tv Supreme Court Discussion at American Bar Association CSPAN September 17, 2019 5:59am-7:19am EDT
>> two questions, one is my observation and he echoed it that this was a federal right in terms of the court split in ways that conservative justices were joining the liberal justices in the majority of the cases. you agree that this term was a quiet interlude for my comp? and then maybe talk about -- what might come. and please talk about your area of expertise to the gerrymandering case. and does it portend other future decisions that we should be aware of? >> like everybody else i want to say it like nikki rooney, i'm happy to be in the show. [laughter] right that the term is characterized in part by the cases that court took and partly by the cases the court postponed or did not take. to hide too cases tdap the
beginning of the term and one set of them were on the summer conference list for last year where the cases about the scope of title vii, whether covers discrimination based on sexual orientation or on gender identity. the court could have taken those cases last september and did not, it held off until april. it once again dodged a question in had in front of it in masterpiece cake shop by sending me arlene's flowers case back far in light of masterpiece cake shop, which i find interesting. because masterpiece cake shop shed no light on the question. so you wonder what they're expecting the lower court to do there. the daca case was hanging up there for quite a long. of time. i think they thought maybe the census case would shed some light on that, although the end of the day it did not. cases though,ring show in a powerful way what the departure of justice kennedy
meant in some ways. you get a sense of this from the fact that last year the supreme court had the question of partisan gerrymandering in front of it into cases, and the lead case there called galeon's whitford fizzled on standing grounds. and justice kagan wrote an extremely long detailed concurrence. designed to be a roadmap to the plaintiff of what they should do on remand to t the issue back up so it would get up to the supreme court. it seems clear to me reading that opinion she had no idea justice kennedy about to leave the kluwer -- leave the court. otherwise why give that guidance if he was not going to be there. the guidance was clearly designed to be here is what you should say to justice kennedy to find political gerrymandering just to show. cases that came up this year had been litigated with one set of
ideas break then you got to the spring court and in part because of a point that joan made about the chief justice really wanting to avoid the court seeming to be part of a partisan battle in an increasingly polarized country, the gerrymandering cases were very unattractive to the court. the political ramifications that, a dramatic for two reasons. one is that it will be hard to decide that issue without the public thinking the court is getting right into the middle of the political thicket. well, thisers saying case went out this way because the republican justices thought this and the democratic justices thought that. so the court did not really want that. second think, is there is a devil here which is the last bastion of the supreme court's mandatory appellate jurisdiction, where cases go to three-judge federal district courts with that mandatory to thete jurisdiction supreme court by the discretionary review is
statewide legislative apportionment and congressional redistricting. cases. so if the supreme court had declared partisan gerrymandering it would guarantee that it would get probably 30 or 40 cases on its docket with one of the two, all parties claiming that the other had done them in unfairly. the last thing the spring part wanted to do was to have to decide all this cases. so unless they can come up with a really mechanical rule that would allow them to summarily affirm or reverse, it was unattractive area of law for them. >> but that is hardly unusual in spring court jurisprudence. i have a rule of three. my constitutional law students the court will often decide a case, send it back and then circuit is all over the place with that and have to accept a the second time they they could crack try to clarify the rule of law. and again they sent it back. then they split in every direction. it comes of a third time. and they say were going to
settle it. and then they declare victory and clear the field. a lot of cases have this set of three. they can deny search and all the cases. in these cases they cannot deny search. it is an area where -- deny cert. unless they are eager to spend a lot of time on the area. >> what happens next in gerrymandering? what is the next step? >> nothing. two things. nothing at the federal level. line ins a throwaway the chief justice opinion which was in it, about me about how maybe the state courts can deal with this which i think prompted a line from justice kagan's dissent saying what do they know that we do not? what i think is fair, right? part of what the chief justice was saying is look, there have been politics in apportionment
since the beginning of history in the country. is impossible for judges to come up with a line where we can say there is too much politics. their semi-politics that up from here it has become unfair to one party or to the citizens. but if that is true, there no way to identify when there has been a violation. his point is we cannot tell whether this is a violation. so to that extent, the first line in justice kagan's dissent was a bit unfair. she opened it by saying this is the first time in history when the court has refused to remedy a constitutional violation, when the point of the courts opinion was we cannot tell whether there was a constitutional violation. but to put a little bit of amar on that judgment what the chief justice says, maybe the state courts can do something about that current which is inconsistent with the judgment that this is incapable of being susceptible to judicial
standards. >> i think what is going to you're notally is going to bring a cause of action that says this is a plug gerrymander. was going to happen and we have seen this in the past couple of decades, is are going to try and shoehorn what is essentially applico gerrymandering claim into one of the causes of action the shawstitiable. line of cases is going to be there. and there is an observed case from georgia in the 1990 round of redistricting i think it was where the supreme court lower courts and then this been court honed in on one person one vote. and said tiny deviations in georgia were unjustifiable because they were really in, reasons. they packed more people into their republican district by about 5% debt into the democratic districts. -- then into democratic distress.
