They also reflect on the death of Justice Ruth Bader ginsburg and her influence on the court, and the legal profession. From Georgetown University law center, this is two hours. Welcome, everyone to our annual, Supreme Court preview. Before we get started with todays scheduled program, i wanted to take the opportunity to acknowledge the passing of Justice Ginsburg. She was a trail blazing civil rights lawyer, a giant of a jurist, and a largerthanlife human being. Anlife human being. But but what i will remember most about her was her indomitable spirit. That and the devastating series of questions she hurled at me inf course. Invite time, i want to any Panel Members who wish to do so to say anything they would like about Justice Ginsburg, but first, let me introduce our panel. [reads names] anybody who wants to come up be on video and take the floor. To, be on video and take the floor. Anyone want to start . Don . To get myill trying head around the idea that Justice Ginsburg wont be on the bench any longer. , maybe for most of us all of us on this panel who have argued in front of the court, she has in there for every argument we have paid have made. As you said in your introduction , even when you ultimately got her vote, she would always put you through your paces with that insistence on exactness, on getting things just right. Us, wheneverll of we think about her understanding of the law, have to admire so the court work on these last few years, to have she dealt given all with physically, to be as active and vibrant a member of the court up to her very last day, inspiring. I think it explains why she was a giant of the law and achieved as much as she did. Someone with that kind of fierce determination combined with the intellect she had. Havenk we are all lucky to been before the Supreme Court that included ruth bader ginsburg. Thank you. Paul . Thank you. Still sortne else, of processing all of this. I would echo a couple of your have already been made, and one or two of my own. I was in court when you argue to the Lilly Ledbetter case so i remember those questions as well. You were too modest to mention you prevailed in the case. Mostrecipitated one of her famous dissents from the bench that and term prompted congressional action in turn prompted congressional action that was part of the remarkable leadership she provided to the courts liberal wing, especially in her last years on the court, and really had such a broad view of her role and cases inot just to win court for her side, but also in a case like that, to prompt congressional reaction. It was a remarkable case. Point about the dedication to her craft under difficult physical circumstances. To argue invilege front of her every time. Her arduous work habits put you not just through your paces but made you a better lawyer. If you did not know the record backwards and forwards, you knew she would. So it definitely kept you working hard late in the night getting ready for arguments because you knew she was working late in the night getting ready to ask you questions, including potentially things looking deep in the record. Just to encapsulate that, the last time i argued in front of the court with her on it, she asked me her questions literally from her hospital bed. Case, Little Sisters which was made possible by the telephonic format. Somebodyan image that was so dedicated to her craft and her role that she literally was asking questions from her , and difficult questions to answer, i should add, which is consistent with the way she asked questions at the bench. What hasnish with really struck me, especially in the last couple of days, reflecting on this and reading all of the tributes to her and the like, as long as she served on the court decades of service on the federal bench if d. C. Helude her time circuit she never lost sight of challenges that the advocate faces. I had a few of my own where she was definitely not with me and she was asking very hard questions, but she was asking them in a very firm but polite manner. There was not an edge on the questions. They were firm, but they were not so sharp that they left a scar. That goes back to the fact that she was an amazing advocate. Advocate who is not just killed in the courtroom but in coming up with a broader strategy. If you go back and think of her cases in support of equality for women, i think about half of them that she argued herself involved males as the plaintiff, as the litigant. All as part of her craft. I think its remarkable for someone to serve as long as she did on the court behind the bench but not lose her sympathy for those of us on the others of the bench. Other side of the bench. Nicole . I have talked to a lot of asked questions, what was it like before Justice Ginsburg . For the most part, she played it straight. Her questions were aightforward, they were one thing i liked is she always used our name. My name, i have a question for you. Sometimes i felt like when we went up to argue elsewhere, we were interchangeable. But to have someone who is such an icon, she knows who i am. She wrote the opinion in my first case and in many of the cases i argued, and i consider that a great honor. She liked the argument and wrote the opinion that meant a lot to me. I think fundamentally, as i ofnk back on it, i am in awe how she was willing to proceed through difficult times, the Womens Movement and proceeding incrementally to bring cases to the Supreme Court at a time when i think people wanted to proceed faster and it mustve been frustrated to see some of the first cases involving the rights of men. Its not what everyone else wanted to do. But i feel like theres a lot of wisdom in that and it is something i think about now just because the last few years from my perspective have not been the greatest in the u. S. For women, and thinking about what comes next, i feel like we have a lot to learn from her. I am grateful for that. Raman . You for having me in all of us here. It was quite a shot getting the news. I started following the court and learning the court in the 1990s and early 2000s and in the last few years weve lost three giants of that era with Justice Scalia, Justice Stevens and now Justice Ginsburg. Obviously as an advocate and as she impacted a lot of the law, including the equal protection clause and guaranteeing the rights of equality to women. As a law clerk, when i was at the court, what impressed me the most was watching her up close and personal and watching her relationship with the clerks. She had an indomitable spirit and work ethic. She had these four twentysomething lawyers scrambling to keep up with her at all hours of the night as she was sending graphs around drafts around. Year,st her husband that but despite everything she was going through, she remained a professional and the perfect isleague and a person who actively contributing and leading on the court through everything. She was a real role model. The other thing i will comment had takene ginsburg on a broad cultural relevance that goes beyond the normal Supreme Court justice. I saw it in my own house when we got the news on friday night. I have a fiveyearold daughter and she has the rpg childrens book. Rbg childrens she took it very emotionally, because what she knew of justice hadburg is Justice Ginsberg taken a hard path. Everything she had learned about her becoming a lawyer and triumphing as an advocate and becoming a justice. I think having someone who is a role model and a trailblazer, maybe the one comfort we have that she is gone is that her legacy is even more secure and an inspiration she will give to all of us, but especially may 2 young women like my daughter especially to young women like my daughter. But it is very sad. Thank you. Paul . Thank you everybody for being here. It is great to be part of the panel. I dont want to repeat everything that was said, but it is safe to say her life will never come again. Provide aho can revolution and jurisprudence for what is right, one of the great andices of modern time, then becoming such an impactful cultural symbol for women and the whole country, that is remarkable to accomplish in life. She did it remarkably. I have the same memories others have of being under the gun from Justice Ginsburg. Wasy on in her career, i jurisdiction. What she cared most about was civil procedure and jurisdiction. I had 10 or 15 minutes where she scolded me like a schoolteacher, telling me i did not know what i was doing. By contrast, she was occasionally quite helpful. Been grilled for about 15 minutes by her friend Justice Scalia, and she interrupted and said i want to ask you a question, and everybody sat back and i got to give my entire spiel. It changed the entire momentum of the argument and i always appreciated that. Thank you. Paul . You are muted. Thank you. It is an honor to be among you for this event. Unlike my fellow panelists, i never appear before Justice Ginsburg. I knew her well through mutual friends and her husband, marty, i beloved member of our faculty. Antice ginsburg was extraordinary friend to the Georgetown University law center. Appearing before virtually the entire first year class for decades. This year, someone counted the number of times she appear to and it was about two dozen times in the last 20 years at georgetown. Discretion but also for our students, and it was one of the highlights every year. She really cared about reaching young people and young lawyers. End by quoting something i noticed friday evening or saturday, one of her clerkSupreme Court uncovered this, im not sure where he got it, but he posted it. I think it captures something that explains the woman and the jurist and Public Servant she became. Sort of a distillation of everything i think about when i think of Justice Ginsburg. The remarkable thing about it is the date, june 1, 1946. Bader was 13th years old in brooklyn, new york. The photographs of the death camps had recently been shared publicly for the first time. I believe it was either right before or after her mother had been diagnosed with cancer that would take her from ruth at a young age after she had already lost a sister. It is an extraordinary little essay i would like to read. I apologize in advance if i break a little bit, i tried this with my students yesterday unsuccessfully. Because i think of her when i read it and i think its an extraordinary document. June 