Transcripts For CSPAN Attorneys 20240704 : vimarsana.com

To make decisions that engage in rigorous analysis and therefore are more likely to identify court issues that need to be addressed. Our commitment is developing original highquality research and Educational Programs like the one you are participating in today. It provides understanding and information that is useful the legal and policy debates surrounding these issues. I will be watching on the livestream and you can watch it on cspan. Our panel of three experts today comes with a special impressive background, litigating and analyzing issues before the u. S. Supreme court. Im only going to give very brief bios and leave the extensive ones to your own investigation at the email used the links in the mail you receive for the website for more information is available. You can learn more about these participants and the economics in our program. Our distinguished Panel Includes erin murphy aaron murphy, andrew pincus. The mentalist go back and forth about six cases and we will have enter Panel Discussions as well as q and a at the end. If you have a question, submit them using the q and a box at the bottom of your screen and keep your questions brief so you can answer in virtual formats. Identify yourself in the restaurant. With that, i will turn over to aaron murphy. Thank you, professor and thank you to everybody for joining us today. I will kick things off with one of the bigger cases that came out at the very end of the term this year which is 303 creative. This is a case arising out of colorado public accommodations law which is a law that prohibits discrimination on a wide variety basis including sexual orientation. Law broadly defines public accommodation that applies to a business that provides any service to the public. As a result, this law and a few other laws that states have are similar in nature. It led to a lot of disputes over the past few years involving whether people who provide principally various Wedding Related Services that object to samesex marriage on religious grounds to be required to provide their services for samesex wedding. Some of you may recall this issue a few terms back in a case called Masterpiece Cake shop which involved the business that provided custom cakes for weddings and the custom cake maker was wasnt going to provide them for samesex weddings based on religious beliefs. The court did not resolve the constitutional question there. They ruled that it would violate his first minute rights but the court resolved its case on narrow grounds to find that there had been over discrimination by the state board on the basis of religion. This litigation continued in the lower courts for several years. The Supreme Court has of multiple chances to take it up but had turned down several cases until this 303 creative case came along last term. 303 creative is a custom website and Design Business run by a woman named lorie smith. She designs websites for groups and causes and decided he wanted to expand her business to make custom wedding websites. She is a devout christian and she is unwilling to do websites for samesex weddings on the basis of her religious beliefs. Whats stipulate a by the parties on both sides is that they should serve any customer regardless of sexual orientation. If someone wanted to promote Animal Rescue shelters or other charitable organizations, she would say yes regardless of how they were identified but she would was unwilling to use her creative talents to create a website that expressed a message supporting samesex marriage regardless of who the actual customer was requesting that website to be made. It was pretty clear from the way colorado had applied its public accommodations law in past cases that this was going to present a problem for her so she brought the lawsuit arguing that to apply the law and force her to create wedding websites for samesex marriages would violate her free speech and free exercise rights. She had lost in the lower court. The Court Granted review but notably, while both the free speech and free exercise claim are in the case, the court decided to grant her only on the freespeech claim. This was a case with a huge overlay of religious liberty and for many, they think of it as a religion case, it actually was decided purely on freespeech grounds and 303 creative ultimately ended up availing in a 63 decision. This was one of the cases that divided along the 63 conservativeliberal divide with the court writing approval. Its one of the fewer of the big cases that has two opinions, he majority and a dissent. I think for the court for both sides of the court, this case came down to a matter of streaming. The court has upheld a public accommodation laws against a bardi of challenges but also has a string of cases in which it repeatedly held that the First Amendment prohibits the use of public accommodation laws to compel people to engage in speech or expression with which they disagree. Some of you may recall from a couple of decades back, the early case where the Court Unanimously held that applying a public accommodations on required private reorganization organizers to include a gay and Lesbian Group and they say who would violate the Fourth Amendment rights. The dale case, the Supreme Court held that applying public accommodations would require the boy scouts to reinstate reinstate a gay scoutmaster. The majority view this case with hurley and dale. Thats the significant art because the because the court said it was clear there actually was speech this was on the speech side of the First Amendment in our because there was critical