2017 Georgetown Law Supreme Court Institute Preview
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2017 Georgetown Law Supreme Court Institute Preview


– Welcome everyone to our annual Supreme Court briefing, thanks for coming. I’m Irv Gornstein, I’ll
be the moderator today. I’ll give only the
briefest of introduction to our panelists because I’m sure you all know them, so we have Paul Clement from Kirkland & Ellis, Marty Lederman who’s from Georgetown, Kannon
Shanmugan from Williams & Connolly, Don Verilli from Munger Tolles and Helgi Walker from Gibson Dunn. Just a brief word about our
format before we get started. One of our panelists
will introduce each case. After the case is
introduced I’ll ask other members of the panel to add whatever thoughts they would like to add, and then when that discussion is done I’ll take questions from the press and we’ll do it one case at a time,
so once the first case is done we’ll move to the
second case and repeat. Our first case is Trump versus International Refugee Assistance Project. Marty Lederman will present. – Thanks Irv, I’m going to assume that the press folks here have heard of the so called travel ban. Really an entry ban, there’s
three provisions of the March executive order
there at issue in the case. I won’t go into excruciating detail about how we came to this point or what those provisions do, but just very very briefly two of the provisions are in section six of the executive order and they deal with the refugee program, and one of those provisions, 6A, puts a stop on the refugee program altogether for 120 days as amended by the courts. Staying other orders, that is applying only to people who don’t have a bonafide relationship to persons in the United States or some refugees in theory have been kept out who would otherwise have come into the United States over the
course of the summer. Section 6B lowered the annual limit on refugees, these are both worldwide provisions from President Obama’s 110,000 down to 50,000 so that the most number of refugees that could enter the United States in fiscal year 2017 was 50,000, now that fiscal year ends in 12 days
or something like that and the 120 day ban on refugees ends on October 24th, and the executive order itself requires the departments to resume entry of refugees as of that date. Those provisions I think are going to be moot, if they aren’t already, or they will certainly be moot by about two weeks after the court hears oral argument on October 10th. What they will probably be replaced with, and some of you have reported on this, is that by September 30th or October 1st the president has to set a new ceiling for the next fiscal year, the one that begins October 1st. He’ll probably set a ceiling and there’s been stories about whether it’ll be 40,000 or it’ll be lower than that or 50,000 or something like that, and that would be the rule going forward with respect to refugees in all likelihood. It will just be a number of refugees over the course of the next 12 months that would be permitted into the United States, the president has an authority to set a ceiling, he will do so. The previous ceiling,
the one that was enjoined was enjoined on the grounds that he didn’t have the statutory authority to change Obama’s number and didn’t have authority to cut
off refugees altogether. I suspect that’s going to become a non-issue going forward, I mean maybe others on the panel will disagree. That leads us to the more notorious or the more famous provision, that’s 2C, and that’s the one that prohibits the entry into the United
States of the nationals of six nations for a period of 90 days. That provision has been
for the most part stayed, but it has excluded certain people without, presumably some number of people over the course of the summer who had no bonafide relationship with the United States, have been kept out of the United States who would have otherwise been in the United States. In any event, that provision by its terms only lasts 90 days, it began on June 24th or so, so that will expire next week I think, or this weekend, on September 24th, that ban to the extent it still exists will
expire by its own terms. That’s right, and it’s conceivable, and the ban was put in place as most of you know during the period in which the principle focus of the executive order, this internal report and review process, was supposed to be undertaken, and apparently it has been undertaken, Reuters has published a cable that was sent out worldwide suggesting that the review started shortly after the ninth circuit lifted the injunction on that review. The relevant agencies made a report to the president about inadequacies. The review was for the entire world, not just the six nations,
the inadequacies, country by country basis inadequacies in the information that’s being provided to the United States
for purposes of allowing their nationalists to
enter the United States. After that, notices went out
to the nations of the world. We don’t know what the substance of those notices were, but telling them you need to provide us with X information under X conditions and the like, they were told what the inadequacies
were, they’re supposed to respond to that, and at the end of the review the secretaries are supposed to make a recommendation to the president about what the new procedures should be. That review will be ending very soon as well, and presumably the review will implement new restrictions, conditions on some nationals from some nations coming into the United States except under certain conditions. Maybe there will be complete bans with respect to nationals of some nations, there could be some of the six who are already identified, it could be different nations, it could be that there’s no bans altogether but merely conditions placed on it, could be that we’re back to the status quo as it existed before January 20th. We don’t know what the results of that would be, so that’s setting the stage to suggest that this may turn out to be a big dud in terms of what happens in the court. I think what was really striking, one of the really striking things in the government’s opening brief, and I’ll identify several of them, was that the government talked about this report and review process but said not a word about where it stood, what was happening with it, or why this case would continue to be alive beyond the date of oral argument or why it won’t be completely overtaken by other events, mainly whatever regime the president and the agencies come up with after this review
and report are over. I assume that in their
reply brief which is I believe due to be filed on October 3rd, this list in general will say something about the status of this now completed, or almost completed, review and report and the fact that the provisions at issue here in this case have expired or are about to expire by their own terms. I think that the landscape
