tv Federalist Society Discussion on New 2019 Supreme Court Term CSPAN October 3, 2019 10:42am-11:37am EDT
>> that is the president a few moments ago. we will have live coverage of the president when he gets to and these other big separation of powers cases. they come along every few years. they sometimes can feel like the real nuts and bolts. what i like about these case is they explain why business groups and others would not bring separation of powers of they cannot get meaningful relief. interestingose were briefs to parse through. it is going to be argued on the 15th. a lot of folks are going to argue. i am interested to see how much the court wants to focus on the employed woman's and stuff versus the -- stuff. i think the court is going to be skeptical of what the first circuit date on the backside.
in the last couple of terms, they have been skeptical of a lot have agency actions that have been more willing to put the government to its paces on respecting separation of powers and checking its boxes. said, there is a practical reality that some of these cases feel like the old winstar case from a couple decades ago where financial kate -- is high. financial kate -- is high. it will be interesting to see how the justices approach this. that is your tutorial on one of the very important him maybe less sexy cases compared to the cases that michael panelists have talked about. -- my co-panelist have talked about. onnow bob wanted us to focus actual grants that are pending. when we are briefing is -- because it was in the vein of business interests, i wanted to flag this one the court is likely to take up. personally, i hope they take it
up. we filed a brief in the chamber on this. it is americans for prosperity versus -- new case about -- also, charities that engage in public policy advocacy. near and dear to many business associations that are in this room. i find the case interesting because it is in the broader context of the government -- certain government authorities getting creative in how they seek to interact with businesses to a -- extract information. we saw this and the attorney general's actions in the goa -- oil and gas. these are not your traditional direct back -- california has disclosure obligations for charities. demanding of
derek schaefer at --, i thought he did a nice job in his petition explaining some of the screw ups that california has made with this information they have extracted from other charities and raising the point that we do not want to hand over this information. we have a premium of association. what the government is doing will chill the ability to -- that hash tortured procedural back and it reminds be of both of the ag cases where they were trying to resist discovery that will have they were trying to resist discovery that will have a chilling effect on your associational freedom. the legal question is whether the lesser scrutiny applicable in the electoral context would require disclosure all the time of funding.
that created a dollar for dollar tax credit that would go to create scholarship programs. the scholarship programs could privatee scholarships schools, up to $250 of tax credit. most of them are religious schools, and montana governor steve bullock had vetoed several different efforts to create similar programs, but he finally realized if he vetoed this one, there would be a referendum that would bring out a lot of republican votes at the same time he was running for governor. he decided to let this bill become law without his signature. he decided to let this bill become law without his signature. only one organization was formed, an organization called big sky scholarships, which would give $5,000 scholarships to approximately 40 families. program wasr the enacted, the montana department program wasreated a rule
enacted, the montana department of revenue created a rule that said the scholarship money could not be used to go to religious schools. the montana constitution has inet is known as a bla amendment. named after the former u.s. senator from maine, who led an unsuccessful effort to create a federal constitutional amendment to send a to religious schools. montana's constitutional amendment prohibits aid to churches and religious schools. families who had received these scholarships and some that wanted to receive the scholarships went to court and departmenthe montana of revenue would violate the state constitution, but we believe it violates our rights under the federal constitution, specifically the free exercise clause. the case went to the montana supreme court, which decided to strike down the entire program.
