Skip to main content

tv   Supreme Court Attorneys and Reporters Review 2016-2017 Term  CSPAN  July 7, 2017 5:04am-7:01am EDT

5:04 am
that is the way it was worded. the 14th amendment made it clear is that that was for the states and that is where we are today. host: if you want to hear and read more from rev. barry lynn,
5:05 am
> we welcome those joining us. we would ask everyone in house to check your mobile devices have been silenced or turned off. of course those watching outside are welcome to send questions or comments directed to us throughout today's programming.
5:06 am
john: at 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. join me in welcoming john malcolm. john: welcome 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. for justice thomas on the supreme court. he represents the constitutional issues. the administrative law and a ariety of other matters. a
5:07 am
he has argued cases before several courts of appeals and also the u.s. supreme court. a member of the edward coke court and codirector of the supreme court clinic. he has now been named for several years running as a rising star. next to will is kyle duncan. a founding partner and has
5:08 am
argued over 30 cases in federal state appellate courts. he is a graduate of lsu law school and got an llm from olumbia law school and clerked on the fifth circuit. he also served as general counselgeneral counsel for religious liberty and nationally recognized public interest law firm. to the left is joseph palmore, the cochair of the practice group from morrison foerster who 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
5:09 am
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. pretty significant redistricting 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. in both cases, it was the intersection between traditional principles. from the ef perspective of the state, they have a variety of objectives. traditional lines, political issues which we will talk about later, and the state must consider race because of section 2 of the voting rights
5:10 am
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 redistricting 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
5:11 am
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. though it looks 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 cases without a dissent on the basic proposition. the headline coming out of these cases is that democrats won challenges that were arguing that republicans use race to much to form minority districts. the untold story of these cases, and what i want to emphasize,
5:12 am
is that this is a win for justice 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. testers ginsburg, justice stevens dissented, groups like the lawyers committee proposed 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 rights of other 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
5:13 am
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. john: i want to touch on a 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.
5:14 am
>> it is one of the more interesting cases. the next term has interesting cases, even if this one didn't. it is fascinating. the supreme court has struggled 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. it is on 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. the court granted a stay of the 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
5:15 am
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. in the north carolina case, he went out of his way to talk favorably about political gerrymandering. not as a social good, but something that 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. i 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
5:16 am
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 rue in wisconsin. i majority republican party entrenching their 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
5:17 am
being a swing voter here justice thomas on occasion does surprise. the 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 significant church-state cases. the trinity utheran church case. mr. duncan: thanks for having me on this panel. the trinity lutheran case and that health care network case are important religious liberty cases, though they get that religious liberty in different ways. trinity lutheran being a free exercise case. the more doctrinally important, china to lutheran, i will spend more time on that though the advocate health care has practical significance for health pension plans. trinity utheran is a term that did not
5:18 am
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 enters, and the like. when they purchase services made from -- surfaces made from recycled tires. the petition in this case is a day care center
5:19 am
affiliated with the lutheran church that has pea gravel on the playground. chief justice roberts says pea gravel can be "unforgiving." kids fall down, get hurt, scream and cry. the urpose 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. it was denied because of the misery interpretation of a provision in its constitution, article one section seven prohibits the granting of funds to any person or organization owned or ontrolled by a church, sect,
5:20 am
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 provision to deny the grant, the grantee's ability to get the grant, does it by the free exercise clause. the court said by 7-2 it does violate the free exercise 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
5:21 am
justice roberts wrote is the opinion of the court with the exception of a notable footnote, footnote three, that only four justices joined, not justice gorsuch and justice thomas. they have separate concurring opinions, which each oined 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'-- public benefits. base reasoning s when a law targets religious
5:22 am
persons or organizations for special abilities based on eligious 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
5:23 am
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. missouri did not tell the church how to believe, how to worship, not ven telling the church that it cannot have a playground or a care center. it is only saying e will not subsidize the replacing of the playground surface. the court made short
5:24 am
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 without disavowing one's 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 and said locke is ot about the status of the grant recipient, but instead about the particular use the grant recipient wanted to make f the public funds. that was
5:25 am
to use them to prepare for the ministry, which the court -- they are unique establishment clause problems on spending oney for the ministry. there is a full disclosure filed urging the court to do just that , and others did as well. the court narrowed locke v. davey. footnote three says, and i will read it to you, it is interesting, this case involves express discrimination based on religious entity with respect to playground resurfacing. we o 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
5:26 am
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 hat now. very interesting. i will go quickly. on the surface of statutory interpretation ase, orissa, please forgive me in advance for stumbling over this, but orissa, 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 ontroversy over how that applied to a pension plan supplied by an order of catholic nuns, they amended the plan in 1982 include a plan maintained by an organization"
5:27 am
whose principal purpose is to maintain plans. the important part is these are not churches, but church-affiliated rganizations. since 1980, they started enforcing the orissa xemption have read it the same way, to say that if a plan is both established and maintained by a nonchurch principal purpose organization that is ok. you still qualify for the church to exemption. that is the uniform interpretation of he department of 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
5:28 am
f the plan was not established by the church provided it was established by a nonchurch entity that it is maintained by this organization. 3 circuits reached the opposite conclusion on what the church exemption meant and said the plan has to be established by a church. this had significant amifications 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 written, and a church plan that is established and aintained by nonchurch
5:29 am
qualifying organization does qualify for the exemption. this is a significant case in terms of its potential impact of the opposite rule, the opposite ule would have had a bad impact in many people's views, on pension plans established and maintained by i have to say, justice kagan is a very engaging and entertaining writer, especially when it comes to statutory interpretation. she made this case interesting to read, even though the erisa stuff is as dry as a bone. she sticks very, very closely to the text of the amendment. , for purposeshing of statutory construction, comes down to the meaning of one word, which is "includes." what does include mean when it says we have a church plan here, but it includes this other thing? i found it a really entertaining and engaging read.
