Transcripts For CSPAN Supreme Court Mid Term Preview 20180204

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 and the Catalog Company was located in, you know, South Carolina. What it is that you the state could do about sales taxes. And the Supreme Court decided in the krill case that it would not follow Juris Prudence which said that a state can regulate activity that has a substantial nexus to the state. But instead uniquely in the sales contest would adhere to the rule that a state cannot tax a sale where theres no physical presence. And so that meant that the sales tax could not be applied to the purchase funds of South Carolina or wherever Catalog Company. And that has been a rule for a long time. And it has obviously had very big implications for Internet Sales including buy for a long time amazon but many, many other companies and it has had a, you know, kind of a dramatic effect on how the internet economy has worked. As sammy mentioned we represent, my law firm does the state which is challenging this prior precedent quill and trying to establish that theres a crucial state. I will try to represent the case objectively in trying to describe how the other side flies. [laughter] but give you just a barey give you a sense of what the barely give you a sense of what the fight is all about. The case comes to the Supreme Court as a result of another case involving use in sales taxes from colorado from a few years ago in which Justice Kennedy wrote an opinion kind of apropos of nothing saying by the way, were in the middle of this ind of collateral fight in how you tax things in the internet era. I know we have this kirill case and it is causing a lot of havoc in states that are unusual to get tax sales into their jurisdictions. I think we should revisit that kirill decision. And justice ken i can and Justice Thomas were the only members at the time that kirill was decided. And Justice Kennedy, this guy thought this was relatively important in the Supreme Court. And so everybody kind of took notice. Retail ehalf of the community, we had a meeting and decided to work with various states to get statutes enacted that would challenge kirill. And so this is a very unusual case for us because we built the case from the ground up. We designed the legs, got the legs passed. We went into court. We told the courts that hello, we want to lose which is an interesting thing to do. I do that all the time but never on purpose. We said to the trial court and the south dakota Supreme Court, we just want to go straight to the Supreme Court. And we timed the case all the way through so that it would make the last conference in january and could be argued this term. Nd so the Court Received the petition and interestingly it received not just the brief on ur side but several amicus brief on their side saying this is not an important case. Dont Pay Attention to whats happened here suggesting the case is very important. And the court did grant cert. It has really, really big implications of course. Some companies did start to adjust to the existing rule. Amazon now because its trying to deliver things to you in 30 seconds or less has facilities in a lot of states. So it has the physical presence all around the country in many, many states and has started to collect the sales tax. Except if you use this program called you buy from other people through amazon and wont collect in that instance but if youre actually buying from amazon, amazon will correct it. So a lot of internet retailers will not. And this has really big implications for how commerce occurs in the United States. You have a lot of whats called show rooming now. Youll go into a best buy and see different televisions and enjoy their Incredible Customer Service and learn a lot from the technicians there. And then based on what you see on to tell visions, you will then go and order it online from somebody else and buy it then for some percent less because best buy is going to have to charning you whatever the local and state sales tax are. And this adds up to billions and billions and billions of dollars that are not collected. Now, it turns out that youre actually supposed to when you purchase online, you dont have to pay the sales tax from such a retailer, but youre supposed to pay the use tax. Now, id like everyone to close their eyes and hold up their hand if they ever paid the use tax. Yes. Theres somebody in the back who wants to actually become a member of the bar. [laughter] theres a funny story, there was a professor pam carlin defened many people in this room. And pam went one time to go to the tax office and pay the use tax on things that she had bought online. And she went into the office and they went, youre pam carlin, youre the person who pays the use tax. [laughter] theres one virginia resident. Pam after teaching her legal ethics class would pay the use tax. In terms of this is one of those case where is you tell the Supreme Court, by the way theres this guy kennedy who says you should think about this, and justice said this line involving the dormant commerce class should be overruled. Justice gorsuch said that kirill should be interred because it lost its edge that it no longer made sense in an internet era in which there are so many tens of hundreds of billions of internet commerce. And so one would assume that because the Supreme Court granted cert that we would have the winds on our backs. But it is said that the state lost the kirill case in part because of a concern about retroactivity that they were asking to overrule