down the entire program. they agreed to hear the case shortly before the summer recess. it will likely be argued in january. the justices see the case come to the court, operating against the backdrop of two old cases. the first called mata versus davies back -- called mott versus davies back in 2004, of holding the basis for a scholarship program that scholarship program that students could use both that students could use both at religious and secular colleges, but the one exception is that it could not be used for students who were intended to major in programs that would prepare for the ministry. to majorts that wanted in devotional theology challenged the ban on the use of funds, it went to the supreme court, and in an opinion by
chief justice william rehnquist, he said there is no doubt the state could allow these funds to said there is no doubt the state could allow these funds to be used for students that would prepare them for the ministry. the question was whether it would the second case is more recent. men meet -- many of you'll remember in 2017, trinity lutheran the second case is more
recent. men > the montana supreme court struck down the whole program so nobody is getting the money anyway. down the whole program, so no one is getting the money anyway. the question when it comes to the supreme court, what are they going to do and how is it going to navigate between these two cases? trinity lutheran appeared to be a sort of compromise, minimalist gorsuch hadst as joined the court. last year, in a case challenging the presence of a piece cross on cross onnd -- peace
public land outside of washington, d.c. was also a seven-to decision, and justice alito wrote in that case that taking the cross down would actually be an act of aggressive hostility towards religion, allowing -- taking it down would neutral towards religion, it would be aggressively hostile towards religion. it is a different case, but i think it says nothing about where the mindset of many of the justices is likely to be going into this case. you can see that neutral there e a majority of the justices who might be ready to read mott v. davies relatively narrowly, and say ok, states are not allowed to fund religious training, but we will violate the free exercise clause to limit state funding beyond that. i will be watching the dynamics on the court in this case. yertices kagan and r joined the majority opinion in so it isran case,
harder to see where the compromise might be in this case. , we will talk a little bit about the dynamics on the court, the likelihood that the chief justice might be these 5-4not have ideologically divided opinions. this might be one where he sees some room to do that. the next case i want to talk about is a case called hurt and as versus mesa -- .ernandez versus mesa it is a lawsuit by a mexican family seeking to hold a u.s. boarder patrol agent responsible for the shooting death of their 15-year-old son. the sun was on the mexican side of the border when he was shot by the border patrol agent, who was on the u.s. side of the border. when they's argument filed their lawsuit several years ago is that the border patrol agent had used excess of in excessive force in
violation of the fourth and fifth amendment of the constitution. they were trying to bring their claim under a case with six unknown named agents, in which the court allowed a lawsuit seeking money damages against federal officials for violating the constitution to go forward. the u.s. court of appeals for thatifth circuit upheld dismissal. it went to the supreme court. oralupreme court heard arguments in 2017 and sent the case back to the district, to look at the case again in light of the supreme court's decision the same term in another related case, brought by middle eastern men who had been detained by the government after september 11 and were trying to sue various government officials. in that case, the supreme court said didn't should not be
extended to a new context when there are special factors counseling hesitation. justice thomas wrote separately in that case. he said in the current and as case, thee hernandez family could not rely on dividends at all. he was joined by justice ginsburg. said they could have brought a claim under the fourth amendment and brought their case under divens. the fourth circuit ruled that ens did not apply, because it is not clear if a constitution -- and the constitution applies to a foreign citizen on foreign soil. they will say, we are securitybout national issues, the sensitivity involved
at the mexican border. congress has not provided a damage remedy and there is a presumption that u.s. law does theapply outside of united states. so the family asked the justices to take up their case again. last fall, the supreme court last fall, the supreme court asked the solicitor general to weigh in. he filed a brief in the spring in this case and another case involving a cross-border shooting out of the ninth circuit. in thatin that case, the ninth t had allowed the case to go forward and said this remedy should be available. because the two lower courts had reached opposite conclusions, the solicitor general recommended that the supreme court granted review in the herd -- h -- hernandez case. a are back, they say this is the same context, a rogue government agent using excessive force. there are not nationalthere arey
issues, they are are not force issues. if there are, they say it is because the mexican government is mad that they do not have any kind of remedy. finally, unlike finally, unlike the zigar case, we do not have any other remedy if we cannot sue these officials in federal. the court has not extended the in four years. if i were a betting person, which i am not, i would not bet bethem on them extending it again in this case. the third case i will talk about involves, along the lines of the hurly-burly of politics. i do not want to make light of anyone going to prison because serious thing, but this is one of the more fun high profile cases, bridgegate, kelly versus united states.
