The host of this hourlong conversation. We are going to go ahead and get started. Perfect timing. Good afternoon. Im elizabeth on behalf of Pacific Legal foundation and our partners and the foundation for individual rights. Id like to welcome you to this Years Supreme Court preview discussion and also welcome to our viewers on cspan. The Court Term Begins on monday of next week. This morning, we got a surprise of several grants and new cases we are going to hear in what is shaping up to be an exciting term. Next is dan mcglocklin, a Senior Writer online and the National Really National Review institute. Writing on politics, law and baseball has appeared in a variety of outlets. Dan is a longsuffering mets fan so perhaps you are tuning in now for your world series predictions. And last but not least, an attorney of litigation for the foundation for individual rights. Before joining, she spent more than 10 years litigating cases with the institute. She is such a lover of the constitution that she had her wedding reception at the National Constitution center area of with that, id like to start with you. The big news of the day is that the Supreme Court is going to hear two cases in this upcoming term involving state efforts to regulate social media companies. Thats right, and both of these cases involve the future of internet freedom. And even, i would argue, the most important cases on the internet since about two decades ago when the Supreme Court tried. These cases concern two laws, one in texas and one in florida for major social media platforms. Facebook, youtube, x deplatform formerly known as twitter in both laws differ in some ways, but overall they do two things. First, they restrict platforms to content moderation. That is the platform ability to make editorial spaces about removing it, editing, or even prioritizing usergenerated content. The second thing they do is impose disclosure and notice requirements. For example, these laws require that every instance of content moderation must be addressed and explained on individual basis. Individualized explanations for any form of content moderation. Now, its not a surprise that the Supreme Court picked up these cases. The United States asked the court to take up of cases and today, whether the content moderation restrictions violate the First Amendment and two, whether the disclosure requirement violate the First Amendment. As i mentioned, before the case, the 11th circuit decided that in joining the law and it would likely violate the First Amendment because it discriminates based on the content, viewpoint and the speaker. In the great line, it is an instance of burning down the house. The 11th circuit found that that was largely right, but basically the First Amendment text platform moderation decisions because a private entity decision and that is what this is, private entity decisions about whether a website and in what manner can they disseminate thirdparty content of the public are editorial decisions that are protected by the First Amendment, and then longstanding Supreme Court precedent going back to the miami herald case. That establishes that the right of publishers to exercise editorial judgment in deciding their own newspaper is protected by the First Amendment. Unfortunately, the 11th circuit reversed ruling that the purely factual disclosures that happened under the Supreme Court were compelled commercial disclosures. And i think that is the key we will get to later on why i disagree with that. The second case is texas and the fifth circuit reaching opposite conclusions. Basically the district enjoying the law, but that decision was stayed pending appeal, and maybe a little bit of a hint of what we will see from the Supreme Court, they vacated that state. Then a divided panel reversed and ruled that the content moderation is not speech, but conduct and censorship that is not protected by the First Amendment, in that even if these moderation decisions are speech, it would be immediate scrutiny. The fifth circuit did also declared of the disclosure provision would also be valid. That will be interesting to watch what happens with the Supreme Court. Im hopeful that the 11th circuit ruling will acknowledge these replications implicate First Amendment rights of these platforms as private entities, and im hopeful the Supreme Court will recognize that we are not talking about commercial speech. Theres no commercial transaction. When you are looking at these notice requirements and these disclosure decisions, every time a social media platforms set it to take and message were taken on a post, and had to provide an individualized explanation of why they were doing that. Im not sure how much they would be able to do. The first case in which the justices grapple with the new standard concerning. Then violence is no laughing matter at the Lower Court Opinion kind of entertaining. One of the incidents that led to the indictment was involving firing shots into the air at a whataburger after his friends debit card was declined. Ive got the real tricornered hat feet today. This is the fourth major Second Amendment case that has been heard now in the past decade. The court decided that there was an individual right protected by the Second Amendment and gave a little bit of what kinds of guns are covered by that by saying handguns for protection are covered. In mcdonalds, the court said that the Second Amendment is in fact incorporated against the state. Which is not an issue. The federal law case has an interesting consequence because one of the issues that Justice Barrett noted that hasnt been quite settled is when you look at the original meaning and intent of the Second Amendment, people look only at 1791 or do you look at the time of the adoption of the 14th amendment, but the 14th amendment in 1860, that is not relevant because it is a federal law case. In the 2022 decision, the court then moved on from keeping arms to bearing arms and ruled that there was a