a prior precedent in kirill and had taken the position the state had that if they won they were going to retroactively collect several years of taxes which caused a decent amount of angst in this court. And this statute, the south dakota is written to have no retroactivity. But the probably the major question that will weigh on the justices mind is how administrateable is this . Imagine that you have a small shop located somewhere in arkansas. First, why do you attend law school . But if you do have a small shop in arkansas, how possible is it that you can figure out each tax and each locality in each of the 50 states . And this is a technological question. We happen to think its manageable. The other side believes that it that its w, mathematically impossible. Theyre not telling the truth. This will be a very serious concern. There are weighty concerns when youre overruling a decision about how visited people are in the existing body of law, how many businesses have been set up in the expectation that they will not be charging the sales tax and those sort of things. I dont think anybody doubts the importance of the case. And you know, what it will mean for the shape of retail in this country. I would say its very likely that the court having decided to take up the problem and having had the invitation from Justice Kennedy will decide to to rule if the states. But they may well decide to go with the other side, principle argument which is congress has got this. Congress is well functioning. And you know, is all over this problem. Theyve been looking at it carefully for the last 20 years. And theyre on the brink of solving all of this. The way that Commerce Clause works is to say that the states are not going regulate this issue because its commerce thats responsible. Theres been a variety of legislative choices. A lot of proposals to interstate sales. None of that legs has passed so far. Even if the Supreme Court were to rule in this context, it might well spur legislative action so theres some mechanism to deal with this problem. But so far it seems like theres no legislative solution on the horizon which cause the court to say, all right, times up. May i ask the question about significance beyond taxes . This will be the first time the up would expressly taken whether to overrule the precedent dense, right . What implications do you see for in tice who might believe this more than Justice Thomas beliefs . Which should be overruled at whether it like one might say . Well, this is actually a very serious concern because the very question of how much weight to give sides can have a real ideological vey lens when you have a court split 54 in this context you can imagine where liberal justices being more enthusiastic than some of the more conservative colleagues. You dont have to overrule kirill. Thats the case of catalogs. This is a case about the internet. And the Supreme Court could say that was a slightly different context. This is quite different. Weve tried to offer them a path that doesnt rishe them to that doesnt require them to anything. It seems to work. We put on our foe and stay warm and ive got a problem with that. And, you know, i do think it is it is a puzzle in this court how to navigate the question of steps major doctrinal when the opinion thats going to get written says something about the vitality of presence dent and when its time to overrule it. So it is, i think, a very, very serious concern for how many votes you can get. This case doesnt, i think tself ring, you know, aloud an ideological bell, it isnt one when we have Justice Gorsuch or thomas is not one you would think Justice Pryor is wringing his hands about how he doesnt want to pay his sales tax. He probably doesnt do as much Online Shopping as joe wana does. But the chief does not believe anyone has two cell phones. But and where the justice stand technologically does not ve any ideological resonance either. If we were to write a brief that suggested an opinion, hey, mesidant, we could really lose some friends in the case. Were going to turn to janice vs. American federation of state, county and municipal employees. The first time that we talked about in a preview fwaws court only granted it this fall because i feel like weve only talked about the issue in the case for the last 20 years. Im going to turn it over to him to talk about it. Thats exactly right. The issue in the case is whether it violates the First Amendment who are not members of Public Employee unions to pay fees for those unions to cover the cost of collective bargaining that will benefit those nonmember employees. It does sound familiar for two rundsr reasons, that issue. The court seemed to have addressed that issue. It did that in a case called abud. Thats reason number two that the issue might sound familiar is that this is the third time in the last four or five years where the court has agreed to consider that issue. Ere was a case that my colleague argued, harris vs. Quinn raised the issue of or implicated the issue where abud the 40yearold precedent should be overturned and paul did not prevail in that case. But he prevailed in allowing abud to live another day which is very important. And so the precedent remains on the books. The court then granted cert and heard oral argument in a case ct. Ed frede we assume Justice Thomas who is not active at the oral argument but assume he might have been with them based on the oral argument he that side of the court seemed to think that abud was maybe it was time for abud to go. And Justice