tv Supreme Court Mid Term Preview CSPAN February 1, 2018 11:46am-12:45pm EST
to get your copy go to c-span.org slash landmark cases. >> now our discussion on some of the upcoming cases before the supreme court. attorneys who have argued before the high courts talk about. so cases being considered, including janice v. american federation, which concerns public unions and fees. united states v. microsoft on emails and privacy. and south dakota v. way fair regarding online sales taxes. this is from the georgetown university law center. food just and proceed quietly. we will get the program started. i am the executive director -- [audio lost]
the first half of the term had more blockbusters than we have seen in a long time. the second half promises to be even more exciting than the first half. fortunately, we have an incredible panel today to discuss these cases. before i get out of the way, i want to thank the american constitution society and the federalist society for cosponsoring this event. i want to thank ian maine, the special events coordinator. i want to introduce our oderator, amy howe, once the editor of the scotus blog. now she is just an independent
contractor and a reporter for the scotus blog. amy probably knows more about the supreme court than any person alive. with that, i will turn the program over to amy. amy: that is a tough introduction to live up to. he asked me to be very brief in introducing our panel. i will be pointing to nametags and have you google. what you need to know about our panel is that, between the four of them, they have argued 84 cases at the supreme court. if you think about it in terms of the number of cases the supreme court argues, that is well over a full-time -- a full term for these floor panelists. i want to thank the supreme court for giving us so much interesting stuff to talk about today. if there is one theme that seems
to be emerging this term, it has to be redirecting. -- redistricting. my colleagues in the press room will agree that it seems it is one of these homer simpson signs. it has been x number of hours since the last redistricting request was filed. we'll start with a case out of maryland. over the summer, justice ruth bader ginsburg was talking about gill v. whitford, which is a supreme court argument in october. she said it was probably the most important case the supreme court would decide this term. after they heard oral arguments, they couldn't quite get enough of bipartisan -- a partisan gerrymandering. in early december they wrantgranted another case out of maryland. it is the yin to the wisconsin yang. the wisconsin case is a challenge to the state
legislative maps drawn by wisconsin's republican controlled senate. the maryland case is a challenge to a single federal congressional district drawn by democratic election officials in maryland. who better to discuss redistricting than paul smith, who argued on behalf of the challengers in gill v. whitford and is now here georgetown as a distinguished visitor. paul: thank you, amy. happy to talk to you about the maryland case. i have the same lack of information as everybody else as to why the case was taken in december. it was a big surprise in many ways. gill v. whitford was on -- was argued in october. we are merrily going along thinking maybe we can win, maybe we can't. but if we get a ruling in january or february, we might get a new map in wisconsin. come december, they take an entirely new case out of maryland. the surprise was they didn't
have to do that. they could have done what they normally do when they have a case, and hold the second case and remanded later on or decide what the appropriate disposition ould be. but they didn't. this case has been to the supreme court twice because it was up before under the name of shapiro versus mcmanus on the technical issue over whether or not it was sufficiently frivolous that the district court correctly dismissed it without appointing a three-judge court. the supreme court said, oh, no, it is not insubstantial at all. he three-judge court held that the case is jusdiciable. is there a sufficiently clear standard to apply that the udges can apply -- decide the issue whether there is too much political bias or
otherwise. the case proceeds along. as we are get in the whitford wisconsin case, maryland makes a preliminary junction motion. it is denied 2-1 and goes to the supreme court. it is a very different case. what it's seeking to achieve and the legal theory. it will be interesting to see how the court responds to these two theories. the challenge is district 6 in maryland, a district for many years republican-controlled, elected a congressman named ross bartlett. in 2011, the democrats being in control of maryland, decided in their wisdom to take some of the rural area out. draw it down into montgomery county so that it became much more blue than it had been in the past and started electing a democratic member of the house. you ended up a delegation from maryland that was seven democrats and one republican.