right to carry arms in public. What we are now dealing with is the question of gun regulation. Once youve established all of those guardrails, when can the government decide that someone cannot carry a gun, in this case, it is as much a due process case as a gun case. It basically criminalizes having a gun if you are subject to an order of protection for Domestic Violence, so long as that is made after an opportunity to be heard and that the court found either a credible threat presented by the defendant, or issued a prohibition of views forced. In this case, the court may not reach that second and somewhat vaguer part because the order which applied to him for two years was in fact supported by both findings. But the real founding era issue because of the fact that under brewing what the court asked to do was to find some sort of gun regulation from the founding era. What is controversial is the fact that brett heaney was subject to a Domestic Violence order with purely a civil proceeding. The judge in concurrence in the fifth circuit warned that these sorts of things are often done at a boilerplate level with no incentive for judges to deny orders of protection in divorce cases. They routinely issue a to a restraining order against both parties given that there is not the anything in the way that one of them is a danger. You have a guy who was subject to a twoyear order of protection for threatening his girlfriend. He threatened to shoot her, he shot at a witness allegedly and then was finally pulled in by the police after five separate shooting incidents in five weeks. To the extent that there is, i think, a founding era analyte, the closest thing the government is able to point to our surety laws which exist at the individual could be required to put up a surety if they were found to be a threat to some particular individual. Normally, you would be stripped of your rights to bear arms, only after a felony conviction. It is a little bit tricky. But its going to be interesting to see because i think probably it is about as sympathetic as the court is going to get, a case for upholding these kind of laws, and theres a whole bunch of them in the federal criminal probe. An interesting thing about those laws is that they didnt actually take away possession. Unless you couldnt put up the bond, then you lost. Any predictions for how this is going to turn out . I have a feeling that justices roberts and cavanaugh are going to be pretty uncomfortable with a first fifth circuit win. The question is going to be who else . Justice kavanaugh had a concurrence that we are not talking about longstanding bans on mental illness, secure places, sensitive places. They might be the two to watch for. Lets turn back to the trio, near and dear to my heart. The court will hear the case involving the Consumer Financial Protection Bureau unique funding mechanisms. The cfpb just gets to tell the fed, and the fed has to handed over. Another case challenge of the security of an Exchange Commission to force actions for securities fraud and what you might call inhouse kangaroo court. Instead of an independent article three judge. There is a case asking the justices to overturn which requires them to defer to agencies about the meaning of ambiguous tax, which is just a fancy way of saying they have to put a thumb on the scale for the most powerful government in the country. Tell us about the trio. It is exciting because i do think that we are on the cusp of a change in Administrative Law, and in the midst of a shift. When i graduate from law school, in the last century, we will say, there were two fundamental principles of administered of law. First was fundamental law, firmly established. And secondly, useful only as the blood of legal jokes. Butt of legal jokes. Separation of powers never really got out of fashion, but in the old days, the court was much more sympathetic to the idea that congress could try to insulate an agency from political pressures. In the last few years, there is a growing feeling that political pressure is another way of reducing accountability, so members are at least skeptical and want to take political pressure is another way of reducing a hard look at efforts to insulate an agency from the congressional design while political pressures to the constitution. So first, chevron, the third mostcited case ever and i know that many people will stop hearing me now because youre going to think about what with the policy for, and qualified immunity is one of them. As elizabeth has intimated, some of the conservatives of the court have criticized them both for outsourcing and for putting a thumb on the scale when they are supposed to be holding the balance true between both litigants. In recent years the Supreme Court has basically avoided using it. Basically saying chevron is impeccable in certain instances because of things like the major question doctrine. As a consequence, the last time the Supreme Court really has employed chevron was 2016, so it has been a while. Before asking them explicitly to overrule chevron, the case involves a challenge, a rule issued by the National Marine Fisheries Service who requires fishermen to pay for the cost of federal observers. And this is not nothing, it can be sometimes up to 20 of a catch. And relying on chevron, the d. C. Circuits said that that was a reasonable interpretation of the statute, even though the statute does say it requires monitors to be present and uncrowded fishing ships, that is not so. But they dont and the part of the statute that applies to herring fishermen. Already there is a negative argument there. The d. C. Circuit judge not afraid to apply chevron unlike the Supreme Court. The Fishing Companies come to the Supreme Court to ask two questions. Whether chevron should be overruled or the court should at least clarify concerning controversial powers, expressly but narrowly granted elsewhere does not constitute ambiguity requirement. The court only granted on the