1, an essay posted 1946, in the bulletin of the jewish center, the place of the synagogue in her neighborhood in brooklyn. This is what the 13yearold ruth wrote as a young girl who had grown up with some tragedy, but with the comforts and privileges of those in the u. S. Parents andwho had grandparents in the u. S. , while their parents were being slaughtered in hideous action. The war has left a bloody trail and wounds not too easily healed. Many people have been left with scars that take a long time to pass away. We must never forget the horrors our brethren were subjected to in nazi concentration camps. We must try hard to understand that for righteous people, hate and prejudice are neither good occupations nor fit companions. As was once said, prejudice sends us an painful trouble of thinking. Were not destroyed by the ravages of the world war, yet we are part of the world whose unity has been almost completely shattered. No one can feel free from danger and destruction until the many torn threads of civilization are bound together again. We cannot feel safe until every nation regardless of weapons or power meet together in good faith. There can be a happy world and there will be once again when men and women create a strong bond toward one another, unbreakable by prejudice or passing circumstance. Then and only then shall we have a world whose structure is the brotherhood and sisterhood of men and women. Thank you, marty. Thank you, everyone. At this point, lets begin our scheduled program. Far the most by consequential in recent memory in terms of the sheer number of blockbuster cases. Withso had more cases surprise endings than any term i can remember. At first glance, this term seems like it will be a reversion to fewer blockth esters and far fewer blockbusters and far fewer expected results, but looking in the background is that this could become the most tumultuous sincevisive term bush v gore, determining who would be president of the United States. To discuss these possibilities, we have an outstanding panel of Supreme Court experts who you have already heard from. Theill be discussing Affordable Care act, religion and Sexual Orientation discrimination, aiding and abetting human rights violations, computer crime, and election law cases affecting the president ial election. Onemat is as follows of our panelists will present a case. After the presentation, others are offered to offer are offered the ability to offer their take on the case. Then we will take questions from the press on that case. We will proceed through each case in like fashion. As an advisory to the press, i want to alert you to the fact that we will not comment on the political issues of whether a new justice should be appointed and confirmed under this president or the next, or whether the sides of the court should be increased. With Ramon Martinez and california versus texas. Im going to talk a little bit about california versus texas, which is the Affordable Care act case with case or obamacare case. This is round three in the series of major constitutional and statutory challenges to the act that the court has dealt with since it was enacted. Others, and i hesitate to talk about one case with don and paul here who argued the case, it upheld the constitutionality of the mandate to purchase insurance as an exercise of tax power, but a valid exercise of congress power. Another examined a tricky statutory question. Now we are coming full circle because in california versus texas, the court is again dealing with the question of the slightlyexcept in a different statutory context. What basically happened is a few years ago in 2017, congress amended the Affordable Care act to essentially eliminate the tax component i have to be careful, im going to try to describe this neutrally but words matter. It basically zero doubt the tax 5000a ofof section the law, the mandate provision. It left Everything Else intact and essentially said if a person does not Purchase Health insurance, they have to pay a tax, that it sort of explain what the tax was and the law now says the tax is zero. Congress did this essentially to provide citizens relief from the mandate as a practical manner because with attacks at zero, it essentially gives citizens the with thet to comply mandate, which remains on the books. But theres very little consequence for noncompliance because you dont have to pay a penalty or a tax. , 17 states, and a couple of individuals sued, and they said that by illuminating the tax in 2017, congress had essentially transformed the mandate provision back into a pure mandate. Underld not be justified congresss power, because the tax was zero, and if the man it commerce power, but the commerce power doesnt cover this. Therefore the mandate such as it remains is unconstitutional, they said. In addition, and here is the real crux of the case, they said that because the mandate provision is so integral to the entire statute, including the guaranteed issue and Community Rating provisions, essentially the provisions that were our coverage of preexisting conditions and that affects the prices that can be charged to people who want insurance, but also the connection between the mandate and all other provisions of the act, the challenger said the entire statute has to fall. California and the house of intervenedives are in the case to defend the mandate excuse me, to defend the law as a whole and say the mandate as it currently exists, or the mandate tax are perfectly constitutional. The District Court agreed with the challengers of the statute and essentially said that the law as it currently stands is unconstitutional and that it, the mandate cannot be severed from the rest of the statute, so the whole thing has to go down. The fifth circuit agreed on the question of whether the mandate as it currently stands is constitutional and said it was not, but it remanded the District Court to do a more finegrained analysis on separability. The Supreme Court will address three major issues, one is whether the challenger should have standing, the second is the constitutionality of the mandate , and the final one is the separability question. I wont say a lot about the standing issue. Although it is an interesting and important issue, it seems to me that if the court on the merits think there is a mandate here that is significant, that will probably lead us to think challengers do have standing to challenge the law. But jumping into the constitutionality of the mandate, which will be the first merits question, the basic question is how to construe the statute as it stands. One interpretation, which the challengers put forth, is you have a mandate now, not attacks anymore because the tax has been zeroed out. The case put on the statute, resting on it being a tax, and a main feature of the analysis was the fact that the mandate provision taken as a whole raised revenue from the government because of the tax penalty. The defenders offer arguments in response. It is a suspended tax. They also say there is not a mandate because there is no tax. Ive penalty or therefore, there is no constitutional problem here. The court agrees, then the court gets to the other issue. Heavily on what congress made in the original statute that links the mandate to other provisions, including to the issue and Community Rating provisions, and was they defended the mandate around in nfib, it acknowledged that the mandate was linked to at least those provisions. And the dissenters in the nfib case said it should fall if it was unconstitutional and challengers revisit those arguments. The defenders on the other hand say that this is crazy, its severability that turns on congressional intent. That it would be an absurd outcome to essentially strike down the entire Affordable Care act statute, which is 2000 pages long simply because congress in 2017 decided to essentially just eliminate the tax component of the mandate. Its obvious that when congress has been debating the Affordable Care act in 2017, it considered whether to repeal the whole thing and decided know the to and essentially would make the mandate a toothless mandate, even if its still a mandate, it does not have coercive affect and didnt change everything in the statute. Severability turns on issues of congressional intent the defenders of the law say then that intent is clear that congress wanted to have a toothless mandate and did not want the rest of the statute to fall. Those are basically the legal arguments. Ill just offer a couple of quick sort of observations on the case. It strikes me that this, the case, it feels sort of artificial, frankly, on the constitutional issue. Theres some great lawyering on both sides and very clever arguments, but at the end of the day, i found the lawyering, although very good, theyre sort somewhatg about this fake question. You have a situation in which the chief justices construction of the statute in nfib was barely plausible as his own opinion seems to concede. If you read the text of the statute, it reads like a mandate, it doesnt really read as a tax. The chief just barely got around to endorsing the tax interpretation of the statute to save its constitutionality, and i think now the defenders of the statute are asking the chief essentially to go a step further and say, ok, well you saved it as a tax. Now weve zeroed out the tax consequences consequences, but you should apply the same logic and essentially say its still a tax or its not really a mandate, even under the new statute. You know, i can its a longshot. Getting justices alito and justice thomas, who didnt like that argument the first time around, it seems a stretch to get Justice Kavanaugh and gorsuch on that theory the chief has to make a decision whether he wants to dig deeper into the statutory construction he agreed with the first time, but, even the interesting thing is about the case is that the ultimate question whether the mandate is constitutional or not doesnt really have a lot of practical significance in and of itself. What matters is the severability question because that is what is really going to have an impact on people if the entire obamacare Affordable Care act statute is a down. And on that side of the house, is struck down. And on that side of the house, it seems like the challengers to the statute have a very uphill battle here. As the defenders of the statute