Scalia passed away shortly after the oral argument. And a month or so after that the court affirmed the decision below by an equally divided court suggesting that Justice Scalia would have been the fifth vote. And if his oral arguments were any indication that suggested the way it looked the way it was going is that abud would have been overruled providing Public Sector of employees that states wouldnt be allowed to require them to pay to agency fees to the agency. So if youre reading the tea leafs its reasonable to conclude that Justice Gorsuch is in this drivers seat since he was not on the 44, equally di vied court. I havent delved deeply into this issue if you look at his voting record it suggests he may side with the conservative wing on the court. And that abude may be in trouble. So just to back up a little bit. The case, the petitioner is a man by the name of mark janice, hes a Public Employee in illinois. He does not like what his union is doing. Hes not a member of his union. But every month because of illinois law and the collective bargaining argument that hes subject to, he has to pay, think its stifeened out of hi paycheck, 45 to the union. And so his basic argument this is a violation of my First Amendment rights. M being compeled to subsdies the activities and Political Activities of the unit yofpblet why are they Political Activities . Because as we know from another line of cases thats undisputed you cant force people to suicide union when theyre doing purely Political Activities. Here the issue is the fees are being used for collective bargaining and what mr. Janice when your collective bargaining is the state, youre trying to affect the Public Policy because youre asking them to pay you more to give you that pension benefit or that pension benefit youre asking for contraceptive coverage. If youre a teacher merit pay, classroom size all these things that are Public Policy issues and that inherently that is a form of engagement lobbying with the government with the government and if you dont like what position the unions are going to take in those issues, its unfair and not lawful to to you to suicide subsidize the payment. The basic argument as it appears is essentially that everyone its not disputed that the state can say essentially that the only one union can respect the people in each Bargaining Union and the unions have the right to speak on behalf of all employees. And has a duty to represent not just the workers that are member f the union but mr. Janice who are not member. Its very unfair to free ride off the work that the union is doing and get the benefits without having to pay for it. States say in the Public Employee context, the First Amendment is much more limited than it is in other context and that there are a whole bunch of different lines of cases out there that say when you are regulating the government in its role as an employer, when youre affecting the governments role s an employer, its less protective in speech. As i said earlier, i think if you are forecasting the case, probably put a thumb on the scale on the side of the challengers to abud. I think the case is very important and that is broad policy implications because of what i wasat my from able to glean from the breach unions dues these agency fees that are sort of in play. And there are maybe five million or so employees across the country who are subject to the requirement to pay these fees. Theres a great fear that if the fees are not required to be paid then a lot of those folks are not going to become members, not going to pay the fees. The overall funding is going to dry out. Public sector unions across the country. Its going to weaken the labor generally and in their relationship with the government. So its a very important case. One final point. I think thats interesting about this case or stepping back from this one in particular is the latest or its one in a series of interesting cases thats been that have been brought by conservative leaning groups, Public Interest groups with a conservative bat using the First Amendment as a way to kind of protect in this case, its, maybe, its economic interest in other cases like Masterpiece Cake shop and one of the abortion related cases in california, its one of the mind movement nal minded of using the First Amendment as a tool in litigation to advance policy and legal objectives on that side. I think this case fits within that within that pattern. I think that trend is one thats interest. I think it has some vey lens with Justice Kennedy. And if he would retire it could and a republican justice were appointed it might continue to be a factor thats increasingly important in the careers to come. Paul . You have anything to say. Maybe ill just agree with the prediction and give an anecdote. You try to win a First Amendment youre opposing a First Amendment with Justice Kennedy, its hard, but when i argued this case three or four years ago, our position we thought it was pretty powerful on the merits that this is a per fectly reasonable thing to do. It is only money. Nobody thinks or believes that they believe in the union and the law has always been when government has a pretty good reason to trim back the employees rights for its employment interest without any content basis that you could do that. And here theyre paying for the services which they benefit from. Probably isnt even my money out of the their pocket. But i Justice Kennedy you mean to tell me, people give up their First Amendment rights when people go to work for the government. Hes