My colleagues in the press room with agree it seems like there is one of these Homer Simpson signs. It has been x number of hours since the with a going to sister marilyn. Heard insummer she world argument in october. She said it was probably the most important case the Supreme Court was going to decide this term. Cannot Election Officials in maryland. Who better to discuss redistricting men small paul smith . Exactly why the case was taken. I think it was a big surprise. All merely going along thinking we cant. January february committee will get a new map. Come december, they take an entirely new case out of maryland. The surprise was they didnt have to do that. They could have done what they normally do when they have a case, and hold the second case and remanded later on or decide what the appropriate disposition would be. But they didnt. This case has been to the Supreme Court twice because it was up before under the name of shapiro versus mcmanus on the technical issue over whether or not it was sufficiently frivolous that the District Court correctly dismissed it without appointing a threejudge court. The Supreme Court said, oh, no, it is not insubstantial at all. The threejudge court held that the case is judiciable. Is there a sufficiently clear standard to apply that the judges can apply decide the issue whether there is too much political bias or otherwise. The case proceeds along. As we are get in the whitford wisconsin case, maryland makes a preliminary junction motion. It is denied 21 and goes to the Supreme Court. It is a very different case. What its seeking to achieve and the legal theory. It will be interesting to see how the court responds to these two theories. The challenge is district 6 in maryland, a district for many years republicancontrolled, elected a congressman named ross bartlett. In 2011, the democrats being in control of maryland, decided in their wisdom to take some of the rural area out. Draw it down into Montgomery County so that it became much more blue than it had been in the past and started electing a democratic member of the house. You ended up a delegation from maryland that was seven democrats and one republican. The argument they are making is not that the 71 is unconstitutional. That the one is unconstitutional. That the change of a republican district to a democratic district in the circumstances of this case was a violation of the First Amendment rights of the Republican Voters in that district. The claim is that the state acted with specific intent to retaliate against them because of their decision to exercise their rights to vote for republicans in the past and the retaliation took the form of change in the districts those people would no longer be able to control their destiny and will henceforth be represented by a democrat. That is a fundamentally different thing than the argument we are making in the wisconsin case, a more traditional gerrymandering claim, where the whole of districts in the state is unfair in that, even if one party gets the majority of the vote statewide, they get less than the majority of the districts. What gerrymander is. That is what most people would have said gerrymander is. The First Amendment jurisprudence has some advantages. The main one is that it doesnt turn on showing the bias is too much. Their argument is that any amount of political motivation, specific intent to flip this district from one party to another, is inherently unconstitutional. So they dont have to have the efficiency gap, which is our mathematical formula for judging the severity of gerrymandering and help the court separate extreme gerrymanders. They dont have to make any arguments about the whole map. All of those things are very interesting. It would be an interesting way for the court to go in that it would have some limits. It would turn so much on the fact that the district was previously one way and is now another way, what its impact would be elsewhere, we are not sure. We on the gill team filed an amicus brief saying that we think that plaintiffs in maryland should win, but on our approach, that the 71 map is unconstitutional statewide and we give efficiency gap scores and the like. One way the corporate handle this is they win on our theory or, who knows, they would take our theory their theory and our theory would be wrong. Maybe we didnt have standing because we didnt have plaintiffs from every single district. They dont have that problem. Who knows . I dont have any prediction for you. But the court is clearly very interested in gerrymandering. It has been hearing these cases now since the 1980s, really, if you go back even further, to the 1960s. It has never come around to find a way to rule against a partisan gerrymander. I think the time maybe now. The fact that they took a second case is encouraging in the sense that, whatever they are doing, it probably is not going to be clean so these cases can never be won. We will see. Amy any of you have anything to add . Do you think the Virginia Elections played into the decision in november, to take on the maryland case instead of holding it for Something Else . Paul i dont know. There are all sorts of theories. What is a democratic gerrymander. This gives them an opportunity if they wanted to rule against both parties at the same time. That may be a reason. How the Virginia Elections would have factored into the decision, im not sure. There was a question whether the Virginia Election would show gerrymandering isnt a problem. Can you overcome it . Or the opposite . It is proof gerrymander is difficult to overcome. You had 8 or 9 of the vote for the majority of the candidates for the house of delegates in virginia and didnt get a majority of the seat. Its only been 50 50. The gerrymander held is my message and i am sticking with it. In maryland, what is the