Upcoming Supreme Court term. Your watching live coverage on cspan. We are glad to have you join us whether you are here in person or watching online or in television. I serve as a legal fellow and the manager of the Supreme Court and Appellate Advocacy Program here in the center for legal and judicial studies at the heritage foundation. The Supreme Court is set to begin hearing arguments next week, so we thought this would be the perfect time to discuss some of those cases and preview what we can expect. While the courts last term contained a number of blood duster decisions dealing with abortion rights, gun rights, religious liberty and free speech issues just to name a few, the court this term will also tackle a number of important cases and issues, everything from affirmative action to redistricting to religious liberty cases and cases that touch on the ability that challenges Certain Agency action and structures. To help us break it all down, im joined by two advocates who really need no introduction. I will keep them very brief. First is paul clement. Paul has argued over 100 cases before the Supreme Court, including several of the biggest cases from last term, including the coach kennedy case and a major Second Amendment case, new york state rifle and Pistol Association versus brian. Paul conley serves as a partner at Clement Murphy and served as the 43rd solicitor general of the United States. Joining paul is jeff wall. He is a partner at Sullivan Cromwell where he leads the Supreme Court and appellate advocacy practice. Hes argued 30 cases at the Supreme Court and previously served twice as the acting solicitor general. Please give them a hand as i work as i welcome paul and jeff to the stage. [applause] thank you both for joining me today. Lets talk about the court cases it will hear this term. Since we have a lot to cover, we will get right to it. Paul, could you tell us about one of the first cases the court will hear when it hears arguments next week . Paul i be happy to. Its great to be back at this event, which i think is kind of an annual tradition to kick off the term. Very happy to join you and be at heritage. The epa case, there may be some people in the audience who seems like it sounds familiar. Wasnt there another case . This is a case you could think of as being a repeater a case the Supreme Court decides once, sends it back, often to the ninth circuit, and then gets the case back a few years later. I think often in these repeater cases, you can be pretty sure the court is going to finish the job it started the first time around. That could be the case. The first time around, the question was really whether the sacketts, who were trying to build on the lot they purchased near priest lake. The epa tried to stop them from building on their lot and not only the first time around and they try to stop them, but they basically said we are going to impose a bunch of penalties if you go forward. The Court Unanimously last time around said that is not right. You get the ability to challenge for the government precludes you from being able to develop your lot. The question goes back to the ninth circuit and now the question the ninth circuit has decided and does before the court is another that might sound kind of familiar from a previous Supreme Court case, and that is what is the reach of the waters of the United States for purposes of figuring out the scope of the clean water act . This was an issue before the Supreme Court about 15 years ago in a case i actually argued while i was in the sgs office. As often happened in the court back at that time, there were four justices that had a very clear view that would have limited federal jurisdiction. There were four justices that had a very clear view that would have extended the jurisdiction to Properties Like this one and there was one justice, his name was Justice Anthony kennedy. He had the deciding vote in the case and wrote a separate opinion that talked about the need for a substantial nexus between the water and the issue with the wetland and the waters. Eight other justices did not think that was the right path. Number five is incredibly important, so Justice Kennedys separate writing became the doctor that controlled in the lower court and is controlled for over a decade now. I thing its fair to say the lower court has had trouble applying that test and thats a big part of the reason the cases back before the court this term. The underlying question i may be betraying the fact i argued this for the Government Back in the day, but the other the underlying question is actually kind of hard. I think everybody can almost concede in the context of regulating the water and trying to keep the water clean, what matters at some level is whether the water is connected through a series of tributaries or streams such that if you pollute water someplace it is going to get into the rest of the stream system. From that standpoint, its not easy to say if you have some isolated lake that doesnt drain into anything that is not covered. But if you have something even though it doesnt seem like a navigable waterway, but if you dump chemicals there and they eventually get into and pollute the navigable waterways, it seems sensible that the regime might reach that far. But the problem is, the people who passed the clean water act were not stupid and they recognized as much and yet they still wrote a statute that did not try to cover everything and used this definition of waters of the United States. Congress even at the time recognized the regime it was an was somewhat imperfect. Thats why this issue has recurred again and again. This is the third or fourth time the court