say, it seems fairly clear from the history at least, that congress wanted to have a world in which there was a toothless mandate, coupled with the remaining provisions of the Affordable Care act remaining in place. And traditionally severability has turned on indications of congressional intent. You also have a situation in which both the chief justice and Justice Kavanaugh have often and recently left just last term endorsed the severability doctrine and a strong presumption of severability. We can talk about details of that, but i think the line that jumped out to me is from a decision that Justice Kavanaugh wrote, unfortunately, ruined the wrong way against my client in the last term and involved severability severability, but he said that constitutionality is not a game of gotcha, where litigants can ride a constitutional flaw to otherwise take down the whole constitutional statute. I think for the defenders, Affordable Care act squarely describes the litigation going on here and that really, the challenge to the mandate, which doesnt really mean much is just being used as an excuse to take down the rest of the statute. It seems to me that the challenger may have an uphill argument on that point. I guess the final thing ill say before opening it up to broader discussion, this obviously has provoked a lot much political commentary over the last few years. It played a prominent role in Justice Kavanaughs hearing and playing prominent role in the election. I think in the popular discussion of the case, or understanding of the case, it seems very politically charged and very contentious. And that understandable because of the fact that it does implicate the fundamental legislation thats been controversial for since it was enacted. That said, this strikes me as the kind of case where its possible that people will ultimately be surprised a little bit by the way its resolved. I think this is a case that is a candidate for resolution on the severability grounds. It not going to turn on the standard partisan alignment and it is not going to turn on the standard partisan alignment and partly for that reason, i think its a case even if the court remains at eight justices and we dont know exactly how thats going to play out its the case that might be able to get decided anyway. And so this might be a case that will surprise some people. I think it will attract the alignment, but of course well normal political have to see. Ill leave it at that. Announcer thank thank you. Ramon. Anybody else who wants to comment, just grab the floor. Im not going to call on you. I agree severability issue ought not to be difficult, but it may well be with the court to agree around that and makes this an easy case. On the other hand if you try to identify the case that might turn on the addition of a new justice, this may very well be that case. Its imaginable that the chief justice would not have taken this now that hes no longer the. Ifth vote it may it may be that he finds himself in disagreement. This is the other paul. I would just say that, you know, i do think that on the merits the addition of a new justice could make a difference potentially, but i think im probably in agreement with ramon that on the severability issue, im not sure that the addition of a justice will make a difference. The only other thing i wanted to say, maybe two very quick closely related things, i do think its worth underscoring how different the severability question is this time around from back in the day in nfib. Because you know, its one thing to make the severability argument in the context of the statute, the first time its passed and there havent been subsequent efforts to reveal it that have failed and its different to make the argument in the context that we now have, especially given that the mandate has been amended to have zero teeth or zero revenue raising effect. Its hard for me to say even though i said it to the court back in the day, that the mandate was central and i think thats a pretty good argument back in the day. Its a little harder to say that the mandate is central when it doesnt have any teeth and so, i think its a very different argument this time around. The second thing ill say is, there is a little air of surrealalty around the severability issue and there are a lot of different ways to could you could come at this. The government, for example, even though theyre argument in favor of taking the out. Statute theyre really acting consistent with that view and like one way to sort of encapsulate this, obviously for me, i argued the case last year about the risk corridor payments under the Affordable Care act. That was a case where, now, my clients prevailed. The federal government lost. The federal government, you know, has since then, in the months since that decision written very large checks to Health Insurancers. Under the statute, it just seems like, if the whole statute is actually void and you know, collapses, you think that might have come up in the context of that case. I mean, im not you could quibble about whether because these obligations were incurred back in the day, you know, the nonseverability of the statute is dispositive, but it sure seems like it would be relevant. And the fact that it would get through the Main Community health case and you know, the federal government never stood up and said, oh, by the way, the whole statutes unconstitutional and must fall. You know, and you know, there are federal agencies right now, that are exercising authority under provisions of the Affordable Care act that are unrelated to the mandate. It just all seems a little surreal and you know, maybe its just another way of saying that i think the challengers have a very uphill battle when it comes to making the severability argument. So if i might jump in. I agree with ramon and paul and paul, i dont know which paul, the former, the latter. But theres an air of what paul called, an air of surrealist about the severability argument. It seems preposterous, not what the congress intended, they intended the opposite. There are somewhere between three and four dozen amicus briefs arguing that it is severable or what the catastrophic outcomes would be. I filed i think the only amicus brief arguing whether the 2017 Congress Actually enacted in mandate a requirement for people to purchase aca insurance requirements. That question seems to me, apparently only to me and a couple of other people, easier and more surreal than the severability argument. I think the notion that the 2017 Congress Donald trump impose add mandate to purchase insurance is contrary to the plain text of what they did in light of the chief justices construction of the statute to give a choice between a and b, and they didnt amend a or b. You can maintain Health Insurance or pay the personal responsibility payment, which is now zero. They didnt amend that. They knew that was the construction of the statute. The president of the United States last week in his down town hall with George Stephanopoulos said for the four thousandth time, i got rid of the mandate. He didnt just say it then, he said it was the big was bill was introduced. He crowed about it in the state of the union address. And said now were overurning it the mandate and every one of the members of the republican majorities in the houses agreed and described it that way. Majority lead are mcconnell, the senate accomplished something really remarkable. We repealed the individual mandate tax so low and middle income families are not forced to purchase something they dont want or cant afford. And their intent reflected in the statements governance, it is that that intent in those statements reflect the only reasonable reading what the 2017 congress did. It turned the reality on its head to suggest what they did was create a mandate to purchase insurance, particularly given the Supreme Court had just decided that congress doesnt have the constitutional power to do that, a view that 43 members of the republican majority in the senate, including the majority leader agreed with in a brief to the Supreme Court. The idea that this congress, you know, brazenly enacted a law knowing that the Supreme Court had just called it unconstitutional, kind of like the 1862 Congress Passing a law to prohibit territory slavery in the territories in order to rebuke the dred scott decision, surreal doesnt begin to , is what i, paul think. But i agree with my fellow panelists. This should be a twoparagraph opinion unanimous, virtually the easiest statutory question the Supreme Court ever constructed. Confronted. And yet, i agree with my panelists if the views of the judges are any indication and what ive seen commentators, there is a chance some justices, perhaps a majority will hold the 2017 Congress Imposed a mandate despite the fact they were trying to do exactly the opposite, and thats how evan everyone understood it. If thats what happens, i have to say i dont know whether to be, it will be the most cynical thing the Supreme Court has said in many a decade, but it will be the most incomprehensible and i think it will make a mockery of what we try to teach our students about the law. Right . And i say that, by the way, as someone who thought sebelius would be a 54 Court Decision and that the Supreme Court might rule the other way in king versus burwell. This should not be on both questions the first and the second, but on the first im afraid that im not sure that that is the view of all of the justices on the court. I hope the pauls and ramon are right about it, at least the severability part of it. I want to hear what don has to say, since hes arguing. Im just taking notes. [laughter] i dont know, and maybe ill you can talk about what whatever you want. On my mind, how much the circumstances come in play. Were in the middle of a pandemic, and we have a statute been working b have for years. And we have a president who says he wants people to have health care and flipflopping, and i want to hear from don. As i said, i mainly taking am notes here. You know, paul smith made the point that the Justice Ginsburgs passing and perhaps filling of the seat might have an effect and who knows . Maybe thats true. Nothings ever been easy about the Affordable Care act in my experience at least, why should there one be easy. On the other hand our case is just as strong today as it was a week ago. So, im