theory for why the switch makes a difference . Why isnt every district designed in some way a discrimination against the people who are a minority in the district . Paul the problem is it cant be that every district that happens to be a republican map is unconstitutional to the democrats and that the democrats are unconstitutional to the republicans. They have a narrower theory. They want to focus on specific intent in saying that flipping is an instance of retaliation that was clearly done deliberately. Is any of this done accidentally . \[laughter ] \[laughter ] just randomly with a little pen. Paul again, try to be faithful to their theory, they draw a distention between people knowing the effect of what they are doing and having the punitive retaliatory intent. Amy is there evidence as opposed to just best paul its not even disputed they tried to make a democratic district. 7 the democrats dont have a lot of gerrymanders anywhere else in the country. Trying to seize the opportunity they had available. It seems to me, doing some moves in advances, the gill argument and looking at the oral argument transcript, one of the challenges is what kind of proof will be necessary, how you can scrutinize this. Do you happen to know if they built into their theory the idea that there is a safe harbor . If you have an independent Commission Set up the districts you automatically are ok . That might be a way to make the rules more \[indiscernible ] paul i dont know. We have taken the view in the gill case that the intent prompt will never be satisfied if it is drawn by a real bipartisan or nonpartisan commission or by a split legislature, where one house is one party and the other houses the other party and would have to compromise. It will only be there when there is a oneparty control of the government. Even in the new york soldier style where you gerrymander the senate, we gerrymander the assembly. Paul thats an interesting question. The same situation largely arose in virginia. The gerrymander i was talking about was the lower house that gave control to the republican so that the democrats could do what they wanted with the senate. They didnt do as good a job. Is the maryland theory it really is limited to just a flip. If you are a bunch of republicans who get packed into the one republican district, it would be every republican left in maryland. Paul the eastern shore. Its harford county. Usually, in racial gerrymandering, theres tacking and cracking as ways of doing bad things to a racial minority. Tracking is not ok, but packing paul there cannot be a cost to show violation where your drawn into an area where your party is winning. Amy i promise we will leave time for questions for all of you at the end. We will move on to our next phase, which is versus hawaii 3. 0. I understand the preview was on september 19 last year. At that point, travel ban 2. 0 was still in place. The case was scheduled for oral arguments. The president issued a new order and everything started all over again. So will he will talk to us about the travel ban. Is this different . How will this go this time around . Willie i resent calling a 3. 0. We had a peak of it. The court basically saying, ok, this is off to the night circuit. We will go ahead and issue a stay of the District Courts injunction and we know the ninth district will decide quickly. But we have no idea what they will decide. If some chance they were to decide against the administration, we will preemptively stay that decision and, by the way, we are confident that the court of appeals will act with due dispatch, which the knife circuit did and the Fourth Circuit did not which the ninth circuit dead and the Fourth Circuit did not which the nineth circuit did and the Fourth District did not. That accounts for the first three issues. Are these cases reviewable . Is the president obliged to lead in certain kinds of people into the country on the grounds of National Oregon as to certain categories . Is the District Courts remedy an overbroad remedy, basically a junction that applies to a large swath of people and not just those with an affiliation in the case . Th other issue is whether everything the president has done is all tainted by antimuslim animus and is the question whether the establishment clause apply to these kinds of suspicions at all . That was teed up in the Fourth Circuit. The Fourth Circuit heard argument on the establishment clause question, but as of an hour ago had not rendered a decision. In hawaii, the ninth circuit said, by the way, if you a grant if you grant cert, you might as well also grant cert on the establishment clause. The Supreme Court did in fact do that and decided to take the case. The establishment clause is now question 4 in the case. This has pinging up and down between the lower courts and the Supreme Court quite a bit. We have not actually gotten eyeballs on the Supreme Courts handling of these cases. Everything so far has been orders issued by the court, except for the [indiscernible] on a stay at the very end of last term. While there has been, especially in the Fourth Circuit, some deride between Lower Court Judges about how to handle these cases, the most recent stay order, the only dissenters were justices ginsburg and sotomayor. The state orders, the stay orders had said absolutely nothing about the likelihood of success. The dissent by justices thomas, alito and gorsuch, from the granting of a stay on travel ban 2. 