Booktv. Tonight, a look at things to be decided in the Supreme Court. In the state of the union speech. Then the federal Communications Commission because of the failure of hawaiis Emergency Alert system. Midway through Supreme Court term, attorneys and court watches at Georgetown University law center discussed some of the key cases to be heard in the coming months. The court will be deciding cases related to congressional gerrymandering, immigration restrictions and taxes of Online Shopping. This is 90 minutes. The people who are getting their food just finish up that and proceed quietly. We will get the program started. I am the executive director [audio lost] our moderator is a georgetown graduate first and most important. She was once the editor of reporter for the and now she is just an independent contractor and a reporter. And amy really, i think, probably knows more about the Supreme Court than any person alive. With that, i will turn the program over to amy. That is a tough introduction to live up to. He also asked me to be very brief in introducing our panel. So i will point you to the nametags. You have google and if you have one more transport what i think you really need to know about the panel is between the four of them, they have argued 84 cases at the Supreme Court. If you think about in terms of the number of cases the Supreme Court hears each time it is well over eight full terms of cases with these four panelists. I want to thank you Supreme Court for giving us so much interesting stuff to talk about today. And if there is one theme that seems to be emerging this term, i think it has to be redistricting. And my colleagues in the press room, they agree with me it seems like it is one of these Homer Simpson signs. It has been x number of hours since the last redistricting request which filed with the Supreme Court the last time was monday. We will start with a case out of maryland. Under the summer, they were talking about a case in which a Supreme Court heard oral arguments in october and ensure it was discussed at the preview. The partisan gerrymandering case and she said it was probably the most important case the Supreme Court is going to decide this turn. After they heard arguments they cannot quite get enough of partisan gerrymandering so in early december they granted another case called benedict versus lebron out of maryland. It is kind of the yin to it is a single Congressional District drawn by democratic officials. Who better to discuss the redistricting of paul smith . Who argued on behalf of the challengers in gill versus whitford and is now here georgetown. Thank you amy. Im happy to talk to about the case. I have the same lack of information as everybody else about exactly why the case was taken in december. I think it was a surprise in many ways. So this gets argued in october. And we are all merrily going along. We think if we do will be nice for them to roll in january or february. Maybe we will get a new map in wisconsin. There was some reason to think it would be true but based on the way they accelerate the oral argument. Then in december they take an entirely new case out of maryland. And the surprise was that they really didnt really have to do that. They could easily have done what they normally do when they have a case is hold the second case and maybe remand that later on. For decide later on with the appropriate disposition would be after they finished the one they already heard arguments in. But they didnt. I guess you know this has actually been to the Supreme Court twice now. Because it was up there before under shapiro versus mcmanus on the technical issue of whether or not it was sufficiently frivolous that the District Court correctly dismissed it without appointing a threejudge court which ordinarily decides the case. The Supreme Court said no, it is not substantial at all. He should have appointed a threejudge court. They did and the threejudge court held that the case is just the big variance these cases have been for a number of years. Is there sufficiently clear standard to apply the judges with the constitutional issue of whether there is too much political bias or otherwise. And so, the case proceeds along. Further wisconsin case in the court, the plaintiffs in maryland file a motion and it is denied by a vote of two to one. An is a different case and what they are looking to achieve and will be interesting to see how the Court Response to these two different kinds of theories. The challenge is to the single district in maryland the far western end of maryland. The district 6, a district in the general area for many years was republicancontrolled. Elected congressman name is bartlett. In 2011 the democrats being controlled maryland decided in their wisdom to take some of the world area and draw that down into montgomery county. So that it became much more blue than it had been in the past. And they started electing democratic member of the house you end up with a delegation from maryland that was seven democrats and one republican. But the argument theyre making is not that the 7 to 1 is somehow unconstitutional but the one is unconstitutional. This it was a violent of the First Amendment rights of the Republican Voters in the district who, the claim is of the state acting with specific intent to retaliate against them because of the decision to exercise their rights to vote for republicans. In the past and that the retaliation took the form of change in the districts of those people would no longer be able to control their destiny. And now hence would be represented by democrat. That is a fundamentally different thing than the argument we are making. The gender the gerrymandering is unfair and that it takes, even if one party gets majority to get muslim said thats what gerrymandering