the argument they are making is not that the 7-1 is unconstitutional. that the one is unconstitutional. that the change of a republican district to a democratic district in the circumstances of this case was a violation of the first amendment rights of the republican voters in that district. the claim is that the state acted with specific intent to retaliate against them because of their decision to exercise their rights to vote for republicans in the past and the retaliation took the form of change in the districts those people would no longer be able to control their destiny and will henceforth be represented by a democrat. that is a fundamentally different thing than the argument we are making in the wisconsin case, a more traditional gerrymandering claim, where the whole of districts in the state is unfair in that, even if one party gets the majority of the vote statewide, they get less than the majority of the
districts. hat is what jerry mappeder is. -- gerrymander is. that is what most people would have said gerrymander is. the first amendment jurisprudence has some advantages. the main one is that it doesn't turn on showing the bias is too much. their argument is that any amount of political motivation, specific intent to flip this district from one party to another, is inherently unconstitutional. so they don't have to have the efficiency gap, which is our mathematical formula for judging the severity of gerrymandering and help the court separate xtreme gerrymanders. they don't have to make any arguments about the whole map. all of those things are very interesting. it would be an interesting way for the court to go in that it would have some limits. it would turn so much on the fact that the district was previously one way and is now another way, what its impact
would be elsewhere, we are not sure. we on the gill team filed an amicus brief saying that we think that plaintiffs in maryland should win, but on our approach, that the 7-1 map is unconstitutional statewide and e give efficiency gap scores and the like. one way the corporate handle this is they win on our theory or, who knows, they would take our theory -- their theory and our theory would be wrong. maybe we didn't have standing because we didn't have plaintiffs from every single istrict. they don't have that problem. who knows? i don't have any prediction for you. but the court is clearly very interested in gerrymandering. it has been hearing these cases now since the 1980's, really, if you go back even further, to the 1960's.
it has never come around to find a way to rule against a partisan gerrymander. i think the time maybe now. the fact that they took a second case is encouraging in the sense that, whatever they are doing, it probably is not going to be clean so these cases can never be won. we will see. amy: any of you have anything to add? >> do you think the virginia elections played into the decision in november, to take on the maryland case instead of holding it for something else? paul: i don't know. there are all sorts of heories. what is a democratic gerrymander. this gives them an opportunity if they wanted to rule against both parties at the same time. that may be arisen. -- a reason. how the virginia elections would have factored into the decision, i'm not sure. there was a question whether the
the virginia election would show gerrymandering isn't a problem. can you overcome it. or the opposite. it is proof gerrymander is difficult to overcome. you had 8% or 9% of the vote for the majority of the candidates for the house of delegates in virginia and didn't get a majority of the seat. it's only been 50/50. the gerrymander held is my message and i am sticking with it. >> in maryland, what is the theory for why the switch makes a difference? why isn't every district designed in some way a discrimination against the people who are a minority in the district? paul: the problem is it can't be that every district that happens to be a republican map is unconstitutional to republic -- the democrats and that the democrats are unconstitutional to the republicans. they have a narrower theory.
they want to focus on specific intent in saying that flipping is an instance of retaliation that was clearly done deliberately. is any of this done accidentally? intent in saying that flipping [laughter] >> just randomly with a little pen. paul: again, try to be faithful to their theory, they draw a distention between people knowing the effect of what they are doing and having the punitive retaliatory intent. amy: is there evidence as opposed to just best paul: it's not even disputed they tried to make a democratic district. 7 the democrats don't have a lot of gerrymanders anywhere else in the country. trying to seize the opportunity they had available. >> it seems to me, doing some moves in advances, the gill argument and looking at the oral argument transcript, one of the challenges is what kind of proof will be necessary, how you can scrutinize this.
do you happen to know if they built into their theory the idea that there is a safe harbor? if you have an independent commission set up the districts ou automatically are ok? that might be a way to make the rules more paul: i don't know. we have taken the view in the gill case that the intent prompt will never be satisfied if it is drawn by a real bipartisan or nonpartisan commission or by a split legislature, where one house is one party and the other houses the other party and would ave to compromise. it will only be there when there is a one-party control of the government. >> even in the new york soldier style where you gerrymander the senate, we gerrymander the ssembly.