democraticto districts. they will packed them into other areas in case they cannot bring them into political gerrymandering straight up. >> one person one vote going back to a 1986 in davids versus vanden mary the court had sort of held in effect for the decision that these sorts of claims are justiciable. but then there was a number of cases including another factored ,pinion in a case called veith whether for memos of the court that took the view that these cases are nonjusticiable and ultimately, justice kennedy over the years cap saying well i do not know, i do not know, not this case but maybe there is a standard. so as not to the court did not try. is that the courts to had a number of cases since 1986 in which people kept coming up and going, what about this one
justice kennedy? is this a good shiny object? and justice kennedy would go, not this time. so after the seventh or eighth time the people tried this, the court finally said nothing has gone, we are done. spot, do you on the think it is justiciable? >> one of the things that is interesting. the technology of how to gerrymander changed. and the same kind of computational power that allows you to do much more efficient gerrymander today then were true the past also allows you to do something that a lot of really good social scientists have shown. which is you can now run simulations of redistricting on computers and see just how huge is the partisan advantage that a particular plan gives to the party that drew it. in a way that you cannot do before. at the end of the day, i mentioned miguel estate the chief has already set it.
hook in the the constitution for exactly where to draw that line, as a kind of inhty one -- knotty one. the sense that it was for coming up with one person one vote. if you go to aker versus carvalho, malapportioned and claims are justiciable because the will of developed and familiar standards of the equal protection clause can be applied. and then two years later out of thin air they said no it actually mathematical equality. which is not a well-developed and familiar standard. but it is one that works really well. >> that is what the jury cases two standard deviations. benchmarktistical that you should use. >> a question though. if these things are justiciable is that an equal protection claim or a first amendment claim. because the latest theory that was intended to patching -- catching the attendant of
justice kennedy was the first amendment's associational thing which came with the standing theory that had a bounce. -- no bounds. forest,r king of the not prince not duke not earl, i would do it as the guaranty clause claim. >> oh dear lord. [laughter] >> when you referred, they both referred to the concurrence that justice kagan had written last year and the wisconsin case. that even though it was labeled a concurrence it could have passed for a dissent to at the chief was doing last year in wisconsin case that did but the roadmap there, not just based on an idea that justice kennedy had still been on the court but also trying to highlight the first amendment associational claim. but that was every possible claim was made in these two cases that we had appear this year, from maryland and north carolina. as the chief has shut the door on all of them. one other thing i would mention to follow up on miguel and pam's
comment that this could go to state courts, justice kagan is an incredibly passionate dissent from the bench. probably the most passionate i have ever heard her be during a dissent in the courtroom, talked about the same thing. what do the state courts know that we do not know? she also started the idea that the chief had put forward, that may be state independent commissions can do these. we had a case from-the chief had written that into his majority opinion. but we had a case mayors on a couple years ago in which the court narrowly upheld an independent commission to draw a line on a 5-4 vote, but the chief was dissent on that, did not think the commission was valid. we get a lot of crosscurrents going on that the dissenters were saying or throwing up your hands is important for everyone on election day to believe that they are actually exercising about, rather than that that vote has already been taken away from them through the
sophisticated gerrymander's. but it will not be discipline courts to solve at this point. >> a point of clarification. protection cases, you usually only entitled to challenge the districting -- the district in which she left. the problem with these gerrymandering cases is that the challenge that you want to make it statewide. as an equal protection claim, usually have a problem of standing. because you cannot challenge districts outside that in which you left. people came up with -- that in which you live. people came up with the first memory claim and that if you are a democrat you feel for the other fellow democrats the other parts of the state you're getting a raw deal from the apportionment and that is a violation of your rights to free association because you feel for the fellow democrats. but the problem with the claim is that on this theory, i live in virginia would sue to enjoin
the apportionment in california because i really feel bad for my health fellow republicans were in the process of being quashed over there. so it is a theory of standing that has no limits. >> that is why like to guaranty clause as the actual locus for making these claims. the problem is about the structure of government. and the struck. that you got rid of the idea that people actually pick their legislators instead what you have the legislators picking their people, which is kind of... >> he also the cascading effect. if i'm in durham and they draw around durham in north carolina. that chapel hill, the fact that i'm now part of chapel hill youuse your carving off, as gerrymander estate you have a cascading effect. the standing and mitt may be better. >> but some of those cases may be silly. one guy is a democrat in madison, wisconsin, sued because the south felt bad about his fellow democrats in other parts of wisconsin. i do not believe there has ever
been a way in which somebody was a democrat in madison isn't going to have a democrat be his rep resented of, right? so it is sort of a silly -- is representative. -- his representative. day's if i'm the entitled to to suffer for my religionists of the same party the other parts of the state, you consume about other parts of the country. >> so canada want to build on this that starts this term that starts and has in the future. virtually every if not every senate judiciary committee hearing, the issue of press arises. -- of precedent arises. and there's a mantra that we are going to be faithful to precedent. then we are not so sure that i shall he happens in practice. court as weead the started to think about future cases their adherence and
faithfulness to precedent. >> one of the prominent themes of the last term was, sorry decisive, the question of what to do with past precedents with which the court might today disagree. there are number of pretty high-profile cases are actually really relatively low-profile cases that became high-profile because they turned into debates about the appropriate role of [soriann the sizes decisus?] problem ist of the its hard to come of the mathematical definition. and the court feels like it has to have less will standards in determining when to adhere to past precedents. what has happened i think is that you have the more conservative members of the court being more willing to revisit past precedents and the more liberal member's of a court
now wrapping themselves in the decisiveness?] that may be wit the way their positioning on future questions. i think they were ultimately only two cases this year with the court actually explicitly inrruled past precedents. both cases there was a meta-theme about how the court stari decisis]h [ or generally. thomas whostice thinks it is all about the .erits of the prior decision and if the prior decision is wrong, the court to revisit it. and the other memos of the court who take a somewhat more institutionalist view and think the court needs to have some sort of plus factor beyond that. the problem is that the court
