tv American Constitution Society Supreme Court Term Review CSPAN July 10, 2019 4:32am-5:59am EDT
examining the conditions of migrant children and facilities near the u.s.-mexico border. >> next, lawyers and legal scholars review the supreme court's just completed term, including decisions on the senses citizenship question -- census citizenship question, gerrymandering, and the death penalty. this is an hour and 25 minutes. >> hello. what a nice crowd we have.
i can see we have a few things to talk about today. good morning. i am caroline. i'm the president of the american constitution society and i would like to welcome you to our annual supreme court review. we are as all of you know and to our viewers on c-span, we are the nations leading progressive legal organization with over 200 students and lawyer chapters in almost every state and at almost every single law school. we originally formed as the progressive response after the bush versus gore decision. acs was founded on the principle that law should be a force to the lives of all people. [applause] saye should not have to that is an aspiration but that is. that brings us to the supreme court term that ended yesterday. it left us with quite a number of unanswered questions and some that were answered in ways that we may not have liked. but, it all leads us to the conclusion that courts really matter. whether you care about the environment, immigrants rights, an accurate census, or fear and nonpartisan districts where the voters choose their elected officials instead of the elected officials choosing their voters. you should care about who sits
on the bench. recently, acs was very pleased to publish an issue brief by senator sheldon whitehouse of rhode island. it starkly demonstrates how "polarized along partisan lines the supreme court has become." senator whitehouse's conclusion is that "republican appointees have with remarkable consistency delivered rulings that advantage big corporate and special-interest that are the political lifeblood of the republican party." and, he includes a detailed appendix to back up his thesis. if you have not read this very important issue brief, please pick up a copy outside or you can find it on our website. so, how did the court fear this term with respect to its votes? and, what has the addition of justice brett kavanaugh meant
for the court? to begin to answer these questions and more it is my great pleasure to introduce our repeat moderator, we love him so much. we try to have him back at every possible opportunity. you all know who i am talking about. tom goldstein. [applause] tom, as you know is one of our nation's most experienced supreme court practitioner. he is a partner at goldstein and russell, cofounder and publisher of the invaluable resource scotus blog were we were all glued to yesterday, yesterday morning. tom has served as counsel to a party in well over 100 marriage cases on the supreme court and will argue his 43rd this fall. he has taught supreme court litigation at harvard and stanford law school. in 2010, the national law journal named him one of the
nation's most influential lawyers of the decade and legal times named him, listen to this, one of the 90 greatest washington lawyers of the last 30 years. so, we could not be in better hands then to have tom goldstein as our moderator. please join me in welcoming tom. [applause] >> thank you all for taking the time to come to the annual week for the supreme court in turn. -- wake for the supreme court in turn. we really actually do appreciate both everyone here in the room and everybody who has been kind enough to watch on c-span. it is obviously an incredibly important transitional time. we have brett kavanaugh in his first term. we have just as gorsuch -- justice gorsuch beginning to settle into the supreme court. because of the departure, justice kennedy who we missed
terribly. we begin to see the hardening perhaps of an even more supreme court majority and start to look forward into the future about what that means. it has been an interesting term. justice kavanaugh settling in without breaking new ground. he was the justice and the majority most of this term. 90% of the time. the two justices who agreed the most was the chief justice and justice kavanaugh. we start to see if they will form a center-right or conservative coalition with justices further to the right in justices alito and thomas. wonderful things about doing this is we are doing things a bit in real time. the supreme court has just issued orders in the past few minutes. granting the last cases before the justices leave the very important chamber music festival in salzburg. they have agreed to hear the dr.
-- daca cases. the court is going to take on several decisions invalidating the administration's and validation of daca. in addition among other cases they have taken not only bridge gate from the christie administration in new jersey, but also a very significant case on religion and a governmental aid that can be used in parochial schools. that i think is one of the untapped areas where the courtte has significant areas -- significant room to maneuver to the right and change a lot of law. we are really lucky to have people travel from all over the country to come and talk with us about the cases from the term who are experts in their individual fields. i will not take up the whole time doing introductions. you having in materials provided to you in the room details of all of the professional qualifications. it is incredible the level of specialty we have in respect to
the minds of cases that are determined the most significant cases that are most important and will have the longest lasting effects. it will go down as an incredibly important term. it includes a pair of decisions that i think are more significant than the entire time i practice and that includes bush versus gore much more , important than that in the partisan gerrymandering cases. i think it will have an enormous effect on the way our nation is governed. he will talk about the incredibly important census case and tell us whether it is going to be on the form. >> well, the answer to that question is we still don't know. i think a lot of the celebration that has been occurring on this case as a result of yesterday's ruling that for now the question can't be on the form is premature.
