Well get started. Good morning, everyone ip im elizabeth slattery, legal fellow at the Heritage Foundation and this is a panel on the past Supreme Court term. So the Supreme Courts next oh, im sorry. The top one . Okay, there we go. The Supreme Courts next term starts . Just a few weeks but were here to reflect on the past term. I submit that the october term 2018 will more likely be remembered for Justice Brett kavanaughs confirmation hearings than for any particular case the court decided, and its too early to make sweeping statements about the impact of president Donald Trumps nominees to the court, though the rapid destruction of america, their opponents foresaw has yet to occur. Justices Brett Kavanaugh and neil gorsuch have however lived up to the chief justices declaration that we do not have obama judges or trump judges, bush judges or clinton judges. Like their predecessors, kavanaugh and gorsuch are their own men at times bucking expectations of how a trump judge will vote. Theyre not cookiecutter republicans but thoughtful jurorists with independent views of the law and well explore some of that today. This panel will focus on the highlights of the past term, the most important cases such as the census Citizenship Question case and the political gerrymandering case and a few missed opportunities like the cases involving the nondelegation doctrine and deference to administrative agencies. But enough from me. Were fortunate to have with us today four distinguished panelists, and if i devoted the time their many achievements and positions deserved, that would easily take up our 90 minutes here, so ill keep their introductions extremely brief. Hadley arcus is the professor at Amherst College and founder and director of the James Wilson Institute on National Rights and the american founding. Hes authored many books on politics, political philosophy and jurisprudence and articles appeared in professional journals as well as popular outlets including the wall street journal and national review. John eastman is professor of law and Community Service and director of the center for constitutional joourisprudence the Fowler School of law at chapman university. Before entering academia, john served as a law clerk to Justice Clarence thomas and also practiced at the Law Firm Kirkland and ellis. Matthew frank is the director of the simon center on religion and the constitution at the Witherspoon Institute and Professor Emeritus of Political Science at radford university. Hes also a visiting lecturer in politics at princeton. Matt has written a number of books and articles about the court and constitutional law, and Anthony Peacock is a professor of Political Science and Department Head at utah state university. Hes also the director of the project on liberty and american constitutionalism at utah state. Tony has written numerous books and articles about the court, the federalist papers and Voting Rights. So each panelist will come up to the podium and make a presentation of about 15 minutes and then well open it up for discussion and audience q a. So with that, im going to turn it over to tony. All right, thank you, elizabeth, and ill try to stay to my 15 minutes. Ive got my watch here. Just let me know if i go over and id like to thank joe postell and the Claremont Institute for inviting me to appear before this very distinguished panel, and thanks to all of you for showing up and making us feel like we might actually have something important to say. Appreciate that as well. As elizabeth mentioned, were going to comment on hopefully relatively Different Cases from this last term. Im going to comment primarily on the partisan gerrymandering case and the department of commerce versus new york which was the Citizenship Question case. This years theme at the apsa is populism and privilege. Both have come together in appeals by legal academics, Public Interest law firms, Political Parties and others that have pleaded to have federal courts intervene and yet other political issue in the name of fairness and that issue in this case is political gerrymandering. In rucho versus common cause, the case that considered that issue, however the court rejected such solicitations and ruled that partisan gerrymanders were not political questions that were beyond, that were nonjustiable political questions beyond the reach of federal courts. During most of the panels we have on the Supreme Court we discussed just how much important political issues the federal judiciary increasingly decides to take on but rucho was a refreshing change from this trend where the court washed its hands of an issue, partisan gerrymandering roughly the last 45 years, it has suggested it just might take up. As the court concluded in rucho and i quote here, what the appelles and decents speak is judicial power, the expansion of Judicial Authority would not be in to just any area of controversy, but into one of the most intensely partisan aspects of american political life, that intervention would be unlimited in scope and duration. It would recur over and over again around the country with each new round of districting for state as well as for federal representatives and the unelected and politically unaccountable branch of the federal government would decide the issue. This is the nub of the dispute rucho. Who gets to decide