will be sufficiently changed. That it will require either new lawsuits, or at most a remand to the district courts in these lawsuits to consider the new rules that will be in place going forward. The old rules will be pretty much ended, the provisions that are at issue here. I assume, I don’t know, but I assume that the new rules will be supported with more of a factual and diplomatic predicate than these were, which was essentially no predicate whatsoever. That there will be a backstory here, that we concluded that we had inadequate information from the following countries in the following respects, we asked them to give us further information in the following ways and we impose these new restrictions for the following reasons because of the
X, Y and Z inadequacies. Then if there are legal challenges to that new regime, they will have to start in the district courts in the first place. I think that by far the most likely resolution here is no resolution at all. It’s either the court holds that the case is moot, or remands the case for further consideration in light of very different facts and circumstances on the ground come October. It’s possible the SG will say we’re almost ready to rule that out, but we’re not quite ready, we’re still waiting on some information from other countries and therefore we extend this ban, the 90 day ban, for X number of days, 30 days, 60 days or something like that. I’m a little skeptical for reasons we can discuss because it would be hard to do that without at least giving some indication of what they have found in terms of the actual inadequacies from particular countries. They might do that and that might keep the case alive for whatever short period that would extend to, but I think that’s possible, but less likely. All right, if the court reaches the merits of the case, I also think that the big establishment clause question is very unlikely to be resolved by the court, I think it raises very difficult and novel questions about the application of the
establishment clause in the area of immigration and overseas with respect to family members of persons who are being allegedly discriminated against because of their religion. I think the much more likely substantive outcome, if it gets to that, will be that the court will resolve the case on statutory ground, so it’s very very telling I think that
the court, that at least the Hawaii plaintiffs and the government spend more time in their briefs discussing the statutory question which was the ground on which the ninth circuit invalidated the travel ban. Then the constitutional question, and that the SG leads his brief with a very robust argument that none of the plaintiffs here have a cause of action to challenge the statutory basis for the travel ban. It’s not, by the way, an argument for the most part that there’s no article three standing on behalf
of these plaintiffs. It’s more an argument that Congress has precluded lawsuits to challenge this kind of a statutory argument, and that very technical, jurisdictional cause of action argument may take up much more of the oral argument time and the court’s attention than most people have so far focused upon. But the SG wants the court to avoid the statutory question ’cause they recognize that they’re much more vulnerable on it not only on the merits I think, because I think the statutory arguments are rather strong, and just to put it very briefly the government relies on a McCarthy era statute under the McCarran-Walter, provisionally the McCarran-Walter Act from 1952 which by its terms appears to give the president virtually unbounded discretion to restrict the entry of any persons or classes of persons if he determines that such entry will be detrimental to the interest of the United States, it’s a very broadly written delegation to the president. The Hawaii plaintiffs, the Hogan brief makes a very strong argument that that statute was written against the backdrop of particular constrained and cabined historical practices by the president about emergency events that might occur that make it impossible for Congress to deal with a problem in the first instance, I’m simplifying a little bit here. Almost more importantly, that in the 60 plus years since 1952, Congress has enacted an elaborate, highly meticulated set of restrictions on entry and conditions on entry to deal with most of the problems, including the terrorism problem that the president appears to be wanting to deal with here and that therefore his exercise of this 1952 statute to deal with this problem is inconsistent both with
the legislative intent in 1952 and what Congress
has done subsequently. I think that argument is
quite strong, but whether or not you agree with
that, this much is true. Since the 1950s, the
court has time and again avoided constitutional
resolution, has punted constitutional challenges
to various immigration constraints and instead
relied on sometimes quite creative constructions of the authorities that Congress has delegated to the executive branch in
the immigration field and decided many cases, starting with Kent verses Dulles, the
passport case, coming out of the very same statute as the one here. In the 1950s, going up through (mumbles) and Zadvydas cases that many of you in the audience are aware
of, the court regularly over the last 60 years has turned to statutory resolutions rather than reaching big constitutional questions. I think if it reaches the merits here it’s likely to do that
as well if there are five votes for limiting
the president here. Also a couple of other things about striking things that
are not present in the government’s brief and in
the government’s argument. The first is that many
of you may have heard of this concept of the plenary power doctrine when it comes to immigration, and as I teach it there are at least two different variations of the plenary power doctrine. The first of much stronger doctrine is that the political branches are entirely free to limit the entry into the United States of foreigners on any grounds that they wish. Substantively there are no constitutional constraints on what they can do. The constitution’s equal protection norms, establishment clause norms and the like, free speech norms, do not
apply to immigration decisions. Interestingly, not only has the government not made that kind of
argument, they conceded in the lower courts that if this were in fact a ban based on the religion of persons outside the
United States, even as a proxy for terrorism, it
would be unconstitutional. The government has basically abandoned, and I’m not sure how
robust this doctrine was, but the government
rightly thinks the court is not going to say that the political branches can use religion as a criterion for excluding people
