Affiliation. We will unmute you in turn and i will introduce each questioner. We are going to do our best to give you send you a chat message saying your question will be able to be asked shortly. Id also like to remind everyone that this event is being recorded for future posting on the website and it will be live streamed on georgetown laws Facebook Page and cspan. Debby, can i say one thing, you dont have to tell us what your question is. Oh, yes, just your name and afi afillation so we can let you know who is speaking and that its time to speak. With that id like to turn things over to the director and folks, we may begin streaming and recording. Welcome everyone to our annual Supreme Court term preview. Im the director of the Supreme Court institute at georgetown law. Before we get started with todays scheduled program, i want to take the opportunity to acknowledge the passing of Justice Ginsburg. She was a trailblazing civil rights lawyer, a giant of a jurist and a larger than life human being, but i will remember most about her is her indomitable spirit. That and the devastating series of questions she hurled my way at oral an argument in the Lilly Ledbetter case, in the kindest way possible, of course. At this time i want to invite any Panel Members who wish to do so say anything theyd like about Justice Ginsburg, but first, let me introduce our panel. Don, paul clement from kirkland, and Ramon Martinez, paul smith from georgetown law, and Marty Lederman also from georgetown law. So anybody who wants to should be on video and take the floor. Anyone want to start . Don . Im still trying to get my head around the idea that Justice Ginsburg wont be on the bench any longer. I think for most of us, maybe all of us on this panel, who r have argued in front of the court, i dont know about you, paul, but shes been there for every argument weve made on the court and as you said in your introduction, even when you ultimately got her vote, she would always put you through your paces with that sort of insistence on exactness and insistence on getting things just right. And i think all of us, whatever we think one way or another about her understanding of the l law, have to admire so deeply her work on the court in these last few years, to have been able, given all that she dealt with physically, to be as active and vibrant member of the court up to her very last day is just aweinspiring thing. And to explain, i think, why she was such and achieved as much as she did, someone with that kind of fierce determination combined with the kind of intellect she had, really, i think we were all lucky to have been before the Supreme Court that included ruth bader ginsburg. Thank you, don. Paul clement . So, thanks, sir. And like everyone else, sort of still processing this. I would just echo a couple of your comments that both irv and don have already made and add one or two of my own. You know, i was in the courtroom with you, irv when you argued the Lilly Ledbetter case so i remember the questions well. You were too modest to mention you prevailed in the case and precipitated one of her most famous dissents from the bench that in turn prompted congressional action, which is all part of the remarkable leadership and that she provided the courts liberal wing. You know, especially in her last years on the court. And really, you know, had such a broad view of, you know, her role and her ability not just to sort of win cases in court for her side, but also to in a case like that, to prompt congressional reaction. You know, that was all a remarkable case. You know, to dons point about her dedication to her craft under, you know, difficult physical circumstances, i mean, i will, you know, it was a privilege to argue in front of her every time, she always, based on her arduous work habits put you to, not just through your paces, but made you a better lawyer, because if you didnt know the record backward and forwards, you knew she would. So, it definitely kept you working hard late in the night getting ready for arguments because she now you knew she was working late in the night getting ready to ask you questions, including potentially about things lurking deep in the record. But just to encapsulate that, the last time i argued in front of the court with her on it, she asked me her questions, literally from her hospital bed and in the Little Sisters case, which of course, was made possible by the telephonic format, but what an image that somebody was so dedicated to her craft and her role that she litter will i was asking questions from her hospital bed and difficult questions to answer, i should add, which is consistent with the way she always asked her questions at the bench, but then, let me just finish with the last piece, which is what has really struck me, especially in the last couple of days, reflecting on this, and reading all of the tributes to her and the like, is as long as she served on the court, i mean, decades of service on the federal bench if you include her time in the d. C. Circuit, she never lost sight of the fact that she was an advocate and she never lost the sort of advocate sympathy for what the advocate was going through and the challenges that the advocate faces and thats why, you know, irv mentions the Lilly Ledbetter case, you know, i certainly had a few of my own where she was definitely not with me and she was asking very hard questions, but she was asking them in a very, you know, firm, but polite manner. There wasnt an edge on the question. They were firm, but they werent so sharpedged that they left a scar. And i think all of that kind of goes back to the fact that she was an amazing advocate, she was an advocate who, you know, was not just skilled in the courtroom, but skilled