is. But there is a lot to be said for the First Amendment. That if these guys are pursuing it has some advantages. The main is that it does not turn on as ours does, showing that the bias is too much. Their argument is that any amount of political motivation, specific intent to flip this district from one part of his unconstitutional because they do not have to have the efficiency which is our mathematical formula for judging the severity of gerrymandering appeared for the court to separate politics as usual. And they do not have to make any arguments about the whole map. All of us things are very interesting. It would be an interesting way for the particles they would have to limit. In terms not so much that the district previously was only and is now the other way. What the impact would be elsewhere, we are not sure. We, which i still believe in our theory, with all the brief that says we think that the plaintiffs in maryland should win. But under our approach with the 7 to 1 was unconstitutional. One way the court can handle this as, they would win on our theory or who knows, maybe theyll take their theory and ours will turn out to be wrong. There was a lot of argument in the case about how maybe we did not have standing because we deny plaintiffs from every single district and in wisconsin. They do not have that problem. Who knows. I will not have any prediction for you. The court is clearly very interested in gerrymandering. And it has been hearing these cases now since the 1980s. Really you can go back even further. If you look at the 1960s. And it has never come around to find a way to rule against a partisan gerrymandering. I think the time may be now, the fact that they took a second case, it is encouraging in the sense that whatever they are doing, it probably will not be a clean, these cases can never be won. We will see. Do you have anything to add . I have a quick question. Do you think the Virginia Election played into this decision . To take on the maryland case . I dont know. There are all sorts of theories. One is that it is a democratic gerrymandering. One of the things the chief justice was very concerned about was appearing partisan. So this gives an opportunity to rule against both parties at the same time. It may be a reason. How the Virginia Elections would affect the decision i would not sure. There was a big debate in the press about whether the Virginia Election showed the gerrymandering is such a problem because you can kind of overcoming for and did the opposite. And we have strongly tried to it is proved that jerry manders are very difficult to overcome. Have eight or nine percent majority of the vote for the Democratic Candidates for the house of delegates in virginia. They did not get a majority of the seats. So [inaudible] even then it would have only been 5050. And you have a message advantage. The gerrymander held. That is my message and im sticking with ep requesting maryland, what is the jerry for why the switch makes a difference . Why is it like every district designed some way, discrimination against the people who are in the minority . The problem is, it cannot be the every district that happens to be republican map is unconstitutional to democrats good and that the democratic district is unconstitutional for the republic is good to have a narrow theory and they want to narrow it by focusing on specific intent and saying that the flipping is innocence of retaliation. That was clearly done deliberately. Is any of this done accidentally . [laughter] just randomly with a little pan. Again, trying to be faithful to their theory. They draw a distinction between people knowing the effect of what they are doing and having me specific punitive retaliatory intent. Whether that works, i dont know. Is there evidence . I dont know is not even disputed that they tried to make the democrats do not have a lot of gerrymander as anywhere else. It seems like to me, and doing some in advance that the argument looking at the transcript that one of the challenges of the First Amendment there is the proof problem. What kind of proof will be necessary. I can scrutinize this. Do you happen to know if they built into the theory, the idea that there is a safe harbor if you have an independent Commission Set up in the district that youre automatically okay . What do you think that might be a way to make the rule i dont know. I have not seen them discuss that. We certainly have taken a view that it will almost every standard. Maybe never. If it is drawn by a real bipartisan or nonpartisan commission or by a split legislature. Where one causes one party and the other has the other party. The level intent, you have to show when there is one party control. Even the new york style where they say we let you do the senate and we do that is an interesting question that unfortunately did not get asked. The same situation largely arose in virginia. The gerrymandering i was talking about was the lower house. They gave control to the public so the democrats can do it they could with the senate. And they just did not do as good of a job. [laughter] is the maryland theory, really just limited to a flip and so if you are the benefit, if you are a bunch of republicans who get packed into one district, the one republican district, they have the Eastern Shore is where that district is. The Eastern Shore, the western shore say that again . Usually you think about packing and cracking as ways of doing bad things to a minority. This would be cracking is not okay. But packing right, the there was a there if you are drawn into a district where as we would say it can be part partial but statewide violation because the packing by so prevents new and the party from electing your fair share of people statewide. I promise we would leave tougher questions for all of you. From all of you at the end. But we will move on to the next case. Which is trump v. Hawaii. The preview is on the 19th last year. At that point, the travel ban 2. 