second question which automatically made the case kind of a blockbuster because it shows the interest in overruling chevron. Most of it has been focused on the bigticket question. That has a pernicious effect systemwide in that people no longer try they try to compromise in congress because half the time the party is going to be in power and they can get their way to the executive branch, kind of breaking the political system. He argues that chevron isnt entitled because it is designed to not engender reliance because it is supposed to make it so that you can change the interpretation, and i always think of the line from yellow submarine. As im 50 amicus briefs filed. Im sure there will be similar numbers on the other. And it will be interesting to see, but there is this offramp of whether they decide to just limit chevron further. I think there is a lot of reason to believe they might do that. A few years ago the court was asked to overrule the same principle, but to an agency of its own regulation. And instead of overruling outright, they whittled it down to virtually nothing, or they whittled it down substantially. I queried whether the Supreme Court is going to have much appetite overrule chevron when the cavanaugh cavanaughs and robertses of the world the difference. That brings us to nondelegation preview, which was that it was more or less four justices who more or less said we are interested in revisiting this, in separate opinions in the case, and then Justice Kavanaugh joined the court in an opinion concurring in denial that the gorsuch opinion was great, and an appropriate case. A case out of the fifth circuit involved in administrative proceeding for securities fraud. The challenge and ministered ruling in the fifth circuit, and the fifth circuit invalidated the finding on three grounds. First of all, the Supreme Court merely flirted with reviving that. The nondelegation doctrine because Congress Allowed the fcc the choice whether to prosecute an administrative proceeding for in court, and they said that that violated nondelegation and they didnt give a what is the phrase that you have to say . Intelligible principle. You have to provide an intelligible principle for how to choose between those two. Secondly they concluded that it violated the Fourth Amendment right to jury trial and administratively, and fraud was a common law concept. And third, and violated the separation of powers to have Administrative Law judges who are subject to two levels of removal restrictions because not only was the alj restriction on the move ability, but the fcc chairman had removed them also was subject to restriction and that is two tears of removal restrictions for the loss to be faithfully executed, which the court said two tears of removal restrictions was unlawful and Free Enterprise accounting oversight board. For what its worth, unlike some of the other speakers, i am more willing to venture predictions if you promise to forget then if im wrong. I think there is a fairly weak argument, they dont make a fairly strong case. Legislators in the past have given constitution choices to agencies, although in the past, it has been criminal versus civil. And potentially not a legislative determination, but more of an executive choice. The other part of the argument, the government argued that in the past, when they created public rights, that congress was allowed to condition them in place, basically allowing them to determine interparty review that allows people to challenge patents administratively, which the Supreme Court upheld a few terms ago, but there are other examples they give such as osha violations, irs adjudications, violating immigration laws and so forth. So at least there are other examples for this, and also if you say that you have to bring these things, in court. Otherwise think there are a lot of people who think those are relatively strong claims and there are a lot of people who think this is kind of the strongest claim. Finally, i think there is the most welltrodden path for them to invalidate this, two layered of administrative rulings when the Supreme Court already said you cant do that. The government gamely argued that all of these, this is administrative adjudications. Kind of enforcing the law like a Free Enterprise, and they make a couple other arguments about why this cant be or it remains to be seen whether or not it works. But it is an interesting thing when you think about it. What is the remedy . The Supreme Court is unlikely to say that you need to make the sec chair removable at will. See you in presentable he presumably make a judge removable at will. But if they are removable at will any time that disagrees with the agency, how are you supposed to get a fair adjudication in front of the administered agency . It will be interesting to see which way that one goes. The last one which elizabeth has already teased his Consumer Financial Protection Bureau vs. Community Financial Services association. The cfpb was created during the 2009 financial crisis, and anytime Congress Wants , there is no limit to what they will do. They are much more willing to be adventuresome during those kind of occasions. They did a lot to seem like they were trying to insulate the agency from political pressure, accountability. Some of those have already been invalidated because the agency was themselves subject to removal restrictions. And so we come into this from that perspective. Elizabeth said they dont have to go hat in hand to congress. They have a permanent appropriation which allows them to stay with the Federal Reserve within very, very broad statutory limits and it just builds a year after year and it is kind of their little pot. The fifth circuit invalidated that, for being permanent, for being free from having to go to congress with stopgap liabilities from banks. In the fact that it just has no accountability and things like that. But i think, and this is probably the first time that an agency has ever