from the United States. However, the government
is very aggressively invoking what I call the backup plenary power doctrine
and that is whatever the substantive rules
might be, whatever the constitutional constraints might be, it is not the place of the courts to second guess the political branches. If they say they are imposing immigration restrictions for a legitimate reason, the courts should be either deeply reluctant or completely precluded from looking behind that legitimate basis that is asserted and smoke out illegitimate reasons
for immigration rules. That’s one thing that’s interesting, and the other is that the government has pointed to virtually no evidence or no basis, no factual, I shouldn’t say no, very very little factual basis or predicate for these restrictions. It is almost entirely relying on the idea that the court should defer to what it calls the president’s judgments when it comes to national security matters because the president says that it has predictive judgments when it comes to collecting evidence and drawing factual inferences in the national security context, the courts don’t have the competence
that the president has. But they point to nothing
that the president relied upon, virtually nothing, to impose these bans and in particular no basis for thinking that the very robust constraints and restrictions and procedures and conditions that are currently present, that make it very hard to enter the country, particularly protections against terrorists entering the country, are not wholly sufficient to take care of the problems and the risks that the president identified. They’ve given no ground at all to support what Donald Trump did here, there was no evidence of
any problem after 9/11. The only incident they give is of someone who came to the United States when he was, a Somali who came here when he was three years old and later, about 16 years later was
convicted of a terrorist action. There was virtually
nothing, the whole case is built on this idea
that the court should be very weary about even
going down this road at all, it should defer to the president even when the president is, as I think everyone would concede here, relying on no evidentiary or factual predicate whatsoever for his determination. And a lack of process
within the executive branch. The deference rules are typically set up because of a confidence that the court has that the national security establishment within the executive branch and Congress will be adequate and will be making reasoned decisions that will be better judgments than anything
the court could do. Here of course everyone knows that there was virtually no process whatsoever. The president made this
decision effectively on the first day in office, can only be explained as I think the keeping of a campaign promise that he made without consulting with the experts within the executive branch and without those executive branch officials telling him much of anything about reasons why these new constraints are necessary and why the constraints that were in place before were not wholly adequate. It’ll be very interesting to see, I doubt the court will get to
this issue, but whether the court is willing to grant the degree of extreme deference
that it usually grants in this area quite reasonably
and understandably. Whether it’s willing to do so against the backdrop that we find here which is of almost no basis for the
president’s actions. But as I said at the outset,
I doubt it will come to that. – Thank you Marty. I’d like to invite other panel members to convey whatever additional thoughts they have and to focus
on a couple of questions. One is do you think, as Marty does, that this case is gonna go away, or do you think there’s a bigger chance that it’ll stay alive than maybe Marty does? Second, do you think the court is prepared to actually rule that if it does get to the merits that the president acted unlawfully, now Marty says that it would go the statutory route rather than the
establishment clause route, but do you think if they get to the merits they’ll actually, there will be five justices who are
prepared to say that? Third and finally, the court has over the summer I think at least the, I think it’s six justices have attempted to reach a, what I would call a cross party consensus about what to do over the summer. Is there any way to, which I would characterize as splitting the baby, now you can say maybe they split the baby more in one direction than the other, but I think everybody would agree that that was an effort to split a baby by six justices, and is there a way for the court to do a similar thing that would be perceived as a splitting of the baby, that six justices could join here? Those would be the three
questions I’d put on the table for anybody who
would like to weigh in. – I’d be happy to tackle
about one and a half of them. – As many as you like. – So first of all, I share Marty’s sense that it’s hard to see how the court is gonna have much appetite
to reach the merits in the context of an
invalidly temporary policy. Certainly it has been
reported, perhaps some of you have reported that the president is considering implementing a new policy in light of the imminent deadlines to which Marty referred, and if the president does so it’s going to be interesting to see how the court manages this litigation. I have to think that if the president promulgates a new policy there’s gonna be a pretty strong imperative for supplemental briefing on the impact of that new policy on the pending litigation. Assuming that the court does not reach the merits in that instance where the policy that’s under review has effectively expired and therefore
been rendered obsolete. I think they’re very interesting questions about what the court will actually do with the case, whether the court would vacate the decision below as
moot under Supreme Court lawyer’s favorite Supreme Court case Munsingwear which was the case that governs the circumstances under which decisions are vacated, whether the court would remand or whether the court would effectively require new litigation. I think it’s anyone’s guess