the author of the garcetti case. There are ways in which the government can freely restrict peoples speech for those reasons. Its one of those case where is you sort of know it was going to come out a certain way but its hard to understand the way it should. Could i ask you a question. One of a question . One of the things that struck me is why didnt they just do it in hard in harris . They ruled on a much narrower ground. They could have done it there, right . They could have. The thing was at that point Justice Scalia wrote a piece in why it was fair and equitable. This is just my completely speculative explanation that he had some difficulty kind of coming around to a broad overruling of abud having written a stronger case back in the 1980s. It appears that it they wrote a broad opinion and so they wouldnt join it. And they would express deep skepticism about abude but not doing it. He saw the light as time went on. That would be the explanation i would do. Do any of you have any ideas about what exactly theyre going to do if they ruled for janice as people believe that they will . Are they going to say that abude is overruled like in south dakota vs. Wayfair . If you look at the language, it goes it walks up to the line. And it it could have just distinguished abude and then said, this is narrow, we dont really have to address that. But it went out of its way to talk about how, i forget all the adjectives derogatory adjectives were directed at abude. In addition the court went out of its way to reject some of the arguments some of which appeared in your briefs, some of which appeared in the government in your brief. Not mine but the governments brief. And it went out of its way to rebut or reject those arguments and you see a lot of the arguments, you know, being raised again now for understandable reasons. Raised emed like it got by me. And so what happens then for a private union . Whats the interrelationship between the cases if theres a federal statute underlying where fees come and the private context . I dont know the answer to that. It seems like from what i can tell the challengers have been very careful not to ask for too much. But obviously once once this leg of the stool is pulled out the stool is harder to balance than some of the others but as the case is currently positioned and i think maybe the earlier cases as well, that were very careful not to not to look like they were asking for anything more than this particular context. Think theres an unknown if its a state context or it might with more. There ares no state action. But you know, its not its not a completely obvious that this is correct and you could imagine someone as resourceful as mike coming up with new arguments. The only question is what happens to the duty ji of the union who are not paying the fee are in free rider status . Inclueding including grievance proceedings. Why is it constitutional to tell a union it has to do that . Youll be talking about this in a couple of years. Were going to move on to my surprise and delight. Were going to cover four cases that we absolutely wanted to cover. So were going move on to a couple of the other significant cases. Were going to talk to roman to talk about nifila vs. Becerra. This was a case bought by conservative leaning entities compelled speech First Amendment case sort of in the same pattern. I closely related to janice think its similar to smaster piece cake shop. So this case, National Institute f family and life advocates, becerra, it involves a california statute that places requirement on Pregnancy Centers that are basically run by prolife entities that they provide pregnancy related services, sometimes its ultrasound, sometimes its counseling. Its a whole range of services. These groups are prolife. They dont provide Abortion Services. A lot of the critics of these groups say that theyre misleading people about the dangers of abortion, theyre misleading people about their option, about how the buy olj works. And so california pass how the biology works. And with respect to pregnancy certains that are licenses to provide medical services, it says that those centers have to disseminate to all people walk into, you know, the crisis Pregnancy Center, they need to put forward a notice that says hat tell and im quoting it here. California has Public Programs to comprehensive Planning Services including abortion for eligible women. Youre requiring the prolife Pregnancy Center to put what they would call an advertising for free abortion and have a phone number where people can go. The second provision thats in place requires Pregnancy Centers that are not license to perform medical practices that say we dont have doctors and were not licensed to provide medical services. So to try to allow us to get all the case in, i wont give a supper lock discussion but basically the argument is super long discussions but basically the argument is the level of scrutiny and the framework and standards of review that should be used to analyze this. I think there are no less than four different tests that are in play. But at the end of the day, i think the court is going to be is going to have to figure out, you know, whether compelling this type of speech is too much. One thing thats interesting here is that solicitor generals speech tries to offer a compromised approach. You dont need to decide all aspects but with respect to the you should treat the two provisions differently and that you should not allow california to require people to advertise the Abortion Services that