tv Federalist Society Discussion on New 2019 Supreme Court Term CSPAN October 6, 2019 12:13pm-1:42pm EDT
termupreme court's new begins tomorrow with the court hearing cases on employment discrimination based on sexual orientation, the trump administration's winding down of daca, and religious education. watch on c-span and listen on c-span.org. now, a look into potential cases the supreme court could take up this term. we will hear from a panel of experts that discuss cases the justices have dealt with this year. from the federalist society, this is 90 minutes.
>> hello. my name is robert barnes. i cover the supreme court for "the washington post." thanks for coming on this crisp, fall day to hear about the supreme court. i'd like to thank the federalist society, particularly the facility division and practice groups for putting together what we think will be an interesting panel on what looks to be a very interesting term at the supreme court. after the trauma of last year's confirmation hearings, there's been a thought from those who watched the court that it went out of its way not to look partisan last term, to look for ways to bust up the ideological divide on the court in some cases and to slow walk some controversies to keep them off that year's docket. it's been well-documented that each of the conservative justices at least once joined the four liberals to make up a majority in a case. and it went the other way, too. each of the liberals at least
once abandoned his or her usual voting partners and joined the conservatives in a case. harmony could be harder to find this year. here's a look at the docket so far. whether gay or transgender workers are protected under title vii of the civil rights act of 1964. whether the trump administration acted legally in moving to end the daca program initiated by president obama. the court's first second amendment case in a decade. the president's power over appointments. a case about a montana tax credit program that was shut down rather than be extended to cover religious schools. an abortion case that's almost sure to be added. there's a chance obamacare might return. you heard the justice might need
to moonlight and reside over an impeachment trial in the senate. we will be locked in on john roberts, once again, the first chief justice in decades who is also the median justice on the court. we saw how he operated a little bit last term in the two most important cases he -- we saw how he used his power. he sided with fellow conservatives to say the federal courts have no role in placing -- policing state electoral maps for excessive partisan gerrymandering, and then he stopped wilbur ross' plan to add a citizenship question to the 2020 census, saying the reasons he gave were not believable. we'll try to explore all of this with the distinguished panel of experts we have up here, and
we'll take your questions as well. so be thinking. i'm going to give short introductions to them, so as not to use up much of our time. if you want to know more, as i heard chief -- as i heard justice clarence thomas once say say to a house panel about a question he didn't particularly want to answer, google it. so robert cottrol is the harold paul research green professor of law and professor of history and sociology at the george washington university. as well as specializing in american legal history, professor cottrol has taught torts and criminal law. he's an expert on the second amendment, as you will shortly hear. josh blackman is associate professor of law at south texas college of law in houston. he specializes in constitutional law, the supreme court, and the intersections of law and technology. josh is the author of three
books, "unprecedented: the constitutional challenge to obamacare," "unraveled: obamacare," and i forget the name of the other one. he also writes at joshblackman.com and usually writes more about the court than those who are paid to write about it to make our living. carrie severino and co-author with molly hemingway of the best-selling book -- >> i didn't bring a copy. >> oh, my gosh. ok. i'll say it then. "justice on trial: the future of kavanaugh and the supreme court."
>> i didn't know it was product placement day. >> she clerked at the supreme court for justice thomas. megan brown is a partner at wiley rhine. she represents companies and associates including the u.s. chamber on preemption and first amendment constitution. and amy howe is the co-founder of scotus blog, that indispensable website for all of us who care about the court. she's a reporter for her own blog, amyhowe.com and scootus blog. although she's too modest to mention it, she's the only person i know of in the supreme court press room who has argued two cases there. so, as you can see, we have a real panel of experts. they're going to break down some of the issues that are before the court, and we're going to start with bob, who will talk to us about the second amendment case. bob: yes, the court has before it what is actually the first meaningful second amendment case that it's been asked to consider since mcdonald, which incorporated the right to bear
arms against the state. the court did consider in 2016 -- briefly considered by a procureum vote reversed the massachusetts supreme judicial court in the case of qitano which dealt with whether or not stun guns, electric guns might be protected under the second amendment. but the case the court is looking at right now is new york state rifle and pistol association versus city of new york, and there are several important issues here. one, the court in heller and mcdonald did not set a standard of review for second amendment cases. it simply pronounced the fact that the second amendment was an individual right, and in mcdonald that it applied to the states through the 14th amendment. since then i think many observers have looked at what
has happened in the lower federal courts and how they have applied heller and mcdonald and have felt many of the lower federal courts have basically been using a rational bases lens in terms of judging second amendment cases, even though they've been calling it intermediate scrutiny. there are four justices, i believe, justice thomas, alito, gorsuch, and kavanaugh who from their writings in the court and lower courts seem to favor a fairly strong reading of the second amendment, and one might add roberts to that list as well.
we have the case of new york state rifle and pistol association versus city of new york. let me just give a little background background. new york state has a highly restrictive pistol licensing scheme. first of all, new york city has two types of licenses. one is a carry permit, permit to carry a firearm, a pistol for self-defense. these are highly restrictive and basically one can only get them if one has large sums of money or if one is rich and famous. donald trump as a citizen in new york had a carry permit as do a lot of other notables in the city, but ordinary citizens, aside from people who are professional security guards, find it impossible to get such. the other permit is somewhat more permissive, a premises permit. the city has a very high clause to allow you to own a pistol for protection in your own home.
