We welcome those joining us. We would ask everyone in house to check your mobile devices have been silenced or turned off. Of course those watching outside are welcome to send questions or comments directed to us throughout todays programming. John at heritage. Org throughout todays programming. The initial panel will be led by john malcolm. He also serves as Vice President for our institute for a constitutional government. Following the first panel the second group will be led by elizabeth flanery, legal fellow and program manager. Join me in welcoming john malcolm. John welcome everyone to our annual scholars and scribes event. It was a good year to be a patent lawyer at the Supreme Court. It is not exactly the biggest blockbuster, but there were a few cases of interest and a few that are decided to hear the next term that are of interest. Im delighted we have a distinguished panel. A few preliminary thoughts for next year. It graduated the George Mason School of law. For Justice Thomas on the Supreme Court. He represents the constitutional issues. The Administrative Law and a ariety of other matters. A he has argued cases before several courts of appeals and also the u. S. Supreme court. A member of the edward coke court and codirector of the Supreme Court clinic. He has now been named for several years running as a rising star. Next to will is kyle duncan. A Founding Partner and has argued over 30 cases in federal state appellate courts. He is a graduate of Lsu Law School and got an llm from olumbia law school and clerked on the fifth circuit. He also served as general counselgeneral counsel for religious liberty and nationally recognized Public Interest law firm. To the left is joseph palmore, the cochair of the Practice Group from Morrison Foerster who got his undergraduate degree from harvard and masters degree from the university of virginia. He worked with judge gleeson in the Eastern District of new york. Judge jacobson on the Second Circuit and for Justice Ginsburg on the Supreme Court. Hes served as deputy general counsel for the federal Communications Commission for three years and five years as assistant solicitor general at the department of justice. He has argued 10 cases before the u. S. Supreme court and is the primary author of 150 cases before the Supreme Court. Lets jump right in. Pretty significant redistricting cases. Why dont you tell us a little bit about those cases. The Supreme Court heard two major redistricting cases. I will not get into the weeds, mostly to keep you from falling asleep and me from messing up. In both cases, it was the intersection between traditional principles. From the ef perspective of the state, they have a variety of objectives. Traditional lines, political issues which we will talk about later, and the state must consider race because of section 2 of the Voting Rights acts requires the state to ensure minority representation. In the mid1990s, the Supreme Court explained to states that if you use race to much it becomes a dominant factor in redistricting come you violate the equal protection clause. What is going on is the states feel, and i think with good reason, they are caught in between. If they use race to little, they have a potential section 2 violation. Too much, and equal protection violation. These cases are both about drawing that line. North carolina and virginia argued among other things that they used race appropriately. In both cases, democrats challenged them for using race to much. They did not want the state to drought minority districts that have minority populations over 50 . They wanted the lines close to 50 and have voters spread out so they could influence other districts. Though it looks divided because of differences in reasoning, i want to emphasize these cases broadly stand for the proposition. Unanimously in both cases the court will be skeptical of the use of race. The democrats prevailed in both cases without a dissent on the basic proposition. The headline coming out of these cases is that democrats won challenges that were arguing that republicans use race to much to form minority districts. The untold story of these cases, and what i want to emphasize, is that this is a win for Justice Thomas. If you go back to a lesser extent, Justice Kennedy. Cases from the mid90s when the Supreme Court said you use race to much. Testers ginsburg, Justice Stevens dissented, groups like the Lawyers Committee proposed the creation of this line of cases. The argument is making a really strong minority district with well over 50 of the people being minorities was what the Congressional Black Caucus wanted. They wanted to save seats for minority representatives, and any argument using race to much violated the equal protection rights of other citizens should not be made a constitutional right. They have come full circle. The majorities were made in the North Carolina case, Justice Thomas provided the decisive vote. It is important to keep in mind how radically transformed the tenor of this debate is. Lastly, what makes it interesting is what the next round of litigation will be. This round was about republicans using race to much. The next will likely be about using section 2 itself is subject to scrutiny him and if it will violate the equal protection clause. We will see if the majority in these cases that were critical of the use of race will be equally critical when it