has a hard time articulating what that plus factor would is. isjoint opinion in kc precedent on how to deal with precedent. >> an opinion that did not command a majority of the court. >> the two cases you're probably talking about our nick and hyatt. justices worked 5-4 and reversed precedent. why are we even talking about precedent. the ideas that the courts want people to be able to rely on past decisions. and businesses can conduct themselves and people for their initial rights know what is coming. there is the idea of stability in the law and rely build a. -- reliability. the height case, a text case from california, that had-from nevada. california debate. which has been up to the clerk before obviously. in his dissent,
referred to the case, the opinion, david, suggesting what would the end said for what would be next for what precedent would be reversed. some of us were looking for a story. it mentioned he invoked abortion precedent to say what is next. in the next property rights case, cannon also hinted at their, justice kagan pulled a patient heard dissent from justice breyer and said what next, we do not have to wait long, here we have another reversal of precedent. term andan unusual that during oral arguments of a several of the justices were actually articulating their view of precedent to say, this is what we think it is. this is what... it was very and it is aer stage dry dusty concept. but a very important one. that will determine whether going to turn their back and both of these cases i mentioned, the precedent was from the
1970's and what else is from of the 1970's but roe v. wade from 19 some three. that is why was my much and play at the same time the states are doing so much with abortion. interesting, different kinds of precedent in the sense that some of the precedents are about primary conduct. affect average people in there every day lives. some of the precedents are more about how courts should go about doing their business. you might think there should be a slightly different view of those two sets of precedent. because the latter set of presidents do not actually affect people's everyday lives directly. and when you change the precedent you do not have a lot of settled expectations and courts are particularly expert at that. so the next case for example is really about which court system and you bring a takings claim in. it is not about whether something is or isn't a taking. there was argument back and forth about that. but either way, theoretically, a case should come out roughly the same.
it is just about do you bring it as a section 19 to or condemnation action. >> some cases are about how people organize their lives in ways that have involved a huge amount of investment in human capital and relationships and the like. those two things might be really different, for example, even justices who think that -- you really dislike the precedent for exam lynn berger felt are not going to reverse oh berger fell, what do you do about all the marriages that have been entered into under the existing regime. it would be hard to unwind that. where the case you bring up for ticket or came in state court or federal court, easy to unwind going forward -- do you bring a claim in state or federal court is easy to unwind going forward. we are also reasonably able lawyers and can come up with a
distinction as to why the cases we like follow the right side of a line and therefore cannot be and civet that it too, maybe we should take a harder look at. if you follow the confirmation hearings for judges and justices. there is an elaborate dance stareow you look up decisis and precedent. it is being discussed in relation to roe v. wade. >> and affirmative action. and start talking about super precedent prayed that is all that is at issue. it is all coded for will you get rid of the cases that we really like. if you get on the court and you get rid of cases that you believe are inconsistent with the progress of social justice, hooray for you. so when you have the [
obergefeld] case which may be good for the country. bending lower courts and had to be overruled for it to come out that way. there were federal classes in the windsurf case that had to be overruled to the case could go that way. they would not have any people on the winning side of these cases who sweated that out a lot, even the people who purported to be institutionalists, usually think these are really important weighty matters. so, these are questions that really do turn on whether sympathies are on the side you think are going to be winning. when you come to stare decisis it is almost unavoidable you're going to have some of these justices putting in some heavy thumb on the side of what they think -- whether they think the social policy involved in the case is one they think is one they favor or not favor.
and whether the case was actually rightly or wrongly decided. and anybody who tells you that on the bench or senate is not been fully honest. to that extent, there is a certain sort of refreshing honesty in the thomas view, i went to tell you if i think this is correct or not. now, is a good institutionally? probably not. you cannot go back and start vensly wondering about gi was correctly decided. at some what you cannot unravel the entire system. but there's something good about recognizing that all these people who really care about stare decisis are often really saying i care about you keeping the cases i care about. and i do not really care about if you overruled the others. i would rather... that i think as a practical matter it has always been true that what really
drives the stare decisis analysis is just how wrong the majority of the court thinks a decision is. and it has other factors that articulates. but the depth of feeling about precedent largely drives the discussion about whether to overrule it. the only thing i would add and i make this observation without viscerally having a conclusion at the end, is i think -- without necessarily having a conclusion is i think all the debates of stare decisis have overtime let the courts to do something i'm not sure is desirable, that is, it is tempting for the courts rather than directly confronting and overruling precedent just to write around it, and essentially narrow precedent without coming right out and saying that is what they're doing. kaiser and also the religion test. >> in the recent test of those
cases the court said something about what it was doing. idead that gives us the weathers going to be death by a thousand cuts, or if it is going to be done outright. most of the time is not done outright. >> it is attacked on some other line. >> but there are several different opinions the cross case from bladensburg, maryland. ask a fascinating opinion, given that the court took only a fairly incremental step and only two justices fully dissented their that this is ginsberg and sutter mayor. -- justice sotomayor. ib holderis in the and what is in the eye of the writer is how much is going to be revealed is how much precedent is truly undercut. >> as a prodigal matter the subject of jones' fabless recent book the chief justice is believer in the notion that the court, that it is better for the
court to narrow aspects and to directly overrule them. because it all goes to the project about preserving the institutional reputation of the court. i think he views it as damaging to the courts institutional reputation to revisit too many of its past events. psychic's preferred ammo is to narrow where possible. modushink his preferred operandi is to narrow where possible. it remains to be seen if that is the preference of the court. talk aboutis to issues and use cases as illustrations of where the court might go as well as past decisions. exec and power, the title of this panel, is trump presents, my sense is that the president believes that his appointees will protect the unitary executive and the prerogatives of the executive branch. we have a dock a case coming up. case coming up.