has wrestled with this question, particularly in the context of wetlands that are adjacent to navigable waters of the United States. I dont want to get in the business of predicting results, but given in the previous case Justice Scalia wrote the plurality opinion that would substantially restrict the scope of the navigable waters and given a lot of the current justices seemed to think highly of Justice Scalia, combined with the fact that this is a repeater and the courts took this case in the context where they already had some sympathy for the homeowner, i would say this sets up pretty well for the sacketts. Jeffrey i dont have much to add to what paul said. I was at the previous hearing and it did not go well for the government. Several were fairly surprised that the sacketts property which is separated from any water by a considerable distance is part of a water of the United States. Now that that question is back, i think paul is right and Justice Scalias plurality is set to carry the day. Host if we could continue with you, could you tell us about another case the court is set to hear next week . Jeffrey its a really important case but if you are not a Voting Rights advocate or scholar, you might not be following but it could stand to be very important. It is a case about section two of the Voting Rights act. Section two of the Voting Rights act prohibits the denial or abridgment of the dont of the right to vote on account of race. But under some amendments put into place, it defines that denial by saying anytime you dont have equal opportunity for races to vote. So what does that mean, equal opportunity . In a case called jingles your many years back, the court set up a complicated test it has three preconditions and then you move to a totality test. You look to see whether minority voters are sufficiently large and numbers that you could draw a district where they would form a majority. What is in the lingo called a majority minority district. You look to see whether those minority voters vote cohesively as a political block, and then you look to see whether they are outvoted by majority voters who are also voting cohesively as a block. If all three of those preconditions are met, then you move to a totality of circumstances test to determine whether they have been denied the right to vote and whether you should draw the district lines differently. All of this is his vote dilution whether you have diluted the power of minority voters to elect a candidate of their choice. To take a step back about a year, youre in a half ago, the court decided a case out of arizona. It was not a vote deletion claim, it was a case about certain time, place, and manner restrictions. Arizona said you could not vote out of your district and only certain people can take your ballot in, what is called ballot collection were some people call it harvesting. Arizona had these restrictions in place and it came up in the court under section two. The court says the jingles test doesnt work very well in the nonvote dilution context for time, place, and manner restrictions. Were going to go back to the text of section two and Justice Alito in his opinion tried to adopt a multifactor test because the totality of the circumstances test is embedded in the language of the statute, but something tied to the text of section two. Now that the court has done that , the question is now back up there, what should we do with vote dilution claims . What happened in alabama, which is where this case comes out of, is for many years, alabama has had one majority may ready district where africanamerican voters form a majority of the district but the claim was with population changes, there should be two. The threejudge panel agreed with that and said to the state you have got to redistricting away that draws two districts where the minority voters make up a majority and can elect the candidate of their choice. Alabama sought a stay in the spring court, which they got 54. Estes kagan writing that more liberal justices would not have granted the stay. Justice kavanaugh joined by Justice Alito, saying look, im granting the stay because i would not allow interference this close to the election. The primary is coming up in six or seven weeks, we are not going to redraw the district lines a month and a half before people are supposed to go to the polls in the primary. The more conservative justices voting for the stay but not writing something suggesting they may have granted on the merits. So alabama got the stay but the court took the case and put it on its docket. Alabama makes a pretty aggressive play for doing on the vote dilution side, really revisiting jingles and diminishing the use of race. The defenders for the threejudge panel came down in the boats who challenge the court to stick to jingles. The reason i think it is important is because if the challengers succeed in getting the court to say you cant consider race too much in a way that moves districts from where they would end up using raceneutral redistricting criteria like communities of interest and compactness and existing lines in the old plan, that would be a pretty significant change in the way the cases get litigated depending on what the court says and how much it changes tingles. In the Voting Rights context, it is a case that could stand to be really important depending on what the court says on the merits. Host anything to add . Paul host could you tell us about the case of moore versus harper . Paul this case is being referred to as the independent Legislature Theory or other slightly shadowy terms. But ultimately, this is the case that would be about the text of the constitution because