0 was still in place and the case scheduled for oral arguments in early october. On september 24, the president issued a new water and everything started all over again. So will he will talk to us about the travel ban. Is it different . How will it go this time around . Cristobol, i do not call this 3. 0. I think it is 3. 1. Because weve already had a peek at this in the form of the court basically saying, okay, this is off to the ninth circuit and they will decide it quickly. Well go ahead and issue a stay of the District Courts injunction. We know the ninth circuit will decide quickly but we have no idea what they will decide. But if by some chance, they were to decide against the administration, will go ahead and preemptively stay the decision pending the filing by the government. And by the way, we are confident the court of appeals the ninth circuit did in the Fourth Circuit did not. As a result, the cases of only from the state of hawaii victory in the ninth circuit. In the state of hawaii, they won that case on the statutory grounds. That accounts for the first, basically the first two issues. For the first three issues. Are these kinds of cases reviewable . Can you break the law. They say the president is obliged to let the country certain categories of people. Does the statute barred the president from discriminating on the grounds of National Origin . As to certain categories. Is the District Courts remedy or an overbroad remedy. Basically it applies to the other issue that is swelling around these travel ban cases is whether everything the president has done, 1. 0, 2. 0, 3. 0, is all tainted by antimuslim and therefore no violation of the establishment clause. Within that the question whether the establishment clause applies to these at all. That was very much in the Fourth Circuit. The Fourth Circuit heard argument but as of one hour ago i had not read the decision. The state of hawaii in his opposition to this, from the ninth circuit says by the way, if you grant you might as well also do that on the establishment clause where the state had preserved so, the Supreme Court did in fact do that in decided to take the case. So that is no question number four in the case. There is obviously has been paying up and down between the lower courts and Supreme Court quite a bit. But we have not yet actually gotten, with very little, eyeballed on the Supreme Court handling of the case. Everything so far has been orders, issued by the court except for the somewhat curious at the very end of last term. And, while there has been some you know, especially in that circuit. The ideological divide about how to handle cases. The most recent state water from the Supreme Court, the only centers were justices ginsburg and the stay orders include the one that was actually accompanied by an opinion. It said honestly nothing about the likelihood of success. The dissent by Justice Thomas, and gorsuch. From the granting of a stay on travel ban 2. 0 said, of course, the granting of the state totally means the applicant have a likelihood of success but there is nothing actually saying that. So, we will actually get a look at whether the votes on the stay, stays had something to tell us about what the justices think about the merits. And the merits remember, include, can these cases be litigated at all . Does the statute bar National Origin discrimination. Something that really would be significant in future cases involving future president s and future classes of immigrants from other countries, not involved in these travel bands at all. And then of course it may well be that some of the justices have voted for a stay simply thought that the equities with the government but the government may wind up losing a lot of that. This is queued up for the end of the term. I expected to be argued in april. It should be very interesting to see. Not just the arguments made with the questions. Ask could you elaborate on what the argument is that the establishment clause does not apply to the government when it is making these kind of decisions . I am not sure that i can kind of capture it. I think that the basic idea is that for example, take a claim based on asylum. Well established that when this country grants asylum to a refugee, it is based on the fear of future persecution and if we would change the country from which it came, based on not just any kind of bad thing that might happen to you, but among other things, persecution on the grounds of religion. For example, if you have no religion, youre not eligible to claim asylum based on that. What im about to say say it anyway. No one is watching it is a lot easier to make out a claim if you can base that offer religion. As a result, silent decisions take into account, certain religious distinctions. As a matter of asylum. And so i think it is not, look at the constitution as find the cause assesses aspect of the bill of rights does not apply to the border. But more than intuition. We have been making distinctions among people you know, lets say, we would grant asylum to a christian of egypt but not a muslim from egypt. On grounds of likelihood of future persecution on religious grounds. Therefore, not all distinctions based on religion at the border can be answers the problem, is perfectly good reason in that context . I think that brings up the question, is the establishment clause and equal protection clause for religion . Or is it Something Else . And the equal protection context we would say it is based on whatever. Well, of course, we have to treat people similarly a lot. We look at whether there is a compelling interest or important inte