what do you predict on how the course will fall on the privilege executive powers side of things? >> we had gone back and forth in email rather than talking orally. i thought it was trump presents. [laughter] of trump presents. one of the things that is really interesting from don who was the solicitor general for much of the obama presidency recently gave the robert jackson lecture and one of the things he talked about was the extent which the supreme court has kind of competing temptations. to on the one hand deal with the fact donald trump has done some extraordinary things and has made some claims that are quite different from claims
presidents have made in the past. he had two cases up there the term before last, the travel ban case in the last term the census case. where was the sense of should the court take into account what everyone knows or should they act as if it's a normal administration because on the one hand if you take into account what everybody knows, you have to be a much more active court in slapping down the executive branch in recent years. on the other hand, if you act as if it is normal, are you normalizing a very different kind of country than the country we had before? i think the supreme court really went back and forth on this. you sought in last term plus term'ssaw that in last decision in the census case which was an opinion written as if it kind of goes like this and then at the end goes over here. most of it seems to be about how much deference we will give to
the commerce department in deciding how to run the census and then at the end, i thought it was telling the chief justice quoted his old judge, we can't ignore as judges what we know as people. don't be naive as a judge on something everybody knows. the administration claimed this was about ensuring enforcement of the voting rights act. to quote jerry seinfeld, i'm offended as a jew and as a comedian. [laughter] it is just absolutely ludicrous to make the point that that's why you're doing it and everybody knows it so what does the court do when faced with something that makes it look as if to uphold what they would normally do in terms of administrative deference and deference to the executive is to count it as a lie. this one went much further than the travel ban also had elements of that. sonia sotomayor in her dissent,
when the chief upheld the travel ban. we know what he said about muslims during his campaign, but we can't take those, we have to treat them like any other president. she said get real. this time though, it was so much further. if anybody had even looked at, and i'm not talking about the material that came out in media publications starting with the new york times in late may about some of the motivation of the commerce secretary wilbur ross, there was so much in the record that the judge had compiled, the trial judge in this matter, that i think the chief wanted to lay down certain markers that frankly for the future any administration can ask a citizenship status question, it just can't lie to a court about what it is trying to do. i think in this case it just went too far.
it recounted about the decision the chief wrote and breyer had written in what might have been a full dissent. a 29 page opinion by the chief, for 23 pages it's about how wilbur ross can ask this question and he deserves deference, the chief was in the opinion and his four brethren on the right are saying there is no constitutional enumeration clause problem with asking the citizenship question. there is no administered a procedure for masking it. but the u-turn that they gestured on, at the end is you just can't lie so blatantly and say the reason you want to do this is to collect decent voting rights data. the interesting thing about this , i would really like to know when the final decision was made because during oral arguments late april, the chief justice
asked not a single question that would've suggested he thought this was contrived. there was only one justice who even used a variation of the word and that was justice kagan. the chief seemed to be buying the voting rights act line. now obviously he didn't and as i mentioned, judge furman had really laid out all the evidence in the administrative record and trial record that would lead you to believe that wilbur ross was lying about the reason, but he did not get a feel from the majority during oral argument. but that opinion obviously went against the administration and the end, but it also gave the administration the benefit on the ministry to procedure act and the constitutional question. so my little part of adding to your question of what with the the court to do in
the face of the trump administration pushing very hard on the law in different areas, i think it will be one case at a time and will determine not by that particular case, but what else might be going on at the time. >> i would offer a quick observation which is at the beginning of this administration i think mostly skeptics of the president to said the trump administration's initiative will take up a lot of the supreme court's time but in the end i think what we've seen is there has been pretty much exactly a case a year. first the travel ban case and then last year was the census case and now next term is the daca case. they have a real common thread which the question is to what extent does the administration have to show its homework before launching one of these initiatives? these are all cases that in some sense go to the question of the extent to which the president and the executive branch have to provide explanations that can stand up for actions that would
otherwise be indisputable in their power under the constitution. that's a bit of an oversimplification. there were constitutional challenges of course to the travel ban as well. but at its core, that's what these cases are about. i think it was an interesting question the extent to which these decisions will have purchase in future administrations and in other perhaps less -- context. the scrutiny of the supposedly pretextual ruling actions, in my opinion it's not going to have a lot of force in other contexts. i think that's one of the classic good for this ride only supreme court decisions. we are seeing by the time we get to the end of the administration what the law looks like in the area.