the framers wrestled directly with the question of how to deal with elections, particulate Congressional Elections and where the best authority to put the restrictions, regulations, time, place, and manner alike on federal Congressional Elections and where they settled in the text of the constitution is to give that authority to the state legislatures. It is specific. The constitution doesnt go to the states, it gives it to the state legislatures. If you were just looking at the text of the constitution, it would seem like theres a pretty strong argument that when the state legislature comes up with districting lines, assuming the election clauses fully applicable to districting lines as well as times of the polls being open and the like, it seems clear from the text of the constitution that if the state legislature sets that, maybe the state courts arent in a position to secondguess that, applying state constitutional law or state other law. But a few years ago, the Supreme Court, in a case called Arizona Republican legislature versus the Arizona Independent Districting Commission came across the same text and basically said it was ok for arizona to give the redistricting authority, taken away from the state legislature and give it to an independent commission. That was a 54 decision. Chief justice was in dissent along with Justice Scalia and Justice Thomas and Justice Alito. In some respects, the court is going to be revisiting this question in the context of a redistricting case where the state legislature did the congressional districting and the state court has essentially countermanded it. Theres going to be consideration for starry decisiveness, four stare decisis just to wax into being a log geek for a second that is a sure thing that is interesting about this issue. A lot of times in these electioneering and redistricting cases, including the ones that justice is talking about theres kind of a federalism overlay and how much does a federal law like section two interfere with the authority of the states to structure themselves the way they want . In the specific context of Congressional Elections, what the state legislature is doing is the right way to think about it is exercising expressly delegated federal power. It is not drawing these districts as part of its residual sovereignty, its drawing these districts as part of a delegation from the federal constitution to do something that is distinctly federal, namely set the rules for a federal congressional election. If you think about it in those terms, it does strengthen the argument that there should not be a basis for a state court applying state law to interfere with what is a federal authority to be exercised by the state legislatures. Obviously this is a hotly contested case. People articulate on the political left view this as a grave threat to the role of the courts in superintending elections and the like. But i do think theres a strong argument he made on behalf of the North Carolina legislature here that the framers thought about this issue specifically and its not that they thought these issues werent fraught with controversy, they just thought it was utter to give this controversial role thought it was better to give this controversial role to state legislatures and not an unaccountable body like state courts. Jeffrey this is one where maybe paul and i have a slightly different take. A lot of these cases one side wants to be the champion of textualism and originalism and the other side has policy concerns. Im interested to see where the concern is lighting up but folks of proposing the independent state Legislature Doctrine have some fairly plausible textural and originalist arguments like the clause gives power to congress and the second part of the clause. But thats subject to president ial veto and judicial review. Their argument is when you vested the power and state legislatures, you have the same assumption but its subjected to normal state processes and they say there were some constitutional provisions in between the articles of confederation and the constitution and nobody seemed to think those were a problem in the election clause adopted the same language they had in the articles of confederation. So its interesting. You got some plausible textural us and originalist arguments on both sides and on the conservative side, you have what i think paul has hinted that which is a concern that state courts are taking these vague constitutional provisions and using it to override what the state legislature has done and sometimes doing it on the eve of elections. That seems to be troubling some conservative justices. Particulate on the right side of the court, im really interested to see what they want to talk about in the argument because i think both sides tried to marshal the kinds of arguments they tend to care about. Host shifting gears a little bit, could you tell us what i have halt what i have heard called the bacon case the National ParkProducers Council versus ross . Jeffrey this is a fascinating case. Its a case about federalism at the end of the day. California does not like the way pork producers are treating their animals. So california produces very little pork. They have 1 of Work Production in california by california consumes about 13 of the nations pork. They dont produce it but california and this proposition, if you want to bring it to the state, you have to produce it under certain conditions. You got to have a 24 squarefoot pen in the sow has to turn around without hitting the barriers and that sort of thing. These are not conditions any current commercial pork operator could satisfy. I think everybody in the case conced