stipulations in this case. The parties on both sides stipulated not only that website or a form of speech and expression but that the website that three of three creative produces are expression on behalf of the customer and three of three creative itself and for the majority, once you have a business thats essentially in the business of using creative talent First Amendment protected activities, the hurley and dale cases compelled the ocean that you cannot apply the public accommodations law to propel someone to speak a message which in against which they disagree. Im not sure the defense actually disagrees with that proposition law as a general matter. Dissent has viewed this through different from working viewed this as a case about not space but conduct. Its a business providing a service in the speech is pretty incidental for three of three creative. At debate was how to think about the case and less about, im not sure the dissent would really say yes, you can compel a painter to paint a painting celebrating communism if they disagree and various types of things. The last things i would note is in the future, where we go from here, there is difficult questions about what is and isnt speech and there will be plenty of cases were that will be litigated. Is the custom cake baker engage in First Amendment activity, what about the custom florist, what about whoever designs the tables at the wedding . There are all sorts of Different Cases with questions there. Part of why thats tricky is if you have a case that doesnt involve speech but does involve sincere religious objections, then what happens . Does it violate the free exercise matter to compel someone to engage an to any that violates their religious beliefs . The court has dodge that question because they havent settled on what it wants to do with his free exercise jurisprudence and in particular, while this case helped resolve a lot of them that involve First Amendment speech activity, there will still be litigation about the cases Going Forward. Thank you. Did you have any comments or thoughts on this . Sure, i think its concerning. I think we really have opened up a whole new avenue for challenging public accommodation laws. This is about weddings but nothing restrictive. Its about some company or Service Providers objections about weddings. There could be all kinds of other objections but certainly nothing restricted to samesex weddings. I guess i disagree a little bit about where the dissent was. Part of the defense argument was this is about the product you provide. You can certainly provide a product that says my celebration is limited to opposite sex marriage or i am celebrating opposite sex marriages and if you say that, its a constant characteristic of your website than thats fine. The problem here is in the provision of this generalized services. We have already seen lots of cases and lower courts and even just people pivoting off this decision in terms of florist and musicians and bakers and dancers , again, i think its very concerning in terms of we dont serve you opportunities that it opens up. Yeah, i agree on one thing which i would add. In terms of consequences or Discrimination Laws more generally, i will talk about affirmative action cases next. In terms of the breadth of the decision, it will be interesting to see what implications it might have what applicability it may have to Discrimination Laws more generally in every which direction. Especially including a significant number of businesses. You are right, this is one of the two opinions that came out of it and its a pretty broad decision and we will see what the locations are. I imagine it will happen for years to come. I will use that as an opportunity to go into the affirmative action cases which is the next set of cases we were going to cover or that i will cover. This is also one of the really big ones of the term. Maybe the most important decision but i will let others decide what they think on it. The case was argued way back in november and they have a term in june 29 and there were two cases, one came out of harvard and the other came out of unc. Both schools use race as one of many factors in admissions policy for the purpose of achieving education diversity. Those were challenged and they were challenged under the equal protection law for you with dish for unc and title vi for both schools. After a trial, the lower upheld both admissions policies as satisfying strict scrutiny under District Court and the real critical question before the court was whether or not the court was going to adhere to broader guidelines. Ultimately, the answer was the court effectively overruled gru nner. It doesnt explicitly say that and this was another one of them for the end of the term that was a 63 decision amor the more traditional lines. There were more than two opinions in this one. I wont spend it on of time and the other decisions. We are talking well over 200 pages of decisions in this case. It takes a while to get through. To summarize it, the majority in the chief justice wrote the majority decision and articulated the threepart test. The first one is the program has to comply with strict scrutiny and that follows from prior cases. Maybe with more of a twist. The second is a program can ever use race as a stereotype or negative in the third is that the program must have an end. The court found that the programs did not satisfy strict scrutiny for two different reasons. One is the compelling interest that was identified was education diversity which had been the last to speak but according to the court when the schools are talking