paul: that's an interesting question. the same situation largely arose in virginia. the gerrymander i was talking about was the lower house that gave control to the republican so that the democrats could do what they wanted with the senate. they didn't do as good a job. . ave control to the republican >> is the maryland theory -- it really is limited to just a flip. if you are a bunch of republicans who get packed into the one republican district, it would be every republican left it's hard for county. usually, in racial gerrymandering, you see it as ways of doing that things to a racial minority. cracking is not ok. >> i think they can say that you cannot he drawn into a
constitutional violation when your party is winning. amy: i promise we will leave time for questions for all of you in the end. we will move on to our next case, which is trump versus hawaii, 3.0. i understand the preview was on december 19 last year. ban 2.0point, travel was still in place. on september 24, the president issued a new order and everything started all over again. is this different? how will this go this time around? itliam: i don't want to call
3.0. i called 3.1. -- i call it 3.1. we had a peak of it. the court basically saying, ok, this is off to the night circuit. we will go ahead and issue a stay of the district courts injunction and we know the ninth district will decide quickly. but we have no idea what they will decide. if some chance they were to decide against the administration, we will preemptively stay that decision pending the assertion by the government and, by the way, we are confident that the court of appeals will act with due dispatch, which the fourth circuit did not -- which the ninth circuit dead and the fourth circuit did not -- which the nineth circuit did and the fourth district did not.
can you say the president is obliged to let into the country certain categories of people and discriminating on the grounds of national origin as to certain categories of people? remedydistrict court's an overbroad remedy? that accounts for the first three issues. are these cases reviewable. is the president obliged to lead in certain kinds of people into the country on the grounds of origin as to certain categories? is the district court's remedy an overbroad remedy, basically a junction that applies to a large swath of people and not just those with an affiliation in the case? th other issue is whether everything the president has done is all tainted by anti-muslim animus and is the question whether the establishment clause apply to these kinds of suspicions at all? that was teed up in the fourth circuit. the fourth circuit heard argument on the establishment clause question.
ur ago i had not read the decision. the state of hawaii in his opposition to this, from the ninth circuit says by the way, if you grant -- you might as well also do that on the establishment clause where the state had preserved -- so, the supreme court did in fact do that in decided to take the case. so that is no question number four in the case. there is obviously has been paying up and down between the lower courts and supreme court quite a bit. but we have not yet actually gotten, with very little, eyeballed on the supreme court handling of the case. everything so far has been orders, issued by the court except for the somewhat curious -- at the very end of last term. and, while there has been some you know, especially in that
circuit. the ideological divide about how to handle cases. the most recent state water from the supreme court, the only centers were justices ginsburg and -- the stay orders include the one that was actually accompanied by an opinion. it said honestly nothing about the likelihood of success. the dissent by justice thomas, and gorsuch. from the granting of a stay on travel ban 2.0 said, of course, the granting of the state totally means the applicant have a likelihood of success but there is nothing actually saying that. so, we will actually get a look at whether the votes on the stay, stays had something to tell us about what the justices think about the merits. and the merits remember, include, can these cases be litigated at all?