been more or less struck down or invalidated through actions that violated appropriations clause grounds. And i think the government, there will be somewhat of an uproar because there is precedent for many of these procedures including from the founding congress. And i had joked that there is a principal that is two right to make a wrong, where things sound ok but if you combine them all together to add extra removal, extra insulation for accountability, at some point it just becomes too much and they might strike them down. So there is a possibility of that happening, because a lot of the Early Congress was done through kind of users and things like that, patent office. A lot of that was also subject to appropriations, including Thomas Jefferson that is consistent with jefferson to practice in the senate, a First Amendment right to vote, and they looked at jeffersons practice. So it will be interesting to see that as a case here. In addition, the appropriations clause says you cant have an appropriation for more than two years for the army, when you can have multiyear appropriations for everybody else. It will be interesting to see which way that one goes. I think probably the funding will be found to be constitutional. It certainly keeping with the term. Wanting to hear another pair of cases concerning the First Amendment, these ones involving Public Officials blocking rather engaged constituents on social media, so tell us about those. I guess he has me beat with three of a kind. This case, these cases arise out of the widespread pack practice of Public Officials blocking people on social media accounts that are used to communicate with the public at large. When does a Public Officials social media activity, when is that considered personal, and when should it considered official . Which would then implicate the Fourth Amendment because the First Amendment only applies to government actions. The Supreme Court came close to deciding this issue just a few years back. As most of you know, the former made unprecedented use of his personal twitter account to announce official policy instead of using the official potus account, and he frequently blocked those who criticized him. In the Second Circuit ruled that this was free action in the blocking of constituents was unconstitutional under the First Amendment. By the time the case reached the Supreme Court, President Biden had taken office and the case was dismissed. The first case is a ninth circuit case. We have two elected School Board Members in Southern California who use their personal facebook and twitter accounts to communicate with the public. And they also have private social media accounts with family and friends. Both of these School Board Members blocked parents who have left comments criticizing the Board Members actions on their post, and the ninth circuit found that there was action. Even though none of the postings were under any government authority, and even though the posting did not involve School District funding or other support. Which the court found was and that the postings were about official school board business, hiring and firing, Upcoming School board meetings, alerting constituents about issues at the school. In all of them arose out of the official status of School Board Members. The things discussed were only due to their positions as a School Board Members and essentially, these were lost in the trappings and this was a First Amendment violation. The majority of federal courts including the fifth and ninth circuit had used this, the very test, and essentially that boils down to if you are acting like a state actor and quacking like a state actor, you are a state actor. The fifth circuit present a conflict which uses something called the duty or authority test, that state action is only if they use the account to perform a governmental duty, or specifically under the authority of their office. We have a city manager in michigan who created a public figure facebook page, as the city manager. Although he had personal post on family and friends, he also posted about the new programs, policies and initiatives. For example, during the pandemic he posted health data, information on Financial Relief and social distancing recommendations. One of his constituents frequently commented on the page, crediting the policies and actions. He responds by deleting the comments and blocking him, and the fifth circuit finds that there is no state action because social media account did not belong to the office of the manager, and he did not allow Government Employees for that, and there was no state law that compelled him from that account. And weve seen a lot of these cases, both official and personal accounts, government actors blocking users for leaving criticism, and even filtering comments. Back in 2020, published a report by public universities about blocking critical comments. It will be interesting to see how this one turns out. To Benjamin Franklin once observed that nothing can be certain except and taxes. The justices will hear a case involving taxes on unrealized income. Can we tax monopoly money, too . If we are continuing the poker analogy, can a taxi when you win a hand before you walked away from the table . The workers unit case really is about the most fundamental question in a tax law, which is income . In the setting of it is certainly the opposite. The Second Amendment was neglected for a long time by the court, but has been coming under a lot of attention recently. Came in for a lot of attention in the 20s, 30s, 40s, 50s and has gotten comparably little since then. The original constitution, no capitation or other direct tax could be laid by congress. Direct tax meaning really anything else. Without an apportionment among the states population. That was held in 1895 to prohibit congress from enacting an income tax, which he had done during the civil war. So in 1913, the 16th amendment was enacted which allowed congress to lay and