we don't know for sure. we won't know for several months. let me back up a little bit. tom asked us to describe this briefly. i can describe this case so briefly. in fact, in just two words. they lied. they lied brazenly, bald-facedly in a way that every perfume court indeed, everybody in the room understood. by they, i mean, the department of commerce, wilbur ross in particular about the reasons for adding the question on citizenship to be asked on the nsus form with ce respect to everybody who is taking the census. so, what was the reason that they actually gave? the reason that they gave was we need to ask this question
about citizenship in order to enforce the voting rights act and particularly make sure the voting rights of latinos are protected. i want to ask you, how many people think that is a plausible explanation for the trump administration? ok. i'm glad to see indians on that one. it wasn't. i think at this time the case was argued based on the record that was before the district court out of maryland, california new york based on the record going up to the supreme court everybody knew it wasn't , really the reason for asking it. what was the reason for asking it? the suspicion, and i think it is pretty clear now that the real reason for asking the question or a big part of the reason was to depress the number of people, especially latino households that would respond to the
census. we would get a significant drop in how people would respond somewhere in the neighborhood of a percent among latino households nationwide. -- 8% with latino household nationwide. it matters because the census determines how monies are allocated among the states and within the state, and most important to my area of law, election law, it matters because it determines political representation. the census under the constitution determines how many representatives each of the states gets in congress. it also is used to determine how districts are drawn within the state. as you know unless you have been under a rock for the past several weeks, there has been some information that has come
to light as a result of some unusual circumstances. the death of mr. richard hoffeller and the hard drives of which pretty clearly shows what the motivation at least the main motivation was. there was a desire on the part eller, dubbed the michelangelo of gerrymandering to draw districts not based on total population as every state in the country now does, but instead based on the citizen population which would significantly underrepresent minority communities. so, they lied. not only is the rationale that the trump administration untrue, it is the opposite of the truth. the real motivation for adding the citizenship question to the
census was to suppress representation by, as he put it in one of his emails, hispanics and advantage republicans and non-hispanic whites. i thought this case was probably going to go the other way based on the oral argument. i think most observers did. if you read chief justice roberts' opinion for different majorities -- part of it's all the right side part is on the left side, it is really kind of schizophrenic. it looks like he is going in the direction for most of the opinion, if you did not read the syllabus or headline, of upholding the census question. then at the very end of the opinion he switches directions thing concludes joined by the for less conservative justices on the court that the department
adding -- fore adding this work pretextual. he did not use the word lied but that's basically what they conclude. what i think happened here in this is speculation is that it just became so transparently obvious that the administration's explanation for the senses question was not just untrue, not just a lie, but the opposite of the truth that the court, by which i really mean chief justice roberts could not look the other way. but, the department of commerce will get another chance. we don't know how this will come out yet. the president has already indicated they will try again, opinione court's a allows them to do to come up with a rationale for adding the question to the
census. i suspect only chief justice roberts and his clerk maybe not even that know for sure exactly what is going to happen and whether to answer your question. this citizenship question will in fact appear on the 2020 senses. >> so, what happens now? after yesterday where are we? with the different cases, what might it say? >> the cases have been sent back down. you probably have a better answer to this than i as a much closer supreme court watcher. they are going back to the lower court, not only the new york district court from which this case which was decided yesterday came, but also in maryland where the 4th circuit a few days ago voted to reopen proceedings on whether the addition of this question was intentionally racially discriminatory. the department of commerce will
get to try again, and they will. the plaintiff in the case that's challenging the citizenship question will seek an injunction from one or more of the lower courts. and, i strongly suspect one or more of those lower courts will again enjoin the question at which case it will be back up before the supreme court. i am pretty confident based on my reading of the opinions of yesterday how eight of the nine justices on the court are going to vote. i can pretty confident that justices ginsburg, breyer and sotomayor and kagan are going to vote to to uphold any injunction against the question and that justice thomas, alito, kavanaugh and gorsuch will vote to stay or overturn any such injunction. but, i don't know what the chief is going to do.
in my view, the court would lose a great deal of institutional sredibility if it gave it and premature to the addition of this question after it has been so clear that the trump administration lied. as we all know this is hardly the first time. it's practically like breathing for some people in this administration to lie. but, i don't know whether the chief will feel the same way. >> jen. >> what you think about the concurring conservative and then dissenting justice opinion? one of the things that struck me was first of all the extent to which they were calling the lower courts political. they came out and said it was a decision for this administration only. went on a real diatribe against the seven district court on political grounds. i think that was quite remarkable.
i don't know if i've seen that kind of an attack on a lower court judge in a supreme court opinion. the other thing that is really striking and will see this later is you have the conservative justices who have been really pushing back on administrative power and here they are welcoming it with open arms on the part of secretary ross. so, if you look at the cases across the span, there is a real interesting contrast and disconnect on if they think it's got to be held back. >> the administration's process forgetting where they got. i want to talk a little bit about the citizenship question and see the population data when you're doing voting rights. right now, every one of these cases -- 2000 was the last time the question was on the long form in about one in every six
households. since then during the bush administration the citizen ship -- citizenship question was moved to the american community survey which goes to about 2% of the country every year. in the obama administration the obama justice department and 2011 or 2012 asked the census bureau to do a special compilation of acs data to try to give some betters citizenship than just statewide that you could derive from the acs data. the problem when you get into voting rights act enforcement in smaller jurisdictions is the rates from the special tabulation are massive. talking about census blocks where citizenship estimates will tell you and i can tell you a good percentage 20% of the block had error rates in excess of 70% which means the census bureau said basically said it's not functional. that is a problem when you get
down to voting rights act enforcement in small jurisdictions. there is a village in new york that had a section 2 case in part of the problem was when they went to try to draw districts they really did not have granular data to know where the hispanic residents of the community work in order to draw the district. y? they were trying to draw based on data that they knew when they brought it down to the level of a small village you literally did not have the data to know where the hispanic voters were and were not. so, do you think the granularity of the data that you can get from the census bureau without the citizenship question where the plaintiff in small jurisdictions is really challenging right now. because the census does not ask the question on short or long forms. >> just a quick response. it is right that in voting
rights act, my main bill ascertained how many live in a particular area. it is a different question whether you need to ask that question or it will help to ask on theizenship question actual census as opposed to a community survey in order to ascertain how many citizens of various races or ethnicities are actually living in an area. what the evidence shows, and in this trump world fax do still matter in some places. the facts show asking the question what actually discourage participation and get you less accurate information. voting rights experts submitted testimony and affidavits and -- in some of these cases which actually showed that in fact you don't need to ask this question and it won't help to ask the question in order to litigate
voting rights cases coming from people like the professor it was one of the leading voting rights experts in the country. it is just not true that you need to ask this question to get reliable information to enforce the voting right act. that is false. it is certainly false that this was the reason the trump administration decided to ask the question. >> i will say that i think in the end if your first take on the oral argument was going to win, it will end up being the ultimate take of the year on the case. we jump to part 5 and we skip over the other parts. all the other claims are rejected by the supreme court. i think that is where the actual legal when it comes to the census and then we have this don't lie principal and the administration comes around saying we asked the question because we want to ask the question, that may be enough for the chief. >> but, why don't we then turn to the administrative law
questions? we have both an enormous delegation case and the case where there seems to be a lot of overruling ones of the court's big administrative were significant administrative law doctrines. >> sure. this was a big term for ad law. professors did not seem happy tweeting away nonstop. i think the overall theme and what we have been seen over the last five to 10 years is a growing conservative attack on the administrative state. and, i think that attack has clearly gained appearance. no big surprise with the addition of gorsuch and cavanaugh to the court. interesting that it is still falling short. the victory that they expect to get this term did not come through. the main protagonist has emerged
as justice kagan for settled rules of administrative law neil gorsuch chance the protagonist that was going to bring the administrative state down. but the person who really holds the power is the chief. very carefully signing onto particular parts of opinions into one of the cases for them he say a little bit about the gundy case. first, this was a challenge to a provision the defender which let the attorney general how it would play out to individuals who had been convicted of sex offenses prior to the adoption. and, the delegation was attacked as an unconstitutional delegation, too broad of a delegation. the nondelegation doctrine has been around for a long time. the last time it was succeeded was in 1935. two or three depending on how you count them were held them.