does the statute bar national origin discrimination. something that really would be significant in future cases involving future presidents and future classes of immigrants from other countries, not involved in these travel bands at all. and then of course it may well be that some of the justices have voted for a stay simply thought that the equities with the government but the government may wind up losing a lot of that. this is queued up for the end of the term. i expected to be argued in april. it should be very interesting to see.not just the arguments made with the questions. ask could you elaborate on what the argument is that the establishment clause does not apply to the government when it is making these kind of decisions? >> i am not sure that i can
kind of capture it. i think that the basic idea is that for example, take a claim based on asylum. well established that when this country grants asylum to a refugee, it is based on the fear of future persecution and if we would change the country from which it came, based on not just any kind of bad thing that might happen to you, but among other things, persecution on the grounds of religion. for example, if you have no religion, you're not eligible to claim asylum based on that. what i'm about to say -- >> say it anyway. >> no one is watching! >> it is a lot easier to make out a claim if you can base that offer religion. as a result, silent decisions take into account, certain
religious distinctions. as a matter of asylum. and so i think it is not, look at the constitution as find the cause assesses aspect of the bill of rights does not apply to the border.but more than intuition. we have been making distinctions among people you know, let's say, we would grant asylum to a christian of egypt but not a muslim from egypt. on grounds of likelihood of future persecution on religious grounds. therefore, not all distinctions based on religion at the border can be -- >> answers the problem, is perfectly good reason in that context? >> i think that brings up the question, is the establishment clause and equal protection clause for religion? or is it something else? and the equal protection context we would say it is based on whatever.
well, of course, we have to treat people similarly a lot. we look at whether there is a compelling interest or important interest or whatever. but that is not how the establishment clause is.i think that brings up the question, how do we do religious distinctions? how do you analyze that? is making of a religious distinction okay? is it discrimination based on something that is not -- >> i think one of the interesting things is that i think this job.now but the original had a preference for religious i think when they were seeking refugee status. and that raised similar religious questions. but it is no longer part of the case, right? the argument was not the order was intended to favor in terms
of who could come in as refugees. >> i think that's basically right. although, bear in mind we have not yet seen a full-blown briefing on this. so we'll see if that -- >> i do think the pretext is very much in the case. but it is a question of what evidence of pretext is there? >> right. >> i want to be see any parallels what happened when it came to the gitmo litigation. after september 11. given the administration a lot of latitude. and over the years, we became more and more willing to intervene and have something to say about that and then we actually just said forget all of those people. but i wonder if the reverse might be true here. that there seem to have been right after the election. a lot of scrutiny on the travel
>> but i believe in the fourth circuit somebody said basically to make this president can never issue a order like this. but i do think with problems are the extreme spring back with the injunctions with government speaking with a long-term band two-point oh with a connection of people in this country so now the ninth
features are the arguments but thinking in particular when the justices decide questions and to think about. and the president has engaged with each and every one of them. >> now we move on to the issue of online shopping now this is a case to represent south dakota to acquire out-of-state retailers.
and on the other hand like other mothers i do online shopping. >> so this case has roots in all catalog purchases. this is a case called quill [used to be you go to the mailbox and it would be inundated with dozens and dozens of catalogs with pictures of things with things you would imbibe it that they keep track sending catalog some people would buy some things eventually so there was a fight in the state of maryland to the catalog company was in south
carolina. so the supreme court decided in the quill case that it would not evolve jurisprudence to have a substantial nexus. but uniquely in the sales tax context estate cannot tax a sale with no physical presence that means it could not be applied to the purchase from south carolina or wherever and that has been the rule for a long time. obviously with very big implications for internet sales but also many, many other companies with an effect on how it has worked so we
represent the state that is challenging this precedent to establish there is a constitutional power into the internet i will try to present the case objectively and how i described it. [laughter] but if you a sense what the fight is all about. it comes back to the supreme court with sales and use tax from colorado from a few years ago it is apropos to say that right away we're in the middle of the collateral fight and we have this case involving a lot of havoc and a lot of harm to
states and localities who can't tax sales into jurisdictions. so i think we should revisit that decision. justice kennedy and justice thomas are the only members of the court. and in addition with a insider tip so everybody took notice so the retail community had a meeting and decided to work with various states to get statute enacted to challenge quill this is a very unusual case because he built the case from the ground up got the legislation passed, we went into court and i do that all
the time but usually not on purpose so we said to the trial court we went to go straight to the u.s. supreme court. we timed the case from the enactment of the legislation all the way through so it would take the last conference in january to be argued this term. it really wrong -- receive the addition not just the amicus brief on our side but opposing certiorari to say this is not an important case don't pay attention which is an unusual strategy. suggesting perhaps that the case is very important and the court granted it. it does have big implications of some companies have started to adjust to the existing rule.