>> any prediction on daca? has the trump administration done its homework? >> i'm going to take the easy way out and say i haven't followed the case. >> there was an old decision in the 80's. the first line is something like given the following facts were unusual, it was about a woman sleeping with a neighbor who then fathered a child and there was a dispute under california law about paternity. that is pretty much the census case and at the core of what was going on is that it was the usual raft of claims that this was not in conformity with the enumerations clause, that this was this that and the other. and the fact is if you took
three feet back, it should've been a very easy case. the u.n. says this is a question you should have in your census. most industrialized countries have it in their senses. we had it from 1820 to 1850 in every sense as we had and since then we had it in several forms. it should've been a relatively easy thing for the secretary of commerce to say we understand and the secretary of commerce ruled. the opinion the chief justice wrote says he can do that. the problem here is that instead of doing that and sort of illustrating the administration's talent to turn golden to grass is he got on the horn with everybody on the planet to try and get them to
idea.it had been their what happened in the southern district of new york was the judge ordered discovery that technically is not allowed which is another part of the case that is unusual and as a result he came to light that wilbur ross had actually put up the justice department to falsely claim this was for voting rights act enforcement which went into a memo that was used as a justification as to why they did this. so when people say we can't ignore the business that's going on, what actually happened was as a result of discovery that should not of been permitted, it came to light that the memo the secretary of commerce signed was actually false. so i think what john roberts was reacting was ok, it is fine enough we have them as president but we can't have secretaries lying to the courts and if
you're going to come into court saying this is the reason you did something, we can't turn the other way and allow the courts to put the matter of the judicial system and say this is ok. this was a little bit one step too far for the chief justice to say yes i'm going to find that this is legal under the administrative procedure act as executed even though it probably would be legal if you are practically anything else. >> it's not the crime it's the cover-up. >> the opinion makes it perfectly clear that if wilbur ross had said because i want to, that would've been ok. it's just the way they went around it, the court said you gave the reason the discovery showed was actually just false. it was not the reason you were doing this.
you sort of send it back. the interesting aspect of it for future partitioners is what do you do any time have a partisan challenge because anybody who doesn't like a policy of a new administration will try to get this discovery. that's going to be interesting because the chief justice said point 1, this never should have been permitted. point 2, let's look at it anyway. casablanca.rains in >> that is exactly right. as everyone remembers, they originally took this case on the discovery question to be heard in february. it was routed out but the question was going to be, should you even allow any of this evidence into the record?
into the trial record, not the administrative. the chief was definitely leaning -- they didn't wanted in the opinion coming out that even some early signs and fall of 2018, the court didn't want the administration to be put on the spot and have to have all this discovery on the record and that's why judge furman when he wrote his opinion said here is what was in the administrative record and the trial record. he carefully delineated it. the liberals probably would've already said even if you just had what was in the administrative record we go with you. but what the chief said was we didn't want that in there, but now you've shown it to us, we can't turn our backs on it. >> the subject is come up a couple of times today is abortion. any cases before the court?
>> there kind of are. it has been up there for -- >> pam knows much more about the actual facts of this case and the issue but i will just say where it is, a case challenging in louisiana law brought by a clinic ended actually came up before the court just on an emergency request back in february where the chief voted with the more liberal members to ensure that the case -- the law not take effect but just so you know in terms of the timing, the petition had been in and the state had gotten a delay in its filing for its response and that was filed just in july. now it is teed up for the court to grant or not. >> basically as far as i can tell --
women's health. >> if you take dr. breyer's opinion on women's health seriously, all of this will be deeply contextual. it all turns on how far the next hospital is and how many four are available and whether there are enough tissues down the hall. >> it is also a pretext case, the nobody with an ounce of integrity thinks the reason the states are passing these laws is actually to protect the health of the women involved. everybody understands that these are designed to drive the clinics out of business. a little more honesty about that. >> that may well be but my point is that anybody who reads justice breyer's opinion on women's health would be hard-pressed to find any thing. >> it's an opinion but what does it mean to talk about an undue burden.