it might be distasteful to the justices, but does it cross over and become a federal crime? there have been a lot of cases in the supreme court resisting efforts by federal prosecutors to use the federal criminal punish political misconduct, and i think this is likely to be another case in which the justices wind up pushing back. bridge, aswashington many of you are aware, crosses the hudson river from new jersey into the northern part of manhattan. the upper deck has 12 lanes -- for many decades of rush hour, three of those lanes have been blocked off with cones for bridge, asf many of you are aware, crosses the hudson river from new fort w jersey, so they can merge on the bridge easily and get over manhattan to get to work. back in 2013, when chris christie was up for reelection, the mayor of fort lee, new jersey did not want to endorse his reelection bid. that led to his deputies chief and two high levelgh
court authority staffers to put together a plan to take those three traffic lanes and close them down to one lane to punish the mayor for his failure to endorse chris christie. they needed a cover story to do that, so they concocted a fictitious traffic study and gridlock. they did on the first day of school, september 2013, without a heads up to anyone in port authority or fort lee. there were reports of children on school buses for hours, paramedics having to get out to walk to the to someone who is having a heart attack. it also cost the port authority it also cost the port authority approximately $5,000 because they had to pay overtime for toll collectors and pay for the engineers that were conducting the phony traffic study. eventually, the head of the port authority figured it out, they went back to the old system and heads rolled.
bridget kelly, david wild scene, and william baroni all resigned. chris christie, who wanted to get all of these endorsements to build momentum for his notidential campaign, was elected president. not elected president. kelly and baroni were charged with violating federal fraud statutes. the government's theory was that they had deprived the port authority of property in the form of the extra salaries for the toll collectors and the engineers, and the fraud came because they had lied about why they were conducting the traffic study. argument wasoni's that the government was only relying on this theory because this under thedo federal honest services statute. in 2010, the supreme court ruled that you can only rely on the honest services statute if there were actual bribes or kickbacks, or kickbacks,
and kelly and baroni did not get anything out of this, other than the fact that they were getting retribution to the mayor of fort lee. if you allow the government to thene broad purposes for the purpose of this statute, it will sweep in all kinds of political misconduct. when somebody prioritizes one neighborhood over another for snowplowing because they want to curry favor with that somebody prioritizes one neighborhood over another for snowplowing because they want to curry favor with that neighborhood, but they say they are plowing that neighborhood for safety purposes, that could be one. they send any mail about it, that could be -- an email about it, that could be swept in under the honest services statute. if a secretary of commerce is lying about citizenship, that could be under the fraud statute. this will be an interesting one to keep an eye on. if i were not a if i were not y
neutral observer, i would say yes, screwing around with my commute is a crime. as megan talked about and as most of you know, the supreme court does the docket -- supreme docket -- supreme court's docket is not set. they continue to accept cases for review until about the end of january. twoill talk quickly about cases that might be there, one likely and that likely and that involves a louisiana abortion law. last february, the chief justice joins the court's liberals, who stopped a louisiana law passed in 2014 that requires doctors and abortion clinics to have admitting privileges at nearby hospitals. that might sound familiar to you, because the court in 2016 considered a nearly identical texas law and struck it down. in that case, justice anthony kennedy joined the court's liberals in a five to three
decision. that 2016 decision said admitting privileges "provides few if any health benefits for women, poses a substantial obstacle to women seeking and constitutes an undue burden on their constitutional right to do so." both sides agree hospitalization rare after an abortion and the lack of admitting privileges by the doctor who performed the procedure is not a bar to the woman getting medical care if she needs it. but last fall, a panel of the u.s. court of appeals for the fifth circuit revisited the louisiana law and found that there were factual distinctions between how the restriction played out in texas and louisiana. said, unlikemith in texas, the louisiana law does not impose a substantial burden on a large portion of women.
it seems unlikely that the court on the law a stay and not accept the case. they considered it yesterday at their private conference. we will likely hear something soon. raises the question about whether the court is ready to revisit a fairly new precedent, like the one in whole women's willh, or if they distinguish it in a way where a distinction that is allowed in one state is not distinction that is allowed in one state is not allowed in another state. the court has another case out that it has not acted on from last term, in indiana. it combines a waiting period ok, withs been ruled an ultrasound, which has not been ruled ok, in separate instances.