and then facilities and then start to collect the sales tax and if you buy through amazon but a lot of internet retailers will not. this has big implications how commerce occurs in the united states it is called showroom ring to go into a best buy to see different televisions to enjoy their incredible customer service and learn a lot from the technician and based on what you see and then buy it for 7% less because
they have to charge you the local and state sales tax. that adds up to billions simple use of dollars. so it turns out when you purchase online you don't have to pale blonde -- pay the sales tax but you are supposed to pay the use tax so everybody raise your hand if you have ever paid that. there is somebody in the back who wants to become a member of the bar. [laughter] a funny story but him went one time to go to the tax office to pay the use tax of
everything online and said you are pam carlin you are the person who pays the use tax. so there is one virginia resident after teaching her legal ethics class goes down. [laughter] but this is a case you tell the supreme court by the way there is a guy kennedy and justice thomas said it should be overruled and justice courses -- courts -- gore such that it should be interred but it was no longer in the internet era. and because the supreme court granted certiorari that we have the wind at our back although they do have
substantial arguments that the state lost the quill case in part because of a concern of retroactivity over going out prior precedent. and this statute and with that retroactivity and the major question so how would minister a bowl is this? with a small shop located somewhere in arkansas? so if you do have a small shop in arkansas with each task one -- taxi in the locality?
and that is the debate that they believe it is mathematically impossible also a way few are overruling a decision how many businesses have been set up that they are not charging the sales tax? the anybody doesn't out the importance of the case. and now to take up the problem to have an invitation will decide she will for the states without principal argument congress is well-functioning
and is all over this problem and are on the brink of solving all of this. the way the commerce clause works to say they will not regulate this issue so there are a lot of proposals the states can the sales and use tax. even if the supreme court would rule it might spur legislative action. but so far it seems like there is no legislative solution. time's up.
>> and those that expressly rule the president? so what implications do you see for justice that believes in starry decisiveness? >> this is a very serious concern because the question to have that court that is five/four so for liberal justices being more enthusiastic so we have written a section that that is the case about catalogs or the internet.
sometimes that is the core one -- the course the supreme court takes. so we offer a path that doesn't allow them to have anything. >> and it seems to work. so we stay warm. so i do think it is a puzzle how to navigate the question when the opinion says something of the vitality of the precedent to overrule. so it is a very, very serious concern how many votes you can get.
to bring that ideological bell. so it isn't something you would think justice buyer is there bringing his hands but he doesn't do as much online shopping but the chief doesn't believe anybody has two cell phones. and where they stand technologically doesn't itself have any residence either but to be very conscious of the fact to have that opinion that precedent is precedent. >> you set up the last case
with janice with the american federation of state for the first time that we talk about it the preview only granted it this fall but talk about the issue in the case so i will turn it over. >> the issue in the case whether it violates the first amendment for public employees of public employee unions to pay fees to cover the cost of collective bargaining. it does happen for two reasons that the court seems to have addressed this issue that it is okay so in that case 40 years ago but reason number
two it may sound familiar where the court has agreed to consider that issue. there was a case a few years ago that knows a lot more than i do because he argued one of them. raising the issue if the 40-year-old precedent should be overturned but it prevailed in the day which is important so the court then granted certiorari and heard oral argument to address the same issue at oral argument there seem to be justice kennedy and justice thomas assuming that
you were with them based on the world argument is seem to think maybe it was time to go. and justice scalia passed away shortly after the oral argument and the court affirmed suggesting that justice scalia was the vote and his comments were the indication that the way it looked that they would have been overruled requiring public-sector employees and states cannot require them to pay those agency fees to the agency. so if you are reading the tea leaves it is reasonable to conclude justice course which
is in this case but if you look at his poor voting record there is a possibility he could help with the conservative wing on the court. [laughter] met to backup a public employee from illinois he isn't a member of his union but illinois law and collective bargaining agreement to pay $45 to the union it is a violation to be compelled to subsidize those activities and political activities of the union. why are the political activitie activities? it is undisputed you cannot