it provides and to require prolife groups to put that notice up saying you can get free or low cost abortions. So that should be struck down but that its perfectly reasonable to require clinics that dont have doctors and dont provide medical services to put a notice up saying that because that will provide useful information as to and avoid misleading people who walk in and want to use those services. Thats basically the case. It will be a very interesting one but it will implicate where the court is and where Justice Kennedy is on First Amendment issues. Your two case where is you talked about here are two case where is you talked about where its clear what the conservative policy outcome is. One of them is whole heartedly behind the chearlings and the middle ground brief in this case. U know, having look at these cases, do you see any kind of commonalities . How is the government trying to be approaching cases in which the longterm interest of the United States might be different from the desired outcome of the president . Well, i think if you read the especially in the second case, in the abortion case, one of the things that is striking and the office always does this. Its a great brief in many different senses. It tries to strike, you know, come in and sort of provide a reasonable common sense solution between where the parties are and reject some of the more extreme claims that are made on both sides. Rhetorically thats effective. What explains their difference here is that i think as an objective matter, the strength of the arguments are quite different. I think telling a prolife entity that they have to that is not necessarily being misleading that they have to somehow put up a notice saying heres where you can go get an abortion, i think that is a theres a stronger challenge to the constitutionality of that than there is to essentially providing requiring an entity that could easily be mistaken for a hospital or an entity providing medical services to make sure theyre not providing those i think the governments interest with respect to those latter information is greater. I would imagine that there are a lot of regulations out there that govern the kind of disclosures that have to be made. D there it would seem like theres a much greater confusion. Thats my thought. I do have a sense that the administration in this office right now have taken an unusually large number of positions that are contrary to kind of the pure institutional interest of governmental power. That in the Supreme Court and in the lower courts, you see a larger number of briefs than ive seen from Republican Administrations taking positions that say basically the government cant do x or y under the constitution. Its been a bit striking. I think thats fair. I would i would i think its actually a good thing. And a welcomed development. S. G. s office of protecting the institutional interests of the government. But part of those interests have to take account of the constitutional mandate which is to faithfully execute the law. If there are circumstances in which the s. G. s office and the executive branch conclude that more government power would not be consistent with that, i think its both appropriate and welcomed that the government is willing to say that in court and its not sort of a oneway ranch et where theyre consistently asking for more authority because a government interest is implied. I think it will be fair to say that there are more things that a conservative administration thinks that government cant permissibly do and fewer things, you know that may be debatable in terms of the hot issues of the day. Thats right. But i should have said things on the dockett. Things coming up to the Supreme Court. Yeah, if were talking about eighth amendment restrictions or he ability to yeah, but the last administration filed a brief saying for example it violates the sixth amendment to take a guilty plea without advising the criminal defendant of the immigration consequences of that they would take a position ainst the texas statute on abortion. But it is demons traably the case that the Republican Administration has taken the case than a lot more Republican Administrations. Absolutely, you have the government has this responsibility. But theyre being more aggressive in this view than other administrations. Those who worked on the doma cases might disagree with you. You know, its not obvious to me. But maybe. I think so. [laughter] think pauls right, just that if theiven by the docket docket consists of criminal cases we would be differentially defending positions like this. Im not sure that we discovered the establishment cause or the First Amendment. A lot of the constitution that is been around for a while. And a lot of these problems have been around for a while. I think that there are well on 10 cases of some significance in, you know, where youre in where the, this administration is taking a decided maybe correctly. I dont know. But i think that its its occurring more than people realize. I think one thing to keep in mind i havent looked impeerically. You made the point that they have made it as well. It may be right. Im not sure. I think to the extent that it is, one thing that should be kept in mind too, its kind of understandable given the ideological positions of the past administration. It seemed like that gap is bigger is a bigger gap than you would have seen from president bush to president clinton even or maybe from president bush to president obama. Im not sure. But it seems like this administration