the way in indiana goes, the follow theiod would ultrasound, meaning a two day process for women who want an and the u.s.e, court of appeals for the seventh circuit said that created a burden on the right to abortion without any discernible benefit. the court may take one of these cases. them andke both of come to a different decision. again, the balancing act we have sort of talked about. should get word fairly soon on whether the court will take this up. talk aboutng to whether or not we will see obamacare returned to the court. he has a bit of a vested interest. it could mean a third book for i think, but he will try to be dispassionate. bring those books
with me, but i will diebold. obamacare is the gift that keeps on giving at the supreme court. chief justice roberts narrowly upheld the aca, left it angling by a thread. because the law's penalty can be read as a tax that raises actually imposing a mandate, but a constitutional tax. the law is dangling by a thread. ask the taxss and cuts and jobs act. that law reduces the penalty to zero dollars. at the time they said huh, i guest obamacare is unconstitutional now. texas filed a lawsuit, saying that reducing the penalty to zero dollars killed the justices savingtexas filed a lawsuit, sag that reducing the construction. it can no longer be read as a tax and is unconstitutional. the million dollar question is about what happens to the rest
consider this a reporting what exactly does an official impeachment inquiry mean for the courts? sense of urgency to some of the cases that are in the lower courts right now? do you think it is that the supreme court will have to weigh in at some point if the executive branch continues to ignore requests tom the house for subpoenas provide information? i open it up to anyone? might get three strikes again, as josh was referring to. that is when the chief justice added the three strikes. >> he does not seem like a three strikes guy to me. >> he took them off, but it could make chief justice roberts' life a little busy, if he has t3 full-time job -- two full-time jobs. >> so john roberts to dismiss
the actions. if there is actually impeachment in the house, the senate, speaker mcconnell said ok, let's have a motion to dismiss the charges right away. that will be voted on. perry byrd back in the day had a motion to dismiss the indictment against clinton. that was turned down, so there is some precedent here. if the house votes to impeach, i think john roberts will look to turn down the impeachment by a majority vote. >> if issues come to the supreme court and he has to rule on them, the effect to which he , it wouldinvolved give further incentive, at least to john roberts, to the extent that we believe that he really wants the court to avoid being be seen as partisan. i think that would add to his desire to avoid being seen as partisan, to avoid these 5-4
decisions in high-profile cases. whether or not he can do that is an entirely different matter. vote and all of the justices have very strong minds of their own. >> let me ask you about roberts and we will get to the questions, because we spend a lot of time thinking about him, talking about him. he does have only one vote, but it is an important one and it seems like if he could use it to keep the court from perhaps taking up some cases, one side or the other might want because they do not know how he would vote or he tells them how he would vote, how do you think he is managing this role of trying to protect the institution and yet carry out his job and rule on cases? is, would say the challenge the notion of legitimacy, there
are different concepts of what makes the court legitimate. if the idea of legitimacy is winning the polling number, how popular is the court? do they think the court is good? or is legitimacy derived from the court being founded in a constitutional system relate on the part of our representative government. i am not sure if you can always hit oath of those at the same time. to the extent that the chief justice -- you know, it is hard to know to make -- what to make of some of the reporting, the shifting votes on the obamacare case or the census case, he is giving indications he is making decisions on political considerations, and while that may address or what attempts to address the popularity contest it in thegitimacy, long run would undermine it both in terms of the public view of the court and in terms of its actual legal legitimacy as an
institution. i would hope that does not continue -- the white house it isthat don mentioned, part of the same process. if there is a perception that the court can be bullied to change votes, that is bad for the institution as a whole. imc said to see there are five senators that think that is a good move to do. i am hopeful that the other justices do not want to see that, because that is bad for the court. do not understand why they saw that as a persuasive brief in any situation. anyone else? before we move on? >> i think there are other justices on the court who may be willing to work with him, not in a political, let's change votes, but let's find the middle ground. some of these cases,