hopeful at the end of the day that the arguments that were putting forward will be as persuasive as ramon and is predicting they will be. Ok. So, i think its time for questions from the press. Uh, we dont have any questions at this time. Ok. So because this is such an inconsequence inconsequenceal case. I stand corrected. [laughter] i stand just when i i stand corrected. You provoked them. I did. We have a question from mark sherman from ap. Can you hear me . We can. Ok. Hi, thanks for doing this session as always. I just want to ask a quick question whether if a Biden Administration and a Democratic Congress took office and were to set the penalty at 1, does the case go away . Thats a great question. I dont know, you know, i dont know how quickly they could act , although presumably they could act quickly, it does seem that, you know, it would just make this surreal case even more surreal if thats the next step in the saga. If does seem under the if they did that, youd be sort of a lot closer to the world in which the chief confronted the, you know, how to characterize the mandate provision the first time around. And so, it would arguably still be a tax, although at that point maybe he would say hey, this is do ridiculous to maintain the solution, what we are doing here is right and the total pretext. Certainly it would make the case harder, i dont know if others i think, marty, your well done amicus brief has the one cent tax. Right . Yes, if they set the tax at one cent, there would be no case, mark, youre right. Thats a good question. Everyone would agree and for at that penny, the entire Affordable Care act comes down. Its an absurd idea. And its not because what ones left with is an exercise of the taxing power necessarily. The parties down in california have made the argument it can be sustained under the taxing power. You dont need that. Perfectly constitutional , for people to give them a choice of two things if they could require one of them and here are the choices, maintain Health Insurance or write a check for zero and do nothing, and those are Things Congress can do outside the taxing power. Congress can obviously repeal a tax, has the power to do that. Thats effectively done here, at least temporarily. Repeal attacks. I think it shows the absurdity. Let me just jump in on that, marty. I think your framing is clever, youre talking whether they mandate in 2017. Thats not really the question. The question is the statute as it stands and the statute as it stands was unacted in 2010 and it has got pretty clear language that is most naturally read even the chief justice said to create a mab mandate. And the only way he read it the other way as a tax, because it raised revenue. I dont think it easier once you get rid of the revenue raising tax, it doesnt mandate on the first page. If the current version of the statute had been the one on the books in 2010, i think that don and the Obama Administration would have had a much harder time prevailing. Thats true, but the 2017 congress acted against the backdrop of the construction the court had given it and took that as a given. Thats what they worked against. The only reason they didnt relegal it outright was an internal rule. The bird ruled that didnt allow him to do so because of reconciliation. So were not wiping the slate clean. This court had construed these words as providing a choice to individuals and congress did not amend those words. So its still a choice. No, but it interpreted them that way in part because they had a revenue raising aspect to them that made it actually look like a real tax. Now its not a real tax anymore, its a fake tax or it speaks for itself. We can disagree on the but its not easy. Anyway, but i enjoyed your brief, marty, well done. Thank you, roman. It is meant to be enjoyed. Anybody else on just the question that mark had . Then do we have any other questions . Mark sherman, ap. I thought we just had mark that mark. Oh that, was just, we just did. Oh, im sorry, for give me, suzanna lucie, politico, apologies. Thank you. Can you hear me . Yep. So i was rereading the chief justices past decision and i believe it was sebelius decision, he basically says the mandate, the coverage guarantees and the subsidies are all tied together. Thate heard speculation coverage protections might be the most at risk in this case, but what does that do to the subsidies and basically the exchanges to keep them from imploding . Ill leave it to others who know more about the intracacies, but i think the baseline answer, thats really severability question, which is whether we have been talking about essentially, you know, if the challengers win on their severability argument, that would mean that Everything Else goes down and is invalidated. As i understand, it would apply to the entire 2000page block, which will is why it feels like a bit of an uphill argument. Yeah, if i can just followup on that. I think this is a good way to illustrate the difference between the severability arguments this time around and last time around. Because you know, last time around when you were looking at this organic statute that fit together and was all passed at the same time and had a mandate that was a real mandate enforced by penalties and you had a whole bunch of people saying you really need a mandate and a real mandate enforced by penalties because weve seen in other states like massachusetts or whichever one it was it was a while ago, so, you know i may have forgotten the state, but weve seen states that passed guaranteed issue and the like without a mandate and it hasnt worked. There was premium spiral or whatever it was. Thats a pretty good argument. You know, got four justices vote back in the day. Its just a very different argument and now, say, when the Supreme Court has just reinforced that severability analysis is all about congressional intent, its a very different argument to say that congress would never want the statute to have guaranteed issue or other features without individual mandate, when congress itself has turned the individual mandate into kind of a nonmandate by attaching a zero tax. So youre right in the sense that like the severability argument sort of, you know, when i was making this argument back in the day in sebelius, it remaineded me of the hand bone is connect today the wrist bone connected to the arm bone. You have this whole process where the statute is kind of, you know, the way you make the argument is to say, look, guaranteed issue doesnt work without the individual mandate , and then another feature of the statute doesnt work without guaranteed issue, and pretty much, if they couldnt have those core features of the statute, Congress Really wouldnt have wanted the whole thing. Like i said, i think that was a pretty good argument back in the day, but to make that argument in the context where congress after it was done with the 2017 work left the whole statute in place with a zero tax mandate. Thats just a very different argument and it seems like a tougher argument and it seems like a tougher argument even as to the first step in the chain of guaranteed issue and the rest of the stuff in that title. Anyone else want to comment on this question about, i think, its whether the subsidies are at risk . Ok. Um, next question. Announcer no pending questions. Ok. So we then move next up is paul clement and he has fulton versus city of philadelphia. Paul. Thank you, irv. Im going to talk about this case. I think its a potentially important case, but i think i can cover it relatively quickly. So, this is a case with two potentially really important issues in the religious liberty area, but i also think a lot of potential for the courts to decide the case without really definitively deciding either of those big ticket issues. So, the facts of this case that i think are relevant is that the city of philadelphia has long had a foster care placement system where they partner with organizations that some of which are religious, some of which are nonreligious, but the way the Program Works in essence, at least as i understand it, is that the the organizations essentially are responsible for finding the foster families that can provide a foster home for the children who are in need of foster care, so, the city has this, you know, city of philadelphia, it faces a lot of challenges and so there are a number of children in the city that are in need of foster care placement. And so, what these organizations do is, they provide a, you know, they go through whatever screening, they go through and do home visits and they come up with essentially, you know, lists of available foster care families. And there are dozens of groups that participate in this and you know, some of them are religious, some are nonreligious. Well, one of the religious groups that has participated in the program for literally decades is the local Catholic Social Services organization, part of the archdiocese of philadelphia, you know, it probably wouldnt surprise anybody who understands catholic archdioceset the Catholic Social Services has a doctrinal issue with certifying parents to act as foster families, if they are in a samesex marriage relationship. Position the the archdiocese takes is they will essentially certify families if kind of a traditional malefemale marriage couple. They will certify families if they are singleparent households. I believe their position is they yill save certified singleparent households if one of those Single Parents is gay or lesbian, but when it comes to a married couple that present themselves as a samesex married couple, that is not consistent with cap doctrine. And that is not something consistent with catholic doctrine. That does not necessarily mean those couples are out of luck if they want to participate in a Foster Care Program in the city of the little fear because there some 2000 other organizations that they can go and get certified through those other organizations and participate through these other organizations rather than the catholic social service. Probably because of that phenomenon that there are alternative ways for a samesex couple to get certified and participate in the program. Case where not like the famous case of the colorado baker. This is not a case where this case started with a family complaining that they could not participate in the foster care because the Catholic