challenges section 2. John i want to touch on a related matter in respect to next term. The court agreed to hear another redistricting case of a different variety, gerrymandering out of wisconsin. I wondered if you could talk about that. It is one of the more interesting cases. The next term has interesting cases, even if this one didnt. It is fascinating. The Supreme Court has struggled with this issue. At one point there was probably a bare minority to say gerrymandering is unconstitutional. It is only a prediction as to what others will hold on that. What the court has struggled with, particularly Justice Kennedy, is finding a manageable standard. The trial court in wisconsin thinks they have found that standard. It is on direct appeal. I do not think it is a huge surprise the Supreme Court took it. I will be in the minority. I think it will more fizzle. The Court Granted a stay of the lower court decision, fivefour, a preliminary decision that Justice Kennedy may not be optimistic he can find the manageable standard he has been looking for. I think there are technical legal issues on if you can challenge these things on a statewade basis before you get the big ticket question. I do not know they are going to be able to get there. I would give this lesser billing. In the North Carolina case, he went out of his way to talk favorably about political gerrymandering. Not as a social good, but something that has been around and recognized as a legitimate practice p or Justice Kennedy joined that opinion. I dont think that tells you that much, but those that think this will be the case that will recognize a durable claim against political gerrymandering, i am not there yet. I think the 4 justices that have opposed it will. There is some reason to think that. He has gone out of his way at other times to say if you could find a durable standard he would claim. In the past the claims have come up when a minority of the voters in the state have gerrymandering so they maintain control. I dont think that is rue in wisconsin. I Majority Republican Party entrenching their Political Party is not the same thing going on in the past. John do you have anything to add . Mr. Duncan one of the redistricting cases, Justice Thomas joined with the 4 liberals here to there used to seeing kennedy sometimes as being a swing voter here Justice Thomas on occasion does surprise. The last case was when he joined with the liberals to reject a First Amendment challenge to the state of texas limitation on what groups could sponsor license plates. That is a good observation that Justice Thomas is playing the long game. John the court decided recently significant churchstate cases. The trinity utheran church case. Mr. Duncan thanks for having me on this panel. The Trinity Lutheran case and that Health Care Network case are important religious liberty cases, though they get that religious liberty in different ways. Trinity lutheran being a free exercise case. The more doctrinally important, china to lutheran, i will spend more time on that though the advocate health care has practical significance for Health Pension plans. Trinity utheran is a term that did not have blockbuster cases, it is an important case in the free exercise clause. It is an issue that has been simmering for many years. The issue is if a state policy of denying grants because of religious affiliation of an official grantee violates free exercise clause in the First Amendment. Missouri has a program called the Missouri Scrap Tire Program that offers reimbursement grants to schools, day care enters, and the like. When they Purchase Services made from surfaces made from recycled tires. The petition in this case is a Day Care Center affiliated with the Lutheran Church that has pea gravel on the playground. Chief Justice Roberts says pea gravel can be unforgiving. Kids fall down, get hurt, scream and cry. The urpose of this program is to prevent that from happening. It is a health and Safety Program and an environmental program. The petitioner in this case is a church that runs a preschool Day Care Center that applied for a grant in the program. It seems clear from the opinion the church would have received a grant. It was ranked high among the applicants. It was denied because of the misery interpretation of a provision in its constitution, article one section seven prohibits the granting of funds to any person or organization owned or ontrolled by a church, sect, or religious entity. This provision may the among many amendments known as blaine amendments, which were largely anticatholic amendments that came up in the late 19th century. When missouri applied this provision to deny the grant, the grantees ability to get the grant, does it by the free exercise clause. The court said by 72 it does violate the free exercise clause by putting a disability on grant recipients solely due to the religious status. The religious status is the keystone of the courts opinion. The vote was 72. The opinion that chief Justice Roberts wrote is the opinion of the court with the exception of a notable footnote, footnote three, that only four justices joined, not Justice Gorsuch and Justice Thomas. They have separate concurring opinions, which each oined the others concurrence. Very briefly, what is the reasoning . It is important. The theme of the case is that apparent agreement across seven justices masked the important