like the title vii cases, i do not know if there is a middle ground to be had. protects lgbt employees, or it doesn't. i think the country has very strong feelings about it. >> on the court's popularity, i saw a gallup poll, the annual shows,at they do, and it as always, that if a republican controls the white house, republicans think the supreme court is doing a good job. if democrats control the white house, democrats think the white -- the supreme court is doing a good job. the thing that jumps out to me is independence. if theked in 2000, court was just right, too conservative, too liberal. conservative, 15% said too liberal. said the court was about right this year, 29% said too
conservative, 15% said too liberal. so while it has gone up and at least,pendents, seem fairly happy with the court. yes sir? >> i practice telecommunication law. yesterday we got a decision out of the d c circuit, 186 pages -- i must confess, i have not read it yet -- it was on net neutrality and the court mostly upheld the fcc, which the challengers obviously will not like. the court also largely overturned, vacated the decision on the fcc's preemption of state's effort to put in net neutrality legislation or rules. i think there is a good chance that it is going to go up. it is too deep in the weeds -- i have not read it, you may not have read it either, but i have heard some talk from colleagues that it may go up and the court
may use this case as a vehicle chevron deference. the reason, the fcc has flip-flopped. over 20 years, they have flip flopped on how or whether to regulate the internet. each time, the court has gone to the supreme court at least twice. each time, the supreme court has referred to the agency's determination. how many times will the court do that after all of these flip-flops, to where they say hey, maybe this needs to be looked at. if you do not know about the case, watch for it. if that is the case, i would welcome any general comments on chevron p -- chevron deference. >> we have been watching that case with some interest. my colleague argued a piece in that case.
it was a long-delayed case. i am very interested to see what tom johnson at the fcc and the chairman want to do on the latter piece. i do not know what they should do on the preemption piece, but the court has been looking at chevron. they had a couple of cases last term that signaled a willingness to push again, the typical deference that agencies get. i do not know this would be the right case to find the challengers, but i would want to take this up to the court, and use net neutrality and all of its baggage as a way to tee up chevron. applicationme the was not all that controversial, something that is well within the agency's discretion. i just do not think it is the best vehicle -- if you are dream is to get chevron undermines, i do not know if these challengers are the people that wants to carry that watcher, or if this would be the vehicle. if i was the court, i do not want john oliver telling people to send nasty notes and camp outside the courthouse.
it is a nasty case and it has not been handled well by the advocates. that is my view, sorry. [laughter] >> we are good with opinions here. >> thank you very much. >> this question involves conversion therapy. for those of the room who do not know, that means a gay person would be brainwashed or psychologically analyzed and forced to no longer identify as a gay person. there is a case from aspen, colorado that is moving forward to the federal courts and to the supreme court involving a lesbian couple arrested at church. he completed the conversion theypy, were invited -- completed the conversion andapy, were invited back, arrested for third-degree criminal trespassing. the case was appealed and continues to be appealed -- the reason being that the habeas corpus petition filed with the judge had never been docketed.
so the ruling has been, one has achieveo follow and state remedies. these cases move forward, do you see the docketing of conversion therapy? the case at the second circuit whereracketeering case the winners of the recovery did get trouble damages. haveat insights do you into this kind of subject matter as the future might unfold. -- unfold? >> i do not personally know much about the case or the issue that -- i or being at the court think we all agree that it is a disagreement among the lower courts on these issues that most courtprompts the supreme to step in on one of these issues.
