We ask everyone in house to check that your various mobile devices have been silenced or turned off as we prepare to begin, and of course those watching outside heritage are welcome to send questions or comments to us at speaker at heritage. Org throughout todays programming. Our initial panel will be led by john malcolm. Immediately following the first panel. [inaudible] please join me in welcoming john malcolm. Welcome everybody it was a good year to be a patent lawyer at the Supreme Court. This was not exactly the biggest blockbuster term but there was none the less a few cases of interest and a few cases that the lower courts decided to hear that are of interest. Im delighted that we have a panel here to discuss this and offer some thoughts on the case cases. Is a graduate of mammoth colleg college. Will clark for judge edith jones on the fifth Circuit Court of appeals and for Justice Clarence thomas on the Supreme Court. We represent clients in cases covering constitutional issues. Theres other matters of civil litigation. He is a member of the edward kalk Appellate Court and he is the codirector of the Supreme Court at the Scalia Law School and hes been in for several years running as a rising star in appellate law by law 360. Next to will is kyle duncan, kyle is a Founding Partner in shared duncan and has argued over 30 cases including the United StatesSupreme Court. He is a graduate of Lsu Law School and he clerked for judge on the fifth circuit. Before starting his own firm he was louisianas first solicitor general and he served as general counsel for religious liberty. To the far left is joe palmore. He is the cochair of the practice group. He got his undergraduate degree and his graduate degree from the university of virginia. He clerked on the Eastern District of new york, and Justice Ruth Bader ginsberg. He served as deputy general counsel for three years and for five years he served as an assistant poster general at the department of justice. He has argued ten cases before the u. S. Supreme court and was the primary author of briefs and over 150 cases in the high court. Will, the court heard two significant redistricting cases this past term. Cooper. Whether you tell us a little bit about those cases. Ill be happy too. Thank you for having me. The Supreme Court did hear two major redistricting cases. I will knock it into the weeds of the various districts. Mostly to keep you from falling asleep and keep me from messing up. But, both cases was about the intersection between traditional districting principles. What happens is a state has a variety of objectives they want to achieve in redistricting. District lines, some political issues which we will be talking about later, but the state also must consider race. Why is that . Because of the Voting Rights acts in the mid 1990s however the Supreme Court in a series of decisions explained that if you use race too much and it becomes the dominant factor in redistricting, those are known as the shoreline. The states feel, and i think with good reason that they are sort of caught in between. If they use it too little violation if they use it to too much ever court violation. These are both about drawing that line. In both cases, both North Carolina and virginia argued that they used race appropriately. In both cases democrats challenged them for using race too much. They did not want the state to draw minority districts that have minority populations well over 50 . They wanted those lines to be closer to 50 and to have the voters spread out so they could influence other districts. Although the votes looked rather divided because of differences in reasoning, what i want to emphasize is that these cases broadly stand for the proposition and i think virtually unanimously that the court is going to be very skeptical of the use of race. The democrats prevail in both cases without a dissent on the basic proposition. I think the headline coming out of the cases is that democrats won challenges that we are arguing that republicans used race too much to form minority districts. What i think the untold story of these cases may be and what i want to emphasize is that this is really a win for Justice Thomas. If you go back, and to a lesser us accent Justice Kennedy. If you go back to the shop cases and the Supreme Court said if you use race too much it will violate the 14th amendment. Many of them dissented. They opposed the creation of this line of cases. Their argument is, making a really strong minority district with well over 50 of the people being minority was what the Congressional Black Caucus wanted. They wanted saved seats for minority representatives and any argument that using race too much violated equal protection rights of other citizens should not be made a constitutional right. They have now come full circle. Those majorities were made in the North Carolina case because although Justice Kagan wrote it, Justice Thomas provided the decisive vote. I do think its important to keep in mind how radically transformed this debate is, and lastly, what makes it interesting is what the next round of litigation will be. This round was about republicans using race too much, i think the next round will be about whether using section two itself is subject to scrutiny and whether it may violate the equal protection clause. We will see whether the majorities in these cases that were so critical of the use of race will be equal critical when it is challenged us section