that educational diversity and the specifics of that, it was something that couldnt be measured. Educational diversity did not satisfy the standard. It was also not narrowly tailored to achieve that interest. According to the court, they didnt really provide any connection between that interest in the program. Couple of things they pointed to but one was how the different races our group and the idea that all groups were grouped together. The court basically said that admissions are a zerosum game. Its a positive for some and it negative for others. One of the quote that jumped out from this part of the decision was the idea that its an inherit benefit in race according to the court. Its something you cannot have. Finally, the no end. There was language in there talking essentially about the 25 year sunset. They said 25 years from now, the use of racial preferences will no longer be necessary to further the interest of today. According to the majority, the policy in order to be potentially affirmed under the equal protection law needs to have a definitive endpoint and the parties havent tried to suggest there would be one. Grutter effectively is no longer. It doesnt say that in the majority but its not hard to see any policy or any consideration of race that decides to admit one applicant over another does not support analysis. If you look at the majority decision, another thing that jumped out and is reminiscent about something that was written in an earlier case was that eliminating Racial Discrimination means eliminating politics. In a prior case back in 2007, there is the famous quote that the way to stop discrimination on the basis of race is to stop discriminating on the basis of race so thats really the bottom line that comes out of the majority decision here. There is a paragraph tore the end on page 39 of the decision that i think we will see a lot of litigation about. It leaves open certain practices. The court explicitly left open the idea that universities can consider an applicants lived experience. This means you cannot consider a race in and of itself is you can consider experience and skills that may be informed by a number of Different Things including race. Right after saying that, the court was careful to say that you cannot indirectly do what the court says that universities may not simply establish your applications or other means a regime that we hold unlawful today. The court also left untouched control mechanism for achieving diversity such as giving preference to firstgeneration College Applicants for those who speak multiple languages or socioeconomic background. There is a lot of differences and i wont go into of them but there were three concurrences and two dissents. There is a lot baked in their. Let me focus on a couple of takeaways around this. Thank College Admissions is pretty clear. Any decision to admit one applicant over another is cannot be based on the applicants race. There is a footnote that suggest that maybe there is a possible exception for military institutions. That may be another case we will see soon. I think there was still be continued litigation about the paragraph on page 39. Whether decisions are being made based on lived experiences or whether that serves as a proxy for race. This wont be a huge change for public universities where state law already prohibited race conscious admissions policies but for private universities in that space, in other states, we will see significant change. I think we will also see some impact in College Admissions, title vi i mentioned earlier that discrimination on federally funded programs. The majority decision applies to the same rule with the equal protection clause and it will have a direct impact there. Justice gorsuch also had a concurrence in which she said the analysis should be different for title vi, just a question of interpretation. But that that interpretation should look the same as the title vii interpretation in a case he decided fairly recently. In some ways, its more absolute. I think the other outside College Admissions potential consequences in the employment are key. Even though this decision doesnt explicitly change the law in that area, there is a real possibility courts will look to this decision in looking at title vii cases and affirmative action policies and looking at things like the ei initiatives dei initiatives. There is a statue called 1981 that doesnt directly deploy apply here but it will might be surprising to see the court looking in this direction and interpreting case law in other areas. I think there will be more litigation to come on this issue both within the context of universities and beyond that but i will leave it at that. Erin or abby, any thoughts . For anybody who has been following this area, it was not a huge surprise. If you think of the justices in the center of the court now, this has been a project of the chief justices for quite some time and it was not surprising to see them write majority opinion here. Someone was a connoisseur of chief opinions, i think its one for the books. Its a wellwritten opinion regardless about what you think about the outcome. I agree is the beginning but not the end of litigation. For a long time, in the schools because of the overshadowing of grutter, they will look at what they are doing and i think the final paragraph and what its hinting at is that you cannot be using essentially using race as a proxy via essays and such Going Forward that will have to lead to cases where we will see real discovery and looking at whether it turns out you admit students on precisely the same ultimate breakdown