how that would proceed. The only other thing I would observe is to pick up on Irv’s point. I think that the court really did exercise an extraordinary degree of superintendents over the nuts and bolts of this litigation and the series of orders that it issued over the summer, I think those orders were in the main fairly solicitous of the interests of the executive, but at the same time I think that the court did effectively, in its initial order, put pressure on the executive indeed to come up with a new policy, and in fact the very fact that the court set the case for oral argument in October I think probably placed some additional pressure on the executive to really figure out what it’s going to do over the longer term before that oral argument date, and so I think that that does reflect fairly savvy management on the part of the Supreme Court to try to figure out a way to navigate through this litigation in a way that allows the court perhaps ultimately to reach the merits, but not necessarily to do so right now. – [Irv] Okay, anybody else, and you don’t have to limit yourself to my questions, anything else that you wanna… – Well just one thing. I guess I’m in the camp who thinks that there’s a high probability that they won’t reach the merits because I think there’s a real sense of competing pressure here on this case, on the one hand I think tracing back to the very
first executive order, pretty strong sense and widely felt sense that that wasn’t on the level, it was done in six days with no consultation with anybody in the national security apparatus of any consequence, and the taint of that I think continues in some sense to hang over the whole policy, and as Marty said, a lot of the reason that courts, and the Supreme Court in particular defer to the executive in this area is based on a premise that the executive authority’s gonna be exercised in
a responsible manner. On the other hand, I would find it surprising if the court actually weighted into that and issued a
ruling that suggested that they were gonna calibrate deference to the degree of actual seriousness of consideration and purpose, and so you put those two competing forces side by side and it seems to me that creates a very powerful incentive to not decide very much at all in this case. – Anyone else? So questions from the press on this, guys? Yeah. – [Press Member] Martin, can you describe (mumbles) question that they added when (mumbles) stem from the direction you have been taking that the 90 day ban actually expired back in June (mumbles). – It was, the court added the question, I pointed out online that the ban was gonna expire at 12:01 AM on June 14th. I think it did, and that afternoon the president issued a memorandum in which he effectively extended the order for 90 days from the day on which the injunction would be lifted. That’s why it ends on September 24th. I think the answer to the court’s question is yes, it became moot on the morning of the 14th, but I think it probably was revived on the afternoon of the 14th. The reason I think it will either be moot or overtaken by events is that the predicate for it, this report and review process will be completed and we will be either in a new regime or on the verge of a new regime. Regardless of whether that’s happened, by October 24th, by their own terms, these provisions will have expired. They won’t be in place anymore and there’s no likelihood that they will be revived. They might be extended for a short period of time, but I think we’re on the verge of a very, as Kannon was suggesting, of something quite different, and that quite different thing
will, I assume, have a completely different
factual, evidentiary and diplomatic predicate
than the March order did. If it doesn’t, if they provide nothing further after all of this, I’ll be very very surprised if they try to extend the ban with no further justification. – So just before I take the next question on the mootness question, one thing that’s always puzzled me, the government says the thing is gonna expire exactly when you say it’s gonna expire, but the executive order actually says it doesn’t take effect until it’s unstayed. And part of the order is still stayed. I’m not sure why those parts of the orders won’t still linger. If anybody can explain that to me. – Maybe, but the end of the review process will take the rug out from under the reason for even those unstayed parts. – So yes, that would be, that seems right that once the review process is complete there’s no reason for
keeping it in effect. So they’ll get rid of it maybe, but until they do, it seems like it technically is still, that part of the order will still be in effect even though the government is saying it’s not. Next question, yeah. – [Press Member] Marty, even if the president issues a new limit on refugees, or if the government comes up with some new requirements for information on visas, both of those will be outside this executive order, so what
difference do they make? – This executive order
will be a past event, there’ll be no reason to enjoin it anymore because it won’t be operative any longer. It will be those new
restrictions, it might include bans, it might
include new conditions– – [Press Member] (mumbles)
for this case right? – I think it’s actually a new case. But I’m speculating ’cause I don’t know what it’s gonna look like, but I think it will be a brand new case with a brand new executive order or a series of new rules the DHS will try to impose. The statutory question will still be present as the president has, to the extent there’s an exclusion rather than new information gathering conditions or something like that, to the extent the president includes wholesale exclusions from X number of identifiable countries, the nationals
of those countries. There will still be, at a minimum, the 1182-F statutory question even if the establishment clause question becomes less acute, or maybe it won’t become less acute, maybe the new rules will look very much like the March order. I can’t imagine that the government won’t be coming for a route with a much, what at least purports to be a much richer evidentiary predicate for it. I would think the most likely outcome is brand new litigation based on a new record, but I don’t wanna be very confident of that because I’m speculating about what the facts on the ground will look like. – Yeah. – [Press Member] (unintelligible question) – I think the strongest part of the establishment clause argument actually isn’t what’s not, I mean it’s obviously what’s there is that in the absence of any evidentiary predicate for these rules, they can only be explained as the fulfillment of campaign promises. Whether or not the president himself had anti-Muslim animus, he made a promise to his constituents that he was going to ban Muslims from coming to the United States, and just yesterday Irv sent me a new statement,
or was it a tweet? I don’t know, a tweet that he just made saying that if it were up to him he would go back to his codeword, not very veiled, was the rules don’t consider political correctness in
terms of the travel ban. I imagine there will continue to be an establishment clause argument, but that argument will be harder to the extent that there is another
explanation that seems reasonable and to which
the court might defer. Right now, to my mind, the strongest part of the establishment clause argument on the merits is that there is no other explanation for