saying you can go to another state, therefore it is not an undue burden sort of makes a mockery of the decision which said the majority can't say to black people there are law schools and other states we will pay for your to go there. there are places you can get abortions another state so we won't even pay you to go there. >> i'm making a different point which if you're going to construct a legal system in which by design you write opinions that turn on how many forceps you have on hand, you're going to keep having states come up and say i have five, hear my case. if the construct people like breyer have come up with, not the fault of the states what you, wantwill grant to stop the practice, but they are just
taking advantage of the malleable standards the court has given. >> and that's the fault of the active burden standard? >> let me remind you that breyer did write that opinion back in 2016 but justice kennedy signed it. so justice kennedy in the majority, the narrow majority back in 2016 to strike down this texas regulation similar to the louisiana one and now we are in a moment without justice kennedy so this will be a big test here. >> when the state came up in the chief justice granted the state, just as cavanaugh filed dissent. >> he filed a dear susan collins note because susan collins is the one who said i'm sure he's going to respect precedent on abortion and justice kavanaugh dissented from that but wanted to explain why he did. >> i think the interesting question is what's going to happen with all the states passing laws that are really overtly designed to test the validity of roe v. wade and what
many of the cases challenging those laws will get to the court. i have some degree of skepticism they are going to but i think it will depend on the way the litigation plays out in the lower courts. >> the question is, do you get two judges on the court of appeals who want to say i see tea leaves. there is no way to say it will uphold a fetal heartbeat. >> so how do they -- >> that's the question. if you're a circuit judge or takes it seriously, you have to hold those unconstitutional. if the screen courts going to overturn roe, it's up to the supreme court. the question is when we find two judges on one of the courts of appeals who are eager to get it up there and disregard. >> you have seven cases from the supreme court that expressly say in so many words that even if you believe there is a precedent of the court that has not --
foundations and will no longer by the supreme court, you should leave that and you have to follow it. there's no way any court of appeals judge doing his or her job can uphold those laws. i think the supreme court would not uphold this law but i have to. >> something earlier about honesty and lack of honesty which is i think on roe v. wade the court has been with the exception maybe, it has been in the project of kind of hollowing out roe v. wade by finding stuff not to be an undue burden. he would like to keep doing that project, i don't think he is eager to overturn roe v. wade because i think he is thinking institutionally about where that puts the court vis-a-vis a large part of the american public. but it only takes four justices to vote to grant on an issue and
so the question really will be whether justice thomas, who i think would overturn roe v. wade tomorrow if you were king of the forest, whether there are four justices on the court eager to do that or whether they would rather just leave roe v. wade. you've got a little bit of a sense of this in the decision in the box case where there were two issues up from indiana. one of them was a law with the disposition of fetal remains, the other that forbid abortions are various selective reasons. the court overturned those on the fetal remains law where everybody kind of agreed rationality would be the standard for the decision and then denied certiorari on the decision to strike down the selective abortion prohibition. and in doing that, the clerk had
a whine or two in the opinion saying i'm not granting if there isn't a conflict among the circuits. don't create a conflict in the circuit on the continued survival of roe v. wade. >> i'm very fascinated to hear you say you think there more conservatives other than the chief. thinking the chief will never vote to overrule roe v. wade i thought the play would be on the liberals to grant that and make him reaffirm roe v. wade which after casey would be something that could take to the bank. i wouldn't say certain just conservatives would be foolish enough to put them in that spot. but they may think if the president gets reelected, he may get another appointment.
not thanks to his own talents but the opposition, they might get another appointment and then they might have enough at the table. it would seem to me that if somebody had an interest in putting that question on the table sooner rather than later, it would be the left side of the court because they could count on him not to overrule it. >> you are so many chess moves ahead of me here. >> all your pieces are knights. >> and all of yours are queens. >> i was going to say -- i would say -- no, no, no. i can only get so far into his brain. i don't think he wants his court to be regarded as the court that would be known first and
foremost for reversing roe v. wade. i think he understands the political side of that. it would be handing democrats a real gift to mobilize around. he has never found a regulation to be an undue burden on a woman's right to choose. he can keep going down that path. he dissented when the majority rejected the texas law. i can see him siding with louisiana and saying the side around it should stand, and he could hand it off to alito. i could see him saying that this is not an undue burden and stressing that roe is still the law of the land. >> will he overturn the texas case? >> i think people can argue anything persuasively.
i think he would be in a position to try to distinguish it. >> religion. a continuing issue for the court. they had the case of espinoza versus montana department of revenue. does a state law that allows for funding of education generally while prohibiting funding for religious schools violate the religion clause of the constitution? where are they going to end up? >> this one is a minor set of example of a larger problem. this comes from something called the blaine amendment. in the 1870's, there was a u.s. senator who got into his brain that we should have a u.s. constitutional amendment that would prohibit sectarian institutions.
mostly it was at the time of heavy anti-catholic sentiment. it was part of a movement to hate all things catholic. this failed as a federal constitutional amendment, but 57 states had constitutional amendments that have some form of this. 37 states have their own blaine amendments. montana is one of them. it says you cannot have public a id to sectarian institutions. the court has grappled with this. can you have public educational grants where a parent makes the choice to take the aid and then send the kid to a sectarian school?
montana held that this was a violation of their own constitution. the question is whether this is in violation of the first amendment. you would think this is obvious. you are basically denying someone something that is publicly available based on the exercise of his religion. the problem is there is a case from 2004 in which none other than chief justice rehnquist held that the states have to be able to separate themselves from religion. that something with no rights to an establishment of religion for the states to be able to say we don't want to be entangled.
a couple of years ago, the court had another case in which the court went the other way by chief justice roberts. there is a lot of confusion on these issues. in the latest one, basically it is the polar opposite of luck versus davey. the aid in that case had been used by the student in question to study theology, and what rehnquist said is the state had a special interest in not educating priests or the ministry. maybe the court will have a special exception for the state interest in not getting entangled in the education of the ministry but not giving aid to parents who just want to send their kids to parochial schools. >> i think we will see the court
moving modestly in the direction of religious liberty in a context like this. this case is odd for any number of reasons. the montana supreme court dealt with the case in the somewhat unusual way. you have the state scholarship scheme, and the montana supreme court were aware of the fact that there was a federal constitutional issue lurking. they declined to decide that issue but basically said our remedy for the problem is going to be to eliminate the program altogether. that puts the court in an odd posture. i think the current court with its change in membership is going to tilt in the direction of religious liberty. i don't know that we are going to get a radical movement and how the court approaches the establishment and free exercise clause.