or any time they have a student of a certain race mentions a recent essay in all of that is harder to understand. You cannot overtly say in your policy that you will do what the Supreme Court says you cant do but some schools say they will figure out policy to get to the same results and that has opened up to more looking behind how these policies and practices work. Its been happening for quite some time but we may see it in the employment context in more traditional conceptions of discrimination on the basis of race and start seeing it more in the context of efforts to promote diversity within the workplace. A tremendously important decision but really the beginning, not the end of implications in this area. I completely agree. I think its the beginning the other question we really dont know the answer to is what does this mean for programs that are designed to lead to a Diverse Workforce or a diverse educational student body but the dump use race as a criteria . Maybe a program where you are the firsttier family to go to college or other kinds of criteria. There is a case working its way up now to the court involving a Selective High School in virginia in which the criteria used are not [indiscernible] but they were adopted to achieve a diverse end and for that and are in permissible. It will be quite an interesting question and if thats true, thats really testing the limits, the ability of lawyers and schools are anybody to achieve a diverse workplace. Maybe with that, i will transition to the case on talking about. You heard about to cases where the law changed dramatically but mine is more hidden, the socalled independent state legislature case. It goes under the elections because of the constitution which requires legislature of each state to prescribe the rules considering federal elections. The question is whether that clause whether state legislatures have the authority to move from any restrictions on them under state law. The case arose from North Carolina and the state Supreme Court invalidated legislatures districting plan based on the clause in the state constitution. The argument was the state constitution cannot really restrict what the legislature does. The legislature has free reign. The other backdrop of the case was another provision of the constitution, the president ial election clause with says each state shall appoint in such a manner as the legislature dictates, the number of electors. The question is, the lurking question was, if the elections clause gives the Legislature Plenary power, what does that mean for the president ial election and theyre concerned about the 2020 election and litigation from that and the 2024 election. There were various standards advanced in the case. One is the legislature can do whatever. The second was the legislature is bound by procedural requirements, the majority requires legislative action and governor has to sign a bill in order for it to become law. But not substantive restrictions in the state constitution. Third, the legislature is bound by the state constitution but there may be some federal oversight of how the states highest court interpret the constitution. Finally, no federal role at all. A 63 majority. It was six item three but not the usual 63 vote. The majority opinion was written by the chief justice and he was joined by Justice Barrett and cavanaugh and also by three more liberal justices. The first question the court had to address in the interim, North Carolina had had an election and the makeup of the state Supreme Court had changed. Supreme court had issued a decision that essentially rejected the interpretation of the North Carolina constitution at issue and more. The majority said no, the three dissenters rejected that. Justices thomas and gorsuch went on to disagree on the merits but Justice Alito did not join a part of the opinion. Just to talk a little about the majority decision, the court relied on three different factors. First of all, its a judicial review was an established principle at the framing and nothing in the election clause excluded judicial review. Then it looked at its prior decision. It also look at the recent decision of holding the amendment to the arizona constitution decay redistricting authority to a Commission Rather than the state legislature. That was a decision in which the chief justice wrote a pretty impassioned dissent but in this case, he took that as president and a relied on it for his decision. The court looked at historical factors, the state constitution but the that test that the framing had limits and so to the state constitution under the articles of confederation and there was nothing in the election clause that indicated an intense override. Then the court said its hard to imagine that the procedural requirements of the because tuition dont apply and want to go down that road, is there anyway for the procedural substance distinction . The broadest arguments were rejected but the court said, looking at other areas of the law, it says there are other areas where the exercise of federal authority for the vindication of federal rights, we have an obligation the court said to ensure state Court Interpretations that do not evade federal law. In the property context state law defines Property Rights but the Supreme Court said of the state Court Dramatically revamps property laws, we will look at that to see whether it might constitute a taking and not just take state law where was. Those cases the court said, they said there should be a similar rule in the court looked back to bush v gore. Its not cited very frequently. It addressed whether the Florida