what the president did but for his desire to fulfill
this campaign promise. Presumably that won’t be true with respect to whatever new rules they come up with, but again, I don’t put anything past them, so you never know. – [Press Member] I was just curious, in the normal (mumbles) a new policy or a new rule that that’s the case, would you expect the
Solicitor General to suggest that the court, that they do something? – We have a couple former Solicitors General up here who would be better. (laughter) I’ll let them. – I think the answer is it depends. I mean it depends on what the new thing is and what consequence it will have. See what happens here,
but the administration has and has had multiple opportunities to take an off ramp if they wanted to, and so far that hasn’t happened. – And I would give the same answer which is there’s no one size fits all solution, those of you that are covering the court know that it’s, there are a lot of cases where between the time the case gets granted and the time the government goes to the podium, there’s been some regulatory clarification or some other development that makes the government’s case a little bit easier to defend, I
mean that’s not limited to this context or
national security cases. In most of the cases that just makes the government’s argument at the podium a little better, it doesn’t make the case go away, there are some cases where it’s sufficiently discreet or sufficiently just distinct, or both the executive branch and the court see a value in taking some time off. The court, that the government could suggest an outcome that takes the case off the merit’s docket or the court could seize that and I think in this context, looking at it, there seems like you could see why it might be attractive for the court to not decide the case this term. Even though, this is
a question I was gonna ask Marty, do you think
the case won’t come back? Do you really think
that any of the changes will make a material difference to the district court in the ninth circuit? I mean it strikes me
that it’s overwhelmingly likely that this case
comes back at some point. – At some district court
somewhere, some Court of Appeals invalidates
whatever they come up with? I just think it’s too soon to tell, I just don’t know what they’re gonna, they could come up with
something very reasonable. I just don’t know. I’m curious what you and Don and others think about, presumably the SG is going to provide this revelation on Tuesday the 3rd seven days
before the oral argument. If it’s the sort of thing that really suggests the case should be dropped from that argument calendar,
will the court be at all upset that they held
this in advance until that date, or will that
seem quite reasonable? Maybe it doesn’t matter. There’s a reason to get
rid of the argument, there’s a reason to get rid of– – So it seems to me,
right from the beginning the Solicitor General planned this, and I don’t wanna attribute too much to the Solicitor or the acting Solicitor General, but in such a way that one option was gonna be that the case would go away. Because otherwise he could have easily asked for a summer sitting hearing. By not asking for that, it seemed to me he was at least opening up the option that it would be in the government’s interest at some point to tell the court this is not the case for you to look at anymore, and if there was a case it’ll be a case about whatever our new executive order is. – Can I just speak? – Yeah, go. – I do thing that that’s
one theory which is that Jeff Wallace staged this cleverly so that there would be an exit door, and I actually don’t think the court would be that annoyed, Marty,
because they themselves may be happy to have the exit, as folks were suggesting, but I just wouldn’t count also Justices Thomas, Alito
and Gorsuch out of this. They descended from the stay on the ground that the government had
made a strong showing of likelihood of success, and my old boss Justice Thomas sometimes says cases aren’t moot even if the government tells him, that they are because he sometimes feels we should just go ahead and decide these questions to Paul’s suggestion that these issues are likely to recur and probably not going to go away. Whether there’s some district court judge out there who won’t find that anything the administration does, no matter how reasonable it might be, is I think a very open question and these lawyers know exactly, I think,
what to go to to find a very sympathetic district court judge. Even if the court does
avoid the merits issues, I can imagine some really interesting writings from that core block of three defending the president’s
article two powers. President is not an administrative agency subject to the APA. He doesn’t have to compile an evidentiary record for executive
actions, particularly under a statute that’s worded as broadly as the INA is, and that tells you that I think the government is
articulating strongly and one that I can see at least three justices picking up and wanting to write about even if it’s just to provide guidance to lower courts in the event of a remand or possibly
some future litigation. – Yeah, and I would actually add just one point which is I think there’s a very high likelihood that, you often see this in the Supreme Court, when they punt an issue back to the lower courts we see justices providing guidance to the lower courts as to how they think those proceedings should come out. Even if that’s the ultimate bottom line outcome I could see not only those three, but possibly some of the
other justices on the other side attempting to position subsequent proceedings knowing that as others have pointed out there’s almost a certainty that the issue’s gonna come back to the court sooner or later. – I think on this we have a consensus up here that, not just with respect to this case, but all of those for the foreseeable future, we will see many more separate opinions from Justices Thomas, Alito and Gorsuch than we do from all of the other justices. – It seems to me that the chief’s effort, anyway, will be to get nine to vacate as moot if that option is there. That way you get both the benefit of the court not doing it and you wipe out, that would be the
compromise, that you wipe out the lower court decisions as precedent. That would be his goal, now you can see from last year he had
some goals to get nine that ended up with six
or seven near the end. Once you see Justice Thomas or Gorsuch dropping off, then there
will be a temptation from some on the left to
also drop off, and right, but I do think the chief goal would be to get nine for a straight vacate. – I agree with Irv, I
don’t wanna belabor this ’cause we should get
to Masterpiece, but on this question of whether the lower court judgments are vacated, mostly for reasons expressed in southwest