collect taxes on incomes from whatever source derived. And what is actually being challenged is a provision of the trump tax bill that passed in 2017. Which was designed to deal with what congress felt to be a problem of american money invested in Foreign Corporations that wasnt being repatriated to the United States because people didnt want to pay taxes on it. And so there was a lot of capital overseas, and one of the things that congress did in overhauling this was to impose a onetime repatriation tax and said that any income of those controlled Foreign Corporations overseas since 1986 would be subject to a onetime tax, whether or not it had been realized, whether or not the person have received dividends, and then after that, during the tax reading. So the question is, this is very much looking like a wealth tax or a property tax. Although the government argued that it is essentially a wealth tax. This dispute here, petitioners are relying on the 1920 case, and they say it is really a dispute over the court in the court to always just decide that the case was all wrong. The petitioners say that under eisner, realization is essential. That if something goes up in value, you dont realize the income on it until you sell it, until you basically remove the money and then eisner was the case where somebody owned stock in standard oil and this happened, and they split the stock forget the stock dividend. People went from owning a certain number of shares, to the amount that what they actually own had not changed in the court said no, that is not a taxable offense. That is not income. But there have been other cases since then involving partnership interests. The government says essentially that the court can congress can look beyond the court reform. As long as there is the amount of money you have that has increased, that is income whether or not it has been realized, and therefore congress contacts it. The petitioners brief puts it as not only what distinguishes income from property, but what makes income income. The ninth circuit may have taken a very broad view and put things in broader language, but that is probably an uphill battle to get with the petitioners are looking for in terms of real restrictions on what would essentially be a wealth tax. But since the court hasnt looked at that at this level in some time, it is hard to say which way they are ultimately going to go. I also want to give us the opportunity to talk about questions that i want to mention, two petitions that were granted in the Property Rights space. One is that im not sure if im going to put you this, vs. At the institute of justice. And the question is whether the just compensation portion or whether legislator actually has to pass on the action and for a Property Owner to seek compensation. And the second issue is the county of el dorado, california. A former attorney, it involves legislative infractions. Existing Supreme Court precedent, saying that local governments cant get things from Property Owners that they would otherwise need to pay for. This would extend that to the legislature. So the cases deal with on an individual level, casebycase, and the legislative, can the legislature do what the court has done . So those are two that the court is going to hear this morning. Another First Amendment petition. This one, i was making sure that i got that irish name correct. In 2000, the Supreme Court by a 63 vote upheld an Abortion Access law in colorado that said in an Abortion Clinic you couldnt come within eight feet of someone for purposes of engaging in oral protest, education or counseling unless that person consents. The Supreme Court upheld that, and this is why ive been watching ever since, and they held that it was narrowly tailored. Fastforward to 2014, the Supreme Court by a 54 vote invalidated Massachusetts Law that set up a 34 foot buffer with a voting group at the time, which held that they didnt depart by saying that it content neutral, but they said that it basically wasnt narrowly tailored to be invalidated. In any event, within days of the decision, new york adopted a statute which was intentionally modeled on the colorado law. They asked that it be overruled. There were a couple of things since then. Justices thomas, gorsuch and barrett described as an aberration, and i think even more significantly, the dobbs majority said it was an example of how abortion law distorted First Amendment options. So clearly theyve already thrown quite a bit of cold water on that process. Eisner always thought that case was living on borrowed time because Justice Kennedy, his influence is waning. And so ive always thought it was living on borrowed time and the only question is whether this was the time it would be overruled. The Pacific Legal foundation has several petitions at the court right now. I want to mention one that we filed last month from the court. The cases coalition for tj vs. County school board and has already gotten a decent amount of attention, but over the summer, the Supreme Court held that public universities and houses that accept federal funds cannot use racial preferences in admissions. The Court Previously said that it was permissible under the constitution if it was aiming to achieve student body diversity. The court has never applied this rationale to cases of college admissions, but we have recruiting and admissions processes across the country. One such case contains Thomas Jefferson high school which is one of the Top Technology magnet schools in the country. They used to be a large majority of asianamerican students and two years ago, the school board decided that they wanted to change the racial demographic of the student body so that it mirrored the demographics of the county more broadly. So the school board throughout the admissions test that they used previously and replaced it with a new system where most of the spots were filled by automatically admitting the top 1. 