5:30 am
the other thing is, where is the religious liberty aspect of this case? it is all under the surface. the amicus briefs pointed out that originally, the amendment to erisa was enacted by congress in order to avoid a couple of religious liberty problems that were caused by the original definition. to make a long story very short, we did not want agencies determining what a church was. so, 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 also didn't want an agency determining that a religious order of nuns running a hospital was not a religious function. we did not want that because it would create all sorts of religious autonomy problems, agencies tangling themselves with what churches are actually doing, and it would create interdenominational
5:31 am
discrimination in effect, when you have certain churches that are not like the catholic church and want to have pension plans run by church affiliated, but -- hierarchy of church or ical church organizations. the court alludes to those in its discussion of legislative history. that is underlying the surface of this case. mr. malcom: before i ask the panelists if they have anything to add, on the last day, there is another religious liberty case. i was wondering if you could take a moment to offer preliminary views on that? mr. duncan: a very significant case. very significant that the court granted. idearganizational represents the petitioner in this case and in trinity lutheran, they should be
5:32 am
congratulated. they are both very significant cases. masterpiece cake shop presents two very serious issues under the free speech and free exercise clause. it involves a "cake artist," someone who designs and produces these elaborate cakes for various occasions. his name is jack phillips, and his religious faith informs how he ran -- how he runs his business, which cakes he will design and which he won't. he will not design hallowing cakes. he will not design cakes with alcohol. no bachelor party cakes. he will come a relevant to this case, he has declined to design a cake for same-sex wedding. it has been pointed out, he maintains that he does not discriminate against gay and lesbian patrons. in other words, he doesn't refuse to bake cookies or cakes for them.
5:33 am
but where he has drawn the line is he refuses to design a cake to serve -- to celebrate a same-sex wedding. he was found liable for sexual orientation discrimination under a colorado anti-discrimination provision. he was ordered by the human rights commission to design same-sex wedding cakes and do other things. the lower courts all rejected his defenses under the free speech clause and the free exercise clause. after many -- the supreme court granted the petition to decide whether application of the colorado antidiscrimination provision violates either the free speech clause or free exercise clause. i will not get into it right now, but the arguments implicate many important lines of authority under free speech and free exercise. depending upon how that court resolves the case, it could be an important cage -- important case for speech doctrine. >> anything you want to add?
5:34 am
>> i would make a point about the term, i think it is below breyerface, the justice played an important role in both of these cases. he played a really important role in the term overall. dissent toomayor trinity lutheran is really strong. i don't think she respectfully dissented, which is an indicator of the intensity of her disagreement. i would say she is entitled to her view. i think the majority got it right personally, that when justice breyer and justice kagan joined the majority opinion, it is hard to believe the stakes are that high, considering where justice breyer has been historically in the tent dominion -- 10 commandments monument. in the church plan case, an oral argument, he dominated the oral argument. he absolutely went after the
5:35 am
counselor.s he said, i think it will be a disaster for religious orders, and had a real impact, even though it doesn't show up in the decision. in an eight-justice court, justice breyer will have an outsized role. i think it came through this term. >> the court decided an important property rights case. >> thanks for having me here. murr v. wisconsin is a property rights case. it actually breaks a street that property rights owners and property rights advocates have been taking these cases in the supreme court in recent cases. it involves land along the st. croix river in wisconsin. the state of wisconsin has enacted a series of regulations to preserve the river as a recreational and environmental resource. the murr family has long owned twoots along the river -- lots along the river, lots e and
5:36 am
f, and they had a house on lot e. they decided they wanted to move that house and that would require an expenditure of money. they wanted to sell lot f in order to finance the moving and renovation of lot e. they could not do that because of environmental regulations the state of wisconsin had imposed. the state said one could not build or sell an individual lot, could not build on a lot more -- unless it was more than an acre. it had grandfathered in smaller lots that have been owned at the time the regulations were doctored in 1976, but there was the exception for the grandfathering for adjacent lots that were under common ownership. the state said, we will look at those as one combined lot. and you cannot separate them. that was the murrs' problem.