(mumbles) filed yesterday, I think the right answer would be not to vacate the decisions below, but I do wanna say that I don’t think very much turns on that at all in terms of what would happen in a future litigation, whether the ninth and fourth circuit opinions are vacated will have virtually no effect on what happens
in the next round. – So why don’t we turn
to Masterpiece and Don. – Okay, so Masterpiece
Cake Shop, another case I think that all of you
are quite familiar with. Potentially very significant case posing a conflict between the enforcement of a state law that prohibits discrimination and public accommodations and claims of first amendment right of conscience. Just a quick quick synopsis of the facts, in 2012 a gay couple, Charlie Craig and David Mullens, they go to Masterpiece Cake Shop in Lakewood, Colorado, they’re gonna be married in Massachusetts because in 2012 a same sex couple cannot lawfully get married in Colorado where they live, but they wanna have a celebration of their wedding back in their home state and they want a wedding cake for the celebration. Masterpiece is a business that advertises that it serves
the public at large and in fact does serve
the public at large. Its owner, Jack Phillips,
is a person of faith and his faith affects the
way he runs his business. He believes he shouldn’t
participate in this business and activity that
he believes to be sinful. He won’t make or sell baked goods related to Halloween, he won’t affix certain messages or symbols to his baked goods, he won’t make a cake with a hateful pro-KKK message on it, or with anti-family or anti-religious themes, he also won’t make a cake to celebrate
a same sex marriage because he believes such
marriages are sinful. So he refused Craig and
Mullens’ request for the cake. Apparently according to
the record, the interaction in the store lasted only about 20 seconds, they went in, they said what they wanted, they were refused, they left, and that leaves a lot of particular questions about exactly what Masterpiece Cake Shop and its owner would
and wouldn’t do unclear which might matter in the way the first amendment is applied. Craig and Mullens go to
the press and eventually describe what happened
and eventually another store agrees to provide them a cake for their wedding, I think without charge. They also file a charge of discrimination based on sexual orientation with the Colorado Civil Rights
Division, they allege a violation of this ordinance, it is a discriminatory practice for a person directly or indirectly to refuse, withhold from or deny to an individual or a group because of disability, race, creed, color,
sex, sexual orientation, marital status, national
origin or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of a place of public accommodation. The Colorado Regulatory Authorities adjudicate this complaint. The owner of the cake shop, Jack Phillips, makes a first amendment argument in his defense in those proceedings basically saying for our purposes here that he has a first amendment free speech right that is infringed by enforcement of this statute against him because, as his website suggests, each of his cakes is a masterpiece and they in general involve creative effort and
specifically a wedding cake of this kind would involve
creative expression and it would be creative
expression compelled in the service of something that
he believes to be sinful. He also brought a free exercise claim, freedom of conscience free exercise claim that this is inconsistent,
this being required to make this cake for
this celebration would be inconsistent with
his religious beliefs. Colorado, the regulatory
authorities rejected that argument, the
Colorado courts rejected that argument, Masterpiece saw, their case was relisted some enormous number of times, 13, 14, total of times. – [Martin] A baker’s dozen. – Right, baker’s dozen,
nice Marty, well done. (laughter) And Justice Gorsuch is confirmed to the court in short sometime thereafter, not immediately after but sometime thereafter the case is granted. This case I think poses a lot of potentially really interesting questions. If you wanna work through you could teach most of a first amendment course I think out of this case, so one of the really interesting questions here is to what extent does freedom of speech guarantee the first amendment
protect this activity? On the one hand it’s a
pretty reasonable claim that this is expressive
activity, and in fact there’s an amicus brief
by bakers which has some really good photos in it, they try to illustrate the expressive
character of this activity. But recognizing this
as expressive activity that you’re going to find first amendment protection for in this context does raise a question of scope I think. What about the furniture maker or cabinet maker who believes that his or her works are expressive in that sense? Then what about, although it’s not clear to me whether this statute would apply or this reg would apply
in these circumstances, but this report is a general principle, what about the medical advice doctors give to their patients, what about lawyers writing their briefs, I mean you can’t, I think recognizing this
first amendment claim is gonna raise some significant issues of scope that you have to wrestle with. Second, the first amendment claim here is largely one of compelled speech, that the baker is saying look, not just my labor but my expression
is being conscripted into the support of an
activity that I oppose. To what extent do we consider that to be compelled speech under the
first amendment doctrine. To the extent it’s an argument that well I’ve got a, I’m being required to sell cakes to couples that I
don’t wanna sell cakes to. That feels less like a
compelled speech argument because the argument
there as well, my cake is gonna be at this celebration and that will send a message of my endorsement of this celebration when in
fact I don’t endorse it, I believe it’s wrong,
it’s a matter of my faith. The reason I think
that’s not the strongest claim in the world is because it’s not a situation I think in which the audience would understand the presence of the cake at the ceremony, at the reception as being indicative of the maker of the cake trying to send a message or being affiliated with a message, I think probably nobody who goes to the reception has any idea who made the cake or is particularly interested in it. But that’s not the end of the story I think in thinking about this first amendment compelled speech question because what he’s saying here is well actually it’s much more than that, every cake is a masterpiece, I have to come up with a conception for the cake and execute it
using artistic endeavor, so it’s more of a first amendment right of conscience kind of compelled speech than the public’s gonna view this message, it’s gonna associate me
