Which are cosponsoring this event, i am delighted to welcome all of you here today to our first exclusively virtual preview of the Upcoming Supreme Court term. Whether you are watching over zoom, youtube, facebook, twitter, or our webpage, we are delighted to have you with us. We are recording this, as is may findo you yourself on cspan at some point in the future. We dont know when. To aspectse we turn of the upcoming term, i want to say a few words about Justice Ruth Bader ginsburg, who died two weeks ago. I first met Justice Ginsburg 37 judgeago, when i was a there. Judges are randomly assigned to the courts of appeals, and my boss, judge scalia, was on a panel. Justice ginsburg was an extra ordinary woman, and extra ordinary justice, an extraordinary lawyer, and an extra ordinary american. I would like to ask for a brief moment of silence in her honor. Let me introduce our moderator and turn it over to him to introduce our panel and get the discussion underway. Robert barnes got his bachelors degree in journalism from the university of florida. He has been a Washington Post reporter since 1987. He joined the paper to cover politics, and has served in various editorial positions, including metropolitan editor and National Political editor. Supreme court the since november 2006. We appreciate his taking on the job of moderating this panel, despite other, demands on his time, given the unusual amount of Supreme Court news even for this time of the year. In light of this, we trust our speakers will give him an easier time moderating this panel than his fellow journalist Chris Wallace experienced a couple days ago. Over to you, bob. We are goingtrary, to follow the usual rules, which is interrupt each other, belittle each other. I would like to see you show your disagreement with i roles with eye rolls and face scrunches. We are going to move fairly quickly, and if i feel like one of you is taking too much time, i will gently nudge you along by saying something like, will you shut up, man . Or lady. They are all big turns at the Supreme Court. Perhaps at this point, not as big as the one we had last year with so many controversial topics. And over time, we did not finish until mid july. The docket so far this year is not as cramped, but maybe they are leaving a little time for some unexpected cases that might arise after november 3. So, to start with, we are going to go through each of the panelists, who has a case he or she will talk about, then we will do another round after that. Let me just say who your finalists are, and this will be much shorter. A professor of law at the university of california president of the ethics and Public Policy center, partner of gibson dunn, independent womans law center, and the associate dean of the George WashingtonUniversity Law school. Theirk that you have full resumes, so you should look at them. She is probably sick of hearing erins is the most interesting one. First, we are going to start with erin, and she is going to talk about one of the most notable cases on the docket so far, and that is the Affordable Care act, california v texas. Thanks so much for that introduction and for having us all. We will talk about the Affordable Care act again. This is the third time it has been before the Supreme Court. Of course, there are provisions. That theirst time Supreme Court will take a look at the ford will health care act. The Affordable Health care act. Other challenges to this legislation is the individual mandate. When we look at the Affordable Care act the more controversial provisions was set forth in section 5000a and 5000ab. It required certain qualifying individuals to ensure that they had purchased in qualifying insurance. If they did not, they had the responsibility to pay a penalty. That was enforced by the irs. To 2012,d a few years and we get the Supreme Courts decision. Most of you will recall the focus of the litigation was on the commerce squad, and the challenges to litigation were making the argument that congress has the power to to regulateities, items once they are in tothey cannot force someone themselves as through the Affordable Care act. The switch the Supreme Court held the provision. Purposes oftional penalty. For constitutional purposes, the provision. The Supreme Court upheld the provision under the broader power of congress. 2017. Orward to about congress, under the act of 2017 signed by President Trump, it zeroed out the individual mandate penalty. Challenge from texas and 18 other states. Thes is alleging that Affordable Care act individual mandate is now unconstitutional because the mandate penalty is zero and the argue that a zero tax cannot be a tax at all. The case went to judge oconnor in texas in District Court. Judge oconnor struck down the individual mandate. Down the entire statute. The court of appeals took up the case. Individual mandate could no longer be sustained under power. Procedural steps Going Forward, they disagreed. And wentcally punted back to the District Court. It withd him to analyze a fine comb. A unique posture that california and other states supporting the legislation. The Supreme Court granted the petition. The case could come back up. Point, the court could answer. The question before the court was whether the individual mandate is constitutional and there is a legal question if it provision is the severable. California and the house of representatives argue that the states and individuals challenging do not have standing. The District Court of appeals or. Ompelled to purchase insurance there is the question of constitutionality of the individual mandate. This is interesting. Commentators on both sides of youlook at the , itts holding of nsfid you have a fairly strong argument to be made that a tax of zero is not a tax at all. To become what the most interesting part of the case will be the question of severability. The Supreme Court found the structure to be unconstitutional. So, chief Justice Roberts used interesting language. To try toe doctrine limit the solution to the problem. There is strong evidence otherwise. I think the real question here, at least in my opinion is the question of severability, challenging the provision that you need to look to the 2010 findings of congress that found the individual mandate was linked because it provided funding for the other provisions. On the other hand, the house of representatives and california the 2017 states argue legislation and congress clearly contemplated the aca without an enforceable mandate. Interesting as you compare 2010 to 2017 and what that means for severability. Robert thank you very much. We are going to have a q a session toward the end of this. We will be taking questions from you. Any cases we discussed are those that we do not discuss. If you have questions about that and i do we will tackle those, i promise. Rrison. Is alan mo he will be talking about department of justice v. House ellerttee on the mu grand jury case. Alan what can be more exciting the trajan access to the grand jury materials that mueller presented. There is a general rule of secrecy under the federal rules of criminal procedure of materials going before the grand jury. I think most people agree that at some point that grand jury secrecy should be eliminated. In a number of cases, some which my old office was involved in, grand jury materials involving appearances nixons before the watergate grand jury, all of those became public under what was applied exception to the rule, after some period of time, they should all be able to be turned over. The Justice Department has disagreed with that for a long period of time, nothing much as a matter of policy, but they thought the rule did not have an inherent exception. A couple of years ago, the First Circuit court ruled in favor of the Justice Department, saying there was no inherit right to access to grand jury materials no matter how long they had been around. In the meantime, before the recent d. C. Circuit judge, the attorney general of the United States in the obama discretion sent a letter to the rules committee saying, we think the law ought to be changed and there ought to be a historic exception, and perhaps other exceptions. The rules committee rejected that because they thought it was not necessary to change the rules because all of the cases had gone in favor of exceptions. That exception no longer applies and will have to be fixed by the rules committee. This case is much narrower. It involves an exception to the grand jury exception under which a judicial proceeding matters involved in a judicial proceeding can be released. Typically that arises in a case in which the defendant was to crossexamine a witness has appeared before the grand jury. Obviously, the defendant gives the right to the grand jury material to see if it is inconsistent. This case involves the question whether an impeachment proceeding for the congress constitutes a judicial proceeding and is up for that exception. The d. C. Role it did constitute judicial proceeding and that is up before the court. 1. I want to make is it is not clear this case will not become moot. The subpoena that was issued was issued during the time that the impeachment proceeding was going on. Two things have to happen for the case not to be moot on january 20 President Trump no longer has to be in office, or he feels not in office, the house has to decide if he wants to renew the subpoena or not. These problems were obvious to the court when they agree to take the case so it is unclear if they are anxious to take the case or not but they decided to many months ago. I think i have a little bit of time left, so let me talk about one other case before the court called kearney against adams. Delaware statutes that provide for two different ways of seeing there is a balance on several of the courts. Isy have two rules one called the bear majority rule. It is what they call it on the opinions. Under that, there are seven judges on a court, no more than four can be of the same Political Party. The second rule is if there is a vacancy on the court, the constitutional provision in delaware says they must appoint someone from the Political Party that will not cause a bear majority rule to be violated. That has been interpreted to be that only democrats and republicans can serve on the Supreme Court of delaware. With a decided that, because the provision was added to earlier provisions, they invoked the doctrine of separability and concluded that because they were all part of the same legislative package that the provision of the bare majority would go the way of the democratic the severability situation seems to be the law of separability of delaware. Not the statute that congress had enacted. The court has had both of these issues before and the question of, what is the arguable justification . I joined in a brief that said the notion of political appointees and policymaking had nothing to do with this and there was a legitimate interest in seeing there was balance. I do not think the court will reach that issue, what if it does, it might Say Something about balance representation not only on courts but administrative agencies running for the federal election commission, to the trade commission and exchange commission. We will keep an eye on that case, as well. Alan. thank you, somewhat appropriate the