-- held then. before then others fail. interesting here, first of all that the coat granted this challenge. there was no circuit split down below. then, in addition that there was a very strong defense holding indeed that for the sensors that -- dissenters that the delegation was unconstitutional. again, they did not win the day. justice kagan wrote upholding the delegation as a pretty easy case under existing precedent. she got there by reading the statute narrowly. this is standard fare and what the court has done for decades. and again, what is striking is really not the plurality, it is the dissent by justice course -- just as gorsuch joined by thomas and joined by the chief which i found particularly surprising who would've held , that the delegation was unconstitutional and in the process of doing so didn't just focus on the fact that it was a
criminal law provision and had retro aztec -- retroactive aspects to it. there are a lot of reasons why you could not like it. but he didn't focus on those. he basically took a broad view about what kind of power can be delegated and broadened that he wants to pull back broadly on the delegation of power. he thinks congress can delegate fact-finding power and filling in the details power, but what congress can't do is delegate policy judgment with respect to the rules of private conduct. here is the think. the administration is right with those delegations including the caseegation in the census which everybody, including the chief and the dissenters made a point to say abroad delegation and wide support. so what interesting features why were they so untroubled by the delegation and the census case and yet so troubled by the
delegation in gundy? but, separate from that what you really see is gorsuch's dissent it really is this very bold strong attack against the administrative state one that , thomas had previously signaled in concurrent that he wrote it was a solo offer concurrence. now, we are getting at least three votes fully. in addition, justice alito concurred in the judgment saying he was open for reconsidering the delegation doctrine but unless the court would do it he thought the case was easy. kavanaugh was not on the court when it was argued. eight justice panel. we know he was on the d.c. circuit and has some opinions indicating he was willing to pull back on his power using delegation. so, it is possible there may be majority for some pullback on delegations in the near future. >> can i ask a question about
that? we have four members on the left saying i am not going to apply the 9 delegation doctrine. we have more conservatives three saying i'm going to apply it aggressively. justice alito saying why not have a five justice majority saul give the fifth boat. why wasn't it reargued? brett kavanaugh was not on at the time. effectively there was 4-4 tie. usually you would have the ninth justice be a part of the court. no one suggests this. i can figure it out. justice alito says, if we had a ninth justice i would consider this. brett kavanaugh is waving his arms. >> i find it puzzling. online people have said is alito concurred in the plurality in order to get the chief on record as dissenting. but, that doesn't explain why you would not grant for reargument.
may be why you don't wanted to be affirmed by equally divided court. i don't know why they didn't go for that. it could be and i think this be the case, i don't think alito may was so sympathetic to the delegation argument here. i think he may be more sympathetic than some big regulatory statute but not necessarily in the case. >> he will not race to be the savior of sex offenders. >> i don't think so. i think that may be playing a role and then he also wanted to get the chief on record. i am not so sure you're going to see a majority or major pullback. in part just because that would be so profoundly disruptive. that would really call any number of major statutory regulatory, the whole way our , government operates. the way the state and local level operates into question. different delegations. but it is right. it is the core of our
government dissent. i don't know he is on board for that kind of disruption. i would be surprised. you can say this was a unique delegation because it was so criminal law focused that maybe it was one that would get more ire from some justices. other than toledo. -- alito. we may see it coming soon. there's a delegation challenge pending for the court involving the section 232 of the trade expansion act of 1962 which delegate a lot of power to the president over trade. having to do with national security. on the other hand its national security and i think even the whereh dissent signal is we could have a broader delegation. it may not be up that indicative. so that's gundy. on kaiser it's a very similar set up. you have kagan writing the opinion defending the standard administrative law review and position. the issue in the case was
difference were courts deferred to agencies interpretations on the regulation. if the interpretations are not plainly erroneous and are consistent with the regulation the doctrine that goes back in time for a long time. it is called either our difference and its in 1945 decision i believe. you can even trace these cases back into the 19th century. so, it is a long-standing doctrine. conservatives, their big attack has been to challenge the idea that courts should defer to administrative agencies interpretations of either statutes or regulations. this was really a big concern that they have been bringing ever since 2011. justice scalia thought it was unconstitutional and problematic.
he had these cases, again coming and coming. ity ended up having to dig because of actions by the trump administration. they finally had that challenge before them and kaiser and thought this would be the end of this thing called our deference. instead the court refuses to overrule it. in an opinion with the chief justice to any key parts of the opinion in keegan's defense and her setting out the limits of the difference. it's interesting. some people think that by sitting out the scope is limiting and narrowing the scope of the doctrine -- many ways argued by the solicitor general in the case. that in some ways, that is giving some control. on the other hand the court has been doing that process of limiting the doctrine for many years.