Social Services would not certify them. This is a case where it started and i suppose the press will feel good about this i think the case actually started with a inquirer story. That created some pressure on the city of adelphia government to sort of do something about that, and they eventually took action against Catholic Social Services and basically said, we have antidiscrimination policies to say if you are a city contractor, you cannot discriminate on the basis of Sexual Orientation. You are discriminating on the basis of Sexual Orientation. We aret you know that, going to have to force a choice of either agreeing to nondiscrimination language or discontinue your participation in our program. The two big issues that are potentially up for the courts is what happens when you have a conflict between a nondiscrimination principal under state or could be federal law, and a religious liberty conflict. Nobody doubts or is challenging the sincerity of the religious beliefs of the archdiocese. They say we have essentially a free exercise right to our beliefs, but, the city is also saying ok, but if you want to participate in our program, you have to participate in our program subject to our conditions that are neutral and generally applicable laws that apply to all applicants, so you cannot just say you want to participate but not subject to our conditions. That conflict between a state nondiscrimination law and free exercise claim was at the core of cases the court had previously. Involving the colorado baker, and they essentially found a way to work around them and not give a continuing resolution on that issue, but the issue is once again sort of front and center, and that is obviously a huge issue. Justice have to read gordon to know that that issue is kind of lurking behind the and is an issue the court will have to resolve one way or another. The second big issue in the case is if the court should overrule a decision written for the court by Justice Scalia called smith. The smith decision says if you have a state law that is general and neutral law of applicability that is general in its application, that that kind of case law essentially does not trigger heightened scrutiny under the free exercise clause. I im somebody who says that want to use the ceremonial use of peyote and that is super important to my religion, and theres this state law that says peyote is a schedule one substance and it is unlawful to use or possess, than the conflict between my religious law if it isstate neutral and generally applicable to everyone. The court insists those kind of laws that may substantially burden your religious exercise are not subject to strict scrutiny. The third subject in upholding the city practice relied heavily on smith. One of the questions presented was if the court should overrule the smith decision. That is something that three or four justices had indicated an concurrent, in a cert in the case, so the issue is really keyed up, and theres the potential the court could overrule the smith decision, which would be a very big deal. If the court were to overrule smith, i think this case would really be almost the capstone on the free religious liberty cases from last term and would continue to kind of really cement the Current Court vindication of free exercise clause. Obviously, if the Court Central issue about what to do with the conflict between state antidiscrimination law and federal free exercise claims, that would be a huge deal, but i have to say, my own reading of this case is that there are a lot of off ramps for the court if they dont want to decide either of those issues. Law hash to apply, the to be generally applicable and neutral in its application. Exactly what that means and exactly what makes a law not generally applicable or what makes it neutral is a kind of this isg morass, but not a situation where philadelphia can point to this, like, super obvious, like city title vii antidiscrimination provision where they applied it neutrally and generally forever. The history of this is more complicated, and these are and thecontract terms, government can insert the contract but not in others, so theres plenty of scope for the sayt to take an offramp and , the court got it wrong in thinking smith was fully applicable here. Theres also, as in the case of baker, a lot of evidence i think if i were the citys lawyer, there were some statements made when this was first raised that i would really wish i could take an eraser to, kind of in the vein of some of the comments of the colorado commissioners. I think there are a lot of off ramps here. I think this is a really important case. It could be that if theres a new justice that agrees with some of the existing justices, the dissenters in the religious liberty cases, in the covid you want to move the needle quickly in this area. You could have the court deciding one of these two really important kind of issues that would make this a definite blockbuster, but i still look at this as a case with a surprising number of off ramps. Others who would like to comment . Just take the floor. Ok, ill jump in again if you dont mind. Paulsly agree with description and his predictions. There is again about four dozen or more amicus briefs about if smith should be overruled on both sides, but i think this is not the right case to do that because either way, smith is not really relevant. Right,one hand, paul is the brief is entirely about the argument where either animus or the lack of general culpability is what dooms this rule. I suspect that if the court rules against philadelphia, that will be the most likely ground. Its a hard argument to actually make because of the strange posture of the case. Catholic social services is not seeking damages or any retrospective relief. It is seeking only to be goingle for a contract forward and now theres a provision in the standard contract that very clearly and categorically bars discrimination on several different grounds, by including race, ethnicity, sex, Sexual Orientation, etc. , that is categorical. None of these contractors can discriminate on these grounds, period, no exception. Given thats the case, it is sort of hard to bring in these as theatements Masterpiece Cake shop or the argument that its not generally applicable, but those rest largely on facts that are unique to the case and the fight about what the facts show and what philadelphia is likely to do going forward. Philadelphiahand, says that even if smith were overruled, the regime that was in place between 1963 and 1990 is the one that folks who are trying to overrule smith were trying to return to, they would still win under that regime. Even if smith were overruled, philadelphia should win because all that is being done is preventing catholic social arvices from engaging in contracting function not only a contracting function, but one in which it is acting in lieu of the state and performing a state function, right . Its actually the Pennsylvania Department of health and Human Services that has delegated its statutory responsibility to certify if a family does or does not meet statutory criteria to be able to foster a child, you are, which is those ,onreligious, secular standards and that decision is appealable to a division of the Pennsylvania Department of and Human Services. This is as though you have an employee who does not want to perform functions with respect to samesex couples. Well, thats fine. You dont have to on your own time, but your job is to cover everyone the same, and i think thats a pretty strong argument, that when someone is getting millions of dollars as part of a contract to perform a governmental function, the nature of which is to see if certain statutory criteria allows someone else to have a certain legal status, that they have to do so on the terms that the government itself would use, which are nondiscriminatory terms, so i dont think the question of smith being overruled affects the case either way. I would be shocked if the court reaches to that question here. I think its actually hard to write the opinion on behalf of social Services Just in terms of the doctrine, but for these justices, its never hard to write an opinion coming out the way they want, and i do sort of suspect there will be many justices who are inclined to find a way to rule for Catholic Social Services, even though i think the city ought to win on the facts of the case because i think many of the justices think that philadelphia, even if the constitution did not compel it, the city ought to have granted a religious exemption under these circumstances, right . It out to be conciliatory, now that samesex marriage has been recognized as constitutionally protected, you see this in kennedys opinion, in gorsuchs opinion that for the next several years, the justices are jurisdictions are somewhat deferential to religious objectives, to find winwin situations in which the samesex families can be served and not suffer discrimination odious suffer sort of discrimination, especially from potential state actors, but at the same time allow some sort of out, right . ,or instance, in the pharmacy allowing an objecting pharmacist to be the one not to distribute a controversial drug as long as there is another pharmacist available to do the same. I think a lot of justices think philadelphia ought to have found socialo accommodate services here and will be inclined at least to try to find a way to make that happen, even though i think the law is actually points in the other direction. Anyone else . Marty that the social service as a contractor in terms of undermining a , but ontional argument the other hand, it seems a place onstart creating more space antidiscrimination laws and protecting lgbtq people. , and seen this building up the urge to get that enterprise going is all the stronger, i think. Weve seen a huge expansion in protections for lgbtq people in , and i wouldoyment be surprised if, given all the if fivects here way tos could not find a do a kind of narrow gauge ruling. Irv, youre on mute. Anyone else . Add that this is one of those cases in which the briefs are ships passing in the night. Its all about how you characterize the case. Of Catholic Social Services says being denied this contract excludes them from the Historical Ministry of caring for foster children, and it really doesnt. You can do all the things youve done for