the fees run something around on the order of about $700. usually it takes several month'' wait before one is approved. at the end of the day, a citizen can, in fact, get a premises permit, though every effort is made to discourage that. the nub of this case is that traditionally or previously new york city prohibited people who had pistol permits, that is, the premises permit, even though they had gone through a long screening process of taking their permitted pistols outside of the city, either for practice on ranges outside the city or for defense in second homes they might have. a suit was brought under the second amendment on the theory that this was, in fact, a violation of the second amendment as outlined in heller
and mcdonald. it was brought before the federal district court for the southern district of new york, which sustained the ordinance and the second circuit as well. the second circuit's reasoning seemed to indicate that almost any claim on the part of the government as to an interest would be sufficient to cause the city to, in fact, sustain -- or, rather, the court to sustain such an ordinance. for example, even though we're talking about people who, again, were highly screened and screened over a long period of time, the city asserted its interest without very much in the way of evidence, well, perhaps they might misuse their guns on the way to their second home or range outside the city. or they might get into a road range situation and bring out
their guns. well, they're not doing it within the city, why are they going to be particularly worse once they get outside? though, having driven in new york, that's not totally beyond the realm of possibility. in any event, the second circuit upheld the ordinance, and the supreme court granted cert on this case on january 22nd ofthis year, 2019. what the other interesting issue, though, that this case is raising is that new york city and new york state have made strenuous efforts, in fact, to moot this case because they don't want it to get to the court, fearing what, in fact, the court might do. so new york city altered its ruling, changed its ruling with respect to taking one's
permitted pistols out of town, and new york state legislator basically ratified that and set it in concrete by saying the city could not go back on that. one of the questions aside from the second amendment question this raises are the issues now moot, and is there still something for the court to consider? those who want the case to go forward argue the actions of new york state and city are reversible at some subsequent point and also that the second circuit opinion is still the law of the second circuit and need to be addressed by the supreme court as to whether or not it's consistent with heller and mcdonald. but there is still the question of is there now a case in
controversy as new york city residents with pistol permits can travel outside of town. this is an interesting case that has attracted amicus briefs by some 45 different parties on -- obviously on all sides of the gun control issue. the solicitor general has filed a brief in support of the petitioners, that is new york state rifle and pistol association. a number of briefs have been filed arguing this is now moot. there was the brief of senators sheldon whitehouse, marie hironon, richard blumenthal, and gillibrand arguing for mootness, but in a peculiar
but i'm not sure in a persuasive kind of way. basically telling the court, if you don't rule our way, we're coming after you. that may cause, who knows, even maybe the notorious rbg will look at that and say, you don't threaten my court. in any event, yesterday the court had a session in chambers to resolve the mootness issue and they have not publicly announced their ruling on that, though presumably we'll get a decision on friday. if this case is considered to be moot, and my prediction is that the court will not take that view, but if they do, the next likely second amendment case to come before the case is george young versus state of hawaii. the state of hawaii has a prohibition on the carrying of pistols outside of the home and does not grant permits for
carrying for self-defense. the district court sustained this law against a second amendment challenge, but the ninth circuit in a three-judge panel reversed, basically saying the second amendment does, in fact, encompass the right to carry as well as the right to possess. the ninth circuit was looking at that and going to do an en banc review of the panel determination but they have suspended that, first to see what, indeed, happens in new york state rifle and pistol association, which may address the question of what extent does the second amendment extend beyond the home. so, that's sort of where we are at this point.
>> thank you very much. "wall street journal" editorial board memorably called senator whitehouse's brief an enemy of the court brief. and then the republican senators weighed in with a letter saying, don't pay attention to them. so, this is really, you know, john roberts' favorite thing, is to have democrats and republicans arguing about the court. >> when does robert add the stripes to his sleeve? when does that happen? >> we'll get to that, josh. josh blackman is going to take us through a couple of cases. josh: thank you so much. it's a pleasure to be here and to bob and bob and all my friends on this panel. i have two cases, second daca, first ramos versus louisiana. the first case presents the question of whether the sixth amendment requires the unanimous jury to convict. louisiana and oregon have a different law.
for certain types of cases, you can convict with ten members, that is two vote to acquit. louisiana has subsequently repealed this law. this case only involves retroactive cases. this focuses on an issue of incorporation. the first eight amendments restricted federal power. after the 14th amendment that calculus changed. over the 20th century, the supreme court said certain rights are so-called fundamental rights. as fundamental rights, the states cannot deprive people of those rights, such would be a violation of the due process clause. virtually the entirety of the bill of rights has been incorporated. the second amendment was only incorporated about a decade ago in mcdonald v. chicago. a few outliers is the right to unanimous jury verdict. you might say, wait a minute, i have my constitution, the sikd
sixth amendment says you have the right to a speedy trial, impartial jury, the trial must be in the place where the crime was committed. it says nothing about a unanimous jury verdict. you're right. this is what makes this case a little more difficult. last term we had a case calls ed timms versus indiana which asked if the excessive fines clause incorporated, all the justices agreed. they disagreed on, perhaps, the rationale. the majority preferred due process, but they all agree on the same front. this case is different. because there is no express enumerated right to a unanimous jury verdict, i think there will be incorporation for sure, but i think perhaps justices thomas, maybe gorsuch, maybe kavanaugh also, will agree with enumerated rights and due process. i ask you to read a brief -- i
say it with all the love -- he basically wrote the brief for the attorney general of louisiana. it shifted my thinking on it. it's a tough case. the second is the deferred policy known as daca. in 2012, after congress said no to the dream act, president obama said, yes, i can. and he listened to daca and this is a policy that i agreed with whole wholeheartedly had congress enacted. the way it works is like this. minors brought here under no fault of their own, it said we will not prioritize you for removal and give you lawful presence. what is lawful presence? it is a status that is not citizenship or amnesty, but you will get a social security number to work and federal benefits.