Court had exceeded the bounds of judicial review in that case. Chief Justice Rehnquist noted the deference to state corporate said inside of these other areas and his standard was we wont give effect to interpretation by a state that distorted the state law. That was something the chief justice took as the standard. He said we dont have to address that here at work to look at the state Court Construction of the state constitution and whether it fell outside the bounds of judicial review. Its interesting some of the reaction to this case has been great concern about the court retaining this last bit of authority. It really does reflect the principle that the court supplied the property context and the takings context in determining whether a state Court Decision rests on independent and state grounds and therefore is not subject to judicial review. If you look at the range of Supreme Court doctrine, its not really an unusual standard. How the court applied it to hear will affect other areas. It seems there will be a limit on the extent to which the court is willing to set court secondguessed state court in the election context. Im interested what my colleagues think. Any thoughts . I remember from the argument in this one, i think it was just his kagan who when they were going backandforth with the standard should be in the standard might mean said something along the lines of who hasnt written a dissent saying the majority completely misinterprets what the statute says and its not a fair reading. I think its another one of those that its a standard that crosses over. Sometimes its in the eye of the beholder. It will be interesting to see where it goes. Erin . I think this case everyone everybody wants to focus on the big case and therefore the court was six item three in all the cases. This really undermines that narrative completely. This is a huge case and if it had come out a different 63 with a different result, everybody would say this is one of the biggest cases of the term because it didnt come out that way, people put it by the wayside. Its important to think about all the big cases that came out this term and this is certainly one of a couple by the time the argument was going, there was a lot of talk at the beginning of the term about this case that it could be a 63 Huge Movement of the law in a particular direction but instead, you saw the judges aggressively Holding Together a majority with liberal justices in a case that probably could pretty easily have been kicked on certain grounds on interesting case in terms of the fascinating issue underlying it but also those thinking about trying to process the court and where it really is. We will turn it over to erin to get started on our second round. We are excited to learn about three marquee cases. Get us started. I will kick us off with National Pork Producers Council versus roth which is another one of those bigger surprises. This is a dormant commerce law case and for those of you who follow the courts, you probably know its a little bit of a mess in part because there are local justices who dont think there is such a thing as dormant commerce laws. The court did reinforce the existence of the doctrine a few terms ago. It looked like they were poised to breathe life into it again. This case involve principally with stone as the extraterritorial doctrine of the dormant commerce laws which basically constrains the degree to which one state can regulate on direct contact organist in another state for in a manner on a case that involves another state. Theres a California Law that regulate the sale of work in california, the law prohibited for from being held from being sold in california unless the south originated in another state which had a huge impact on the rest of the country. California is a major consumer of pork, about 13 of the national market, it produces almost none of 99. 8 percent of the pork so it was a practical matter. The law had the effect of forcing all the sows raise in other parts of the country to comply with laws that dont exist. The law had been upheld by the ninth circuit in the decision that declared the supreme its extra territorial cap cases largely defined so it looked like the court would reverse it but it ended up affirming and while the vote count is very complex here, got different people disagree or agree on various different bottom lines for completely different legal reasons, there is one really big take away and thats a secondary one. The first is the Court Unanimously agreed that laws that have the effect of regulating conduct in other states are not subject to the virtually unconstitutional rule that applies. It basically said when you were talking about laws that have extraterritorial effects outside the state, unless they are actually discriminating against interstate commerce, thats the lens to which you will have to view a challenge to those types of laws. You then had a 54 decision on the second piece of the case which is the balancing claim that was arguing that the burdens this law imposes an intrastate commerce outweighed whatever and if it the law provided to california residents. On that, you had the usual lineup. Justice gorsuch offered the opinion in the bottom line is joined by the others rejecting the claim with a dissenting justice being the chief justice and others. The court concluded that the pipe claim likewise could not go forward. Its a pretty bad decision all around for those of you who do a lot of dormant Commerce Clause cases. I will note a couple of quick Silver Linings and hear what you all have to say. In this room, a Silver Lining is