this is nothing new. a lot of the cases she relied on for restrictions. those have been established cases over the last decade. i am not sure she really held -- pulled back as much as codified the limits on the doctrine. gorsuch has a strong concurrence, bullets phase is a -- but let's face it it is a dissent. his opinion ended up remanding back down because the federal circuit had done a good job of applying the doctrine and its concurred and that result. it's a pretty fiery dissent in the form of a concurrence attacking the chief for not having the guts to overturn our deference in this case. and predicting he thinks the court will overturn the
deference. i am skeptical. the fact that the make argument, i think he's unlikely to in the future. lower courts will get the message. the big question, what about the other kind of difference? the interpretation of stature, that goes by the name of chevron deference. that has been a subject of conservative ire. both the chief and concurring and kavanaugh who joined the dissent, they did not see this case as resolving the question having to do with chevron deference. they see that is different. how different? that's unclear. does that mean different and it's more likely problematic or likely it's more ok that one concurred with the majority and one with the defense. they may disagree among themselves on that. so that may be something that we will see these types of challenges to statutory interpretations deference.
i don't see any reason why they would suddenly rush to apply it unless they hold unconstitutional it's not clear exactly how that comes. >> one of the interesting things about the conservative evolution on the documents to me was justice scalia. then the obama ministration came in and started interpreting regulations and that he found it was fundamentally constitutional. [laughter] >> i do think one of the things that triggered some concern, i think it was legitimate concern, there was a 180 change in how statutes and regulations were read without really giving good explanations and really upsetting a lot of the lines. i think that they get a lot of members of the court concerned. >> let's continue with the political theme.
jason who is the partner and has experience as a senior d.o.j. official. talk about gerrymandering. >> there were two cases decided together. there's a challenge to the north carolina congressional district and, in the benedict case was a challenge of maryland 's congressional districting. in the end the case maintains the supreme court, the partisan gerrymandering claims have a 35-year history. starting with a case in the mid-1980's. windemere resulted in a split opinion. the court said these cases were due suitable, but there is not a majority for any particular test so they sent it back down to the lower court and there is a lot of maneuvering in the lower court and got back up to the supreme court again. pennsylvania which
was a challenge to pennsylvania's congressional districts. they were split 4-4-1. they were split on what the test should become a the formwork conservative justices concluded the political gerrymandering case for non-traditional bull -- judicial in forecourt. -- federal court. and they said i don't see the rate tested, so it was a 4-4-1 split. here is the problem, the challengers and every one of these cases whether being proven wrong with the fact, if you look wendemere, -- vanda the case brought by indiana house democrat, saying it's a insurmountable gerrymander. the supreme court did not return it in the next election the indiana democrats tied the house in the next election they took over the majority in the indian house and they said they could never win under. the next decade there was a case in north carolina where republicans challenged north
carolina for intermediate court the court actually found the republicans in that case and said clearly this is a nonconstitutional gerrymander in the next election before the court could implement any remedy republicans won all of the intermediate appeals court raises in the next election. the fourth circuit said you have to go revisit this then you fast-forward to the last decade where pennsylvania democrat s challenging the congressional district. they want said we can never take the majority of the congressional delegation under this map and the supreme court turned down the challenge in the next election cycle pennsylvania majority inok pennsylvania. who best'connor understood the redistricting cases because she was a legislator before she went on the bench. in the 1970's when she was in arizona state senator had one of
her maps denied. if you read what she wrote, a lot of what she wrote, a lot reflected in justice roberts' opinions from yesterday and essentially what she said, gerrymandering has limitation. the inherent limitation is there is a natural mathematical limitation to it no matter how extreme you claim the gerrymander to be. if you drew all the districts in a state so that your party 152% of the vote, italy takes a slight wave for the party to lose everything. similarly if you drew the district so your income net 70% of the vote in every one of the districts you're probably not gonna draw enough districts for your party to control the majority. there is a natural mathematical limitations in gerrymandering. the other problem frankly the democrats have with gerrymandering right now is that democrats tend to highly geographically concentrated in small but densely populated
urban areas. this is a problem when you're drawing districts. academic study upper academic study has looked at this problem and essentially what happens as you increase the number of seats from the body your drawing spreading out the boating when you drawing on geographical representation is a lot harder. picture florida. there was a study from 2015 where they look at the 2000 presidential election in florida which was evenly divided state ways and if you look geographically and think of florida as being ones won by george w. bush, and one being the district by al gore, george w. bush won 80% or more of the votes in a grand total of 80 precincts throughout the state. al gore won 80% or more of the
votes, and 800 precinct if you think about it, let's say the ford house that has 80000 people, you will wind up with the district and my immediate that is 70% or 80% democrat. the problem is it is very hard to reflect democratic voting strength on a statewide basis without yaking a geographic area -- without taking a geographic area and carving it up. probably the best illustration and congressional map of the cook county chicago area looks like. cook county had the idea population that contains seven congressional districts, it of 11.s all or part basically what justice roberts said, there is no test for the federal courts apply to decide how many politics is too much politics in redistricting. it does not mean the cases are dead, it shifts the venue in the cases from the federal court to the state courts. what you will see growing out of this is not an end to gerrymandering litigation but
, from the federal court from the last 35 years and you will see it move to the state court, and you sought in pennsylvania. -- saw it in pennsylvania. and after that, you see democrats changing the north carolina supreme court in the 2016 election, in a gerrymandering lawsuit in the state court. i think you'll see both sides do this but i think you will see lots of shifts in venues in these cases to what is perceived of one side or the other to the friendly state supreme court venue. i think that is where we are seeing the gerrymandering cases go. what does that mean coming up, there may be some challenges to some of these cases in state courts before the 2020 election, it means the stakes for who wins governor races and state
legislative races in 2020 are immense. it also means there will be renewed attention from both sides on the judicial selection process in the state whether that's nomination or elections or appointments or however the state judiciary are constituted, i think there will be a lot more national attention going forward. >> i listened to jason describe the 1980's and justice o'connor's opinion way back in wendemere, i think to myself, how much things have changed. and not for the better. one way in which they've changed as a country we are much more polarized than we were on a partisan basis back in the 1980's. a number way in which things have changed is technology. so to bring to light why i think yesterday's decisions in the partisan gerrymandering cases are such a disaster, let me just
ask you to do a thought experiment. you wake up on election day, you imagine go to the polls, you cast your ballot, you go home and you find out your vote did not count. now imagine this doesn't just happen in one election but two, three, four, five elections throughout the entire decade. you actually do not have to imagine this because this is the reality in many states in this country after the 2010 round of redistricting and it will get worse after 2020. i live in ohio. oh. that is just something we do. [laughter] yeah, boo. [laughter] we have 16 congressional districts and we're a pretty purple state.