this policy was in effect for the entire obama administration, but after president trump came to office, he decided to repeal the policy, in large part because texas planned to sue him, and he decided to repeal the policy. so that is relevant later, but you would think that one policy that the president changes due to executive action would be able to be changed, but no. district courts held that president trump could not rescind daca and the rationale is important, because they did not say that daca must be remaining in stone and chiseled in stone like the ten commandments, but even those were smashed. so instead, they said that the rational given is arbitrary and capricious, and they said that president trump's animus towards hispanics taints the decision, and also violates the protection component of the fifth amendment. all of the lower courts except for one ruled against the trump
administration, and the supreme court granted review. generally when the supreme court grants review, it is to reverse, so the good money is that trump wins this one, and i don't know how he wins this, and the how is more important than the what. perhaps the court holds that this policy, and sorry that the rescission is not like review or some jurisdictional ground, but that is going to allow trump to do what he wants to do, but not weigh in on the components, and why is that important, because the next president, elizabeth warren or whoever may decide to reenact daca, and so i am hoping that the court will decide if this is legal and john roberts disappoints me every year, but we will give them three stripes and that is all i have. we have other cases. >> you will be surprised to learn that women on this panel volunteered to do more case
than than the men, so we will not take up anymore of their time. go ahead, carrie. carrie: i will look at the phrase that contained "entitled to sex" and other cases. so the title vii is going to be one of the hot topics that the court is going to cover, and an interesting test of how well we can separate the incredibly significant social stakes of these issues, and it is basically going to have to do with whether title vii applies to sexual orientation, and transgender status, and trying to figure out how the separate the court's consideration of whether that is in the statute in the 1964 title civil rights act versus the very hot and current issue of should this be something that is protected by law. and the court, of course, it is attempting to look at what the
law is covering right now, and it is interesting that this is as well as one of the criminal cases looked at provided great example of where this court has come and embodying in some ways what justice kagan said in the confirmation hearing, we are all originalists now, and on these topics once upon a time in the one case with the death penalty or the insanity defense rather, we will see in the other case that with these issues of a major social import, you may have seen more of the arguments focused on if this is a good thing, is this the just result and how does this impact society, and some of that theurking in all of arguments, and in particular of this case, you can see that woet sides are fighting for the correct originalist, and the contextualist statutes. and this is something that is significant and has to do with the current makeup of the court and seeing the ascendency of the textualists and the original
approach, and this is the influence of the groups like the federalist society, and making these philosophies more well known, and it is really having a lot to do with this. so quickly, there are three cases, but they are combined into two groups in the title vii, and the first group is sexual orientation, and two cases argued together. right off on the 7th, and onehas to do with gerald volstock who was a child services coordinator in clayton county, georgia, and was fired. there are disputes of whether it had to do with the audit or joined a gay softball league and came out as gay or was more salient that he was, and the question is whether he can bring this claim under title vii. and similarly donald sarda, who was a skydiving instructor and
as part of his duties and he would have to strap himself to the person he was training, oftentimes if it were a woman he would try to reassure them that it is not anything sexual by telling them, don't worry, i am gay, and someone filed the complaint and i don't know whether he is or not, but he touched me inappropriately and fired. and so the set aside of the real motivation in this case, but the question is if he can bring this claim. he has passed away in a skydiving accident, but his estate continues it. and so this is looking for a precedent like every other circuit said in 2017 the words because of sex don't include sexual orientation. and in the 2nd circuit zarda lost initially en banc and there is a case on the side of the employers that the united states has filed an amicus saying that we are also employers and we have to follow and interpret
title vii and they have an interest in it, and the solicitor is known as the 10th justice as the voice is weighing heavily, and the real question that is going to be coming here is how do you, and what is the right question as to what because sex means in the thing, and you can have no discrimination because of sex and what is the right comparison because of what sex is, and you will have one side saying, well, look, if a man were interested in a woman that would be, that would not trigger dismissal in this case, and if a man were interested in a man, it does, and this is the difference because of sex. on the other side, you will have the employers in the united states arguing that the real distinction is that if you have a homosexual man and woman, they
will be treated the same, and a heterosexual man and woman, they are treated the same and the real thing doing the work there is not whether it is a man or woman, but the homosexual and heterosexual status there, and so which one of those is the correct question is to be asking is where all of this turns on. there is a lot of arguments of whether it is inherently because of sex involves sexual orientation, and there is the people, and some arguments are being made that, look, you have to talk about and ask of the notion of sex to get to the orientation, and this is going to sweep in everything there. ultimately, that is something that the justices finds goes a step too far, because there is another issue that kind of looms in this case and the next one which is the idea of certain types of sex discrimination or distinctions made on the sex that are permitted and the supreme court itself has deemed necessary in law as allowing for same sex or separate sex
bathrooms and allowing for different dress codes and fitness tests. so in the virginia military institute, justice ginsbergurg said if you open up a door to women, you will have to build more facilities, and so if the interpretation is too broad, it says anything that touches on sex is then sexual discrimination, and it is risking sweeping in a lot of things that the court is not going to want to bring into that. there's this attention on both parties of the idea that congress does not hide elephants in mouse holes. they said because of sex and everyone is agreeing that the intent at the time was not to add sexual orientation or transgender status to the rule or the law.
however, there is not legislative history. they don't hide elephants in mouse hole, and there is case that justice scalia had with ahn and colley saying that this is not about sex, but even though it is on their minds, and that is not about sex even if that is what was contemplate and the statutory prohibitions go beyond the present evil to account for other evils and it is the provisions of laws rather than the concerns of legislators for which we are governed and so on one side you have yes, this is covering the evils and on the other side, people are saying that either way on colley, it says whether members of one sex are exposed to disadvantages and not the others and it does not go beyond that. is that beyond the context or hiding a elephant in a mouse hole? a lot of questions there. and there is the sex
stereotyping in the case of price waterhouse is bringing in the stereotyping because of the sex category, and that going the boil down to the initial category of what sex means, because of what price water house says is that it is useful to find out if there is discrimination based on sex and the united states is strongly arguing it is not a stand alone thing, and so that is going to be a question of whether the court wants to make sex stereotyping a stand alone type of somehow discrimination based on sex or whether they want to say that it boils down to what is sex in the first place. it is interesting, because there is no legislative history and statutory history, and subsequent history that both sides say means different thing, and so it is interesting to watch everything from watching in 1976, and the court said that pregnancy discrimination was not
because of sex and so they were not going with the anything that has to do withis ex sex is because of sex and now the definition including preg and not limited to, and this is adding in there. repeated bills attempting every year since 1975 in the case of sexual orientation, and since 2007 in the case of transgenderism, and to add it to the list of things that protected the classes and the fact that those have not passed, does it suggest that congress knows how to change it and doesn't or does it suggest that they believe it is already covered and both sides make arguments about that, and the civil rights act of 1991 was passed after several circuits said that sexual orientation or transgendered status is not included and they are ratifying the information and that is passed after these suggested readings of broader sex and some of the parties like pricewaterhouse or collie were
before this, and they say this is a broader understanding of what because of sex is and government and the employers on the other hand say they did not change the language and they could have added other including transgender even though it was not as often discussed at this time. those are issues going back and forth and i will be running low on time, and i did not discuss the facts of the harris funeral home which is the transgendered facts, and there are some distinctions in the sexual orientation cases, and loving versus virginia that get carried out, because it is an argument of this is just a matter of associational harm in relation to the misogynistic laws, and so they are boiling it down that sex is different, and race.