with the broader strategy. If you go back and think of her cases in support of equality for women, i think about half of them that she argued her selves, involved males as the plaintiff, the litigant, all as part of her craft. You know, i just think its remarkable for somebody to serve as long as she did on the court behind the bench, but not lose her sympathy for those of us on the other side of the bench. Nicole. You know, i talked to a lot of people, reporters, et cetera, who asked questions like, what was it like arguing before Justice Ginsburg . You know for the most part as paul and don said, she played it straight. Her questions were straight forward, they werent slapted one way or another, she were clear. The thing i liked the most and maybe i was she always used our name. She said i have a question for you, and i thought, wow she knows my name. Now, i couldnt say that about the other justices necessarily. Sometimes i felt like when an assistant went up to argue, we were interchangeable cogs like Justice Ginsburg, wow, she knows who i am. She wrote the opinion in cases that argued and i felt it was a great honor, she thought our briefs were good, she wrote the opinion and that meant a lot to mement more fundamentally, just as i think back on it, i am in awe of how she was willing to proceed through difficult times, the Womens Movement and to bring incrementally bring cases to the Supreme Court at a time when people wanted to proceed faster and frustrating to see some of the first womens rights cases, the rights of men, certainly not what everybody else wanted to do, but i think there was wisdom in that. I think now, because the last few years, at least from my perspective havent been the greatest in the u. S. For women and what comes next and i think we have a lot to im grateful for that. Ramon. Thanks. And thank you to georgetown for having me and all of us here. You know, it was quite a shock when getting the news. Now, im someone who came of age and really started following the court and learning about the court in the 90s and the early 2000s and over the last few years weve lost three giants of that sort of era, with Justin Scalia and Justice Stevens and now Justice Ginsburg. Obviously, as an advocate and as a justice, her contributions from enormous across a lot of areas of law, most importantly, i think in the realm of equal protection cause and guaranteeing equality to women. As a law clerk, when i was at the court, the thing that impressed plea the most was watching her relationship with the clerks. She had an indomitable spirit and work ethic. She had these four 20something lawyers just scrambling, trying to keep up with her at all hours of the night as she was sending drafts around. She was going through Health Issues that year and also lost her husband that year and yet, despite everything that she was going through, she just remained a total professional, the perfect colleague and a person who just actively contributing and leading on the court through everything. And i think she was a real role model. I think the other thing ill comment on. I think that Justice Ginsburg in the las few years had taken on a broad cultural relevance that goes beyond the Supreme Court justice. I think in my own house when we got the news friday night. I have a daughter who has the book of course, rbg childrens book. And she took it, what she knew Justice Ginsburg as she said she took a hard path. I think what she learned everything about she learned about Justice Ginsburg and being a role model and a trail blazer, and shes gone and i think her legacy is more security and inspiration shell give to all of us, but especially maybe to young women like my fiveyearold daughter, i think, will live on. And so, you know, its a tough it is a very tough unexpected and, you know, very sad period because of that. Thank you. Paul smith. Thanks everybody for being here and great to be a part of this panel. I dont want to repeat everything everybody said, but i think its fair to say that her life will never come again and a person a leader of jurisprudence for womens rights, one of the justices of this modern time and then becoming, especially a cultural symbol for young women and basically for the whole country, thats a remarkable trifecta of things to accomplish in a life. And she did it remarkably. I have the same memories others have of being under the gun from Justice Ginsburg who was early on in her justice career, i was up there arguing a case in which we were somewhat sloppy about whether there really was Appellate Jurisdiction in the case. And one thing she cared most about was civil procedures, appellate procedures, and after 10 or 15 minutes of being scolded by her at the time a school teacher, i truly didnt know what i was doing, but then, you know, the contrast, she was occasionally quite helpful. I was versus texas i had been grilled by her friend Justice Scalia and she started interrupted, i just want to ask you a question, you do want us to overrule bower versus hardwick and right, and everybody sat back and i had five minutes whether the whole case should be everruled and changed the argument. And i always appreciated that she did that as well. Thank you, paul. Marty. Marty, youre muted. Thank you, and my fellow panelists, to be here among you. Unlike my fellow panelists, i never appeared before Justice Ginsburg. I knew her through her and her husband a member of our faculty. And appearing before the virtually the entire first year class and many more than that and at least an annual basis for a decade until this very year someone counted the number of times she appeared, about two dozen times in the last 20 years at georgetown with candor and discretion and inspiration for all of our