twelve of our districts are republican districts, we are drawn to the exactly that. not just to maximize republican representation but accounting population shift to ensure that all 12 of those districts remain red throughout the decade. that is exactly what has happened. all of our congressional districts, that result in every single election since 2002 have been preordained in advance. i suppose in some sense there's a natural stopping point in justice o'connor said back in the 1980's, there are some -- the math is too hard for us. the truth is we have all empirical measures that the district courts in wisconsin, michigan,ohio,
wisconsin. they were able to apply more or less the same test, looking at the effect of these plans and the state's justifications for it. there is a natural concentration of democrats in urban areas and republicans in rural areas. for theseyou account natural boundaries and population clusters, you draw a random sampling of maps. when the maps that were drawn were the most partisan in terms 3001 maps any of the as justice kagan explained, we can be pretty confident, especially when we have direct evidence of partisan intent as we do in these cases. republicansts and engage in partisan
gerrymandering. but republicans controlled a lot more states and gerrymandered to a much greater extent because they had the power to do so after 2010. you think it is bad now, it is going to get worse. legislators, state at least had have some pretense that they are doing this for a neutral reason, like we want to promote compactness or keep communities of interest together. all that will go out the window in the next round of redistricting. at least in most states where there has not been redistricting perform. as a matter of the federal constitution there are no limits on partisanship and gerrymandering. there are some states in which state courts can be an effective hedge. do not count on it too much. let's remember something like
90% of state court judges are elected. in many states including mine are elected on a partisan basis, so maybe he'll have ineffective check in a state where the majority of the supreme court is of a different party than the legislature and governor, but that has to be a small number of states over all. there may also be some states in which you can get reform through ballot measures. it is actually happened in my state. in michigan and a few other states. out,stice kagan pointed it's a minority of states for this is available. the research shows if one of the major parties fights redistricting really hard on a ballot measure, they can usually succeed in defeating it because if voters are confused -- i say this having worked on campaign initiative before they voted no --it's easy to confuse voters when it comes to districting.
there is a little ray of thehine behind this because parties and especially the republican party in the last decade was so aggressive in gerrymandering and distorting the political process and effectively denying so many people their votes. there is a lot more consciousness around this issue than there was ten years ago. i'm not optimistic that congress is going to do anything about this problem anytime soon as the majority opinion naively or cynically depending on your perspective suggests might happen. i think at some point in the future might stop this problem capletely, at least it. >> i want to point out one thing. ohio congressional district and the political party went to each other and said you pick which incumbent you want to get rid of and you pick which one you want to get rid of and they cut a
bipartisan deal. if you look historically where they cut a bipartisan deal, you see a lot of stability, it happened in california any 2000 election. in the 1990's, the california was drawn by court in lots of seats in the states were in the congressional district over the -- flipped over the course of a decade. in 2000, the california map with the bipartisan compromise and again, i think there was one congressional seat over the 200 elections in california in the 2000 that changed hands. and that was it. >> a quick point on ohio. it is not really true that the plan was a bipartisan compromise. yes, there were some democrats in the state legislator who voted for the plan but it was because they basically had no bargaining power in at least the plan protected a couple of democratic incumbents. >> i want to leave the details. >> i do think this case is incredibly significant because
most of the time when the supreme court stepped away we say that's ok because the democratic process can fix it. but if the problem is its broken and we cannot elect legislators who will do something else because they have elected the voters rather than the other way around, it is deeply problematic . we get this issue with the supreme court cannot fix it and also it's difficult for the supreme court fix. if you know that is good to be a democratic district, the election is decided in the primaries and you will get the most extreme views on both sides. we just get wildly conservative and wildly liberal people, they go into the legislator and can't work together. i think it really has a series of deeply problematic effects. on that happy note, let's transition into another incredibly important power, the -- part of the supreme court's docket, it has enormous role in how
-- in capital punishment in the united states. in talking about those cases and cases about a legacy for justice kennedy was whether and to what extent people who have mental illness and mental incapacity are eligible for the death penalty and also, the recurring concerned with methods of execution. >> i always start on a happy note talking about the death penalty. also an ohioan and continue representing. i think starting on separate notes from the past term would be talking about one of the court opinion's was madison versus alabama in saying someone who has stream vascular dementia has significant issues with capacity to understand,
the capacity to process information is not competent to be executed. there was some question, if the standard has been set is what if somebody has a rational understanding for the reason for and if theiron mental illness is impacting their understanding. when does that make somebody incompetent to be executed? the supreme court had a different posture in a be as -- habeus. there is to be something clearly established precedent. we are still stressing out the standards that was started before and continued.