the fact that the court didnt throw out the case entirely. Some justices wanted to do that but it looks like there is not a majority thats that they want to do that. There is not while the majority of the court rejected pipe claim, the majority reaffirmed the notion that there are such a thing as site claims and they can exist. Sotomayor and kagan wrote separately to say we are not the justices who would get rid of these claims, we thank this one doesnt qualify. If this one gets passed a motion, its pretty hard to fathom how far it goes but at least its not dead. The third thing which to me is really important and interesting is that this case was not an ideal extraterritorial the case. It was regulating the conduct, the kind of inside california of selling pork and it didnt reach out to find the people raising these animals in another state and that seem to matter to the court because the gorsuch opinion went out of its way to say there was an this is not the law directly related regulating comic another state and he indicated that the restrictions dont necessarily come under the commerce laws, there are horizontal separation of powers concerned with one state regulating conduct that takes place in another state. It basically left up the idea that when you have that direct regulation would there are some laws out there that involved that, that you may have a different analysis. Not good news for the dormant Commerce Clause out there but its not on 100 loss. Thank you, i think we will get through each of the summaries first and then see if the panelists went to reply to each other at the end of each of the three. Melissa, take us to the next case. The next one is mallory versus knorr grove seventh fail what railway. This is a pretty huge surprise of the term. I was going to say the most surprising case but when i think about it, it might not be true. This one kind of shocked me even after the argument. This is a personal jurisdiction case. In recent years, the court has kinda been cutting back so to speak on the scope of personal jurisdiction especially when it comes to corporations. In a couple of cases, there is an area court could called general jurisdiction and its when you can operate as a person or company in one state when the underlying acts have nothing to do with that state. The answer in these cases was for a company, you can only sue them at home in two places, where they are incorporated and where their base of business is. That did limit the number of states in which the corporation could be sued at least when it had nothing to do with the state otherwise. This case involved a pennsylvania manufacturer that you make that said when you register a new business in pennsylvania, you can be sued in a court in pennsylvania for any cause of action regardless of the relationship to the state. This lawsuit was brought in pennsylvania against the railroads. It was a claim by an employee who did not live in pennsylvania it was not injured in pennsylvania and Norfolk Southern is not incorporated and doesnt have its principal place of business in pennsylvania. The defendant argued there is no personal jurisdiction in pennsylvania. The question before the court was whether or not the pennsylvania statute should be enforced and whether it was constitutional. That litigated up to the pennsylvania Supreme Court and they said it does not that the statute violates due process and looking back at the Supreme Court cases, there is a case from 1917 cole pennsylvania fire. It had a similar set of issues. The court looked at the case and said sure but a lot has happened since 1917 and the court decided the International Case that changed personal jurisdiction law so the court have effectively overruled pennsylvania fire and onto the more recent cases, we think there is a group process problem here. The case went up to the court in that posture. Listening to arguments, thought maybe there would be a couple of justices who thought this was all fine and well. It was not a majority but there was. It was a 54 decision. This is one of the decisions that did not all break down on ideological lines. It was a pretty fun lineup. Gorsuch wrote the majority and he was joined by Justice Thomas, sotomayor, gaston and Justice Alito. The dissent was written by Justice Barrett and she was joined by kavanaugh. That was a unique lineup. Im not sure ive seen that before but you can correct me if im wrong. We may not see that again but it was really interesting. The majority basically said that the 1970 decision of pennsylvania fire still rules and we never overruled it and we have a separate line of jurisprudence that has to do with minimum contacts than all of that. Thats just another way to add personal jurisdiction. With pennsylvania has done is basically allowed operations to consent to personal jurisdiction which is something you can do. By deciding to register and do this in pennsylvania with his law on the books, that effectively means they consented to be there. The court also said until we actually overrule our cases, lower courts still get to do that for us which is a theme you see sometimes in Supreme Court cases were lower courts see the writing on the wall. The other piece of decision was the idea that appropriations maybe shouldnt be treated the corporation should be treated different than individuals. In 1990, there was a decision that basically reaffirm something where you could be an estate that is nothing to do with you but if you are served there, it came out in the idea was that thats fine for individuals but why should corporations be treated any differently in that respect . The final piece that i will talk about which is important is the majority rejected [inaudible] they had extensive contact with them. They inserted a chart that showed the extensive contacts with the state. The biggie is a comment by Justice Alito where he agreed that there is no due process problem that there is probably a direct common law problem. The majority said this raises an issue for another day. They said this is a complete and run around the decision. Its not really consent in the way you think of it. There is a lot of takeaways here. What will happen with the dormant commerce law issues . If it is dormant, dish Commerce Clause problem, we will end up in the same place. I think that is the obvious next question of how it turns out. The second piece is the focus on the substantial activity in the state. Its not totally clear to me that its a necessary part of the majoritys analysis but its in their. It may be that businesses who have less contact with a particular state may be still have a problem in pennsylvania. The final thing is you need this to work statute abides similar uses like pennsylvania. Pennsylvania is unique in that respect with maybe two or three others that have applied similarly. We will see if other states follow these steps. There is a fount of at fairmount a political reason not to do but new york has something that just got through the legislature that i think had been vetoed before and we will see if any other states get on board with that. There will be more litigation and its not clear to me, its either a huge case or maybe in that not being that big a deal. Is certainly throws civil procedures professor for a loop as well. Professors will have to adapt as well. And he will take us through the key factors to take us out. For anyone who watching and for people who are not watching, where is the middle of the dish we are in the middle of the revolution in Administrative Law. A majority of the justices clearly dont like the status quo in 12 rein in what they can do and they are doing it multiple ways. Last term, we had the major question, the idea that clear congressional authorization is needed in cases. The breadth of the authority and the economic and political significance of the assertion by reason to hesitate before concluding that congress is meant to confer such authority. Court follow through on that this term in biden against texas involving the student loan program. That was canceled in student loan principles and probably not surprisingly, hgh isis writing for six justices they held the statute did not authorize the program and also that it flunked the major question doctrine requirement. The interesting thing about that cases the debate about the status of the major question, Justice Kagan wrote a vigorous website it seems like a made up judicial rule. Justice barrett wrote a concurring opinion saying if this was a canon of construction, maybe you be right with the way i view this is as an interpretive principle. We are looking at the context and putting the plain language in context and thats the major question. Maybe for statutory professors that would be interesting. The other interesting thing about what the is doing is thats moving into a new area of administrative authority, Administrative Agency adjudication. You think about the ones that have tested or stored in your basement. They have two ways they can connect, they can go to court and bring a lawsuit or they can use their internal Administrative Law judge structure and get an Administrative Agency determination which is a trial before the alj then they go to the head of the agency or the commission for a final decision. Not surprisingly, some agencies like to use the internal Agency Process rather than going to court. Its been hard in the past to mount constitutional challenges because the pretty settled view was that the target of the Agency Enforcement action had to go through the process, get an adverse decision and could finally raise constitutional challenges on judicial review. Most regulated entities dont like to get adverse decisions from their agents. Most of those cases get settled. There wasnt a lot of litigation about the constitutional limit. Thats going to change significantly after this term. The court said in a case that you got certain kinds of constitutional challenges. You can go right to court and you can bring your constitutional claim in court and bring an injunction to stop the agency from proceeding if your claim proceeds. Axon went through the ninth circuit which apply the old rule and said you cannot bring the challenge now coming got to wait until the Agency Process complete that there is another case, enforcement action against an accountant where the fifth circuit decided that you can bring the challenge. The Court Unanimously said it your constitutional claim does not hearken to the old decision and challenges the structure of the existence of the agency or the agencies wielding authority unconstitutionally, you can go right to court. That clearly means we will see many more of these challenges we saw before. It was interesting Justice Thomass concurring opinion. He agreed with the majority but bastion the basic idea of federal agency adjudicatory authority. She said she has grave doubts about the propriety of congress. At least the adjudication affects private rights such as imposing fines and the ability to borrow an individual for participating in his or her field of endeavor. Right on cue, the Court Granted a case next term that essentially tease up these issues. Another action was undertaken through the administrative