5 of each graduate from each of the Fairfax County middle schools. So this led to the plummeting of asianamerican students in the following class. A group of parents and alumni have challenged this arguing that it violates the 14th amendment. We are going to see more things in the space of proxy discrimination. While this is neutral on its face, the Text Messages among the School Board Members are clear as day. They showed the discriminatory intent that they were intentionally trying to change the demographics to reduce the number of Asian Americans in the student body, so that is one to definitely keep an eye on. Are there others that you all want to mention . There are a couple other First Amendment petitions to watch. This involves socalled biased responses at public universities and whether they violated the First Amendment we often hear the term orwellian thrown around. This is one of those instances in which Response Teams i literally thought police. In this specific case and the Virginia Tech example, the motto was if you see something, say something, borrowing off the Homeland Security model after 9 11. That one is going to be an important case to watch. When can these kinds of Response Teams violate the First Amendment to the constitutional limits on them . Another one is about the constitutionality of criminal libel laws. New Hampshire Police arrested a man after he had criticized a police chief on facebook. The charges were thankfully dismissed, but the lower courts found that there was no First Amendment violation because the statute did not violate the First Amendment and it was not vague. It doesnt belong in modernday First Amendment jurisprudence. Not seeing any questions yet. I will chime in by saying that one thing that im keeping an the federal issue of election and voting laws. Only one case from the whole docket right now, South Carolina redistricting case turns away in alabama redistricting case, coming back to it for a second time. I think its going to be interesting to see that the court probably doesnt want to do a whole lot more of these cases if they can avoid it, but there may be things coming up that are unavoidable. The effort to disqualify donald trump from the ballot is going to be before the minnesota Supreme Court in early november, so that may be a way to tease up a case that the court might have trouble avoiding. I have one, the case out of the fifth circuit where the judge entered api against the producers of the abortion drug. It was narrowed in the fifth circuit to the point where basically, what the fifth circuit did was invalidated much of what the judge did, and so the real fight is to say basically the restrictions have been ramped up to what they were in 2016. It also changes the dosage, so now the dosage has to be tripled again because of 2016. The government and the branded manufacturer have petitioned, and they did it in less than a month. They really used breakneck speed to try to get onto this term. It is only kind of wide path potentially to be grounded or denied in january. Weve got a question over here. So please wait for the microphone, and state your name, affiliation, and please make it a question, not a speech. Regarding the gun case, theres other provisions in that section. I think controlled substances. The district had recently ruled that was unconstitutional as applied for using marijuana. Im asking you in terms of what you think about that as well as hunter biden being charged with that same provision but using cocaine in d. C. , also another provision that he lied on the form, and the seventh circuit name that was a separate issue. Even if what you lied about was unconstitutional, you can still be prosecuted for that. Get a sort of obviously politically interesting. From a legal team that is talking about rounding the constitution. Theres a lot that would have to come up to get that to the court. But theres no question that there is a whole minefield in this statute of things that are subject to serious challenges. It doesnt mean they will all succeed, but i think there are some parallels for borrowings barring somebody from having a gun because they are a general drug user as opposed to being intoxicated. Theres not a lot of parallels to that. That is a tougher case for the government to defend. We often hear about the 63 majority, the 54 majority hitting the republican appointees against the democrat appointees. But they also have a tendency to surprise us. Justices gorsuch and jackson teamed up. Justices sotomayor and kagan clashed majorly over a copyright issue last term. Do you anticipate any strange in the cases coming out . Its one of those things that i couldnt tell you what they are going to be, i just know they are going to be surprising. Particularly on the circuit side, there are a lot of waivers for conservatives here. It is more unusual to have a clash on the liberal side. You see more of that in the postour bg area era. But it will be interesting to see. There is a lot of idiosyncrasies on the court that kind of matchup. Ive never been able to find a source for it, but Justice White reportedly said that with each new justice is a whole new court. There is some truth to that, even if he never said it. I think some of those fissures you are talking about are interesting, talking up the public rights. The longer an issue has been away from the court, the more surprises they can be. Just putting out briefly my hat for my old securities, section 10b securities fraud case, issuer Justice Kennedy had an enormous amount of influence. It will be interesting to see how that comes out now that he is not there. My question is actually also about , and im curious to know what the panel thinks, if anything, that the court hasnt acted on the range cases ever decided among by the short Third Circuit shortly after the grant. Someone argued that it might be a little more of a simple case because you are dealing with nonviolent felons in possession. Is the fact that Nothing Happened with that case