force people to subsidize unions but here they are used for collective bargaining. so when the other party is the state you're trying to get something out of the state with public policy to get this pension benefit asking for contraceptive coverage. if you are a teacher arguing about classroom size or merit pay that we realize our public policy issues. that is a form of engagement with the government and it violates the first amendment in that effort. the argument on the other side
of the basic argument as it appears that isn't disputed in this case to say essentially only one union can represent the people so speak on behalf of the employees to represent not only the workers of the union but the faculty members and in that circumstance so to get a free ride off the work that they are doing but to get those benefits without having to pay for. states say that in the public employee context is much more
limited than another's and those that say when you are regulating as its rule the first amendment is less protective of the employees speech. that is the issue if you are forecasting the case on the side of the challengers i think the case is very important to have broad policy implications from my understanding from what i could green that 80% of the unions dues are agency fees in play. maybe 5 million employees across the country that are subject to the requirement to pay these fees.
if the fees are not required to be paid there is a fear that a lot of them will not become members of the union or pay the fee. in the public sector unions across the country in relationship with the governmen government. what is interesting thing to step back is the latest those that have been brought up by public interest using the first amendment to protect the economic interest on the abortion -related case without traditionalist minded americans or gay rights so there is the increasing
movement using the first amendment as a tool to advance policy on that side. and with the justice kennedy and presumably over the next couple years. and in the years to come. >> but in this case three or four years ago but this is person on -- reasonable asking them to do this nobody thinks they believe in the union and
from the employee's rights without any content basis that you could do that so there probably isn't any money out of their pockets. justice kennedy says you mean people give up first amendment rights when they go to work for the government? he is the author of the garcetti case that sets out the doctrine in ways that the government can restrict people speech in the workplace. but it is still hard to understand. >> but why didn't they just do that in paris? so in that case they rule on a more narrow workaround.
but at that point justice scalia had written the most effective opinion why it was fair and equitable. that is clearly speculative to have some difficulty coming around with that strongest defense back in the 80s. it appears they wrote a broad opinion expressing deep skepticism. >> that is the explanation i would do. >> what will they do will they say they are overruled like in south dakota? >> look at the language in this case and it walks right up to the line.
they could have distinguished it to say we don't have to address that but it went out of its way to talk about all the additives but they were directed by the court went out of their way to reject the arguments not mine personally but from the justice going out of its way to reject those arguments and you see them being raised again for understandable reasons to make even buy me a minute ago. >> so what happens with that interrelationship between the cases with the federal statute
? >> i don't know the answer to that but from what i can tell that obviously it is harder to balance that as the case is currently positioned they were very careful not to look like they were asking for anything more. >> in trying to figure out of there is enough state action they were asked during that question and they were very definitive but it's not completely obvious. >> what happens to those union to represent all those people?
or those grievance proceedings? why is it constitutional to tell them that? >> we will be talking about this in a couple years but to my surprise and delight is what we wanted to cover so now we will move on to other cases talking about another first amendment case. >> this is brought by conservative leaning entities in the same pattern the national institute because the
places requirement in a crisis pregnancy centers that have pregnancy related services the groups are pro-life and there is a debate a lot of the critics say they mislead people of their options so california passed a statute with crisis pregnancy centers to provide medical services that they have to disseminate for all people who walk into
the crisis pregnancy center that california has public programs with free or low-cost access to comprehensive family-planning services including abortions for eligible women with the pro-life crisis pregnancy center what they would call an advertisement for abortions so that is one provision the second requires crisis pregnancy centers to perform medical activities to say we don't have doctors here are licensed to provide medical services so a superlong discussion the argument is it is compelled speech with a huge debate lev >>