this case came back again where there was not relief in the habeus context. but this is an appeal from the director of the state court opinion and in this context, the supreme court was able to say, somebody has have a rational understanding for the reason they're being executed, we are not just saying you have to have these specific psychoses that are creating delusions and things that are going to interfere with the rational understanding. we also conclude people have dimension that is creating serious deficits in his ability to understand and comprehend and remember. they said not being able to remember the crime would unnecessarily be enough to say that it makes you incompetent to be executed. but with the amount that has understanding and the reason for
his execution is compromised that he would not be eligible for execution. i think the madison opinion is a place where the supreme court has continued to thrash out the -- flush out the standards around competency to be executed in a fairly rational way. i would say there's others opinions this term where we did not have as helpful guidance from the supreme court. let's get the lethal injection. lethal injection has been a real point of litigation over the last -- more than ten years. the last major lethal injection
before this term is 2015. the supreme court again was facing the question of what does it mean to be cruel and unusual punishment? the burden death scented individuals have on the challenging a method of exit you should? the background around this is currently the main method of execution is lethal injection, and for a while everybody basically did the same thing. there was a three drug method, the first drug was supposed to knock you out the second was to , paralyze, that was how people -- the very nonscientific method of people figured out how we can -- a way to
humanely and we won't torture them to death. because of drug availability and other issues the way we've been hearing out executions has changed significantly over the last ten years with the different experimental methods being used. one of the message starts with a sedative that does not actually -- there is more evidence, even last supreme court decision that it does not effectively keep a person unaware of the intent and excruciating pain that is caused
by the last two drugs and the paralytic can mask the pain and sometimes it does not well. we don't have outward indication that it does. we see somebody who is experiencing agony. if the first drug is not something that keeps you unaware of the pain you are experiencing , testimonies and depositions that have not been effectively challenged, it feels like you are being burnt from within. it feels like you're on fire and you are being set on fire internally. like i said, i get to talk about light stuff. this is pretty horrible. as a result, there have been a lot of legal challenges to the lethal injection in general.
during oral argument, there was a lot of interesting and probing questions. can we burn someone at the stake? that is cool as long as we don't try to give them extra pain. there was actually a lot of detailed questioning from justice cavanaugh. -- kavanaugh, when people went to the argument until the pushing from the judges, they thought this was interesting, they thought maybe the supreme court and the additional evidence about the effect or lack of efficacy of this first drug it will have a statement on lethal and injection and what needs to be done there. that was not to be. and we ended up split court in a
majority opinion which was very clear to say we're done with this, we don't care, unless it looks like the super edition of pain, the phrase -- the super added pain that is not usual for execution. death is not by nature meant to be painless. there is a lot of really don't care people. , they can kill them however, they want as long as are not trying to torture them to death. that is my short and sweet summary of the majority. but, there is an interesting concurrent by justice kavanaugh where he specifically talks about what the individuals have to prove around the availability of the methods in it was
specific to say that the state cannot approve a method and is not about what's proven and was the alternative. there has been a proliferation around how states are getting the drugs these were lethal injection. and, when you put together these laws in the current precedent around how you can challenge a method of execution, how you can challenge how the state is planning on executing you and saying yes, this is going to be a torturous and painful death. the combination of the requirements the supreme court
has for the challenges and the secrecy laws that say you don't have the tell how we are executing people in our state is really a problem that the defense talks about. i will explain a little bit about that and then talk about a few more cases. basically, if you are challenging the way in which are being executed but you are not challenging our right to execute you in some way, then you have to tell us how to execute you. because you just say this one way is unconstitutional. show us a constitutional way to execute. this is problematic for people. we probably don't want to be executed in the first place but also saying, i don't want to create an execution protocol, not that that would be better here. do i have the expertise? not really.
so, one of the things that people have tried to do is say, this other state seems to find or have a solution that does not include this, does not have the same inherent risk that this particular protocol has. however, if this other state is not willing to say much about how they execute people, you really are between a rock and a hard place because even in the situation where you are having to prove, could you please kill me this way the way that texas does, you can't really talk about the way texas does in detail because texas hides those details. so, what is the answer? there isn't really. justice sotomayor is the champion on the sane look, every time you say they didn't treat this as specifically as they should, they did not provide enough detail about whether or
not this alternative was available, therefore we cannot say there is an available alternative, justice sotomayor say and how should they do this? if everything is under this veil of secrecy and they can't get to details on how other states are doing executing people, so that came up in the dissent. it actually came up in more of the issues this term. >> before we switch to a capital case i want to make sure that we get some of the commercial stuff and then we can come back. >> so charlotte from seattle, the court has been doing a lot with arbitration over the past few years. >> yes, there is three arbitration cases. one divided along a familiar 5-4 line with consumers compelling individuals rather than class arbitration. the other two cases were unanimous, one in favor of
arbitration and one not. i'm going to focus on two of those cases today. one involved in arbitration contract that a guy name frank was required to sign as a condition of being hired to work at a warehouse. after a major data breach of the companies they wanted to file a class action under state and federal law. in the company was compelling arbitration. so far it was a pretty typical story. what happened next was somewhat more unusual. the district court decided that the contract he signed to -- did clearly call for arbitration. it was ambiguous about whether or not it contemplated class arbitration. so, based with that ambiguity the court looked to california law, like the law of other states require that ambiguous adhesion contracts be construed against the parties who contracted them. a principle you may remember by
law school, they apply counter efendum.a pr so he immediately appeals under the federal arbitration act. the supreme court reverses and they continue overwriting hostilities through aggregated arbitration in two ways. first, there wasn't an appealability question because the federal act allows interlock atory appeals from them denying arbitration. but it specifically bars appeals of orders directing arbitration. you may recall from 30 seconds ago that the district court ordered arbitration. it just did so on a class basis, not his preferred method. the court case has one paragraph there is no analysis to say that an order compelling arbitration on a class basis is equivalent to an order denying arbitration because class arbitration is
fundamentally different in that it greatly increases for the debts risks to defendant. -- increases risks to defendants. second, the court was on to say that the district court cannot use california preferred method of contract interpretations to deal with the ambiguous contracts he was required to sign. again, that's because most defendants want to go to individual arbitration and the supreme court had previously held that judges cannot compel class arbitration where the contract is silent. or as chief justice roberts put it it is in matter of consent and not coercion. that dichotomy is interesting when one reflects on the circumstances under which he signed the arbitration agreement. both because his choice was to sign it or find another job and , because the majority wasn't particularly interested in what he thought he had consented to when he signed the arbitration agreement. whether he had achieved a
meeting of the mind about individual arbitration. what follows is a discussion of the benefits of individual arbitration. when you hear the phrase benefits of individual arbitration you should basically add the two words, for defendants. especially in the context of consumers or low-wage workers. the main benefit is that it cost less to litigate on an individual claim then arbitrate a class claim. i am sure that is true as far as it goes. but, the logic relies on the fact that most employees who are required to individually arbitrate will not actually bring their claims at all. or, to put it another way, as of recently found out when tens of thousands of drivers filed for individual arbitration of their employment claims it is indeed , cheaper to litigate one individual arbitration than one class arbitration. it is definitely not cheaper to litigate hundreds of thousands of arbitrations than to litigate a class arbitration.