potential disagreement for future cases about how free exercise clause will apply to other public and if it public benefits. Base reasoning s when a law targets religious persons or organizations for special abilities based on eligious status strict scrutiny applies. For those of you familiar with the free exercise rubric, they are not generally applicable under the smith v. Employment division case. They are targeted disabilities on religious status such as the santeria case. The missouri policy expressly discriminated against applicants based on their religious character and was therefore subject to scrutiny which the law failed here the court made short work of the strict scrutiny analysis saying that missouris desire to have a greater churchstate separation is not a compelling interest, particularly when it runs afoul of the free exercise clause. A couple of other notable things, missouri argued it is not a burden on religious exercise. It is the denial of a subsidy. You can see this has some plausibility. Missouri did not tell the church how to believe, how to worship, not ven telling the church that it cannot have a playground or a care center. It is only saying e will not subsidize the replacing of the playground surface. The court made short work of that and said the right we are talking about is not the right to a public subsidy. It is a right to participate in a public and if it program without disavowing ones religious character. Footnote three, missouri relied heavily on a previous decision in 2003 or 2004, which was a case in which the court upheld a free policy of denying scholarship funds based on whether one wanted to use the scholarship funds to prepare for the ministry. The court read it very narrowly and said locke is ot about the status of the grant recipient, but instead about the particular use the grant recipient wanted to make f the public funds. That was to use them to prepare for the ministry, which the court they are unique establishment clause problems on spending oney for the ministry. There is a full disclosure filed urging the court to do just that , and others did as well. The court narrowed locke v. Davey. Footnote three says, and i will read it to you, it is interesting, this case involves express discrimination based on religious entity with respect to playground resurfacing. We o not address religious uses of funding or other forms of discrimination. This is an obvious attempt to cap and the reach of the opinion and leave certain things off the table for future decisions. You can read that justices thomas and gorsuch will have none of this year they do not think this is a principled way of limiting the reach of the case. The four justices that joined it are not telegraphing their view on how the rule would apply to say School Vouchers, which will come up soon in the future, but saying we dont want to address hat now. Very interesting. I will go quickly. On the surface of statutory interpretation ase, orissa, please forgive me in advance for stumbling over this, but orissa, a comprehensive set of requirements for Pension Plans has an exemption for church plans. Originally, the exemption was for Pension Plans established and maintained by the church. Because of ontroversy over how that applied to a pension plan supplied by an order of catholic nuns, they amended the plan in 1982 include a plan maintained by an organization whose principal purpose is to maintain plans. The important part is these are not churches, but churchaffiliated rganizations. Since 1980, they started enforcing the orissa xemption have read it the same way, to say that if a plan is both established and maintained by a nonchurch Principal Purpose Organization that is ok. You still qualify for the church to exemption. That is the uniform interpretation of he department of b labor and thegc department of labor and the b pbc. They all read this in the same way. Hundreds of rulings read that it was ok f the plan was not established by the church provided it was established by a nonchurch entity that it is maintained by this organization. 3 circuits reached the opposite conclusion on what the Church Exemption meant and said the plan has to be established by a church. This had significant amifications for many plans. The Supreme Court ruled unanimously that the agencies had been correct, that the amendment to the church plan should be read exactly how it is written, and a church plan that is established and aintained by nonchurch qualifying organization does qualify for the exemption. This is a significant case in terms of its potential impact of the opposite rule, the opposite ule would have had a bad impact in many peoples views, on Pension Plans established and maintained by i have to say, Justice Kagan is a very engaging and entertaining writer, especially when it comes to statutory interpretation. She made this case interesting to read, even though the erisa stuff is as dry as a bone. She sticks very, very closely to the text of the amendment. , for purposeshing of statutory construction, comes down to the meaning of one word, which is includes. What does include mean when it says we have a church plan here, but it includes this other thing . I found it a really entertaining and engaging read. The other thing is, where is the religious liberty aspect of this case . It is all under the surface. The amicus briefs pointed out that originally,