i do not know what that is like in the lower courts. does anyone else have any -- could you tell us about that? [inaudible] yeah. certainly, the gay rights cases are there and will continue. there is a case we have not talked about yet as a follow-up to the masterpiece cake shop case, about whether wedding vendors are required to offer their services to same-sex weddings. that, i think, has a good possibility of returning. there is a case involving a florist from the state of washington that is at the court right now, it seems likely to me --t -- amy might know better i think it is teed up to be considered by the court in time for this term. >> yeah, i think so. >> anyone else? , some basic guess
questions on it because this is something i am totally unfamiliar with -- gay conversion therapy, an , iividual who is gay says don't wish to be gay anymore and i want to go to some kind of therapy, one way or the other. who would have legal standing and wide to challenge that? , a religiousse freedom aspect has surfaced. stra w there are 18 -- 18 states in america that have put a ban on conversion therapy enrolled against it. >> if an adult says, i wish to change? >> i would hope that the government does not tell us what to do in our private life. >> should they tell this
individual who wants to go from gay to straight, you may not do this? >> on the reverse side, we believe that gay people are born and it is not a decision, and those private rights would lack jurisdiction in the federal courts or in the secular courts. >> in the case that you raised, an individual says, my religion says being gay is wrong. ok. you do not have to agree with that religion. my religion says this, i wish to change. should the state have the ability to come in and say no, we have decided you were born gay and you must stay gay, regardless of your wishes? >> that is a violation of the first amendment, and i think it will be an interesting debate
and will happen in american history. >> all right, thank you. >> thank you. >> this is a topic you have discussed once, the louisiana abortion case. my disclosure is, we filed a brief on behalf of 256 women hurt by abortion and abortion industries. the coverage of the case, they being talk about it exactly similar to the texas case. in the texas case, there was an ambulatory surgical center requirement and hospital admitting privileges, and the cost of an ambulatory surgical center was about $1 million to build a new one. to me, that is why the number of abortion clinics was reduced in texas when the law went into effect, because unrefuted evidence was a pretty high barrier of entry. in louisiana, the facts in my opinion are very different, and i think those are just facts.
is, in the question, the distinctions between texas and louisiana factually needs to be brought out. the other thing is, the abortion industry, they called their next litigation strategy "the big fix." the attorney general in texas points out and so in five other states, they have voted to set aside every abortion industry regulation. they do not want to have a doctor or be required to have sterilized instruments, for example. wade,back to roe v. strict scrutiny, fundamental rights analysis. that is one of the reasons texas and many states filed an amicus brief in the louisiana case, ,aying their interpretation which would lead to the elimination of all regulation, is a very extreme interpretation. i would like your opinions on that. thank you. followed the case
closely enough to say whether that is a logical conclusion -- i want to point out that because of those factual distinctions you point out, it brings up an interesting tension in this case between some of the things that apparent justices' interests, having these decisions and the broader decisions, and not having to bring the court into controversial issues -- these are examples of how those can be at odds of each other, because they did cite lots of factual in theinvolved texas law, women had to drive, certain clinics were closed, etc. furtherld almost invite litigation, because the next case, they have to tweak a few different things or it has to be different, because the size of louisiana is different than texas. you will see the full employment act for lawyers on both sides on
this contentious issue and it it guarantees-- the supreme court will not get away from deciding issues on this topic for a while. >> does anyone else have a question? >> yes. i have a question for my fellow panelists or anyone who might be in the group. looking at the unanimous jury question, it reminds me of a question that i had when mcdonald was being argued and i saw no,hich is, what i would have expected to have seen was briefs from the criminal defense bar arguing for total incorporation, a theory like-- in 2010, it looks mcdonald might be the last time the court actually considered the incorporation question. there were several things that the criminal defense bar would have had an interest in --
unanimous juries, excessive fines, the grand jury and bail. all of which has either not been incorporated or at least, incorporation is somewhat unclear in these cases. this was a kind of dog that didn't bark. why didn't we see massive briefs from the national association of criminal defense lawyers and this groups saying look, is a time to look at incorporation once again and simply do away with selective incorporation and go for total incorporation. >> is any -- if any of the audience have thoughts on that, you will want to tell him afterwards because we are almost out of time. the panelists can weigh in quickly if someone has thoughts on that. >> i don't. [laughter] group that has single issue areas, there are so many political coalitions, where the same group might love the idea
of general incorporation but not love the idea of the second amendment being incorporated. how ittes challenges in allows you to intellectually align those positions. that getsr anything us more interesting cases for reporting to the supreme court. thank you for your attention, and please thank the panelists for their time. [applause] [captions copyright national cable satellite corp. 2019] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] at 1:10, up live coverage from president trump signing an executive order on medicare in florida. at 4:00 p.m. eastern, former ambassador to the u.s. samantha
power compares democratic governance versus authoritarian. at 5:45, c-span will be life in new york where alexandria ocasio-cortez will host a town hall. thesen see all of programs life -- programs live here on c-span. c-span also live today for a discussion at the center for american progress on the lack of diversity among judges in the u.s. and how it affects the justice system. [indiscernible chatter]
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