you cannot have single-race bathrooms, but you can have single sex bathrooms, and you can't have the same discriminations of race and sex. the other interesting parallel that is happening in the transgender case is the parallel to religious conversion of could you then analogize this to discrimination on the basis of religious conversion. it is another wrinkle, and otherwise the arguments are similar. to quickly run through the others, because i know that i am short on time. the color versus kansas is the 8th amendment case about the insanity defense, which is interesting, because you have both sides here, even though the 8th amendment is traditionally an area to bring in involving standards of decency and they are talking about on both sides what is the original understanding.
kansas has modified insanity defense to say you don't have to be just unaware of, you are not insane because you don't know the significance of what you are is morally wrong, but you are insane if you are killing someone in the first place. and the caller says that violates my right to due process, and under the founding they said that punishing people who were insane would be cruel and so kansas is making the case of saying, this is the 19th century versus the 18th century, and so that is interesting, because they are all trying to get at the same thing. the final one is quickly, because i think that it is a case that especially for those of us in d.c. probably hit home a little, and that is having to do with the d.c. sniper who is one of the snipers who is an adult at the time, and has been executed for his crimes, and malveaux was the boy who was 17 at the time, and
obviously now not a boy anymore, but who received life without parole, and initially when he received it, there is a question of whether it is a mandatory or discretionary life without parole, and the supreme court has said if it is mandatory without parole, it is unconstitutional, and a later case said that is retroactive. so there is a question first whether this is mandatory or discretionary, and the subsequent case about it being retroactive is unclear whether it is important, the discretionary or the mandatory nature of it, and it is an opportunity for the court to clarify it. it is a finite and in the weeds question, but i think that it might gain some attention just because of the salience of the d.c. sniper. >> great. thanks so much. i was asked to bat some cleanup on business cases. and from my perspective, the interesting business cases tend to be less about the party suing party b over intellectual
property, and with respect to my friends in the audience on that area, my apologies and they are important on the docket, but for me, the supreme court cases of the rights of the businesses versus the government's or how business interacts with the government. there are a few of the cases that are chugging their way to the court. there is several sort of pending and percolating that we can talk about later, but the first one that we also agreed as a group needed to be discussed even though facially it might seem terribly boring to some people, but once you dig into it, it is not. it is the puerto rico management and oversight cases which are fascinating to be argued october 15th, and 80 minutes divided up among different folk, because there are several issues in play arising out of what congress and president obama did during the financial crisis that plagued puerto rico several years ago. in terms of the background,
puerto rico ran into the economic calamity, and they could not use or take advantage of the normal tools that in a organization would have once it runs out of money, and so congress passed the puerto rico oversight, management and stability act which created a board that basically acted as a manager of puerto rico's budget and debts and modified plans. i won't get into the gory detail, but it set up a debt restructuring model that was modeled after the bankruptcy code of the united states. interestingly that board was the only area of authority of what would happen with the debts that puerto rico had taken on. so you can see where this is going depending upon how the board decided to exercise the powers. appointments were made without senate confirmation, and so when the board started to undertake the business of restructuring
the debt funds hedge funds and including an employee's union challenged and said that the appointments are unconstitutional division of powers and did not go through appointment. so in a direction that is going to be important to the government's briefing here, they said that the government oversight board is territorial, and no appointment, and doctrine is not important here, and it is fine. fast forward to 1st circuit, and there are four consolidated case chugging along and brand-named lawyers there. they disagreed and said that the methods were unconstitutional so that is the first bucket of issues, how does a territory like puerto rico and how would those powers pertain to puerto
rico? that is the first issue of the brief. interestingly the aclu is very exercised about that particular issue, and filed what i found to be interesting brief arguing for the overruling of the insular cases that are arising out of historical and differential racially treated territories of the united states. putting that aside, interesting. it is what the 1st circuit did next where most of the ameeici are most interested and where the vendors are looking to exercise the separation of powers by preventing the government of taking action against corporations and businesses. the first circuit next said that
we are not going to invalidate the board's past actions and even though it is unconstitutional and they relied on the defactor doctrine and which in the chamber's brief is tealing with ministerial and technical problems that might happen, but boiling it down, if you screw up an appointment for somebody who is making decisions, you have messed up the reliance of the parties and you can't unravel it, because of a technical problems and the officer's problems perhaps, so what they did is to apply the de facto to the question of the constitutionality of the board and all of the appointments were unconstitutional and that is what has a lot of the amici exercised, because from their perspective, it is setting up a win in the 1st circuit saying this is unconstitutional and this is terrible, but we won't un-do it, so thank you for bringing this separation of powers case and the money will stay with who the board gave it to and have a nice day. so the amici are in there focusing less on the appointments clause and they
won't take the appointments clause in puerto rico and they focused on the de facto officer doctrine, and they said that it is expanded from the 1stcircuit, and procedure nuggets going on here. there was notification that president trump has proposed to nominate new board members and they are going to go through the senate confirmation process, and so this can feel like a very academic case. for those of you super into the knoll canning and these other huge separation of powers case, they are important and come along every few year, but they can sometimes feel like they lack the real nuts and bolts. what i liked about a lot of the amicus briefs in the case is that they explain why business groups and others would not bring the separation of power cases if they cannot get meaningful relief. those were interesting briefs to parse through, and it is going
to be argued on the 15th. it has a lot of folks going to argue, and i'm interested to see how much the court wants to focus on the appointments stuff versus the de facto officer stuff, and if the court is going to be skeptical of what the first circuit did here on the backside, because i feel like in the last couple of terms they have been skeptical of a lot of agency action and much more willing to put the government to paces on respecting separation of powers and checking the boxes. that said, there is, you know, a very practical reality that some of the cases feel like the winstar case where the financial stakes are high, and you don't want to unravel a lot. so it is going to be interesting to see how the justices approach this. that is the tutorial on one of the very important but maybe less sexy cases compared to some of the cases that my co-panelists have talked about. the one that i would like before we jump into the discussion, and i'm ok on the time, but it is a case, and i know that bob wanted
us to focus on the actual grants that are pending, but there is one where the briefing is ongoing and because it is in the vein of sort of business interests as against the government, i wanted to flag as one that i think that the court is likely the take up and personally i hope they take it up, and full disclosure we filed a brief for the chamber and it is americans for prosperity versus becerra and it is an interesting case about freedom of association for charities and the charities that engage in public policy advocacies, and so near and dear to the business associations in the room and play at court quite a bit, i find the case interesting, because it is in the broader context of the government, certain government enforcement agencies getting creative in how they seek to interact charitably put with businesses to extract information from them to understand what they are doing. we saw it in the attorney general's actions against the oil and gas industry, and through the discovery based on