5:37 am
they had common ownership over these two lots. the state viewed them as a single lot, and said, you cannot 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. i think most in this audience will know that the takings clause of the prevents the fifth amendment taking of property without just compensation, and there are two different kinds of takings claims. one where the government just takes your property, and gives you compensation. it is often land. the case about the taking of raisins. it is the only case i litigated that was the subject of "the daily show" sketch. you can look it up. this case was different because wisconsin was not occupying the
5:38 am
land, it was called a regulatory taking. that is when the government goes too far in limiting someone's ability to alienate or use his or her property that can functionally be a taking of the property. that was the claim, and it was a takings claim. the key question, there was a key analytical threshold question that was what the court started to review, and it came to be known as the denominator question. what is the relevant unit of property for considering the takings claim? what the state of wisconsin said was the relevant unit of property is the two lots combined. and, you know, 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 on the record showing the value of the combined lot was only slightly less than the value be if the two lots -- would be if the two lots were sold separately. what the murrs said is the property denominator is lot f,
5:39 am
the lot we want to sell, and you have categorically prohibited us from selling that lot, you have categorically inhabited us from building a house on that lot, so it is functionally unusable to us as a 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 as the court recognized. and what did the court do? the court ruled for the state of wisconsin in a 5-3 opinion. this was a more traditional breakdown of justice kennedy joining with the courts for liberals to rule for the state and against the murrs. justice gorsuch did not participate, but it did not matter because it was 5-3. it laid out regulatory takings cases, and said the court has never applied light -- bright
5:40 am
line rules in this case. it was ad hoc. we know what we see when we see it inquiry. it was a regular -- of a regulation that goes too far. the court's main analytical move was importing that overall ad hoc factor test into this denominator question. so it reject it the argument by the murrs for deciding what that relevant unit of the plot line was, we should look to the lot line that provides a role under state law, and then once you assess that, you go on to look whether the regulation goes too far. the court, justice kennedy's writing, rejects that approach, saying, no, we are going to apply a multi factor ad hoc denominator question to that as well, likely due do on other stages of the taking inquiry. he said we will look at the treatment of the land under state and local law, the physical characteristics of the land, and the value of the regulated land, and he applies
5:41 am
that test and says basically here we are going to look at these two lots together as a combined entity. and having made that move, he said there was no take. -- taking. interestingly, the chief justice in dissent said the bottom-line conclusion of the majority does not trouble me. the majority presents a fair case that the murrs can make good use of both loss, -- both lots. but he rejected the majority's way of getting there. the chief and the other dissenters thought that analytical move that the majority had made in terms of adopting a multi factor ad hoc test in deciding the relevant unit of property that was taken was outcome determinative and would have bad consequences in other cases and lead to a lot of litigation uncertainty down the road. chief justice roberts said we should just look to the lot
5:42 am
lines. that is an easy, readily identifiable category under state law, and it may be they would find that there was not a taking, but he thought that was important to lie about -- to lay it out as an analytical marker. what explains justice kennedy's vote, with all justices, they are competing impulses. property rights impulse, and he has been with other conservatives in a lot of takings cases, but he is a believer in federalism, and cases liken taking this one that are painted at least as putting federal courts over zoning decisions, and maybe that is something he did not want to see happen here. >> either of you want to comment on that? >> let's take about this -- let's talk about the slants case. >> interesting facts. this could have been a blockbuster case.
5:43 am
i think -- we will talk about in some ways it was, in some ways it ended up not being. the slants are a rock 'n' roll band, and they want to register their name as a trademark. unfortunately for them federal , law precludes the patent and trademark office from registering any trademark that is "disparaging." the language is longer, but essentially it is known as the disparagement provision. they found this name was disparaging to people of asian descent, refused to register it. the slants understood that, and wecourse their position was are trying to reverse the meaning of this, we want to make a positive role model for people of asian descent, but that didn't matter to the patent trademark office. they had to judge it based on the name alone to determine if it was disparaging. the federal circuit held that the disparagement clause violated the first amendment. the supreme court affirmed 8-0.
5:44 am
here is what i can tell you. here's the holding of the case. speech may not be banned on the ground that it oppresses an idea that offends. why that is under the first amendment precisely i cannot get them to agree on. exactly why that is so is left for future cases. here's what happened. four justices in an opinion written by justice alito, and joined by the chief justice, justice thomas, and justice willr, went one way, and i explain which way they went. justice kennedy joined by ginsburg, sotomayor, went a different way, and i will explain the way they went and why it is an interesting split given the two opinions. what did justice alito do? he walked through the case step-by-step. the government had made a series , almost an endless series of , arguments as to why the different kinds of perceptions under the first amendment the statute was ok.
5:45 am
they argued it was government speech, that the trademark registration program was a form of speech. was it the subsidy? justice alito said no. was it a hybrid government program, a little bit of subsidy, but basically ours, not theirs? they said no there, too. then justice alito said, is it a limited public forum? such that we can discriminate because it is very limited free speech zone. again, justice alito said no. finally, justice alito said, is a commercial speech? he said we did not have decide that because if it is commercial speech. block, everyock by argument taken on. it would have been an
5:46 am
interesting majority opinion in that it would have narrowed subsidy law in some important ways, what it never does is anger the opinion explicitly to viewpoint discrimination. there are opinions that rely on viewpoint discrimination, particularly the limited public forum aspect to it, but there is a footnote that expresses a hesitancy to do that. the group of four justices were hesitant to do it. if you point to discrimination, we do not care what your argument about it is, it loses every argument on that ground. not so for justice kennedy and the justices who joined him. justice kennedy said this is viewpoint discrimination. i don't care that it bans all disparaging speech, that itself is a form of viewpoint discrimination. it is a very broad view of the constitute viewpoint discrimination, and says, i do not need to reach any of these other arguments. i don't have to figure out the
5:47 am
ins and outs of subsidy law. this is a silver bullet that ends the case. it would have been nice to have a ninth justice. holding fore had a the court one way or another, we didn't. so, what i think is interesting is, i'm having a hard time figuring out which is the broader opinion and which is the narroweropinion -- opinion. in some sense it is broader. it has a broad viewpoint of discrimination that destroys every counterargument of the government in its path, but it does not get into the intricacies of the different kinds of first amendment arguments that can have an effect in other areas of the law. whereas justice alito's opinion is more hesitant on viewpoint, but would have shaped subsidy law and reshaped it in a fairly dramatic way, emphasizing that cash payments are what really matter for subsidy cases in these kinds of programs -- and these kinds of programs do not fit in the box so well.