court kicks off its term with a question about political appointments to the Supreme Court. Up next, he will be talking about a case called vanburen v. U. S. Thank you for the Federalist Society inviting here. The case i am talking about is a criminal case involving the law called the computer law and abuse act, a computer hacking statute enacted in the 1980s. Although we have all moved to computers as we are in this panel, the Supreme Court has never interpreted what this law means. It matters to a lot of people because it is saying how easy it is to commit a computer crime and how many of us are computer criminals by virtue of this 1980s law enacted in a very different era. Vanburen is a Police Officer who has access to a government database of information about paymentnd he accepted a to look up someone that some private party was interested in knowing about. Trainedugh he had been are only allowed to access the database for official reasons, it was part of a sting, the fbi and the person who had asked vanburen to look up this individual for the payment. It was all part of a government sting. Vanburen is charged with violating the Computer Fraud and abuse act on the theory he had been told should only access the database for official reasons and he had accessed the database for nonofficial reasons and therefore violated the law. The law says it is a federal crime to access the computer without authorization or to exceed authorized access to any protected computer. Under the statute, a protected computer is basically any computer the definition is any computer that can be reached under commerce laws think about any computer, whether connected to the internet or not, everything is covered, or close to everything is covered under this law. The big question is what is access without authorization or exceeding authorized access . It is agreed by the parties issue is whether vanburen exceeded authorized access because he had been given an account to access the database so he initially accessed it with authorization but did he exceed that . There is a statutory definition, here is what the definition is the term exceeds authorized access is to access a computer with authorization and use such access to obtain or alter information in the computer that the accessor is not entitled to obtain or alter, which at least when i hear that, it is an entirely circular definition. You cannot do what you cannot do without answering about what you cant do. Why does this matter . The two sides have starkly different understandings of what the law means. Vanburens side says the act is just about computer hacking, breaking in. You are not breaking into a computer if you just violate some sort of a written restriction or you were told not to do something and do it anyway. That can be a contractual violation, and employment problem, but not a federal crime. From the defenses side, the defense argues this law should be construed to hacking, circumventing some sort of access restriction. The governments argument is it is not only to someone who hacked income up with someone who upon gaining access has violated some restriction, including some written restriction, and therefore vanburen violated this law because he was told not to access the computer for personal reasons and he did so. Why does this case matter . Broadly,s written so that it applies to basically any computer and any written restriction. The Supreme Court has to decide, is this just about hacking or and it apply to hacking violating any written restriction on a computer. That matters to a lot of people because if you have ever noticed, you are probably violating terms of service to a computer right now and it is very common to violent terms of service to a website, online social media site, you have to tell the truth when you log into facebook and give your real name, a dating service, you have to give your real age. The governments theory lays out the theory that if the government is right, although those acts are federal crimes and the statute is criminalizing everyone and everything a little bit of an exaggeration, but not much. This will be coming to the Supreme Court to figure out what this law means an answer, how we people, as they use computers, are filing this criminal statute and could be arrested and prosecuted. The court has the opportunity to interpretationinterpr about hacking or a broad interpretation. It will come back to congress to come up with answers depending on what the Supreme Courts interpretation is. Robert let me play editor for a second. Do you know if this is the only thing he was charged with, this officer . Orin he was charged with another offense print he was charged with wire fraud. It was a services fraud. Robert he was being bribed . Orin he was being bribed, exactly. There is the bribe, and there is the computer hacking offense. The related bribery charge is still there. Robert ok, thank you. Elizabeth is going to talk about a case involving Ford Motor Company and a little bit about the business docket. Great to bet is here. I appreciate Justice Ginsburg and somebody ways and one of the reasons i want to talk about this case is because there is a scenario in the case that leaves quite a legacy. I think it will be a great segue to discuss what is it what is on everyones minds, her legacy. Has someess docket great cases, and a little bit of a constitutional look that erin previewed. A business docket is only about a third of the way. Already, we have some big ticket cases. Moments. Ress in a companyout where a u. S. Can be held liable for human rights abuses abroad. Use ofnstitutes fair intellectual property. Company can be subjected to massive