rico theories. these are not the traditional direct regulations. there is a sort of end run around there, and the state of california has disclosure obligations for the charities. they have started to demanding information from these charities, including the americans for prosperity, and they want all of the donors and what i consider to be invasive information for them, and david from queens emanuel did a nice job in the briefing about the screwups that california has done extracting information from other charities and raising the point that we don't want to hand this over, and we have a freedom of association in this country, and what the government is doing here is going to chill the ability to interact. that has tortured procedural back and forth and keep in mind the earlier cases where you are trying to resist the discovery don't want to hand this over, to have a chilling effect and the association affiliation, and the legal question is whether
the lesser scrutiny applicable in the electoral context and require the disclosure all of the time will require the funding. and the interesting thing for me is justice scalia in a case several years ago is the washington state case, and it is reid versus doe or dover suse versus reed, and so it is complicated and it is coming with the territory, because this set of the disclosure obligations are outside of the electoral context, and so i think that it is going to be interesting how this new-ish court approaches the questions of fundamental freedom of oassociation. to me, the effective of the chilling effect of the political discourse and these associatal . these associational rights and activities folks are engaged in that certain government entities are looking to chill with
deliberate and thoughtful regulations that are designed to get around the normal first amendment limitations. with that, i will pause. i know you want to hear from amy. what stage is the case at? >> the petition is pending. they just filed. the briefing is ongoing. i think there will be a decision. i'm curious what other people think. i think there is a good chance of a grant. covering the-- i'm puerto rico case. i have to write my preview next week. that was really helpful. thank you. [laughter] >> i am the residual because of the program. i have three cases to cover. if you can discern a theme, you can let us know during the question and answer. the first case i am going to cover is called espinoza versus the montana department --
montana department of revenue. ofturing the issue government money for religious institutions. in 2015, the montana legislature and acted a program that created a dollar for dollar tax credit. it could go to create scholarship programs, the scholarship programs could then give scholarships to private schools, up to $250 in tax credits. the kicker is that in montana, most private schools are religious schools. montana governor steve bullock had vetoed several different efforts to create similar programs. he finally realized if he vetoed this one, there was going to be a referendum, which would big -- which would bring out a lot of republican votes. he decided to let this bill become law without his signature. only one organization was formed she did it was called big sky
scholarships. -- was formed. it was called big sky scholarships. the montana department of revenue created a rule that says that these scholarship -- the scholarship money could not be used for go to religious schools. the montana constitution has known -- has what is known as a blaine amendment. it is named after a senator who in 1875 led an unsuccessful aid tont to prohibit schools. amendmentslaine around the country. constant -- montana's constitutional limit prohibits and schools. they went to court and said that the montana department of revenue may say this program
would violate the state constitution, but we believe it violates our rights under the federal constitution, specifically the free exercise clause. kids went to the montana supreme court, which decided to strike down the entire program. the families appealed to the u.s. supreme court, which agreed to hear the case shortly before their summer recess. not yet been slated for oral argument but is slated -- but will be argued in january. the case is acting on the backdrop of four old cases. it is on backdrop of davies 90,004. the supreme court upheld the constitutionality of a washington state scholarship program. it was a need-based program that provided scholarships students andd use at religious secular scholarship -- and secular colleges. it cannot be used for students who intended to major in programs that would prepare them
for the ministry. a student who wanted to major in devotional theology challenged the ban on the use of funds and when all the way to the supreme court. in an opinion by chief justice william rehnquist, the court said there is no doubt the state could allow these funds to be used for programs that prepare students for the ministry. the question is whether or not it would violate the free exercise clause if the state said it cannot be used for these programs. the answer at that time the supreme court said is, no. the state is simply chosen not to fund religious instruction. the second case is much more recent. called 2017 a case trinity lutheran versus,, the 7-2,me court by a vote of agreed that missouri's policy of excluding churches from a program that provided a grant to resurface playgrounds violates
the constitution's free exercise clause. was 7-2 with justices sotomayor and ginsberg dissenting. the supreme court drops a footnote that gorsuch and thomas declined to join. the court is not weighing in on religious uses of funding or other forms of discrimination. the state's argument in the supreme court and the montana case is that the supreme court that statesar cannot choose to fund lid is groups. this -- the montana supreme court struck down the whole program so nobody is getting the money anyway. the question as it comes to the court is what is the supreme court going to do it? how is it going to navigate between these two cases? to bey lutheran appeared a compromise, minimalist decision. justice gorsuch had just joined
the court. last term, in a case challenging the presence of a piece cross on public land outside of washington, d.c. was also a 7-2 decision. justice alito wrote in that case that taking the cross down would actually be an act of aggressive hostility toward religion. allowing -- taking it down would not be a neutral. it would be aggressively hostile. it is a different case, but i think it says something about where the mindset of many of the justices is likely to be going in to this case. be can see that there would an majority of the justices be ready to read lock versus davey very narrowly. violate the free exercise clause to go and limit
state funding beyond that. i'm going to be watching the dynamics on the court in this case. justices kagan and breyer joined the court opinion in the trinity lutheran case. they joined the result in the bladensburg cross case. it is harder to see where the compromise might be in this case. particularly, we will probably talk about the dynamics on the court. the likelihood that the chief justice might be trying to not 5-4 ideologically divided opinions. this might be one where he might see some room to do that. the next case i want to talk about is a case called hernandez versus mesa. a couple ofe court years ago. 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 order patrol agent on the u.s. side of the border. the families argument when they filed their lawsuit was that the excessive force in violation of the fourth and fifth amendment to the constitution. they were trying to bring their in whicher a 1971 case the supreme court allowed a lawsuit seeking money damages against federal officials for violating the constitution to go forward. the district court dismissed the family's claims. the u.s. court said the fifth surfeit upheld that the fifth circuit upheld the dismissal. the supreme court sent the bait -- sent the case back to the fifth circuit to look at the case again. case -- that was a 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 -- the supreme court said that bivens should not be extended to a new contest when there are special factors canceling hesitation. justice thomas wrote separately that he would have said in the hernandez case, the first time it was at the court, he would have said the family could not rely on bivens at all. justice breyer dissented. justiceoined by ginsburg. he would have rolled they could the wrote a claim on the fourth a moment. the fifth circuit ruled that bivens did not apply. it is not clear whether the constitution applies to a foreign citizen on foreign soil there are the kind of special factors canceling hesitation.