5:48 am
that is for another day on which theory of the fourth amendment will control in these kinds of cases. >> dan snyder does not care. either of you have anything you want to add? >> just a quick comment. if you think of what are the hallmarks of the roberts court in terms of all nine justices, there are a few things. one is in statutory cases, they take it seriously. in criminal cases they are often very skeptical of broad claims, broad constructions of criminal laws advanced by the united states. i think they are very receptive to first amendment claims. as this case shows. >> time always flies when you're sitting up here, and i want to make sure we have a little bit of time left for the questions. i will give short shrift to the other cases. i want to address the elephant in the room. joe do you have any views about , the travel ban case?
5:49 am
>> it is a difficult case because there are so many moving pieces. the parts i have been focusing on in a technical lawyer way are probably not the ones that have gotten so much attention, which is how is that all can the president's campaign statements be attributed to motivation to enact the ban?- one will be decided or there if there is a mootness issue that the courts asks the parties to address. the vision for the suspension of immigration from these countries as articulated in the executive order was to enable a review of and bedding. that is underway and will be completed before oral argument is held. there is a question about whether the question will present a live controversy at that time. another issue that is very important from a government litigation perspective is
5:50 am
whether the district courts have appropriately issued nationwide injections. this is a government institutional litigation issue that is not really a partisan issue. the same thing happened during the obama administration when texas and other states challenge d the president's immigration policies and got a judge to issue a nationwide injunction. -- nationwide injunction against those policies. here the shoe was on the other foot, and you had courts in hawaii and maryland issuing nationwide injunctions, 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 then the other question is whether this could go back up to the court in the next few weeks or even days, because there is now a dispute between the
5:51 am
parties about the scope of the injunction as narrowed by the u.s. supreme court. briefly, the court said that 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 respect to 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 in its filings said we think you should adopt our view, but if you don't, 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 back in the supreme court in the matter of a few days in this case again. >> you guys have anything you want to add? think joe is right about everything he said. there is a lot going on here for the lawyers beyond issue that dominated the public attention. mootness is a real concern.
5:52 am
one thing i would say, though, as a word of caution against the if you look past this term, and the sister for the longview, 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. i think appellate panels do a good job with their cases, but they are focused on their case. brief on behalf of of the united states that was focusing on these issues, which is if campaign statements are generally on the line in these kinds of constitutional challenges what does that mean , for the scope and tenor of litigation going forward on this controversy with this president? i think some of the votes, some of the justice will think about that -- some of the justices will think about that, no matter
5:53 am
how they end up ruling and it is , barely smart to guess or hazard a guess. >> going back to college papers and trying to find some hidden intent. we have got time for a couple of questions. i would say, given the fact that we have a second panel, we got started a couple minutes late, so we might run a couple minutes passed please announce your , affiliation, keep it short. very short, and in and it with a question mark. there is a microphone down here for roger. >> thank you, john. joe, you left some important facts out of the analysis in response -- in wisconsin v. mur r. the denominator-numerator thing only muddies the water. the two lots were bought separately in 1960 and they were 1963. deeded severally.
5:54 am
deeded they were separately, they were taxed separately, and that remained the case right to the present. the 1975 ordinance changed that. why does that matter? by combining the two lots, it matters because under penn central you got to take the parcel as a whole, and why is that important? because under the lucas case, you have the wipeout rule that you are entitled compensation only if you lose all found you -- if you lose all value in the property. if the two lots are combined, then of course they lose. if you treat them separately, as they have always been treated under the regular law, then the plaintiffs prevail. and the problem here is that as a result of the 1975 ordinance, wisconsin changed the rules in the middle of the game, so to and -- speak, and in so doing, got out from under the requirements of the takings clause. and that indeed is the core of the problem.
5:55 am
only thomas saw that in his concurrence when he said -- he sided with roberts because the court had applied the court's precedence, and the problem was in lucas and the disaster which is penn central. >> roger, do you have a question? >> it seems to me you cannot use the denominator-numerator thing because that is the problem there. i wonder if you would -- so -- [laughter] >> i forbear from saying whether i agree or disagree but you good point. justin thomas often writes separate opinions where he says, i joined the majority because it faithfully applies president -- precenddence x.