hundreds of years to care for children, even to help foster families, to promote them, to help them do this, you just cannot be the one who is on our dime certifying them as satisfying standards, so its not affecting your religious exercise outside the context of the contract. Catholic social Services Says the city of philadelphia, like most jurisdictions, has sort of monopolized the field over the leaving usd years, very little space to do what we might have done in the 19th century, creating orphanages and the like. The description of the facts and implications of the contract being denied here or the conditions being placed on the contract, theres really no very Little Common ground in the briefs, and the court can probably will probably be inclined to lean one way or the other on that. Could i just ask a general question before we go to the press . As paul said, it would be a huge deal to overrule smith because it would basically say that anybody that has a religious objection to any law of general applicable he would presumptively have a right to an exception from the law. Maybe thats oversimplifying, but back at the time of smith, almost the entire right side of the court joined Justice Scalias opinion, setting up this rule that laws of general applicability that are neutral are ok, no exceptions. Almost the entire left side of the court dissented and said there ought to be a presumption that religious objectors get an exception. Now we see the exact reversal of that occurring. The right side of the court is the part of the court that has been talking about overruling Justice Scalias opinion. The left side of the court has not said anything about that. What happened . Can anybody explain to me what has happened to cause this enormous shift on the right and left side of the court regarding if religious objectors ought to have a presumptive right to an exception from generally applicable law . Change inas been a perspective of who is the victim. Theres other developments that conservative religious people, mostly christians, who are victims of a legal culture which is imposing contrary views on them and making them feel that they are being labeled as bigots and discriminators [indiscernible] coming toerception full fruition, so that leads to this reversal of roles of who is in favor of exemption and who is not. Anyone else . Two other theres things i dont disagree with what paul said, but i think there are two other things that are at least ingredients in this. One is the establishment clause here looks very different today than when smith was decided. In smith, we still had a pretty robust establishment clause that invalidated a bunch of state laws. There was a need for the whole court to figure out where the joints existed between the free exercise clause and the establishment clause, so, you know, now that i think the right side of the court has basically prevailed in kind of trimming back the establishment clause, i think, you know, the dynamic that led to smith is a little bit different, in light of the changes in the establishment clause jurisprudence. I think that is what is i think that is at least part of what is going on here. The other thing that has ,appened is Congress Responded a lot of courts applying the heightened scrutiny standard to laws of general applicability in a variety of contexts where those two statutes are applicable. Making this point on behalf of the Catholic Social Services in the skyoprietary, but hasnt fallen. Motivatedat i think Justice Scalia in smith was that that rule was important to come up with an administrable rule that would keep the courts out bea ticket, that would harder for them to administer, and i think theres an argument you can applyn probably what is best described as intermediate scrutiny to this religious liberty claims. Courts can do it, and at the same time as this case illustrates, it has proven maybe a little harder than Justice Scalia anticipated to administer smith because lower courts have come up with this jurisprudence about what makes a law not fully general and what makes a law not fully neutral, and, yeah, thats a little more complicated than i think Justice Scalia had in mind. Morebly a little convoluted than Justice Scalia were the ones applying the smith test all along. I think all of those factors are at least partially explaining whats going on. One other thing i think thats going on, at least helping to explain whats appening on the left is that lot of the religious liberty on, theyst move involve a situation in which theres no happy ending. Somebodys got to lose. Orher the religious entity the person with religious beliefs has got to do something that violates their faith or, i think in these cases, a third party, often employees in the case of an employer, is going to suffer an adverse consequence as of thet of the assertion faithbased objection, and i think that has had an effect on the justices on the left in changing, i think, the way they do the counts in terms of harms and benefits in terms of recognizing the religious liberty claim. I do think thats got some explanatory power for justices on the left. Say that smith the its face aule was on form of strict or heightened scrutiny, but it was famously strict and substance feeble, in fact, that the court notwithstanding that strict scrutiny virtually always rule for the government, including in not his coronation cases eightone in the bob jones case. Even in the periodic case, Justice Oconnor would have rolled for the state allowed them to prohibit peyote use. Ints why it was a regime which there was nominally strict scrutiny, which had some effect on the ground with administrators and legislators to make them be conscious about possibly giving some weight to religious objectors, in which the courts would never really insist upon exemptions, but this court has read those statutes wrongly in my view to impose a from reinstating the legal test that proceeded smith is far more robust far from reinstating the legal test that preceded smith is far more robust. If thats the case, if this is really going to be a regime in which exemptions almost have to be granted, even in this context if they were to overrule smith in the context of a government contract to perform government functions such as this, that would go so far thatd the presmith law they would be concerned about, but they have been applying it, giving light, in test is funthat the administrable by courts. All right, so, questions from the press . There are no pending questions. Ok. With that, lets move on to our next case. Nicole . Hey, everyone. Im going to talk about a business case, two cases actually consolidated. Any u. S. Company that has operations in a foreign country could potentially be subject to the rules set out. Statute. Es address the her probably heard about the atf because there have been a few cases over the last 20 years or so. This is a statute that was enacted in 1789 and essentially the 1980s. Until it gives federal District Court jurisdiction over any civil action by an alien [indiscernible] it opens the door that federal courts can hear claims by aliens. Or torts you know what a tort is. I think the real confusion has been over the last couple of decades, what causes of actions that are essentially violations of the law and nature. You might think of examples from the time the statute was put in place, like an ambassador or piracy on the high seas, but both of the cases have involved u. S. Corporations that have international dealings and have activities in Foreign Countries where something has happened in a foreign country. I just said u. S. Corporations, but i should amend that to say some of these cases have been amended to involve Foreign Corporations in the u. S. As well. These cases were primarily argued by paul and don, who im sure well have things to say about them. In my view, this kind of started in approximately 2004 where Justice Souter vote and opinion for the court 63, addressing what the statute is all about, and he said if the atf does not create a cause of action, it opens the court to hear claims these are claims from the common law that are violations of Clear International law and norms. I thinkive the example of ambassadors and piracy on the high seas. But what would be these types of claims that could be heard in u. S. Courts. That was 2004. Things were quiet for a little while. So the Supreme Court was trying to put the rules on who could be sued under the statute, what kind of claims could be brought against them. Involve foreign defendants, foreign conduct, and all happened in a foreign place. A 9zerome court in decision by the chief said this is a u. S. Statute and we are going to have a presumption extraterritorial application, so we are going to presume the statute does not open the courts to claims based on things this broad, but the chief left open in the final paragraph that there could be some claims, things that happen abroad where the claims touch and concern the u. S. Not exactly sure what that means. Justice breyer in a concurring opinion gave an example of what kinds of claims might be cognizable under the alien uprts statute, but they set these rules that as a general matter, youre not supposed to againsting lawsuits Foreign Countries under the atl. Of course, more lawsuits were brought because of the paragraph leaving open the possibility of doing it in the u. S. , which and a case 2018 against a Foreign Corporation, foreign bank to the u. S. For activities that occurred in the west bank. Justice kennedy set out rules that essentially you cannot bring a case under the atf against a Foreign Corporation in the u. S. They said youve already got this jump. The court called it using a sledgehammer to crack a nut i thought that was an interesting thing to say. Also said presumption was enough and that these Foreign Corporations went too far, and that leaves us where we were in 2018. Where were we . No new cause of action created lawhe atf, some common course of action, presumption against extraterritorial applications and what that means in the u. S. Under the atf. These cases involve u. S. Corporations with im sure youre familiar under the alien tort statute in the u. S. For crimes that occurred abroad. The allegation in the complaint in this case is that the allegations brought by unnamed, unwarranted individuals say that there was forced