there was a distinct lack of clarity in the appropriate tests for considering certain types of establishment clause challenges. i think this is one of the areas in which the change in membership will make a difference. >> i will refer to the trinity lutheran case, which was a little bit like this one. it involved funds for playgrounds. that one yielded several opinions. i think we are good to have most of the court moving a little bit more conservatively on this with justices ginsburg and sotomayor being the main protesters. incrementally, i don't see there is any turning back. >> lutheran was an opinion of the chief justice who have this bizarre footnote. >> playground equipment.
>> whether this case is applicable only to rubberized playgrounds and no other cases. >> i think that was written for justice kagan. that got her on. >> there are several very important title vii cases before severalt this year. road -- the title vii cases. the question is whether title vii is because of sexual orientation, transgender, sex stereotyping, the whole chin kitten caboodle. and what it will be a mccourt here. a the question is there's consolidated set of cases in a separate case.
the consolidated set of cases involves the question whether when title vii prohibits discrimination because of sex, a decision by an employer to fire somebody because he is gay, is that form of discrimination? circuitase, the second overruled a second circuit decision and overruled based on three separate theories that discrimination against someone who is gay -- for being gay is discrimination because of sex. the first of the theories is form of causation under the supreme court decisio which says even if the portion were treated differently, had the person been a woman rather than a man or a man rather than a woman that is dissemination because of sex where if you say i fire men who are married to a
man named bob but not women married to a man named bob that is discrimination because of sex. the second theory was built off of the supreme court decision in the price waterhouse case which says treating people differently because of sex stereotypes is discrimination because of sex, the stereotype involved in cases involving people who are gay is a stereotype that women should not be attracted romantically and sexually to other women and men should not be attracted romantically and sexually 2 other men and the third theory of associational discrimination. for a long time of the courts held that discriminating against somebody because they are in an interracial relationship is discrimination because of race. treating people differently because they are in relationships with someone of the same sex.
there is a conflict among circuits on this and the supreme court rented tertiary. the other question in the supreme court is a case that involves a transgender woman who worked at a funeral home and when she told her boss she was going to transition, the boss fired her. the question is whether firing somebody because of their gender identity is discrimination on the basis of sex, sixth circuit held that it was and the supreme court was tertiary in that case. >> where is the court going to go? >> it is going to do the right thing and hold texas title vii makes it pretty clear that regardless what congress might have expected, it is 6 discrimination. >> the balance of circuits is on that fact. >> yes, both the seventh
circuit and the second circuit by pretty overwhelming votes said that it was 6 discrimination and i think they both got it right. >> i don't know as much about these cases, this is one of those cases that we are going to have a tough time with because textually, it next that interpretations so there are those judges who think that is true and this is in the mind of the legislature. was it enough, within the meaning of the words used, this is a case where the court had in the 90s whether it was 6
discrimination if you had same sex harassment and even though that was perhaps not what people had in mind in 1964. it is difficult case for the court, for those who would like to say the answer is no. i like the chances in this one. >> one of the realities is not just that the supreme court has trump appointees but lower courts have many trump appointees and the circuits are shifting, not yet the ninth circuit but around the country. how is trump presenting as you are seeing happening around the country in circuit and district courts affecting the judicial business? are you seeing the trump effect
at that level? >> i start by stipulating it is not obvious to you but senate republicans -- it is quite painful these days. especially when i have to admit the incumbent president of the united states is the first republican candidate who failed to vote in my entire life but the people -- most of the people he has appointed and been confirmed, who are really accomplished lawyers and would have been nominated and appointed by any republican president.