they were worried about national security issues, interference affairs diplomacyrs because of the sensitivity involved at the x again border. congress has provided a damage remedy. there is a presumption that u.s. law does not apply outside of the united states. the hernandez family went back to the supreme court. this time last year, the supreme court asked the solicitor general to weigh in. the solicitor general filed a brief in the spring. in another case involving a cross-border shooting in the ninth circuit, the ninth circuit had allowed the case to go forward. it should be available because the two lower courts had reached opposite conclusions, the supreme court recommended they grant review in their nando's case. -- in the hernandez case. the hernandez family is back.
they say it is the exact same contest -- exact same context. there are no special factors despite what the fifth circuit and the government says. because it is a rogue agent, there are not national security issues. if there are foreign affairs issues, it is because the mexican government, whichbecausd a brief supporting the hernandez family, is mad they do not have any kind of remedy. unlike theinally, ziegler versus abbasi case, we do not have any other remedy if we cannot see these officials in federal court. the court has not extended the remedy in nearly 40 years. if i were a betting person, which i am not, i would not bet on them extending it again in this case. the third case i am going to talk about involves the hurly-burly of politics. i do not want to make light of
anyone going to prison. but this is one of the more fun high profile cases of the term involving bridge gate. a case code kelly versus united states. versusse called kelly unit states. does it cross over and become a federal crime? there has been a line of cases in the supreme court resisting efforts by federal prosecutors to use the federal criminal statute to punish political misconduct. this is likely to be another case in which the justices wind up pushing back. the george washington bridge crosses the hudson river from fort lee, new jersey into the northern part of manhattan. the upper deck has 12 lanes. for many decades at rush hour, three of the lanes have been blocked off with cones for residents of fort lee, new jersey so they can merge onto the bridge easily and get over manhattan to get to work.
was013 when chris christie up for reelection, the mayor of fort lee, new jersey did not to want -- did not want to re-endorse his reelection bid. and two kelly high-level poor thing -- port authority staffers to put together a plan to take those to three traffic lane -- those three traffic lanes to punish the mayor for his failure to endorse chris christie. they needed a cover story to do that. they concocted a fictitious traffic study and good luck ensued. they did on the first day of school in september, 2013 without any heads up to the port authority. there were stories about children being in school buses for hours. paramedics stuck in traffic and having to get out and walk to someone having a heart attack. it also caused the port
authority approximately $5,000 because they had to take over time for toll collectors and pay for the engineers who were conducting the funny traffic study. study.phony traffic eventually, the port authority figured it out. they went to the old system. bridget kelly, david weinstein, all resigned. chris christie he wanted to get all of these endorsements to build momentum for his campaign was not elected president. pleaded guilty to conspiracy. kelly was 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. the fraud came because they had lied about why they were conducting the traffic study. kelly and baroni's argument is that the government is only relying on this theory because it could not do this under the
actual federal honest services statute because back in 2010, the supreme court ruled you can only rely on the honest services statute if there actual bribes. they did not get anything out of this other than the pleasure of knowing they were getting retribution to the governor of for lee. they say if you allow the government to define property for purposes of this fraud statute, this is going to sweep in all kinds of political misconduct. when somebody prioritizes one neighborhood over another for snowplowing because they want to curry favor with that neighborhood, but they say they are plowing the neighborhood for safety purposes, -- when they send an email about it, that could be swept in about a federal fraud statute. if you have a secretary of commerce who lies about why they want to add a question about citizenship to the question -- citizenship to the senses, that
could be lumped into the fraud statute. that could be really interesting to keep an ion. >> if i were not a completely neutral observer, i might say that screwing around with my commute is ache crime -- is a crime. but i am, so i will not. [laughter] about -- thealked supreme court dockets is not set. they continue to look at cases and except cases for review through generally the end of january. we are going to talk quickly about two cases that might be there. when that seems quite likely. -- ahat involves an a louisiana abortion law. last february, the chief justice joined the court liberals who blocked a louisiana law that was passed in 2014 that requires doctors at 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 liberals in a 5-3 decision. the 2016 decision said the requirement provides few if any health benefits for women, poses a substantial option for women seeking abortions, and constitutes an undue borden on the cost -- undue burden on their constitutional right to do so. hospitalization is rare after an abortion and the lack of admitting privileges by the doctor performed the procedure is not a bar to the woman getting medical care if she needs it. last fall, a panel of the u.s. court of appeals for the fifth circuit revisited the louisiana law and found there were factual
distinctions between how the restriction played up in texas -- played out in texas and louisiana. judge jerry smith said unlike in texas, the louisiana law does not impose a substantial burden on a large fraction of women. that the courtly would issue a stay on a law and not accept the case. they considered it yesterday at their private conference. we will likely hear something soon. it raises the question about whether the court is ready to revisit a fairly new precedent like the one in whole women's help or whether they will this tingle should in a way where there is one restriction not allowed in one state is accepted in another state. the court has a second case that has been around since last term. combines a waiting time,