if the court thought that was a realistic possibility then there was an efficient way to resolve claims and what employers were likely thinking about when they drafted their arbitration agreements may have come out another way. so, what should we make of it? on one hand, arbitration agreements that are ambiguous are probably fairly rare. although that's not giving employer's intent to clarify them. on the other hand, this is twice in two years that the court has found legal principle doesn't apply to individual arbitration clauses. last year an epic system of the court rejected the nlrb's rule required individuals that individual arbitration and employment contract violated the national labor act. with the court left open a narrow window for court to apply principle contract law and a 2011 decision with at&t, it's becoming clear that the court did not really mean that.
it particular did not mean that with the application with contract law principles would result in a conclusion other than individual arbitration. the second case all talk about is a rare case in which the supreme court unanimous declined to order arbitration at all. there was a long-haul truck driver. he signed a contract that both declared him to be an independent contractor rather than an employee and contingent arbitration clause. so when oliver went to court to follow a low wage and hours claim on the important thing to know is the faa act also contains an exception. and although the supreme court is told that if the faa requires courts to enforce these in most employment situations it does not apply to contracts of employment of workers engaged in interstate commerce. contracts of employment of seamen, railroaded ploys or
other class. so the issues of whether he has been designated by his employer as an independent contractor actually had a contract of employment. so, the court looked at what the phrase contract employment went when the faa was enacted. even though today the distinction between independent contractors and employees is salient and people should be careful when using things like contract of employment. that was not the case in 1925. people used the phrase contract of employment to mean work under any designation by an employee or otherwise. that ends up controlling the case. the significant thing is this approach to interpreting the faa. it's different than what the court did in a 2001 case. .ircuit city b adamson -- v
adamson involved in the same language the same statutory language in a situation where an employee was arguing he was a worker and engaged in interstate commerce because he worked at circuit city. an employee operating over stateline. the court focused on what engaged in interstate commerce means today. what it meant in 2001. he refused to focus on what the term meant in 1925 when congress power on u.s. commerce clause was sharply constrained by the supreme court. so, i think the courts approach is a better one then when they did circuit city. that's a little bit of good news. the courts are going to have to confront additional questions about who is a worker engaged in interstate commerce. especially this will come up in the economy. uber and lyft drivers engaged in interstate commerce. what about the ones who pick up people at the airport? what about ones who drive people home from new york to new jersey.
these are already being litigated. expect to hear more about that. the other thing i want to end with come i think the courts arbitration case law could continue to get worse for workers and consumers. one of the most important ways that could happen is if the court takes a case of whether workers would be required to waive the right to bring representative actions. that's important because a list of states are considering creating mechanisms for them to bring these actions to stay in the shoes of the state labor department on enforce their rights. so far employers have lost their arguments that they can require workers to waive the ability to bring this form of claim. the supreme court has declined to hear those cases. that may change. >> tremendous. in a we will turn to questions second and start with reporters. as we do that you can identify yourself if you want to ask a question. let me give folks a chance to
talk for a second about daca given its significance for next term. in case anybody wants to offer their views on the cases being taken up. >> no. let me just finish, there were a lot of stay of executions back and forth and that is something to be watching for the next term. i think we are going to see an intersection of religious rights. for the folks who are interested in that. and most recently a reversal with the very egregious case but i think that is something to watch in the future. on the capital and criminal justice. jury and race and injury issues that i think will continue to come up. >> i was just gonna say on daca, given the decision in the case that were talking about earlier, that suggested that if you give a reason for your actions and then that is not the reason that
you get remanded, that the daca case basically have the logic that government said we are rescinding daca because it's illegal in the court said we don't think it's illegal so will hold it arbitrary. if the court grants it, it seems like one of the most likely things they might do is say actually that the idea that daca is illegal is right. against the background of the senses case if you're going to grants i think there's a good chance the supreme court may agree with the trump administration's interpretation of the underlying statue. >> questions to we will start with the reporters on the move on. great. do we have a microphone? >> hi. i'm with the online news site, who, what, why.