child labor in that nestleand bought those cocoa beans and on occasion sent agents down to look at conditions, and as a result of that can cargo be held liable in u. S. Court for things farmers did, enforcing child labor in the ivory coast. There are a lot of discrepancies with complaints in terms of the specific pleading. Certainly in terms of things that happen in the ivory coast, its not clear at all that the pleading actually links nestle and cargill to any of the places where there was allegedly forced child labor. Brought 15 years ago, so long time to be in the plea stage. From District Court to the ninth circuit, the ninth circuit finally allowed the claims to proceed past the pleading stage. Nestle and cargill sought review from the u. S. Supreme court. The government came in on their side and asked the court to add questions, which i will discuss in a minute. Only the nestle and cargill site have been briefed so far. They are not going to be argued until december 1. Lets get into what are the arguments in these cases. Argument that the government makes an nestle and cargill makes are that you just cannot sue a u. S. Corporation under the alien tort statute. And that there are pretty power concerns with allowing a u. S. Corporation to be held liable under that act. The is not the solution u. S. Government has taken in prior cases. The big win would be essentially shutting the door on claims in tortthe corporations statute, but there are much more them. Ways to involve one way the government suggested is that the court could hold theres no aiding and abetting liability under the tort statute. Will the Supreme Court really consider that argument . Because the government asked the court to at the question about if there is aid and abetting liability, and they did not at the question, and the court rotted up anyway. This would serve somebody different opinions by so many justices that getting a fair ,umber is not the worst idea and then there is, the narrowest way to resolve the case, which is has the plaintiff adequately pleaded a violation of International Norms . Nestle and cargill say theres up resumption against extra. Artorial reality the only allegation about things that happened in the u. S. Are that nestle and cargill generally director their operations in buying cocoa in the u. S. , that cannot be enough to make out a claim for aiding and abetting. I think theres a slight bit of about the rules in terms of wheres the place youre supposed to be looking to see if there is an extraterritorial application. Hat might be beside the point the case is interesting to me for a couple of reasons. It has been before the court it seems like forever. I guess since the beginning of my legal career in washington, the court has been grappling about the alien tort and what to do about it. Some might argue this might be a case in which the court might just shut the door, but the second reason the case is interesting is because it seems to me like it really is one in which the chief might be seeking consensus in some of the cases, that might lead the court to take a more narrow approach, even though there are perhaps who justices on the court might want to take a clear rule. I think it will be an interesting case to watch. Im excited to hear what the panel has to say. Anyone else who wants to comment on the ats . Not anyone . So just before we turn to the panel, let me ask this question in a soso, which i think paul argued, the court said we can have claims of human rights abuses, and since then, weve had claims of human rights abuses, one after the other, and the court time after time after time has said no, we are not going to entertain this claim. Each time on a narrower ground than just overruling sosa, which that you can make claims like this. Is there any chance the court will finally just decide to end this charade . I think there was a pretty good chance, at least up until recently, just because there was not much narrowing that was really left. Have this to mystic Corporation Case that seems to be at issue, but i guess i have a hard time believing the court will reach out and kind of shut i hador now just because this sense the chief will try to find a narrower view, but it is interesting, especially from the bench with of the justice mayor Justice Sotomayor and just, saying these allegations. [inaudible] of the allegations in this case are terrible. You have terrorism in one hand and child labor on another. They are terrible. I was going to say even before the question, i do think that its a little hard for me to see the corporate defendants not prevailing on some ground in this case because, you know, i do think that you know, if the court were to decide on aiding and abetting, it seems pretty clear that in light of sosa, you have something kind of like cause of action. Its a little different, but thats basically what it is, and the Supreme Court has already said, you dont get aiding and abetting liability under an implied cause of action in the central bank of denver case, and, you know, ive got to think that there are at least five justices that have some sympathy with that result. Arab banklved in the case as well, and that was one of those cases where we argued there would be no liability for corporate entity, and those are the classic cases where the court accepted essentially all of our arguments as to why a corporate defendant was not the proper defendant, but then just limited it to 4 defendants, even though most of the logic would apply to a u. S. Corporation as well. I do feel like there is a lot of different ways the court could rule in favor of the defendant, and i find it a little hard to think that this is a case where they are going to finally sort a case a green light to under the statute, but all of this makes me wonder, maybe its not this case, but as much as like overruling cases and all of that, he is very concerned about the reputation of the court and the court more generally, and, you know, im not sure the courts look great if time after time they consider these horrific allegations and say no, not this one. We argued all the way back in maybe if you have piracy, ok, but otherwise, you just really should shut the door definitively on these actions, and the line from justice has keptopinion appellate lawyers busy for a good 15 years is we are going to keep the door ajar to these digital and orto keeping, and i would be surprised if maybe not in this case but the next case, the chief and the rest of the conservatives say, we just want to get out of the business of door keeping. This isnt a great function for the court to be door keeping. Ourselves with glory. We keep saying no to these awful things. If Congress Wants to pass new statutes along the lines of the torture victim protection act statuteide, you know, of limitations, exhausting rules, and all the other things great. We will get back in the business, based on these statutes, but we are not going to continue to play around with ins 33word statute passed 1870 nine. If the court were doing that, its not like its necessarily advocating for spot legality or saying to corporations, do whatever you want around the world. One of the reasons i mentioned is that the u. S. Government views have been more important and separation of power concerns have been so important. It would be like saying these are important relationship issues, and that would be something that would be entirely appropriate for the court to say. Any questions from the press on this one . There are no pending questions. This is an interesting little criminal case that arises under fraud and abuse act. Im going to read the statute because its relevant. It makes it a crime to access a computer without authorization or to exceed authorized access and thereby obtain information from the computer. The statute defines what it means to exceed authorized access, which is access the computer with authorization, lose your access to obtain or alter information in the computer that the user is not entitled to obtain. The case arises in kind of a squeezy factual scenario. Georgia, whocer in was part of his official responsibilities, has access to the georgia crime Information System database. This officer this officer develops a relationship with kind of a lowlife criminal who spends a lot of time consorting with prostitutes and hanging out with exotic dancers, and the officer is in a bit of financial trouble, so he essentially leans , andis lowlife for money responds badly to this. It inly confesses confession to his priest. Priest finds a way to get him to find his way to appropriate officials in state Law Enforcement and bring the fbi in. The fbi then organizes a sting operation in which they which the fbi has this guy go back to the officer and say, look, theres this exotic dancer, i want to go out with her, i want to make sure she is not an undercover officer, can you find that out for me. And if you do, ill pay you some money. He goes into the computer database and checks her out and gets arrested for this, and then he gets charged under the statute i just described. On the one hand, it is an interesting thing in a lot of ways, i think. On the one hand, sounds like use hisdid was to access that he is authorized to two obtain information in the Computer System that he was not entitled to obtain. On the other hand, i suppose you could say that he was entitled to obtain that information but just was not entitled to obtain it for this criminal purpose, and that is actually what the statutory construction fight is about. The government charged him, convicted him, and is defending the conviction. The argument is essentially they are trying to put this case into the stream of criminal cases that the court has decided. Ver the last several years cases like vaughn and yates and this is just another example of federal prosecutors wildly and relying on wildly expensive interpretations of federal criminal law, and if this interpretation of the statute holds up, then virtually everybody is violating the Computer Fraud and abuse act with regularity. If you are on your Office Computers network at work and decide you are going to go you are on amazon, obtaining information probably in a way that is not conducive with the authorization you had to use that system, and even worse, every time you agree without reading to the terms of service on anybodys