5:56 am
no one has asked us to overturn precedent x, and nobody has asked me to do it here, so i'm not doing it. he raised a question whether -- he raised a question about whether this jurisprudence makes any sense, but he said we are taking this case and deciding it as it comes to us. no one has asked us to overturn it, so i join the dissent. >> we have a question over here. >> asking for myself. in the past four or five terms, we have seen a number of justices drop hints that they are willing to start capping the administrative state through deference. you realize it has been a pretty quiet term. did any justices drop hints this time, and do we see anything that looks like it might bring the issue up next term? >> i will take that one, because i have it case in that train. there was not a lot going on in
5:57 am
administrative law like in the past couple terms where justice thomas and justice scalia had really taken issue on a quite forcefully. two things i would note. one, just the addition of justice gorsuch to the court, he on the 10th circuit had expressed skepticism about chevron deference. he urged the court to reconsider it. secondly, the court denied cert in a case challenging our deference. the timing was unfortunate with -- justiceot being scalia' fortune of passing, so that may have played a role in the court not taking it. there is -- justice alito, the chief justice, and thomas all urged the court to take a hard look at -- my firm will be filing a petition on that soon, so we may find out more.
5:58 am
justice thomas dissented. -- dissented from the denial, no one else joined it. i would not read too much into that given the timing of when the petition reached conference. i do think in the short term i , do not think chevron is on the table, but we will see whether ours we will get a signal is. whether the court is generally interested or if the court will let it go. >> anything else? >> i would add the court did rent cert in a case called g.g.cester county versus we had asked the court to take cert the court granted cert on whether -- was applied to an opinion letter from the department of education. we are preparing for the case. when the new administration
5:59 am
changed, the regulatory guidance in the court it remanded to the , fourth circuit. we would have heard something about our difference, but we did not get to. >> one more question. >> first of all, thank you for coming. second of all, my question is for mr. powell mori. oral arguments is justice breyer asking if the case was moved, -- was moot, because the governor had come out of missouri and said the grants would not be denied based on religious leanings of the group. however, friends of the earth was brought up to justice breyer to say that future political winds could change, and that is why it wasn't moved. -- why it wasn't moot. is that at all on the table? couldn't political winds change? >> an interesting question, and
6:00 am
that is probably an issue that would lurk. the court might view it as the sexual executive order, and if it is moot, then these issues could be fought another day, but
6:01 am
>> an interesting question, and that is an issue that would lurk. if it is moot, then these issues could be fought another day, but will is right saying that some justices are concerned with what they might see of the overbreadth of complicated rules when a case becomes moot. you have put your finger on an important issue. >> what about the fact that the injunction was only lifted in part, so part of the order to not go into effect, and it is a review, that at the end of the 90 days, parts of it could be continued, and there's still a 120-day suspension of the refugee program, especially since there are parts of the case when the court hears the argument. >> they could timeout around the time of oral argument. the court in hawaii had enjoyed even those reviews, and the ninth circuit vacated that and allowed the reviews to start. they are presumably under way now, and that was the rationale for. >> please join me in thanking the panel. [applause]
6:02 am
>> we have just heard from lawyers who have argued at the supreme court.
6:03 am
6:04 am
theirs is not an easy task, to explain what the court's opinions mean. this requires a knowledge of the court and its cases. we are fortunate to have jess bravin, 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. jess is 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. adam liptak began covering the court in 2008 and has written a column on developers in the law since 2007. adam joined "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
6:05 am
funding aside from the playground grants program at issue. you wrote that footnote three exposes divisions of the religious clauses because others were not joined. what do you think was going on and do you foresee a showdown between these visions of the religions' clauses? mr. bravin: you saw that footnote seeming to be the glue that held the majority together in the case. it went too far for the thomas opinion, but not for the sotomayor opinion. that is how you can see it. that is not the kind of footnote that would arise in the initial draft of the opinion.
6:06 am
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 efforts because it was portrayed by many members of the court, including breyer and kagan, akin 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 that, basically a content-free framework, a citizen like any other citizen, an institution like any other institution that is entitled to basic services like 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, did not have a religious test, and the playground also was open to the public when not used by the school.
6:07 am
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 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? mr. liptak: 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
6:08 am
a lower court, the lower court has dug in where they began and will find a way to reaffirm their earlier decision. that means those cases may come back to the court fairly soon. ms. slattery: other thoughts? no? okay. this time the court ruled in favor of trademarks of ethnic slurs but a couple terms ago it ruled against having the confederate flag on specialty license plates. how would use some up roberts court's free speech jurisprudence so far? >> generally in these cases by lopsided majorities in the campaign setting, by majorities, but on the whole, a very pro-speech court, but very confusing. they very often end up in the same place, but cannot tell what the rationale is written.
6:09 am
is. the confederate license plate case, 5-4, justice thomas struck me as unconvincing. the idea 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. there 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] mr. liptak: there are a couple of other exceptions that come to mind, where laws were said to survive strict first amendment scrutiny. those are the outliers. in general the court is interested and very pro-speech, but not sure exactly why.