program. The fifth circuit held there were three separate constitutional defects in the fccs process. It held that there was a jury trial right because the securities fraud was analogous to other laws and no juries in the administrative process. Second, it held that the statute did not have any guidance for the agency to decide when it should go to court and when should do an internal process. The court said that was an unconstitutional validation finally, the court said the restrictions of motor removal have their own protections against removal except certain kinds of cause and the ftc commissioner who supervise them also cant be removed by the president except for cause violated article two requirements to let the president have control of executive power. Just after Justice Thomas concurred, the jury trial came up in the pirates right question came up. And the private right questions came up. In the wings, we probably have some process challenges. The sec initiates them in action and then it judges them which is a due process problem. In the past, it was said no but we are in a new area. If the president has plenty of them removal authority, is that a due process fairness problem . I think we will see lots of these challenges. Let me stop there. Let me make one comment. I think both malory and the court case show a majority very willing to rethink what some people might have thought were settled into bowls about the Commerce Clause and due process limit on personal jurisdiction. A majority thats willing to rethink and decide the cases in a way that will create more litigation. They are not really worried that much about the stability of the law this area. The third point i make is we will never know but my intuition is just as jason. I wonder whether Justice Breyer would have over personal jurisdiction the way the does. I really wonder where he wouldve been on the working case. We have time for one minute each on the other cases we just discussed in the second round. I was going to make an observation that one of the other takeaways from this term is a few years ago, there is a presumption that the firm was founded to business and i dont think that. Last terms are the little bit and this term doubled down that event. Not to say is unfriendly for business but youre going with an assumption that support ghettos command one side. I think the case that we talked about are probably prime examples. There is a tendency to want to take the ideological divide in the dogmatic and pragmatic divide. You see that in the Commerce Clause context where think the dissenters are amazing the i thk there is a lot to learn about this particular set of nine justices now they approach issues boat the big social issues and the issues that may not get as much attention but matter a lot in the actual day to day lives of clients. We represent many of you so there is plenty to tuning fork. Is difficult to get through all the material and even the highlights in just one hour but we want to be cognizant of our time and keep this as a hard stop at 1 00 p. M. We on force i wont get to the questions but thank you all for Great Questions that were submitted. I would like to spend the last 90 seconds with a lightning round prediction for the next term. We will start with amdy. I will stick with Administrative Law and look at the enterprise case about whether chevron under an ambiguous statute that the court should defer to a state court will survive. The context is very favorable from the challengers. Chevron has been a zombie decision for a while. Supreme court is not relied on it for years. My guess is it may get a final resting place. We will be talking about fewer american cases at the end of next term. The court is way behind in france for next term. There are only 21 cases so it is a slow start to the term and dashcam i dont think they are going to catch up. On a case im watching, its a case the court took is not particularly an individual convicted under a federal statute. It will be an important case for more on this preview of next term, we have an upcoming webinar on september 15 with constitutional litigators so i encourage all of our viewers to go to mason lec. Org to sign up for the september 15 discussion that will give us an eve or broader preview of the upcoming cases. You have been watching the Supreme Court review of the october 22 term of the United States Supreme Court. We thank you very much, our panelist, erin murphy, melissa sherry, and andy pincus for joining us today. We hope that you will join us at future programs. Please terms that mason lec. Org to view not only to september 15 program, but we have an Upcoming Program next friday, with policymakers and what they can imagine and design. We will have two professors. We are excited about that, and other programming between now and september 15, but if you tuned in for the Supreme Court, we certainly have more for you, coming up very soon. Also, if you enjoy this program, if you would like to see even more these kinds of programs, please consider contributing to the lec so that we can continue to provide this kind of educational programming. With that, i thank you for watching. I think you for participating. I think weve learned today that there is much to watch that will come from the residence set this term and much to watch to see how the courts wrestle with the new problems and questions that theyve created as a result of this docket. The 2023 aspen security form. This is about 20 minutes. Ladies, obviously this is one of the rare cases where they cliche is true. The cliche is true. My next guest does not need an introdon