students and it was just one of the highlights every year. She really cared about reaching young people and young lawyers. But i guess ill end by quoting something that i noticed friday evening or saturday. One of her first Supreme Court clerks david post uncovered this item. Im not sure where he got it, but he posted it and i think it i think it captures something that explains the woman and the jurist and the Public Servant she became. Its sort after disstilllation of everything that i think about when i think of Justice Ginsburg. And the remarkable thing about it is the date, its dated june 1st, 1946. The Young Ruth Bader was 13 years old in brooklyn, new york. The photograph of the death camps had recently been shared publicly for the first time. I believe it was either right before or after her mother had been diagnosed with cancer that would take her from ruth at a very young age after she had already lost a sister. And its an extraordinary little essay id like to read and i apologize in advance if i break a little bit. I tried this with my students yesterday unsuccessfully because i think of her when i read it and i think its an extraordinary document. For this was an essay posted on june 1st, 1946 in the bulletin of the east midwood jewish center, the place of the synagogue in her neighborhood in brooklyn. This is what the 13yearold ruth bader wrote. As a young girl who had grown up with some tragedy, but with the comforts and privileges of those of us here in the United States, those of our parents and grandparents here in the United States while their relatives and so many others were in a very civilized society, and nation, being slaughtered in such numbers in such hideous fashion, this is what she wrote. The wore has left bloody trail and many people have opinion been left with scars at that take a long time to wash away, and left in nazi concentration camps. Then, too, we have to understand for righteous people, good occupations nor fit companions as once said, a painful trouble, the trouble of thinking. In our beloved land families were not scattered. Communities were not erased, nor our nation destroyed by the ravages of the world war. Yet, dare we be at ease . Were part after world that unity is almost completely shattered. No one can feel free from danger and destruction until the many im sorry until the many torn threads of civilization are bound together again. We cannot feel safe until every nation and powers together in foot faith the people worthy of mutual association. There can be a happy world and there will be once again when men and women create a strong bond toward one another, a bond unbreakable by a steady prejudice or a passing circumstance, then and only then shall we have a world whose structure is the brotherhood and sisterhood of men and women. Thanks, marty. And thanks everyone. At this point lets begin our scheduled program. Last term was by far the most consequential in recent memory in terms of the sheer number ever blockbuster cases. It also had more cases with surprise endings than any term i can remember. At first glance, this terms seems like it will be a reversion to the mean, with far fewer blockbusters and far fewer unexpected results, but lurking in the background is the possibility that this could become the most tumultuous term since the Supreme Court decided bush v gore 20 years ago and who would determine who would be the president of the United States. To discuss these possibilities we will have an outstanding panel, of Supreme Court experts who youve already heard from. We will be discussing the Affordable Care act, religion and Sexual Orientation discrimination, aiding and abetting human rights violations, computer crime and election law cases affecting the president ial election. Our format is as follows. One of our panelists will present a case. After the presentation, others will be invited to offer their take of that case. And then we will take questions from the press on that case. We will proceed through each case in like fashion. As an advisory to the press, i want to alert you to the fact that we will not comment on the political issues of whether a new justice should be appointed and confirmed under this president or the next. Or whether the size of the court should be increased. We start now with Ramon Martinez in texas. Thanks, sir. So im just going to talk a little about california versus texas which, of course, the Affordable Care act case or the obamacare case, depending how you want to characterize it. This is sort of round three in the series of major constitutional and statutory challenges to the act that the court has dealt with, since it was enacted. Of course, you have nfib versus sebelius. And i hesitate to talk about that case with don and paul here who argued the case and nfib, the court upheld the constitutionality of the mandate to purchase insurance as an exercise of congresss tax power, but rejected the idea that it was a valid exercise of the commerce power and later, king versus berwell, examined a tricky and important statutory question and weve sort of come full circle in california versus texas the court is once again dealing with the question of the mandate except its in a slightly different statutory context. And so, what basically happened was a few years ago in 2017, congress amended the Affordable Care act so essentially eliminate the tax component and ive got to be careful what word im going to try to describe this neutrally and words matter here. Zeroed out the tax component of 5000a of the law, mandate provision. Left Everything Else intact and said if a perp does not Purchase Health insurance theyll have to pay a tax, but when it sort of explained what the tax was, the law now says that the tax