6:10 am
you read a case where it had a broad proposition, that all content-based restrictions 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 depict violence animals, but with some of these more core speech areas like campaign finance, more explicitly political in character, so his view is the court is robust about protecting things at the edges, the more
6:11 am
but more confused when he gets into these core speech areas, and i think that is probably right. >> i think on that point, it is the liberals who are not so keen on protecting abortion clinic protests or striking finance regulations because they say it , is not speech. we are talking about contact. justice stevens said the watergate burglary 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 is 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 n influence beyond persuasion. ms. slattery: let's turn to neil gorsuch. you wrote the addition of this justice might have shifted the balance of power away from the soft institutional toryism of
6:12 am
chief justice thomas's originalism. can you elaborate on this? >> sure. the chief justice values prudence. he sees a pretty minimal role for him and his court and his court in public life. he is willing to accept new developments. he has these burkeian characteristics. justice gorsuch does not seem to be of that persuasion, and that could affect the scope of conservative 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, if we assume justices thomas, alito, and gorsuch are taking a more maximalist position, where the chief and
6:13 am
justice kennedy would prefer to be circumspect. the chief will have the challenge of finding some way to a comment more strident colleagues, and that will affect both the substance of opinions and the opinion assignments itself. there are specific areas of law in which 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. justice gorsuch has not gone so far in his writings, but one of his few dissents concerned and an application of qualified immunity. this was his famous burping dissent, and in that case he broke with his colleagues who awarded qualified immunity to a police officer who had arrested a seventh grade student for disrupting his gym class while burping. we know that justice gorsuch is
6:14 am
careful in his granting of qualified immunity and his views are more expansive than justice thomas and could affect a sea change in this area. that could happen in the forfeiture area as well. by way of pending cases, i would point toward carpenter v. u.s. this is about the constitutionality of warrantless seizure of data. gorsuch's views 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 court an opportunity to revisit the third-party doctrine, and there are some justices who have expressed interest in doing so.
6:15 am
he seems to 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 with the liberal block in this case. there is also the possibility that justice gorsuch could authority.weekend he could also weaken the conservative majority come if he , if he continues to write. there 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. mr. bravin: i think he is working hard to make up for that.
6:16 am
just to add to the point about the fourth amendment, and with some fifth amendment contexts, that was an area where justice scalia diverted from standard law and ordered type of theorizing, and giving the police the benefit of the doubt. justice ginsburg said she 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. thomas started initially being close to scalia on those issues, but toward the ends of his life, complained thomas was getting wobbly on those, and there was an evolution where he goes from being in strict alignment with scalia to distancing himself somewhat to , just being on the other side and siding with the state against the defendant. whether gorsuch turns to be more like scalia or thomas is now
6:17 am
will be one of the most interesting things to watch. mr. liptak: i underscore one point, which is quite right, 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 than there is on the left. on the left, the ideological space is narrow, and there is a kind of discipline where in many cases the four liberal 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 come but also in dissent, all disagreeing in why the majority was wrong. you have really a very confident justices on the right -- mr. liptak: and a majority where none of them loved the kennedy opinion, but none saw the
6:18 am
benefit themselves to writing separately. mr. bravin: right, or their 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 hurried to make his mark. what are your opinions of his first month on the job? mr. liptak: on the one hand his voting was quite conservative, and we have 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 happy and the people on the left who thought they would get something different are unhappy. that is unsurprising to me. i thought he 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.
6:19 am
breyer, thomas said it took them three years, five years before they felt confident. frankfurter said 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, wrote very vividly 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 and interpersonal relationship, you would want to move that fast. ms. slattery: other thoughts? mr. bravin: in terms of the he washe candidate promised to be, that is very consistent. i remember leo saying when asked if gorsuch was going to be someone he envisioned bringing
6:20 am
together a new majority or a coalitions to get his view across or being a go-it-alone guy, he said that was important to him and important to the president to have someone who was strong, courageous, who was willing to stand alone if that is what it took to so far, he has been willing to do that. i do not know the other 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. ms. slattery: 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 trend of measured consensus we might see next term? mr. bravin: it comes out of the
6:21 am
unexpected situation the court was in when justice scalia died and that they had to sort of grope their way to a new way of doing business. you have had several justices that have commented publicly about this. justices kagan and alito have said the new dynamic of an eight-member court, one with a fairly predictable division, required them to move in a more cautious and 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 this term, 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 is coming you know, well, we certainly know that justice gorsuch, thomas, and alito are
6:22 am
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 are aware of the little bit of turmoil that we occasionally hear going on in other branches of government, and the idea that this institution continues it sort of solid, attempting to be political to the extent it can, attempting to show stability in the legal system even as the gloves come off in the political branches, i think that will be high on 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 unusual situation with the president and the congress.
