravin: if a justice is going to retire, that is newsworthy information. if we were able to nail down any information that we thought confidently predicted a strong likelihood of retirement, we might very well have reported it. topic,tter of newsworthy the membership of the supreme court is extremely important. that becomes a question of news
judgment on how good your sourcing is. we wrote about it and we did not say anything about retirement, except when it was public officials like senator grassley and others like them suggesting it. we never on our own -- ms. slattery: other questions? back here? >> i have a question for mr. liptak. do you think a decision on the travel ban might answer the question of whether it is legally binding precedent? mr. liptak: that is a very interesting question. i don't imagine a majority to -- butat address, justice breyer recently did and i can imagine a separate opinion
grappling with it. mr. daley: certainly one of the lawyers in the case is interested. ms. slattery: other questions? given the extent to which the court plunged in the political thicket in the reapportionment what people consider to be disastrous results, is there any likelihood that they way they havehe ?pproached these cases really criteria they use is the difference between the largest and the smallest district, rather than the minimum percentage necessary to control the legislature.
there was a case in 1983 involving the wyoming said it where it looked as though they but forck off and concurrence by justice ginsburg, i think they would have backed off. now you have this new case which suggests they might plunge in, even further. what do you think is going to happen? mr. bravin: i can only speak to the new case, and i think we know almost nothing about what they are going to do. under mandatory jurisdiction, so they have little choice but to take it. ?hat was the phrase they used it was not even noting probable jurisdiction. >> jurisdiction postponed. mr. liptak: they took it because they had to. then we have the additional information that an hour or two later, they issued a stay.
suggesting that kennedy may not be ready to do anything. it would be a huge step if the court recognized the constitutional challenges to partisan all -- partisanal gerrymandering. ms. slattery: any thoughts? nope. back here? >> thanks. any cases you see coming up in the next term that could be under the radar or maybe that could be pretty big cases? i hesitate to talk about it because i have not read a word, but the sports betting cases have some interesting federalism issues. those cases are under the radar, that they will soon the above the radar and they involve chris christie, so that is good. [laughter] statute on whether corporations can be sued.
historical cell phone data cases. it is going to be a good term. ms. slattery: down here? >> following up on that question about cases in the pipeline, we have one of three server editions -- for the state of california has passed a law requiring pro-life pregnancy centers to advertise abortions. we were hoping to get a decision before the end of the term, but it is now going to be part of the large end of summer conference. any opinion on the prospects of a case like that being taken? ms. slattery: any takers? mr. liptak: it sounds interesting, but i would need to know a lot more to give you a view. ms. slattery: we have time for one more. takers?
any thoughts on why the court has been reluctant to take up another second amendment case and the fact that thomas and gorsuch -- out of the ninth circuit? i think that is a fascinating question because they have not said anything on it since 2008. the 2010 opinion expanded power to the states. were settingt they the normals by which sequence, when they have a major have lowercision, to -- i wouldons, expect that certainly by 2013, 2014 we would start to see these cases be re-examined.
they have consistently turn them away. -- turned them away. why, we don't know. lower courts, which have upheld gun regulations have tried to write bulletproof opinions, if you will. 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 very originalist approach that mcdonald's and other cases took. it is full of english history trying to justify the conclusions they reached. , soay be that it is enough far that they have not seen anything that is glaringly wrong and they want to step gingerly, but it is certainly a surprise to me that they have not taken steps to clarify a decision that
essentially said we will clarify this decision in the future about how much further the right to have a handgun in the home for self-defense extends. add that: i would just i think the liberals are very happy that the lower courts have dramatically limited the scope of the ruling. i am interested to know where the chief is, on this. he is a person who is interested in policing his authority over the lower courts. it is hard to they may view- heller as a nice symbolic decision, but our content to have gun control laws in those parts of the country. the day ofwriting heller that a new term is common
coming up in five minutes on c-span, a look at the state of u.s.-china relations, including military issues, economic ties and competing interests. an center for strategic and 8 -- and international studies will hear from specialist on china. that is set to begin at 1:00 p.m. eastern. primetime on c-span this east -- this evening, hillary clinton on the role of women in modern diplomacy. here is some of what you will see, tonight. >> to the work that is done here at this institute, here at georgetown, making the evidenced -- evidenced-based case for the role of women in peace and security is incredibly important. it has always mattered, but today it is even more critical. as this institute has grown, so has the body of evidence showing
that when women participate in peacemaking and peacekeeping, we are all safer and more secure. studies show, here i go again talking about research, evidence and facts. [cheering and applause] when women are included in peace negotiations, agreements are less likely to fail and more likely to last. the former secretary of state spoke earlier this year at the ceremony for the 2017 hillary rodham that an award at georgetown university in washington. you can see all that tonight at 8:00 on c-span. eastern, join:00
american history tv for a live of the museum of the american revolution in philadelphia. the museum ceo and collections vice president will introduce artifacts and exhibits throughout the museum, including george washington's war tent and a piece of the old northbridge from the battle of concord. hear stories about the american revolution and you can participate with your phone calls and tweets. today, starting at 7:00 p.m. eastern on c-span three -- c-span3. >> sunday on q and a, >> i'm not asking anybody to compromise their values for their beliefs. i'm asking them to open their eyes to other people's so that you can figure out your place in
this infinite world. >> brooke gladstone, have most and managing editor of wnyc's on the media discusses her book, the trouble with reality in which she looks at what constitutes reality today and how that criteria has changed over the years. >> i set up at the beginning of the book our biological wiring and i wanted to show how we have evolved a culture that was designed to validate us and not to challenge us, certainly not to contradict us. it gave us the illusion that our realities were watertight when really they were riddled with weak spots and places that would crunch in. >> sunday night at 8:00 eastern on c-span's human day -- q and a. alive at the center
for strategic and international studies in washington, for look at u.s.-china relations, looking at military issues and competing interests in the pacific region. we will hear from specialist from the u.s. and china. it is set to begin, shortly. the issue of north korea is front and center at the head of nations, yesterday. the two sides are growing further apart as they are approach -- as they approach concerns -- the u.s. ambassador nikki haley warned china that trade with china and the u.s. could suffer if it -- if it did not help, following north korea's successful launch of its first intercontinental ballistic missile. we covered an emergency meeting of the security council, yesterday, which you can find at