0, said, of course, the granting of the state means the applicants have likelihood of success in the merits. We will get a look on whether the votes on the stays has something to tell us about what the justices think about the merits. The merits include can these cases be litigated at all . Does the statute bar a form of National Origin a form of discrimination something that would be significant in future cases involving future president s and future classes of immigrants not involved in these travel bans at all . The government may end up losing a lot of merits. Or maybe not. This is queued up for the end of the term. I expected to be argued in april. It should be very juicy to see, not just the arguments made, but the questions made by the justices. Can you elaborate how the establishment clause does not apply to the government in these kind of cases . William im not sure that i can capture it. [laughter] i think that the basic idea is, take for example, a claim based on asylum. It is wellestablished that, when this country grants asylum to a refugee, that is based on a fear of future persecution if we return you to the country from which you came based on not just any kind of bad thing that might happen to you but, among other things, persecution on the ground of religion. For example, if you have no religion, you are not eligible to claim asylum. What im about to say is probably wrong. Say it anyway. Amy no one is watching. [laughter] william it is a lot easier to make out a claim for asylum if you can basically religion. And as a result, a silent decisions take into account certain religious distinctions as a matter of asylum law. Look at the constitution as the closets as the bill of rights does not apply at the border. We have been making distinctions among people from lets say we might grant asylum to a christian from egypt, but not a muslim from egypt on the grounds of likelihood of future persecution on religious grounds. Therefore, not all distinctions based on religion at the border can be unconstitutional. But isnt the argument of that some of those do not violate the establishment clause . William that brings up the question, is the establishment clause an equal protection clause for religion or Something Else . In the equal rejection context, we say you guarantee equal protection based on whatever. Of course, we have to treat people do similarly a lot. We look at whether there is a compelling interest or an important interest. But that is not how the establishment clause has yet been used in this context. That brings up the question, how do we do religious distinction . How do we analyze them under the constitution . Is the making of a religious distinction or say an per se unconstitutional . Is it like discriminate in based on something that is not a is a question of what evidence is there pretext. I wonder if you see in a parallel to what happened or what i thought had happened when it came to the gitmo litigation, where, after september 11, the courts at first stayed out, giving the administration a lot of latitude. Over the years, it seemed it became more and more willing to intervene and have something to say about get mel and then said forget all of this. I wonder if thurbers might be true here. Right after the election, there is a lot of scrutiny on the travel bans, given what the president said during the campaign and the transition and that sort of thing. Theres a real suspicion that it was very much a based in animus. And you think that the Supreme Court, the lower courts are getting over time more and more focused on the text of what the thing says rather than the backdrop to all of this . Or do you think that those comments by the president will continue to have a big effect as we get [indiscernible] amy if i can just add on top of that the difference in the different orders. It would no longer applies to muslim majority countries. Weve done the vetting. These are the ones where we still need more information. William i believe the same question is [indiscernible] amy very well. Spoken like a true Supreme Court advocate. I believe someone in the Fourth Circuit said is it your position that the president can never issue an order like this . William once you step into the puddle of discrimination. What i do think is what tom brought up. At the very beginning, you see hastily issued order. Extreme sprang back by several of the District Courts hearing injunctions District Courts hearing injunctions. Still voicing opinions from the courts of appeals. You get to the Supreme Court and there is push back. They grant a stay. If you have a connection with people in this country, [indiscernible] as to every body else. The ninth circuit says we take our key from the Supreme Court and only allowing injunctions to go that far. The Supreme Court is still stating what they have done, even though the state is a more robust stay than the court issued last june. We are oscillating around where we will end up. But that the swings are less radical between the District Courts and the court of appeals. The president had engaged in a bit of discrimination and it seems pretty likely, but not certain, that whatever the Supreme Court winds up saying, that will not be the ultimate [indiscernible] it may be featured in the argument. Im sure it is something that the justices are thinking about. When the justices decide questions about whether something should be reviewable, they always think down the road. They are certainly also think about the case before them right now. It is certainly something they think about, but i would be surprised if the basis of the decision were the president has engaged in discrimination throughout the writing of all of these orders [indiscernible] amy and now we will move on to the weighty issue of Online Shopping. [laughter] south dakota versus wayfarer. This is a case in which i am deeply conflicted. My husband represents south dakota. Trying to require outofstate retailers to collect and pay with pictures of things that you would then not buy. But they would keep sending the catalogs and you wow try and unscribe but they would keep sending them. And there was a big fight if you lived in the state of maryland an