6:23 am
so if that motivates those two center-right judges to maybe seek more common ground with the left so that this divided country maintains some level of confidence in the court, they may see that as a priority. i don't know, of course, when , they matter and court will move where the majority takes it. ms. slattery: any thoughts? mr. daley: i wonder if the chief his colleagueng in remarks he made to 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 justices, but 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
6:24 am
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 shop case. in recent years, the court has taken a permissive approach to free exercise. it 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 a 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 and antidiscrimination issue. so obviously the way that the court frames is going to drive the outcome of the case, and
6:25 am
looking back at previous cases, that you mentioned in passing, i can see the hobby lobby playing something of a role here. i think justice alito in the opinion expresses his concern for protecting small businesses or closely held corporate entities in these religious liberties areas, and i would think a small bakery was what he had in mind when writing these things. i would also note that 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. now i can see it is difficult to imagine those two joining the but ity in that case,
6:26 am
think it bears mentioning. mr. liptak: hobby lobby was a statutory case, and the constitutional claim here operates under a weaker standard on the free exercise side. i am not unsympathetic to the speech claims, but i wonder about this hypothetical. let's say for that for religious reasons i object to interracial marriage. is it possible to think that the supreme court would endorse my to bake a cakee for an interracial marriage. if it is, i can see the bakery wins, but i'm not sure it is. mr. daley: that deference is the wisdom of justice gorsuch's brief concurrence/dissent last year in the trinity case that draws the distinct joint status and use, and he says if a person prays before dinner, is this just a religious man praying for dinner in connection with the secular activity or is this core
6:27 am
religious practice? that line is untenable, and the undermines the virtue of gorsuch's view. mr. bravin: it will be a great case for us to watch to see how it argues and how it comes out. taken further, there are cases like the bob jones university case. there is a religious 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 things 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
6:28 am
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. it is a great case. it is easy to understand. people have strong feelings either way. it is not an erisa church case. ms. slattery: this is a case where everybody will be watching justice kennedy. any predictions for how he might approach the case? on the one hand, he has been the architect of the constitutional protection for the gay rights movement, but on the other hand, he has been a proponent of free speech and religious liberty. any predictions? mr. daley: the last time this came up was in the cos martinez case, and he seemed comfortable
6:29 am
and forcing viewpoint neutrality. it is not an analogous situation, but maybe that gives us some hint as to what his sympathies are. ms. slattery: jess, adam? mr. bravin: that is why it is such a great case to watch, you see several of the things that have marked justice kennedy's jurisprudence coming into this case and having to decide which takes precedence. we will see if there is smoke coming out of his ears at oral argument or not, but free speech has been one of his hallmarks, so has gay rights, and so has making accommodations for religious practice. yep, he is the one to watch. i do not think -- and to the extent that the chief and the majority bills -- this may be a case where we see several opinions rather than one or two. mr. liptak: the earlier panel
6:30 am
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 around to find the fourth vote, precisely for the reason he does not know what answer he wants to give. mr. bravin: they turned down a -- 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] ms. slattery: jess, that's talk about the travel ban case. do you think the court showed its cards to allow the ban to partially 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
6:31 am
stability and to have -- and to not dispose of the confidence of any large segment of the population. i do not know whether they allowed most of the travel ban to go into effect or not because who are the foreign citizens not because who are the foreign citizens from the six countries most likely to be coming to the united states? it may be a portion of them are 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. the supreme court's 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 motivation into the administration or the challengers.
6:32 am
it was a dispassionate call for a written item that tried to explain why they were drawing a distinction they did. that is true of the concurrence with the justices who would have gone further and allow the ban to go into effect. they were avoiding language that would have inflame the existing controversy over this policy. in terms of what happens, what they would decide to do in the fall when the cases is argued, i am not sure because at that point if the case is still alive, other issues they come into play. the kinds of equities they may have thought important now baby different. i don't know. i think they will want to work hard to find a decision that further
6:33 am
add to the fire. mr. liptak: what the administration asked for in terms of the injunction was limited 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 bona fide relationship in who does not, and grandparents are not good enough, it does -- 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
6:34 am
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 made 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 has already given a view to the core 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. -- for that reason. the justices have only recuse themselves from cases in which
6:35 am
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 recusals 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 will return? mr. bravin: they have the question of whether members -- 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. agency deference, we heard that people have hopes for their own
6:36 am
petitions in that area and the court has been ducking second amendment cases like crazy. i would've predicted they take 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 policies 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 whether
6:37 am
majority opinion or dissent that 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. she 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 partisan 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. mr. daley: i thought the bank of
6:38 am
america v. miami opinion was interesting. that was part of a broader trend from the chief justice's term in which he was voting with the block in these civil rights cases which is not to suggest that the chief is emerging as this civil rights i can, but 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 ire of conservatives -- he has made some interesting moves in the civil rights area. mr. bravin: let me ask you something. i don't know the answer myself. in the fair housing case, the predatory lending case, he cast
6:39 am
the narrow fifth vote on an eighth justice court so that there is some kind of opinion. on a nine 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. it seems to be narrowly terrible it -- tailored. i think he felt forced to try to generate some kind of opinion on the eighth member court. we had no for four splits -- no 4-4 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 the chief justice and -- i don't
6:40 am
think it is necessarily so. mr. daley: there was an opinion written by justice ginsburg and the immigration case that may reference -- in the immigration case that made reference. mr. bravin: after justice scalia passed, 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 where you had five left-leaning justices and the chief justice being by disposition in the minority, that may have affected the way he approached cases during the term. the open question is how he looks in the future on a nine-member court. it was not a term of blockbusters, i think that in
6:41 am
terms of dramatic timing, the chief's own opinion in the case from colorado 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. the law talks about free and appropriate education, that disabled children are entitled to, and the issue is, what does that mean and there was a circuit split over the level of education that they were entitled to and the 10th cert -- the 10th circuit in a gorsuch opinion, years earlier, assigned
6:42 am
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 opportunities. it was reaffirmed by a judge. that opinion -- it was 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 gorsuch. it was immediately seized upon by some members of the judiciary committee.
6:43 am
you had to say i just heard about it, 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: before we 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. kennedy is possible. should president trump get another appointment, it will put the chief justice into the interesting position of being chief and the median justice.