has come in in terms of its legal policy and in terms of the positions its been advocating its been pretty conservative. And the last administration conservatives would say that it went further than maybe its spread says sors on the left have done on its spread done. S on the left have you dont do that because the Previous Administration is much more liberal than you. You take the position that its not constitutional or it isnt. And for sure the Obama Administration was, you know, substantially more liberal. But i think compared to the bush administrations, this administration has had a high level of comfort in sing that something is beyond the power of the congress not beyond the power of the president , but well beyond the power of the congress. It will be interesting to see if that continues. I think in daca they say theyre beyond the power i was just going to say lets talk about the power of the president and daca which is not up yet. But it is up on conference in february 16. So they could try to shoe horn in it. Willie . That is what the government is shooting for. The courts regular argument schedule ends in april. But they have occasionally been special sessions scheduled after april and before they skipped that or the summer, and may well will what the government is looking for in this case. This is the defers action for childhood arrivals which is a program of prosecutorial discretion where it would reframe from removing certain Illegal Immigrants from the country based on the idea that it has if were enforcement priorities these people were not priorities for removal and so it will not remove them. By they remain and abide certain requirements is the position. So the fifth circuit had duclaired a related program to be unlawful and the United States had taken that up to the Supreme Court. And after justice scandally yeahs death the court affirmed the decision by the court saying no precedent. So the new administration comes in and says a couple of things. Number one, we concluded that the program is unlawful. Based in part of the fifth circuit in the other case. And we are going to wind it down. So you know, were going to stop, stop enrolling people until the program. Stop issuing renull after a period of time. Renew wall after a period of renewal after a period of time. So this case had been up to the Supreme Court on the hotly contested question of the record and dealt with executive privilege that the word administrative record might sound. And so the District Court is now granted an injunction and denied motion to dismiss saying i can review this. It is a violation of the e. P. A. Because basically the attorney homeland ised the security that it is unlawful. Therefore i can i the District Court can review the program whether it is lawful. It is not. Therefore the decision is subject to reversal. This is in context. It is not a final decision. So the government appealed to the ninth circuit. Now the ninth circuit has an interesting practice whereby it announces the membership of its Motions Panel for a given month after that panel issues its first order that same panel sits together. For this month of january, the ninth Circuit Panel consisted of reinhart, paez and bayer. The government may have thought just a little bit of whether that would be a good forum to be litigating and decided that it would be in the Supreme Court of the United States. Unusually filed. Ciary before er judgment. We do not want you to wait. We want you to take it now. And they said there are lots of other challenges. This is something that is very, very important. It needs to be resolved definitivity definitively and very soon. They asked that consideration of the petition be expedited because by the time the court would even consider this position it would be too long from now. And so the respondents have filed their petition and have cued up for a conference in a quite expedited way in february. And it could be heard, i suppose at the tag end of april. It could be heard in a special meeting in may. Well see what the courts decide to do. But basically this is this is going to tee up yet another can the courts review this type question and it is also going to daca. The merits of the court does not have to definitively decide if the Class Administration acted unlawfully. There are ways to decide this case without reaching that. But that basically was the basis of the courts decision that the program was lawful. Rescinding it because it is unlawful is itself unlawful. Is there a reason it seems like there must be that the administration cant get this go away to rescind it because it doesnt like it. You said what the last guy did was illegal. You were wrong. Therefore what youre doing is illegal. Why doesnt the new guy say he doesnt want to do it . The attorney general doesnt say were doing a legal opinion that is illegal. If i thought it was legal we would say go forward. They cast this saying theres litigation risk. If we keep this in praise, were going to get sued by the state of texas again and the litigation risk and the cost of litigating these cases make it not worth while to continue. Why dont they do it explicitly. Therefore were not going to do it anymore. Thats always the question in cases where you get into this situation where you you can either try and shore up the case that is now under review or you can write a new thing that would be more or just do both and say, we think we werent allowed to do that before but even if we were, so what . We think its a bad idea. Its a fair question. I think if they did that, if they basically said never mind, now were going to do it again. This is daca band 2. 