two rather than the republican creation of district. Before i turned to the panelists to ask them their views, i want to touch on a related matter with respect to next term. So the court has agreed to hear another redistricting case, a different variety involving gerrymandering. I was wondering if you talk about that. Its certainly one of the more interesting cases. I think its really fascinating, the Supreme Court has struggled with this issue, to put it mildly. At one point there was probably a clear majority to say that its unconstitutional. A lot of those have since retired so its only a prediction as to what others will hold on that. What they struggled with is finding a manageable standard for that. The trial court here in wisconsin think they found that standard. I dont think its a huge surprise that the court took a. I will be may be in the minority, i think it will b fizzle rather than be a big decision. One, the Court Granted a stay as a Lower Court Decision and that is a preliminary indication that Justice Kennedy may not be optimistic that he can find the standard hes been looking for. Two, i think there is some rather technical legal issues about whether you can challenge these things on a statewide basis that have to get decided before you reach the question and i dont know of the challengers will be able to get there. Third, and i would give this sort of lesser billing, in Justice Alitos dissent in the North Carolina case, he went out of his way to talk favorably about political gerrymandering not as a social good but something thats been around and recognized as a legitimate practice. I dont think that necessarily tells you all that much, but i think for those who think this is the case that will finally recognize a durable claim against gerrymandering, i would say im not quite there yet. To think they will find of. [inaudible] i think the four justices that have consistently opposed it will, Justice Alitos opinion emphasize that. He has gone out of his way other times to say if you could find a durable standard, he might find the claim. I think whats unusual is that in the past these claims have, when the majority of the voters in the state have gerrymandered it such that they can take control. I dont think thats actually true of wisconsin. I think it is a Majority Republican Party that has entrenched their political power. Thats not quite the same thing. Do you have anything to add. No. One quick comment, i thought that one of those redistricting cases was very interesting because it was Justice Thomas joining with the four liberals. Thats not a lineup we often see. Justice thomas, on a occasion does surprise. I think the last case was where he joined with the liberals to reject the First Amendment challenge to the state of texas limitation on what groups could sponsor license plates. That was interesting. I think will makes a good observation that Justice Thomas is probably playing the long game here. Kyle, the court decided a couple recently church cases and the Trinity Lutheran church case but i was wondering if you talk about those. Sure. Thank you. Thank you for having me on this panel. They are encased in the advocate care case and theyre both important. We get religious liberty in different ways. Trinity lutheran being a free exercise case and advocate healthcare thing a statutory case. Trinity lutheran we will spend a little more time on that although the advocate healthcare has a great deal of significance for affiliated Pension Plans. Trinity lutheran is one term that didnt have blockbuster cases but its an extremely important case under the free exercise clause. This is an issue that has been simmering for many years in the Court Finally took it up. The issue is whether a state policy of denying grants because of the religious affiliation of the grantee, whether that violates the free exercise clause. The facts are very simple. Missouri has a program called the Missouri Scrap Tire Program that offers reimbursement grants to schools, Day Care Centers and the like when they purchase Playground Services made from recycled tires. Chief Justice Roberts has this memorable line, at least for me that the petitioner in this case is a Daycare Center affiliated with the Lutheran Church that has peak gravel on its playground and chief Justice Roberts says that peak gravel can be unforgiving. Kids fall down and get hurt is famous i, and the purpose of this program is to prevent that from happening. Its a health and Safety Program and its also an Environmental Program because it reimburses churches, playgrounds only when they use recycled tire material. In this case is the church that runs a preschool Daycare Center and apply for grants. It seems clear from the opinion that the church would have received grants. It was ranked very high among the applicants but was denied a grant. Why . It was denied because of missouris interpretation of a provision in its constitution, article one section seven they prohibit the granting of funds to any person or organization owned or controlled by a church or other religious entity. This provision may be among many state constitution provisions known as the blame which were likely anti catholic state constitutional amendments that came up in the late 19th century. The question is when missouri applies this constitutional revision to deny the grant, their ability to get the grant, the court said by a vote of 7 7 2 yes it does violate the free exercise clause