with a message I don’t wanna be associated with
kind of compelled speech. The cake shop site’s famous West Virginia against Barnett case, the
state statute that forced schoolchildren to say
the Pledge of Allegiance which was struck down as a
first amendment violation, saying this is really parallel to that. I’m being forced to speak in a manner that violates my faith. Then another set of questions that comes out of this seems to me is how’s the court gonna approach the free speech question as a matter of first amendment doctrine? Are they gonna think about this as a case in which what we’re talking about here is the application of
a content neutral law that’s not subject to exacting first amendment scrutiny because it seeks to achieve an end unrelated to the freedom of expression and the activity that draws the legal remedy isn’t one that isn’t based on the content of the expression or any views about the content of the expression, in which case the state law would have more (mumbles), and this is the so called O’Brien test under first amendment law in which the regulators get fairly significant latitude so long as their law is in fact neutral and is being applied for neutral reasons and isn’t substantially overbroad in relation to the purposes for which
it’s being enforced, in theory at least, under that doctrine it’ll be upheld, but the question will be whether that doctrine really applies in a circumstance like this, I think that’s a significant question. And then what about the
free exercise claim? The parties have focused a good deal of their attention on the
freedom of speech claim and to the extent the court vindicates the cake shop’s freedom of speech claim it wouldn’t be required to reach
the free exercise claim. Typically under existing law, under the free exercise clause, if a law is facially neutral and isn’t being enforced in a discriminatory manner with respect to religious exercise, it doesn’t violate the first amendment, will the court adhere to that standard here, will they find this to be discriminatory enforcement in a manner that implicates
the free exercise clause. Just a couple of more points. A really interesting
development, recently the United States filed a brief in support of the cake shop, did so limited to the first amendment free speech
claim, being addressed the free exercise claim, essentially made an argument that there is a cognizable first amendment, free
speech interest here, it’s rooted in freedom of conscience and it’s sufficiently weighted that it should override the enforcement of the law with respect to the claim of discrimination based
on sexual orientation. The last couple pages of the brief get at what I think is a really interesting feature of this case, the last couple pages of the brief the United States sent, but if this had been discrimination based on race, for example had it been the assertion of faith-based objection
to interracial marriage, that the country’s history of race and the constitutional doctrine recognizing laws that discriminate
on the basis of race are presumptively invalid and raise very very serious issues and problems lead one to the conclusion that
the government’s interest in preventing race discrimination is sufficiently strong that it would overcome the first amendment interests here even though it would not be the government’s interest as articulated by Colorado in prohibiting discrimination based on sexual orientation, wouldn’t
be sufficiently strong, and I think that’s the interesting feature of this case that I
think there certainly is a strong right of conscience claim being made here, being expressed
in a, and I think the argument is that
it’s not just a right of conscience, but it’s a a
right of conscience tied to me being forced to engage
in expressive activity. The parties, the cake
shop and the United States have tried to craft an
argument that allows the court to say well this will just be a narrow exception, first
amendment exception to the enforcement of the Civil Rights laws, but I wonder about that. Maybe on the facts of the case there’s a practical matter, and then there’s another fact that’s significant in the case too which is in 2012, at the time that these events took place, same sex couples I mentioned couldn’t get married in Colorado and so maybe that dilutes the strength of the state’s interest in this particular case, but the rule that’s actually being
contested in this case is one that I think will require then the court going forward, if not in this case, perhaps in this case itself, but certainly going forward to then answer some very hard questions such as well if this first amendment right of free speech is sufficiently strong that it overrides state regulatory efforts to prohibit discrimination based on sexual orientation, what about
free exercise claims? And what about freedom of association, first amendment freedom
of association claims? What is it about the first amendment that allows you to rank those and give one priority and not the others, and of course all that does resonate with our history in that when the Civil Rights acts of the 1960s were enacted, there were quite substantial objections made on litigation over whether the individuals who did not want to abide by those laws, the public accommodations
laws in Title VII could assert free exercise
constitutional claims, could assert freedom of association constitutional claims, I’m not sure whether there were a lot
of free speech claims, but those other kinds of
first amendment claims were asserted as justifications for not having to respect
laws that were enacted to try to principally root
out race discrimination. Of course well if you remember the whole Bork hearing situation, one of the things that was a significant
topic of Judge Bork’s confirmation hearing, and that led to some senators at least voting against him was that he had written an article in The New Republic in which he made that very argument about freedom of association at least against the enforcement of the Civil Rights laws of 1964. He then backed off of that in his book The Tempting of America making an argument that there’s really no principled way to decide among these competing values of importance and therefore courts shouldn’t do so which may have some bearing on the way the court ought to think about this case as it considers it this fall. – Thank you. So one thing I wanna start with is just the challenge that you laid out is for the court to find some way to rule for this particular plaintiff without opening a door wide open in a way that I think most of the court would feel pretty
uncomfortable with. There’s some very broad