if you look at the set of people appointed by a president of either party, predictive judgment of the same quality of people that would get appointed depending who it is and in general, pretty lucky you get high-quality justices on the federal courts at all levels and so i don't think there is a particular partisan tendency based on who the incumbent president is. there are differences in methodology depending on who is doing the picking. people who get appointed by left of center presidents tend to have an arsenal of interpretive tools that is more expansive than those appointed by right of center presidents. they tend to look at
legislative history when one appointed by that, differences in methodology, lawyers and judges can have, their are perfectly healthy to have, any of this but people get and when you get to the level of the supreme court, people assume you get all these appointments that consolidated in the supreme court, if you look at the outcomes the right of center justices tend to have pronounced differences in methodology, where that is not true left of center, it would be more consistent among themselves and you see neil
gorsuch voting, in the delegation case, the chief justice twice in cases that were major cases because these differences in methodology, and extremely able justice in a very able -- persuading them that under the way of looking at things -- >> i wouldn't necessarily agree with that compared to the left because when push comes to shove, breyer would be -- sotomayor -- let me say about this administration is judge cooking machinery. so much about this administration and how it runs, as we were talking about with the department of congress
versus new york case on the sentence that doesn't work, it doesn't work, it is contriving things, but it has been a very well oiled machine picking judges and it started in spring of 2016 when don mcgann helping with strong input by the federalist society, creating that list of 20 judges that donald trump issued to instill confidence in the more establishment republican voters and it did do the trick which is why we had the vacancy of antonin scalia pending that on the lower courts there have been a record number of appointments to the very colorful appeals court through again the white house consul
don mcgann in league with leonard leo of the federalist society screening people, looking, developing at the district court level, for the supreme court and by putting out lists of names and encouraging people to buy for these positions, in terms of opinions we are seeing many of these people would be writing as they are doing but there is a lot of attention getting opinions i have seen in lower courts almost designed to play 2 people from the federalist society looking for folks to move up in sequence. i went to new orleans for the affordable care act challenge that is out there, a very strong challenge for the entire law heard by the fifth circuit and i was aware how strongly
conservative, unlike the ninth, tends to be traditionally conservative with trump appointments but i am seeing in lower court rulings where it is a big deal and making a difference and to the victor goes the spoils. the supreme court is interpreting the law of the land but the appeals court most of the cases stopped. >> i completely agree with the point about the seeming increase in attention getting opinions from the lower courts and that is a subject for another day. it is easy to focus on the number of judges the president is getting confirmed, he has gotten quite a few confirmed. the reality is every administration you see an immediate impact on lower courts because unlike the
supreme court you will always have a certain number of vacancies because of the sheer number of judges but when you have a president aligned with the senate which doesn't always happen you see nominees get more quickly and that is what you have seen. the real question and there's been some analysis but not as much is there should be, not just how many judges the president was getting confirmed but i think in this administration in my observation there has been a greater unwillingness of more liberal judges voluntarily to leave their posts so what you are seeing is jurisprudential replacement on these courts which you are always going to have because more conservative judges are retiring and being replaced. >> would you think the dc circuit, janice rogers brown leaves.
why would he leave? >> it is true he might not but -- >> judges don't take the political party into account -- >> by now -- >> justice brown, seems she was appointed yesterday. >> a nano second. she was older when she ran on the dc circuit. >> someone who was appointed by a republican is more apt to leave now, a lot more liberal judges will dig in and say no. as we have on the supreme court i could see with a different administration trump is reelec
2020 and republicans continue to control the senate? ruth bader ginsburg hold onto another four years, justice breyer, what happens to the court? >> i am a lawyer, not a doctor. >> i'm a lawyer, not a fortuneteller. >> ruth bader ginsburg is 86 and justin stevenson until he was 90 and just recently told a great joke where she started the eulogy for justice stevens and equipped him on a trip to lisbon, wanted to retire when she got his age, stay longer. when she told that people applauded in various liberal leaning audiences. i have a feeling justice ginsburg and justice breyer
will hold on as long as they can just as justice breyer turns 81 this month. >> it is impossible to predict what is going to happen. justice scalia was a relatively young man when he passed. >> released by the standards of supreme court justices. >> he was 79. >> supreme court justices -- nobody was looking at him, he is on his way out. he was a vibrant member of the court, he was full of life it appeared. it is certainly the case that i don't believe anybody on the left side of the court believe voluntarily if the president is reelected. it is not clear what will happen after the election. we have all learned to be surprised.
i don't think he is likely to get reelected on his own merits of have infinite faith on the ability of his opponents to get him reelected again. there you have it. >> one thing that bears thinking about a year and a half from an election is the prospect of the presidency in the senate being controlled by opposite parties which could potentially happen in either direction and what that would mean for judicial a confirmation. usually when you talk about the judicial confirmation process, the smart man is on a cynical side and i tend to think if we have that happen, there will be no confirmations probably for any of the courts because i think the vitriol when it comes to the confirmation process that is ever worse, there was an interesting story a couple months ago about this administration, record numbers of now votes by the democrats,
across the board, all the nominees. i'm sure republicans would act the same way. >> if you look at the history of the last 20 years, increasing one upmanship on the part of each party when the next what is that bat. the reaction, i am going to see you and raise you. when we lost two men, the republican party said we will keep this seat open and i would not be shocked if we have an administration of one party and the senate of another and there is a vacancy if the democratic senate says we keep it open for four years. it would be a perfectly natural progression for where we have been. >> is there a light in this
polarized tunnel? a way to break the impasse? >> i don't think in our lifetime. i think it has only escalated and more recently mitch mcconnell said that if he could see pushing for someone in 2020 if for example clarence thomas decides even though he is only 71 that he wants to step down and give donald trump an opportunity to the name a younger version of him that mitch mcconnell, the filibuster change, all he needs is a majority to do it. >> he would try to fill a vacancy of the vacant occurred on january 19th. >> the final word -- >> that happened at 8:00 am. >> please join me in thanking
our spectacular panel. and thank you to the audience. >> live tuesday on c-span the u.s. house returns at 12:00 pm eastern for general speeches. at 2:00 pm the house takes a child safety builder legislative business, and motion to instruct negotiators for talks with the senate on defense authorization. on c-span2, the senate returned that 10 am eastern for work on executive nominations. later at 7:15 p.m. the national press club hosts a spelling be between members of the press and politicians, 10:00 am on c-span3 a4 him on the future of us hong kong relations. at 1:00 pm the house judiciary committee considers instruction