website, if you then act in a manner that is inconsistent with the terms of service and obtain information, then you have violated this act. The reason i think the case had some significance, in addition to it being another one of these cases like the bridgegate case about varied abuse of federal criminal law is that there are actually a lot of cases around out there under the Computer Fraud and abuse act in which Companies Use the act to try to defend themselves from incursions of data scrapers and others. A couple of those decisions i have been involved in. My own sense of it is that theres a good argument here. You can interpret the text that allows him in a manner to win, saying he had authorization to obtain the information he obtained, maybe not for this illegal purpose, but he had authorization to obtain this information, and that provides a all the principle on potentially wildly expensive cases of the statute that are in a fight, and i do think, you know, given this trend weve like thisses, seems is going to be another case in which the Court Decides [indiscernible] anyone else on this one . I will step in. I agree with dons analysis of the case and with the general framing in the line of cases in which the government gets beat up. One thing thats interesting is the attorney general gave a fairly controversial speech a few days ago where he talked about a number of controversial things, but one big section of the speech was devoted to talking about sort of the overcharging, over criminalization. He used some colorful language. He was talking about hyper aggressive extensions to criminal law and said the doj needs to be disciplined about what legal theories we will bless. When i was in the fgs office, you were very attuned to this, and you made the pitch to the u. S. Attorneys office to think hard about certain types of cases because they might not ultimately be defensible as they move up the appellate chain. Officeiously, the fgs is not in charge of the original charging decision, so i think but is a continuing problem seems to cut across administrations. Does not have a political plant one side or the other, but i just wonder if you or paul, especially having sat in the fgs chair, what can be done . Even the attorney general seems his fgbout this, but will be arguing for aggressive action. I did care a lot about this. My searing experience being on the other end of paul in the bond case and watching others, including you, in these really difficult situations in yates, for example. I really felt like we were draining away our credibility by trying to defend these prosecutions, but because the charging decisions are made on a decentralized basis, i thought all i could do was try to evangelize. Of visits on an lot with u. S. Attorneys offices, and one year, i did a talk for the in. Attorneys when they were for their main gathering and i, for the one and only time in my life, used powerpoint to put up slides of questions the court was asking about the charging decisions. You will remember Justice Scalias question was this . He same prosecutor trying to make the point that he was squandering our credibility and it was going to come back to haunt us. The u. S. Attorneys all sat there with their arms folded like this, and they were having none of it. When i talk to them afterwards, the reason they gave was this they said this was a system that runs on plea bargains. Cases were resolved on please. If we are going to be effective in the plea bargain, we have to charge effectively. Every now and then, they failed to take the plea and the case goes forward on the jury convicts, then you lose in the Supreme Court, thats just the price of doing business. I think its a very difficult i would like you to be different, but i think it is very difficult. On a completely different topic, one of the reasons the case is interesting to me is that there are cases from time to time where you find out the justices own personal experience with technology and how that affects their decisionmaking. I remember from the apple one of thease where justices was surprised to hear that she was not the direct purchaser of the app on the app store. You wonder about the terms and conditions and do people really read that and do people really follow that. I always find that interesting. Questions from the press . Would have a question from New York Times deal book. Would you like to ask your question live . We have an muted you. Hi, sorry. Im wondering, how is it possible to have a criminal statute that does not increase intent . Would it even be possible to find straight strict liability . Possibly not consider the illegal purpose for which the guy logs onto the database . Wouldnt that always be an element . You are right about that. I would say he violates the statute, just does it unknowingly. One thing they argue is the requirement to prove that criminal state of mind as a way to narrow the scope of the statute, that people inadvertently stumble into obtaining information that they were not authorized to obtain, that thats not a crime, its only when you do it knowingly. We will see if that argument works, but you are right to point that out. That is a feature of the statute. Thank you. No pending questions. Ok, paul smith on election law cases. Unlike the other cases, im not unlike the other panelists, im not talking about a case specifically on the docket. I will keep it brief, but theres a number of different which future of the election could end up in the Supreme Court this year. Part of that is that theres so many cases people are already filing. Everybody is on a hair trigger. I would put into four categories how cases could get to the Supreme Court. Reprieve might have a thet before the election of wisconsin primary case that went up on the question of adjusting deadlines for absentee balloting. A party in disturbing ballots and there was a number of people being unable to vote. We have seen an lot of negation about that already. We have seen things like that ,appening well into october maybe allowing people to mail things on election day. The court seems to be not all with the federal court. Next would be if we have some kind of disruption on election by nefariousaused foreign actors or just buy a hurricane or something. If registration records disappeared in some part of the state, we have a hurricane in miami, there will be all sorts of complicated questions potentially about what kinds of any, in agive, if situation where that part of the state might have very different voting patterns, might change the outcome of the state, might change the outcome nationally. The whole state, or just a part of the state that was disrupted . Area is the one already being telegraphed by the president , that we need nine justices because we are going to have litigation about all of these fraudulent mailin ballots. I think what people worry about is we are going to have a onuation where the president election night, that there will be some effort to try to shut down the counting of mailin ballots in places like wisconsin or pennsylvania where it could take days or even weeks. Be some kind of lawsuit , trying to shut down the count or it might be Something Like going to the legislature and asking them to declare either way that goes, i think you have prospects of all sorts of issues filed in federal or state court that could end up confronting the justices with questions of if the counting process should or if some of the counting process should be as opposed to some legislative incursion to declare a winner. Finally, we could end up in fights in january about which votes to count, which electoral votes to count. You might even have two sets of votes in each state. Under a statute from the 1880s, ambiguity andof confusion. See some kind of emergency Supreme Court appeal in january if we are headed to the inauguration date. We dont have a clear resolution. 1776is a repeat of the scenario where it looked like there might be two inaugurations on inauguration day. This all may sound a little alarmist. I dont predict any of this stuff, but it is a possibility given how the election is set up ando or die for both sides repeated claims of fraud in mail voting, which seems like they are setting up the prospect of some postelection squabble. There may not be anybody else but the justices to handle it. The changes in the composition of the court we are about to see could be significant potentially. We will have to see how this all plays out. Anybody else on the election law prospects . I would only make one discrete point, which it appears to, in roberts seems this area, be wanting to be differential to state officials whichisting state laws, might be a nice touchstone in many of the cases paul describes. Hope theseses we wont happen but if there are cases in which there are states with a Republican Legislature and democratic governor, the two parts of the political branches at odds with each other, for and instance, then you have to decide between the two state political branches. That is not easy. Anybody else . Surprisingly i dont have any questions on this issue. I wanted to pause and invite the press to ask any questions they may have at this time. No additional questions. If theyite the press, want to ask about anything, it doesnt have to be limited to what we talked about before. Floor to anyn the kind of question. No additional questions are coming in. So thanks everybody for dissipating in for participating in this. Thats it on wednesday, the Supreme Court holds a Memorial Service for the late justice ruth nader against org at 9 30 justice 9 30bader ginsburg at a. M. We will stream that live on cspan. Org. Sign up republicans have already said they will move forward with considering a replacement on the Supreme Court once President Trump names a nominee. Mitt romney became the latest republican to voice his support to fill the seat in an election year. He spoke to reporters shortly after describing his position announcing his position in a written statement. Sen. Romney you guys dont get too close. I will take the mask off. I had the opportunity to speak with a number of my colleagues on both sides of the aisle, reached my decision and communicated that this morning. If you have any questions, happy to respond. After 2016, the Party Message was let the voters decide. We are less than two months before an electi