by imposing a special disability on potential grant recipients solely due to the religious status. Status is sort of the keystone of the courts decision. As i said, it was 7 2. Justice of the mayor and Justice Ginsburg dissented. Its the opinion of the court with the exception of a notable footnote which only four justices joined, not just Justice Thomas or Justice Gorsuch. They both wrote separate concurring opinions in which each joined the others. Very briefly what the meaning of this case . I think the theme of this case is that an agreement across seven justices about how the free exercise clause will apply to other kinds of Public Benefits. The basic briefing of cases that when a law targets those for special disabilities based on religious status, strict scrutiny applies. Such laws are targeted disabilities on religious status such as the law in the Santa Clarita case. The missouri policy discriminated against applicants based on the religious character and so therefore subject to scrutiny. Couple other notable things about the case, they argued this isnt really a burden on religious exercise. Instead its only the denial of a subsidy. You can see this argument has some plausibility. Missouri is not telling the church what it has to believe, its not telling the church how it worships, is not even telling the church a can have a playground, simply telling the church we wont subsidize the replacement of your plug a ground surface. The right were talking about is not public subsidy. They participate in a benefit program without having to disavow ones character. Finally and ill talk quickly about number three, it was a case in which the court upheld against free exercise and challenge the state of washingtons policy of denying scholarship funds based on one wanted to use scholarship funds to prepare for the ministry. They read lock very nearly and said its not about the status of the grant recipient but instead the particular use they wanted to make of the funds and that was to use them to prepare for the ministry which the court said was sort of a unique establishment causing problems on spending public money to prepare for the ministry. They urged the court to do just that and others did as well. So the court. [inaudible] a brief footnote three, interesting, footnote three is not joined by the majority of court. Only four justices. Its interesting and a little bit amusing. This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or religious uses of funding or other forms of discrimination. This is an obvious attempt to cabin the reach of the opinion and leave certain things off the table for future cases. The current justices will have none of this. They dont think this is a principled way of limiting the reach of the case. On the other hand, the four justices are necessarily telegraphing their view of how the rule in this case would apply to School Vouchers which will certainly come up very soon in the future, but they are saying we dont want to address that right now. Its very interesting. All go quickly through the case. Its a statutory interpretation case. Arisa, im not an erisa attorney so please forgive me for stumbling over this. [inaudible] congress a member amended it in 1982 broadened to include to be maintained by an organization his principal purpose is to maintain plans. These are not churches but church affiliates. They have read the exemption the same way, that is to say if a plan is both established and maintained by nonchurch organization, thats okay. You still qualify for the Church Planning exemption. This is the department of labor. The Public Benefit guarantee corporation. They had already us exemption the same way and hundreds of letter rulings by the irs have said yes, its okay if the plan wasnt established by the church provided that its maintained by this qualifying organization. What causes case to go to the Supreme Court is that three reached the opposite conclusion on what it meant and said no, the plan does have to be established by a church and this has significant ramifications for many plans. None on the last thing i will say is although this sounds very dry, this is an opinion written by Justice Kagan. I have to say, Justice Kagan is a very engaging and entertaining writer. She made this case interesting to read even though the arisa stuff is dry as a bone. She sticks very closely to the text of the amendment and really for purposes of statutory construction, it comes down to the meeting of one word which is includes. What does include mean when a statute said we have a church plan that includes this other thing. I found it really entertaining and engaging read. The other thing is where is the religious liberty aspect of the case . Its all under the surface. Certain briefs pointed out that originally the amendment to the arisa was enacted by congress in order to avoid a couple of religious liberty problems caused by the original definition. To make a long story short, we didnt want agencies to determine what a church was. We didnt want an agency determining that a religious order of nuns running a pension plan was not actually a church and we didnt want an agency determining that a religious order of nuns running the hospital was not a religious function. We didnt want that because it would create all sorts of religious autonomy problems. Agencies entangling themselves with what churches are actually doing and it would actually create dissemination, in effect when you