the dispult of gerrymandering. In rucho voters and other plaintiffs in North Carolina, in maryland, filed suit challenging their states post2010 condwreco Congressional Redistricting maps as unconstitutional political gerrymandering. North carolina was brought by democrats claiming the states redistricting maps discriminated against democrats, whereas the maryland litigation involved the reverse, republicans claiming the states redistricting map discriminated against the republicans. For those pining for bipartisanship in litigation, this was your case. As the court in rucho pointed out as far back as 1962, in the reapportionment case, baker versus carr, the supremes held the political question was a case that lacked a judicially discoverable and manageable standard for resolving the issue at hand. Last year, in gill versus wh whitford which was decided june of 2018 and the plaintiffs from wisconsin were determined to lack standing, in other partisan gerrymandering case the court emphasized ever since baker the unresolved question of partisan gerrymandering cases whether the cases involved a legal right resolvable according to legal reasons or was a political question that had to be resolved elsewhere. In cases davis versus vandemere, the 1866 decision it suggested cracking and packing voters from opposing parties into districts might raise a partisan gerrymandering claim. Even in vandemere the justices were so divided that no court standard for partisan gerrymandering ever emerged in the case. There was a 333 split in that case. So no court standard emerged from the case, and thats been the situation now for over 30 years. In rucho the majority concluded there was no constitutional basiness for partisan gerrymandering claims either on the basis of article one section two or in the elections clause of article one which gave power of representation to states first and congress set. In 2004, excuse me, in the veath decision, the court pointed out that neither section two nor section four of article one provided again im quoting here a judicially enforceable limit on the Political Considerations that the states and congress may take into account when districting. In other words the skys the limit. Rucho added that the protection clause, the First Amendment and the guarantee clause of article four also provided no constitutional basis for relief and partisan gerrymandering cases and all these had been advanced as constitutional bases and accepted by the courts for partisan gerrymandering claims by the lower courts in rucho, which was the North Carolina case, and in lamone, which was the maryland case that the court was considering in rucho. All of these constitutional bases for partisan gerrymand gerrymandering claims were accepted by Justice Kagans dissenting opinions on behalf of herself and three liberals on the Supreme Court. The main problem the court maintained the plurality set in the veath decision any standard for resolving partisan gerrymandering claims must be grounded in a limited and precise rationale and be clear manageable and politically neutral and no such standard exists according to the court, and theres no way to decide how much is too much. The veath plurality also emphasized that the problem here is not so much about restraining the political branches of government as to how to, im quoting from the veath decision, meaningful explain the discretion of the courts in decision making. Its not just about the political branches. Its about the judiciary as well. The rucho court did concede that the supremes had intervened in redistricting cases in two scenario, the one person one vote decisions and the racial gerrymandering cases. I would submit that the courts mandate of racial redistricting to comply with the Voting Rights act going back exactly 50 years now the equal protection challenges to that same racial redistricting that resulted in the racial gerrymandering cases, the court had to address beginning most importantly with shaw versus reno in 1993, constitute exhibit a why american courts do not want courts to decide political disputes political racial or otherwise. Compliance with the Voting Rights act was the reason secretary of commerce wilbur ross gave to reinstate the Citizenship Question on the 2020 census which was what theish auto you was in the new york case. Rucho might have indicated restraint on the part of the court in interfering in political disputes, department of commerce versus new york also decided in june appeared to indicate quite the opposite. A court intent on injecting itself into the political fray to keep the Trump Administration from putting a Citizenship Question on a 2020 census. In both rucho and new york, chief Justice Roberts wans the author of the courts opinion. In rucho an opinion for the conservative members in new york for the courts more liberal members at least on the key issue in part five of the decision where roberts and the four liberals on the court rejected secretary ross contention that compliance with the vra was the real reason for putting the question on the census. Now is the key issue in the case. Roberts and the more liberal members of the court thought this was pretextural in other words ross wasnt telling the truth. Ross had indicated shortly after taking office in early 2017 that he wanted a Citizenship Question