which has been ruled ok, with the requirement of an ultrasound, which has been ruled ok, but in sort of separate instances. the change in the indiana law is that the waiting time follows the ultrasound. that would mean basically a two wantedcess for women who an abortion. the u.s. court of appeals for the second circuit said that created a burden on the right to abortion without any discernible benefit. the court may take one of these cases. it may take both of them and come to different decisions. about abortion restriction in those cases. the balancing act we have talked about. we should get word fairly soon on the fifth -- on if the court is going to take this up. josh is going to talk about whether or not we will see
obamacare return to the court. he has a bit of a vested interest. it could mean a third book for him. [laughter] >> he will try to be dispassionate to -- dispassionate. >> obamacare keeps on giving. you will recall in 2012 that chief justice roberts early upheld the aca. he left it look dangling by a fit -- left it dangling by a thread. he said because it can be read as a tax that raises revenue, it is not actually posing a mandate. the law was dangling by a thread. congress and ask a tax cut and jobs act in 2017. that reduces the penalty to zero dollars. i guessime i said, obamacare is unconstitutional now. i realized it, and so did texas. texas filed a lawsuit arguing
that reducing the penalty to zero dollars kills the saving construction. individual mandate can only be read as a tax and a mandate is unconstitutional. the million-dollar question is what happens to the rest of the law? i expect a decision from the fifth circuit sometime next month. that would give us a second petition by november give or take. the court could calendar it for an argument in march to make this term even more insane. if we have another obamacare case, karen hartnett knows how this one ends. i will have another book to write about in a couple months. >> we are going to have another discussion, questions. we also want to take your questions. i think there is a microphone in the middle of the room. panelists, we have an incredible term that you have all laid out for us.
let me ask you a question that has nothing to do with it. it -- whatat everyone is talking about right now. that is impeachment. i'm wondering partly because my editors are wondering, consider this a reporting exercise, what exactly does an official impeachment inquiry mean for the court? urgencygive a sense of to some of the cases in the lower courts right now? how likely do you think it is the supreme court will have to weigh in at some point if the executive branch continues to a north request from -- continues to ignore requests from the house for subpoenas from -- for the house to provide information? i open it up to anyone. >> one thing we might get is the three strikes again. that is when the chief justice added the street -- added the three strikes.
you can imagine it could make chief justice roberts's life a little busy if he has two full-time jobs. task thethink of no chief once less. -- the chief wants less. impeachment inan the house, and moves to the senate. leader mcconnell said, let's have a motive -- a motion to dismiss the charges right away. harry byrd back in the day had a motion to dismiss the indictment against fenton. at the time, the gop controlled the senate. that leaves some precedent. impeach,use votes to the first act will be a motion to dismiss. >> issues related to the impeachment come to the supreme court, the fact that they would get involved with sort of give even further incentive to john
roberts to the extent that we believe he really wants the court to avoid being seen as partisan. desire to add to his avoid being seen as partisan. try to avoid some of these 5-4 decision. whether or not he can do that is entirely a different matter. he has one vote. all of the other justices have very strong minds of their own. >> let me ask you about roberts. we spent a lot of time thinking about him and talking about him. he does have only one vote. it is an important one. it seems like he could use it to keep the court perhaps from taking up some cases that some one side or the other might want because they do not know how he would vote or because he tells them how he would vote. how do you think he is managing this role of trying to protect
yet, carrytion, and out his job and rule on cases? challenge is, the the notion of legitimacy -- there are different concepts of what makes a court legitimate. there is the idea of didymus he is winning the polling numbers and how popular is the court? legitimacy derived from a court being founded in constitutional system that is part of our representative government? i am sure if you can always hit both of those at the same time. the chiefent that justice -- it is hard to know what to make of some of the know what to make of some of the reporting of his shifting on votes. obamacare and in the senses case. to the extent that he is giving the impression he is making decisions based on political decisions, the reporting
suggests he was in those cases. while it may address or may be an attempt to address the popularity contest, it would undermine it both in terms of the public view and in terms of its actual legal legitimacy as a institution. the white house brief that bob mentioned is maybe part of that same process. if there is a perception that the court can be bullied in to changing votes, that is bad for the court as a whole. i'm side to see that there are five senators who think that is a good move to do. i am hopeful justices do not want to see that. >> i cannot see how they saw that as a persuasive brief by any stretch of the imagination. >> it might not have been attended for the court. anyone else? >> i think there are other
justices on the court who may be willing to work with him. not within a political let's change votes, but for a -- i'm not sure there is a middle ground to be had. lgbttitle vii protects employees or it doesn't. the country has very strong feelings about it. >> i will add one thing about the court's popularity. -- it sell a gallup poll just saw a gallup poll. chose as always that if a republican controls the white house, republicans think the supreme court is doing a dig -- doing a good job. if democrats control the white house, democrats think the supreme court is doing a good job should independent -- a good job. independents passed in 2000 if toocourt was too right or
liberal. 25% said about right. 25% said too conservative. this year, 50% said about richard 29% said too conservative. 15% said too liberal. while it is going up and down, independents at least seem fairly happy with how -- with the court. yes, sir? >> i practice telecommunications law. we had a decision out of the d.c. circuit judge i confess i have not read it yet. it is on net neutrality that then turned into restoring internet freedom. the court mostly upheld the fcc, which the challengers obviously will not like. overturned thely decision on fcc's preemption of states efforts.