forgive me for not knowing the name of the case, i thought it would come up because foia is so important to reporters with the freedom of information act. there was a decision by the supreme court that concern grocery manufacturers and their rights to keep confidential business information without really having a good reason. i wondered if you all or any of you who would like you could comment the implications of that decision. >> this is an interesting decision. it continues to trend of the supreme court reading foia quite literally and rejecting lower court elaboration on the terms of foia. it is an interpretation of exemption for confidential information. i have to say i don't think it was surprising that the court came out that way when they granted similar to the milner
case. the court came down with a few years taking a literalist view of a foia exemption and as a result overturning long-established lower court precedent. in this case however, it means that the exemptions probably broadened in practice whereas the earlier case it meant they -- the exemption was limited. so, there is an outstanding question about if you provide information without a promise of confidentiality, is that going to mean that the exemption does not apply? how much does that promise matter? i don't think the opinion resolves that question. so, that is one issue in terms of implication. >> in the back. >> i major >> from the website justice integrity project. we are here often in the
aftermath of the courts rulings about questions about legitimacy, injustice and so forth. my question is does anyone see viability or public pressure for the house judiciary committee or its subcommittees to dig deep into some of these issues with hope i follow hearings? for example, the the kavanaugh situation. the witnesses who were not called, but also election-type cases? >> i guess, i will say, legislators have a real interest in election law. the right and the left come at it from different perspectives. i think there is intense interest in election related litigation by legislators who are all elected. so, i do think there is
heightened interest in that from both sides. i do think elected officials have an interest in how elections are run and managed in you see around the country we see it all the time, there is constant change in election law because different states and different legislatures are constantly evaluating what just happened to figure out how to fix whatever they perceive next. >> one of the interesting things about the election law, i think it may be the only one in the country where there's actually more election law professors than there are election lawyers. it is partly because the subjects that we talk about like gerrymandering, campaign finance, voter id laws, voter registration, all of that stuff. people really get the importance of this stuff because it affects everything else. all of the other issues that we have been talking about. it is a relatively small
practice area but it has huge implications. so, there certainly interest in the house on various kinds of election reform including redistricting. that was of course the very hr-1 in the current congressional term that the democratic leadership put out which is an omnibus reform bill. but, everybody knew from the beginning it wasn't going anywhere because it had zero republican support. i would really love to see some bipartisan compromise on election issues like redistricting reform and for all of the problems we have got in ohio, our state legislature, god love them, actually did come to an agreement on redistricting reform for the next decade. it was kind of miraculous that it actually happened, but i think there was some motivation for both sides to do so.
both sides were concerned about the toxic nature of our politics. there was also some self-interest. it was a combination of things. i would really love to see some compromise legislation on gerrymandering, election administration or campaign-finance. sadly, i think as long as mitch mcconnell is the senate majority leader is not going to happen. >> other questions. just a second. there you are. mittleman, an attorney in private practice. and for the law professors, how are you teaching starry decisiis? >> carefully. >> it is really interesting in administrative law.
you have it is the reason why the chief signed on to keeping -- -- a good argument, long-established doctrine. on the other hand, whether or not it applies to methodology and interpretation is an open question. still, you can buy it. then he also signed on to an opinion calling the basic fundamental feature of modern government into question in the gundy case and on delegation. not blinking an eye at the fact that there is way more reliance and it's simple long-standing. so, i remained unconvinced about whether or not it is doing more work than being a cover on a certain basis. it clearly is an issue where the justices are not engaging on this and they see this as key. i think thomas with the dissent taking on stare decisis this turn is i just don't think
they're given us a principal rethinking of the doctrine that would make you try to teach the students. >> i think it's really important actually because it does give some stability to our law. and, i do think properly applied in two ways it helps courts and judges avoid the public impression that law and constitutional law is politics by any other name. having said that, it is almost hard not to be cynical about the way justices on the court and it is not just conservatives. liberal and conservative justices alike you deplore it when it's convenient to do so and ignore it when it is in a like citizens united several
years ago or are disregarded when it suits their purposes i think it's on fortunate that there is not more weight given to that. >> i teach labor law. in the run-up to last year and the california teachers association, talking to my students i am pretty sure the phrase -- you are losing. i agree with everything everyone just said about it. as a supreme court litigator someone who watches the docket, , the supreme court hasn't taken up a substantive abortion case in quite a while and we had the texas case over the course of this term a couple of significant cases, including one from alabama. but fully, 10% of the supreme court documents are about abortion. particularly on the left led by elana kagan, the justices have
really decided now, although i agree in the past it was like if you like the precident you would continue to follow it, now the left has really realized the threat to roe and to a variety of other legacies and forseeing and the prospects that the more conservative majority in the absence of justice kennedy is going to be more aggressive about overruling it at least in stages. so, the left is deeply , deeply concerned. we saw this was justice breyer complain bitterly and wondering what other precidents will come next. kagan came along and said that didn't take long. her incredibly pithy way. this has taken on an enormous structural importance in terms of how aggressive they will move further to the right. i think it does have some traction with the chief justice. he is concerned about what the reality and the appearance that
the court is being incredibly aggressive and moving where some colleagues like thomas would not follow stare decisis. watch them really put the pedal down and move on. >> i wonder if were going to be seeing more of the supreme court's consciousness of this idea of the kind of public perception of their legitimacy coming out in the next year. i know we saw that in some of this back and forth around the execution litigation where there was a real defensiveness around this is not -- we were not making decisions based on anything. there was a principled reason for this. so, i can see in the litigation in general where there is there
is a sense that they are aware and there are questions about big picture legitimacy and how willing they have been to start moving away from the establishment. >> with that our time has run out. please join me in thanking the panelists. [applause] which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2019] [crowd talking] >> there has been discussion about an appearance before congress. any testimony would not go beyond our report. it contains our findings and analysis and the reasons for the decisions we made. we chose those words carefully and the work speaks for itself. the report is my testimony. i would not provide information beyond that which is already public in any appearance before congress. >> robert mueller is set to appear before two committees of
congress on wednesday, july 17. at 9:00 a.m. eastern, the house judiciary committee. later in the day, he will take questions from the house intelligence committee. both open sessions. our coverage of robert mueller's testimony will be live on c-span3, online at c-span.org, or listen with the free c-span radio app. new york democratic senator in 2020 presidential candidate kiersten gillibrand spoke at his state and tell college breakfasts in manchester, new hampshire. she outlined her policy ideas on public health, women's reproductive rights, campaign-finance, climate change and higher education. this is one hour. [applause] thank you very much, neil.