on the census but it was not until march 2018 that he said the doj, the department of justice, had requested the question in order to ensure better compliance with the vra. The court acknowledged there was no legal or constitutional impediment to ask a Citizenship Question on the census. Theyve been asked on every census but one between 1820 and 2010, of some segment of the population. It was also perfectly consistent, the court said, to ask such a question with the enumeration clause of article one section two of the constitution and section 6c and 141f of the census act, not to get too technical here, as the court acknowledged. However, since the administrative procedure act allowed for judicial review of decisions by the secretary of commerce, and it was suspected that ross had not been perfectly honest about the reason for the Citizenship Question on the census, meaningful judicial review as chief roberts put t could not be had until the case had been remanded to ross motives. The courts reasoning in the new york case was criticized by Justice Thomas, joined by justices gorsuch and kavanaugh, who pointed out that, excuse me, new york marked the First Time Ever that the court had invalidated an Agency Action solely because it questioned the sincerity of the agencys otherwise adequate rationale. The six standards that the administrative procedure act required an agency to follow in its actions, findings and conclusions didnt even allow the court to inquire into the question of pretext, as Justice Thomas highlighted, and pretext could not make up a subset of arbitrary and capricious review which was the standard of review that was used here, because it had to be based on the existing administrative record as earlier cases that highlighted not evidence that might come up on remand. Moreover the District Court already allowed an additional claim for discovery that went beyond the administrative record and the supremes in new york recognized may have been ordered in error. According to Justice Thomas, the courts decision opened up a whole new avenue of attack on executive action in future and arguably violated the separation of powers by enabling judicial interference with the enforcement of laws any time opponents of an executive claimed a pretext for a decision. In other words, new york would fundamentally transform the nature of Administrative Law, according to Justice Thomas. Finally, i just wanted to say i think ive got four minutes left. I can see, i know that im going to get gonged here shortly. Finally i just wanted to quickly mention two decisions that i think indicate some pushback against what are called nationwide injunctions or universal injunctions, and restrictions on executive power and National Security and immigration related matters. The first case is nelson versus preapp Justice Alitos march 19th decision that reversed the ninth Circuits Court of Appeals Holding and two District Courts preliminary injunctions that the respondents in the cases who were, excuse me, deportable for certain specified crimes were not subject to the immigration and nationality acts mandatory detention requirement because they were not arrested by immigration officials as soon as they were released from jail, thats a complicated decision, i wont get into the details but thats the first case i wanted to highlight. The second was the courts july 26 stay in trump versus sierra club which was the border wall injunction case. This case was about whether President Trump and his administration could use the National Emergencies act of 1976 to reallocate 2. 5 billion that congress earmarked for the pentagon to build a border wall. Judge hayward gillian, an obama appointed judge in the Northern District of california issued a nationwide injunction to stop trump from using the nea and the court stayed that injunction. As the wall street journal put it and the journal disagreed with the policy of using the nea to get around congress to build the wall, but it said the good news, im quoting was the high court was finally sending a message about the proliferation of National Injunctions by lower court judges. One problem with nationwide injunctions is that they are typically issued before the merits of the case are ever decided. In trump versus hawaii, the travel ban case from last year, Justice Thomas in his concurring opinion invited the court to curtail the power of single District Court judges usually in deep blue states, granting injunctions that applied nationwide. According to Justice Thomas universal or nationwide injunctions increasingly have become increasingly common and were taking a toll on the federal system, preventing legal questions from in his words percolating through federal courts, encouraging form shopping, and making every case a National Emergency for the courts and executive branch. He wanted to question this, but the court in its concluding remarks in the hawaii case last year said it didnt have to take up the nationwide scope of injunctions. In that case, thomas had suggested that there was no article three or equitable jurisdiction for such injunctions, and i think that its possible that a majority on the court might be willing to reconsider that opinion and the necessity of whether to reassess these nationwide injunctions. In trump versus sierra club, both justices thomas and