0. In which we just decided as a policy matter we want to keep removing people, were not making these judgments that the case would not be going to Supreme Court. Maybe theyre showing the optics of it. Maybe they dont like the optics. They dont want to be seen to be against the children. But our hands are tied. We just think that the law doesnt allow us to do it. Right. And theres also in the backdrop of all is the whatever the negotiation is going and the fact that the Supreme Court might be determined at a future time duclair that theres a prosecutorial discretion because that would violate the Law Enforcement the law. Anybody else . We have two more questions that people were teed up but we want to leave time for questions. Talking about the texas redistricting case would have taken the entire 90 minutes some of were going to go ahead and open it up to your questions. Dori . Do we have a microphone . Do you want us to repeat the questions . Repeat the questions. Great. If you can kind of keep them concise, please. Nina . Do you really think that the Supreme Court might give in to the pennsylvania redistricting phase one that might involve the Supreme Courts decision . I think its a the pennsylvania redistricting case will the Supreme Court get into it when its a redistricting decision under pennsylvania constitution . Theres a stay Application Pending in which the argument is that the state Supreme Court does not have the power under the elections clause of the constitution to regulate the way in which the legislature exercises its legislative power to set the time, place and matter of elections. So state law does not necessarily bind the legislature when its doing that function. It is an argument reminiscent of one made in bushgore, if you want to go back and read that. But at the end of the day, theres enough precedent throughout to suggest that the legislatures cant be completely independent of control but, you know, who knows . Well see what happens on the stay application. The response is due tomorrow, so chattering clashes of journalist and academic world took a great deal from the fact that that he referred it to the full court. Do you . The follow up question from nina is that do i agree with a lot of other people in the phere that he didnt just deny the application . I dont. This is the case where especially the amount of stuff at stake and the argument is maybe not as implausible that people think and it would make sense to have the full court hear it and give it into consideration. And what do the rest of you think . I defer to paul. [laughter] has it been refered to the full court . No, he call for a response. I dont think thats thats not a given that he do that. Thats not a given that he will do that. Has the court issued an opinion yet . The answer to that is no. They have an order but they havent written their opinion yet. But its sort of not relevant to the stay application because its an analysis of the pennsylvania constitution, right . Arianne . What does it mean if the court does take it up . Doesnt take it up . Does take it up. What does it mean if they grant the stay . I would think it would mean there are five justices and that the argument is substantial. The standard requires them that a cert will be granted and it will be reversed. If theyre following the law, it means a lot. If theres a thiem through some of the what they call ocket. Adow d the court does seem uncomfortable with the idea that before judicial review has come to an end, that a decision of redrawing districts to should into effect, new filing deadline, primary district lines, you know, when an election is already underway or close to underway, the court seems the justices seem kind of uncomfortable with that. Does that jibe with your experience . Or can that be can that be relevant here setting aside for the moment the admittedly important question whether theres a federal question that could be the business first or not . I think there are two cases. One the court does not like federal courts too late in the game telling the states to restart their election process case. E some fundamental a previous case said thats not a good idea. The second thing thats going in the federal case a federal gerrymandering case prevailed i think they have a sense that they want to announce it on the merits in gill and bedersec. Thats not an orderly way to go. It may be mean that they dont think theres a valid claim. They like things to go in the right on the other hand r order. Whether that either of those concerns would apply to the pennsylvania situation which is so odd in that there are the claim is otherwise not among the jurisdiction of on the merits because the state claimed the adjudicated state court i would have to think through it. I think its unlike little that those factors would not have anything like those in that case. One thing that it could mean that in an era where the court has been quite conservative, and the Supreme Court is, you know, quite protective of its own power. And if it sees this effort going, you know, too far, and intervenes to say state law cant apply here, it could have broad significance just for the ability to develop other theories. I assume that the party were to lose that other mechanisms under state law where you could bring other challenges could be lost at least in the federal elect trorl process. It could signal that you just cant work around some of these