6:44 am
which may be historically unprecedented. mr. bravin: i think we are still reeling from another retirement. 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 mill was a little off in 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 his own way on many things. ms. slattery: now we will take questions from the audience. please wait for the microphone. identify yourself and ask a brief
6:45 am
question. >> dennis kirk, and having written in government and private, i am a little bit amused 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. mr. liptak: we are confined to supreme court coverage. >> in supreme court coverage, i
6:46 am
would say that some of the speculation like you mentioned, about justices retiring or having heard things etc., some of the articles about whether a not a justice should express her opinion and not be criticized for if she 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. we couldn't do that, and so we did not report it. as a matter of newsworthy topic, the membership of the supreme court is extremely important.
6:47 am
then it becomes a question of news judgment on how good your sourcing is. i feel alright about what we did. we did not say anything about retirement, except when it was public officials like senator grassley and others like them suggesting it. we did not on our own ever. ms. slattery: other questions? back here? >> i have a question for mr. liptak. do you think a decision on the travel ban might adress the question of whether it is a legally binding precedent? mr. liptak: that is a very interesting question. i don't imagine a majority opinion would address the case. but justice breyer recently did and
6:48 am
i can imagine a separate opinion grappling with it. mr. daley: certainly one of the lawyers in the case is interested. you might try to force that issue. ms. slattery: other questions? >> given the extent to which the court plunged into the political thicket in the reapportionment cases, which most people consider to be disastrous results, is there any likelihood that they might loosen the way they approach these cases? really criteria they use is the
6:49 am
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 senate where it looked as though they might back off and but for 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. it came up under mandatory jurisdiction, so they have little choice but to take it. even then, they took it tentatively. what was the phrase they used? it was not even noting probable jurisdiction. it was different 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.
6:50 am
that divides along ideological lines with the for liberals and with the four liberals in different, 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 percolating up that could be pretty big cases? mr. liptak: 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, but they will soon the above the radar and they involve chris christie, so that is good. [laughter]
6:51 am
there is a statute case on whether corporations can be sued. we heard a little bit about the 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 petitions out of 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.
6:52 am
no takers? >> any thoughts on why the court has been reluctant to take up another second amendment case and the fact that thomas and denial dissented from out of the ninth circuit? mr. bravin: 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. it seemed that they were setting up a process by which the normal sequence, when they have a major landmark decision, to have lower court opinions come up and be defended by the supreme court.
6:53 am
i would expect that certainly by 2013, 2014 we would start to see these cases be re-examined. they have consistently turn them away. why? we don't know. the 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. it may be that it is enough, so 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
6:54 am
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. mr. daley: i would just add that 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. they have not robustly implemented this ruling by any means. i am interested to know where he is on this. mr. bravin: it is hard to include that -- they may view heller as a nice symbolic decision, but are content to have gun control laws in those
6:55 am
parts of the country. i remember writing the day of heller that a new term is common to constitutional prudence. at the supreme court, there has been no testing of the scope of the right, so it is very curious. ms. slattery: perhaps we will talk about it 10 years from now. with that, we have come to the end. please join me in thanking our panelists. [applause] [captions copyright national cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] [inaudible conversations]
6:56 am
>> later today, we take a look at the constitutional more powers of congress and the executive branch. include mickey edwards, andrew mccarthy, and a law professor. live coverage beginning at 12:15 p.m. eastern. tonight on c-span, a sociology professor and author on race relations in america. the effects of donald trump's candidacy and presidency on race relations. the discussion was held earlier this year at stanford university. >> in order to keep things in proper perspective when talking about the relative gains of more
6:57 am
, it isged blacks important not to overlook the continuing interracial disparities. for example, a report reveals that before the great recession, there was only a 1.4 percentage point to different in the unemployment cap between recent bike and white college graduates aged 22 to 27. 2013, shortly after the economic downturn, the gap had surged to a 7.5 percentage point difference. race is obviously a factor at play here. periods have the
6:58 am
adversely impacted blacks more than whites. >> [captions copyright national cable satellite corp. 2017] tonight, a stanford university forum on race in america and the impact of the trump presidency on race relations at 8:00 p.m. eastern on c-span. this weekend come on book tv on c-span2, saturday, at 11:00 p.m. eastern, pat buchanan talks about his book. his time as the former senior adviser to richard nixon. were going to break richard nixon as they did lyndon johnson. at the end of that year, 1969, richard nixon was at 68% approval and 19% disapproval. astonishing.
6:59 am
sunday at 10:00 p.m. eastern, a professor and novelist discusses her life, body, and its impact on her life in her memoir. >> you see a woman on the cover of her book standing in half of her formerly fat pants, and she likes, i did it. i am like, i can't write that book yet and i want to. why don't i tell the story of my body today without apology and just explanation? whatis my body and this is it is like to be in this world in this party. >> for more, go to book >> coming up next on c-span, washington journal live. and then a look at opposed changes to medicaid in the house and senate health care bills. washington journal, a look at
7:00 am
health care debate with reporters from kentucky, maine, nevada, ohio, west virginia, and wisconsin talking about the debate going on in their states. ♪ host: good morning, friday, july seven. moments ago, president trump meeting with angela merkel, the chancellor of germany as the g 20 is set to get underway here today and tomorrow in homburg -- hamburg. agenda for on the president trump, he will be meeting face-to-face with russian president vladimir putin. that encounter is set to happen and 9:45 eastern time that at 9:45 a.m. eastern time. many senators are back in their


info Stream Only

Uploaded by TV Archive on