to put in net neutrality legislation or rules. there is a good chance this is going to go up. i have not read it. you may not have read it either. i've already heard some talk from colleagues that it may go up, and the court may use this case as a vehicle to address chevron deference. the fcc has flip-flopped over 20 times on how to regulate the internet. each time, the court has gone to the supreme court twice. most famously in the brand x case. have referred to the agency's determination. how many times will the court do that after all of these flip-flops where they say, may be 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 deference and if that is
going to be coming up? >> are practices mostly in the telecom space. my former college is in the audience. he argued a piece of it. it was long delay. i am curious to see what tom johnson of the fcc and the chairman want to do in the latter piece. i know what i think they should do, but i agree, the court has been looking at chevron. they had a couple of cases last term facing node willingness to push against the typical deference agencies get. i do not know if this would be the right case. if i'd like to take this to the court and use net neutrality and all of its baggage as a way to tee up chevron. application did not seem all that controversial. i just do not think it is necessarily the best vehicle -- if your dream is to get chevron
undermined, i do not know that these challengers are the ones who want to carry that water. if i am the court, i do not want john oliver sending people to send nasty notes and cap outside the courthouse. it is a nasty case. it has not been well handled by the advocates. that is my very opinionated view. sorry. [laughter] >> we are good with opinions here. >> thank you very much. >> this question involves conversion therapy. for those 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 -- aspen, colorado that is moving to the supreme court involving a lesbian couple arrested at church. they completed the conversion therapy, were invited back. that day, police arrested them
for a third degree treatment -- 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. been, one has failed to follow and achieve state remedies. sex cases move forward, would you see as -- do you see in the future the docketing of conversion therapy? the second case was a racketeering case where the winners of the recovery did get damages. have in tots do you this kind of subject matter as the future might unfold? >> i do not know much about the case or about the issue.
is ank we all agree it disagreement among the lower courts on these issues that most often prompts the supreme court 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 thoughts about that? certainly, gay rights cases are there and will continue. there is a case we have not talked about yet kid it is the follow-up to the masterpiece cake shop case about whether wedding vendors are required to offer their services to same-sex weddings. has a goodnk, possibility of returning. there is an case -- a case involving a florist from the state of washington. it seems likely to me -- amy
might know better. up to be considered by the court in time for this term. anyone else? >> i just have basic questions on it. it is an area i am totally unfamiliar with. -- annversion therapy individual who is gay says i do not wish to be gay anymore and want to undergo some kind of therapy one way or the other. standing have legal and why to challenge the? -- challenge that? >> in this case, a religious freedom as bait has surfaced. americae 18 states in that do not allow conversion therapy. >> could i ask a question?
even if the individual is an adult and say, i -- and says, i wish to change? hope that the government does not tell us what to do in our private lives. >> should they tell this individual who wants to go from gaeta street, you cannot do this yet -- from gay to straight, you cannot do this? side, we reverse believe gay people are born. it is not a decision. and that those private rights would like a jurisdiction in the federal courts or in the secular courts. >> what is the case you have raised? says -- my religion says being gay is wrong. 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 must stay gay regardless of your wishes? >> that is a violation of the first amendment. i think it will be an interesting debate. it will happen in american history. >> thank you. >> thank you. >> it is a topic you have already discussed once. the louisiana abortion case. my disclosure is, we filed a brief on behalf of 2652 women hurt by the abortion industry. part of this is in the coverage of the case, they always talk about this being similar to the texas case. in the texas case, there was an ambulatory surgical requirement and hospital admitting privileges. the cost of ambulatory surgical center was $2 million. to me, that is why the number of
abortion clinics was reduced in texas and the law went into effect because unrefuted evidence was a high barrier to entry. in louisiana, the facts are very different. i think those are just facts. distinctions between texas and louisiana factually need to be brought up. the other thing is, the abortion industry -- they called their next litigation strategy the big fix. the attorney general in the texas case points out and have abortionet aside every facility regulation. do not want to have to be done by a doctor or to require sterilized instruments. they think all regulation of abortion. some of that going back to roe v. wade, strict the fundamental right analysis. that is one of the reasons texas amicusy states filed an
brief. their interpretation would lead to the elimination of all regulation is an extreme interpretation. i would like your opinions on that. not followed the case closely enough to say if that would be the logical conclusion. i does want to point out that because of the factual distinctions, it brings up an interesting tension in this case between some of the things the chief justice -- the apparent interest of having these narrow decisions and these broader interests because there are narrow. broughtng the court into controversial issues. because the fact that whole women's health did cite lots of these factual issues involved in texas law, the distance women have to drive if certain clinics were closed and etc.. that almost invites further litigation because the next
case, they just have to tweak a few things. you're going to see -- it is almost a full employment act for lawyers on both sides of this contentious issue. it guarantees the supreme court is not going to get away from deciding issues on this topic for a while. >> anyone else? >> i have a question. >> what is your question? >> i've a question for my fellow panelists or anybody who might be in the group. the unanimous jury question, it reminds me of a question i have. when mcdonald's was being argued and briefed. -- but i would've expected to have seen would be briefs from the criminal defense bar arguing for total incorporation on the theory that
in 2010, it looked like mcdonald's might be the last time the court considered an incorporation question. there were several things that the criminal defense bar would have an interest in. inanimate juries, excessive fines, the grand jury. in bail. all of which have either not been incorporated or incorporation is somewhat unclear in these cases. dog that did not bark. why didn't we see massive briefs from the national association of criminal defense lawyers, the aclu, and other groups saying look, this is a time to look at incorporation once again and simply do away with selective incorporation and go for total incorporation. >> if any of the audience has thoughts on that, we will have to tell him afterwards because we are almost out of time.
panelists can weigh in quickly if there is someone who has thoughts on that. >> i do not. [laughter] there are so many political coalitions. the same group might love the idea of incorporation but not love the idea of the second amendment being incorporated. he creates challenges in terms of how you allow intellectually and consistent positions any time. those occur on both sides of the aisle. >> i am for anything that gets more cases that are interacting before the supreme court. thank you for your attention. please thank the panelists for their expertise. [applause]