doctrines by instead going to state law. All right, one of the main precedence is the decision in the arizona case just two or three years ago where the argument was you cant make a an independent cation, take the power away in the draw of congressional districts because the court 54 be kennedy joining the more liberal members said the commission is a legislature for that purpose. So there is there is that opportunity to work around one of the federal limits there are on jerry mearneding claims will presumably still exist. And the court has also said, right, in the remedy context when the Political Branch is deadlock and the question is who should who should draw the district, the court has said let state courts do it before federal courts start. Eventually federal courts can. State courts are authorized to do it. Theyre supposed to get the first shot. There was a case in the 11th circuit where the people passed constitutional limits, of the state constitutional florida of how the legislature does this redistricting and it was challenged as a violation of the elections clause and that calling was thrown out in the 11th simbingt. And that was challenged and thrown out in the 11th district. How much more redistricting questions [laughter] before we move on. Kimberly . Will it matter at all that pennsylvania are themselves elected isnt sort of part of the political process . The fact that pennsylvania judges are elected to the Supreme Court, will that affect anything . I wouldnt think so. The bakes principles what the federal courts play and state courts play is pretty clear. I dont think the court will find that these are partisan lebses in pennsylvania. And b, was this case brought in the Supreme Court immediately after the majority . I dont know the timing, but not that it says anything about that decision. But it may Say Something about the decision to bring the case. If you look at the map, it is not a problematic decision on the merits. But youre right they may the state Supreme Court. It is prominently featured in the stay application and the partisan makeup of the state Supreme Court. Richard . That is the number of cases, doesnt it make you feel that one of them is likely to win at least one of them is likely to win on your side having so many Different Cases and is it likely that that it would whatever that case might be would have impact beyond that one state or are we going to get into one state ruling . Richards case does the fact that so many cases with so many theories means that someone going to win something and what would be tim packet . The fact that they took a second case on the merits and going through the whole burdensome process of briefing and going through another case makes me think that were going to have another. All of these cases are done under the federal constitution. But under that, i dont know. I think its really just the two cases that are the court should be focusing on. The North Carolina was just tried on the similar theories to the cases that theyre looked in pennsylvania cases cut an outliar in the case that its a state case. Anybody redistricting . There will be a census in 2020 and we go get do this all over again. [laughter] other questions . Redistricting or otherize . Or otherwise . Goldstein om mr. [indiscerntial] the question is why south dakota chose itself . The truth is south dakota chose itself. Its not up to us to make sure the legislature does something. There were about a number of states doing this. The feature of south dakota and a few other states thats quite significant is that youre talking about states that basically the sales stacks where the states revenue comes from. When you dont have a significant tax, its quite comparable in the kirills decision. States like that are the ones hat are more interested in the case. I think its that mold. And you do have a lot of things that are barred, you know, from out of state in a state like south dakota where you dont have a lot of urban shopping areas and that sort of thing. And so it has a very, very significant consequence for that statement. And i think thats why they were sprested in it. North dakota. The retailers were on your side is that because they were on a level Playing Field . Well, they want justice [laughter] yeah, mine, a lot of the retailers on our side also have an Internet Sales, of course, take a company like best buy. But the fact that they have stores in all these states, even if you buy from them online they have to charge the sales tax. Its under the pure Online Sellers that are subject to the tax. The folks that rerespect are the best buy, the walmart and also mom and pop type shops. Any other questions . All right. Well, please join me in thanking our excellent panel. [applause] so there are many cookies left down in front. The fruit less touched. [captioning performed by national captioning institute] [captions Copyright National cable satellite corp. 2018] cspan, where history unfolds daily. In 1979, cspan was created as a Public Service by americas Cable Television companies and is brought to you today by your cable or satellite providor q a withnext, author bill james on his book the man from the train. Then prime ministers questions with the representative for the u. K. Prime minister. Impact of the House Intelligence Committee memo. Q a, bill james talks about his book the man , the solving of a centuryold serial killer mystery. James, and your new book the man from the train, your first sentence is i have long been fascinated by the notion that knowledge can