interesting . Possibly, but obviously the court likes to just take these things one at a time. Like i said, i do think it is a particularly hard case for the challengers. And it is because it is a violent criminal, and because even within the context of that statute, specific findings of danger, so you dont even get to the broader part of those actions. Question over here. Obviously we are talking about the cases that the court is going to speak to on this term but there are a lot of cases that the court does not change. Are there any cases that you were hoping the court would take up that they didnt, and if theres not a particular case, do you think there is a deficiency in the cases that the court did take to a certain area . Thank you. Anyone who wants to comment, just one note, we expect a big list of denials coming on monday. Fingers crossed there are no Pacific Legal foundation petitions in there. Any other comments . We will see what happens on monday. Im really eager for the Supreme Court to come out with qualified immunity again and clarify the scope of it. There are those who might not know qualified immunity is for the doctrine by judges, making the default rule that if a Government Official violates civil rights or constitutional rights, unless the plaintiff can about what that means. Do you need an exact case on point or is there a obvious constitutional violations that the court has pointed to. Just clarity on qualified immunity and hopefully raining it in. It comes up a lot in the Police Context with Police Officers on the ground making splitsecond decisions. Qualified immunity is broader than that applying to any Government Official. I hope the court will take that up and clarify it. I wonder what is going on with the justices. I think they had 10 positions and i think they denied them all. I am wondering if this is something that congress should deal with. That is definitely an area to keep an eye on. There used to be the explanation that the uniformity of the reagan bush judges and an active congress. The reason for the lack of diminishing number of grants. There is plenty of out there. Your guess is as good as mine. I do not know if we are going to do anything about it. It is not doing much good. I think last term it was 58 cases that they heard in an oral argument in. A severe plummeted. I would be interested to see if the length of opinions has corresponded with the decline of how many cases they take. Maybe they need more work. Is there a question over here . Thank you for taking my question. I was curious to ask a little bit of a followup on the fcc case. Seeing about the Supreme Courts recent decision, i think it was in april on the f song exxon versus f ftc, it limits the ability to Law Enforcement to keep their cases within the in house system. Now they can petition it outside to the district court. Do you think the opinion would have an effect on how the court would roll. Or perhaps a the fcc or it would additionally diminish the fccs actions in house. I think that the question asked was narrow, it was basically about whether you infer basically foreclosing jurisdiction or Something Like that. I think that it does not it is not directly on point. I think it reflects general skepticism. Any other questions . I am with the National Association project. I have a question about Thomas Jefferson case. You said the new procedure was nondiscriminatory. It was being attacked because the females showing that the School Board Members had discriminatory intention. I find it hard to understand. It reminds me of an area of education were people were trying to get. Often that proposal is rejected because the proponents of that proposal have a religious motivation. The proposal makes sense. Why should they be subject to attack because they have religious motivation. Im curious why in the jungles Thomas Jefferson case, if the approach is nondiscriminatory, why should it be subject to attack . That matters for equality under the law. They went backandforth over what would be the best way to set up a new admission system. This is what they came up with. Unfortunately, fortunately for us they were very clear in their statements and hearings about exactly where they were trying to do. They were the same statements, even worst that came out in the trial, showing a real reserve real pervasive discrimination. There is a lot of tension in the courts case when you can look behind the sickly mutual act and wen yu physically mutual act and legislation. It doesnt matter if the legislature there was a lot about that. Whether it be amendment cases or trumps executive order on the hawaii case. I think the court hasnt totally settled in a comprehensible way, when exactly you can look at motives and wen yu cant. When you cant. I think we maybe have time for one more question. If no one has one, i will post to the panel. The justices Extracurricular Activities has been in the news a lot this past year. Do you think there is a ethics problem at the court. If so, are the justices handling it appropriately . Who wants to take that one . I think there has been an enormous amount of problems that have been published in some cases misleading and in some cases some incredibly overhyped. Theres a lot of things that do not really amount to the idea that you can hitch a ride on someones plane you are prohibited from ruling on their case 15 years later. It is kind of silly. Historically how these happen all of the time and no one really cares until now. I think it is more of a political. Regardless of if you think it is justified, i think it is substantially overhyped. It is having the effect of the Public Perceptions of the court. I do not even have any influence. I wouldnt feel comfortable flying on somebodys private jet now, although if he wanted to take me. Maybe you need more friends. On that happy note, thank you all for coming. Thank you for joining our panelist. [applause]
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