arguments out there, but it seems to me that the government’s brief is an effort to cabin this principle to speech on the front end and speech on the back end, and so they would say speech on the front end I think is not enough that is that somebody’s involved in an artistic endeavor is not enough because then anybody who’s involved in an artistic endeavor presumably couldn’t be compelled
ever, absent a compelling interest to produce
anything that’s artistic. Then speech on the back
end is pretty by itself also pretty expansive
because then you have anybody who is participating in any way in facilitating this wedding would have a claim on which the
government says they don’t. So the question is is the principle adequately cabined when you require both artistic endeavor on the front end, and as the government says, figurative or literal participation in speech on the back end, i.e. the
wedding celebration? That’s one question I would throw out is whether you think that’s a principle that the court can live with, or if not, is there some other principle, maybe a broader one that they’re willing to apply. And anything else that anybody
else wants to comment on. – I will say I think
it’s deeply unlikely that five justices would hold
that Colorado doesn’t have, it’s interesting that
the government and the bake shop have both said that the answer here is to apply some sort of strict scrutiny where you need to compel in governmental interest and the like, that isn’t usually the way compelled speech cases are resolved, once there’s compelled speech it’s invalid in most of the, in Barnett and and other cases, we don’t ask about this
government’s interest. The SG has come up with this and tried to put it in this framework precisely so he can get up an oral argument, quite understandably, and say race would be different and there would be a compelling interest there, there’s not a compelling interest here. That’s great from his perspective, I can’t imagine Justice Kennedy writing an opinion saying A,
that we applied some sort of strict scrutiny test,
and B, protection of discrimination against sexual orientation discrimination is not
a compelling interest. I don’t think that’s a
solution for the court. Although I think there
might be five justices sympathetic to finding some way to rule for the bakery on narrow grounds, I don’t think that’s it and I think it’s very very difficult, we’ve
been scratching our heads, to come up with limiting principles that would cabin the case to not open up the door very wide for things that the court would be very concerned about. I’m not putting it past
them because they’re very good lawyers as you all know and very good creative justices,
but it’s really really hard to find a way there
just as a doctrinal matter. – I think that’s true
under the free speech branch of the first amendment, and I think the government has signaled it doesn’t wanna go the free exercise clause route, but Colorado has conceded that it applies this law in a one way direction. Colorado allows artists who support same sex marriage to refuse request to oppose it, and the petitioner’s brief includes some other examples of the one way discriminatory, they say, application of this statute to force people to speak on certain topics, but allow people to have the opposite view and to refrain from speech on a purely content based, indeed
viewpoint based, basis. I think that on that record that could be a narrow way out of this, we don’t have to address the larger question of when non-discrimination to
public accommodations laws run into the compelled speech doctrine. It’s clear at least under
the free exercise clause that you cannot apply these
statutes facially neutral in a discriminatory way and on the facts of this particular case Colorado is not applying the statute in an evenhanded way. – So that seems like an
intriguing idea to me, but for the fact that it’s got waiting in the wings 17 other
cases just like this one that may not have that
feature, and so I just wonder whether that’s a
way out of things for them. – A way out of this case. – It’s a way out of this
case, but if you think, I mean I suppose they could just keep denying CERT unless a
situation like this arises. I mean that would be one possibility, they have denied CERT
previously on this question at least once or twice,
the broader question. – Yeah, that issue’s in there, but I think the fact that the parties
in the United States have not fronted it actually reflects judgment that, and Helgi may be right about this, but my sense of it is a little different, my sense of it is that the concern there would be just picking up on what Irv said that whatever you’re gonna do with your own decision making, if you’re thinking about this as a managerial matter and what kinds of obligations you’re thinking impose on the lower courts, the opening up the free exercise avenue could be a lot more destabilizing than recognizing this kind of a free speech claim. – Also, I mean I think
it’s fair to predict, or safe to predict that
the bottom side briefs will demonstrate that Colorado’s actually not applying its laws at all in a discriminatory manner, the examples that Helgi refers to are cases in which the Colorado, no customer’s being discriminated against on the basis of any of the protective categories under the Colorado law, it’s simply, it’s not as though they grant exemptions for those cases, those cases simply don’t violate the Colorado
law in the first place. I think it’s a stretch, I do think that we will see a separate opinion from Justices Thomas, Gorsuch and Alito on free exercise values, and in fact I think religion will
play a supporting role in any opinion that the court writes, but like Don, I think that both the bake shop and the SG’s judgment is correct that the much more likely avenue of victory is through the compelled speech claim rather than
the free exercise claim. – Press. Yeah. – [Press Member] I’m a little puzzled. You listen to any discussion of the (mumbles) and people are just, this is one of those rubix cube pieces
that just (mumbles). Not only nutcases like us who watch the court all the time, but the normal people, you tell them all about
(mumbles) gerrymandering which will have a much larger consequence if you go to one way anyway, so very large consequence either way, and (mumbles) tell me about what they
want with (mumbles) the reason I think is governed by the actions would like to figure out a way to not make a big deal out of this and nobody can figure
it out, so that’s why, I mean I’ve read I don’t know how much stuff about it, I’m also confused by it. As a legal (mumbles) I couldn’t begin to articulate anything anymore, but I assume the court is in the same position. Which is perhaps why it took them so long to decide to take the case, but now having made this bed they have to lie in it. I would assume that most members of the court would like to find… (mumbles) way out because there are 17 other cases to deal with, but a way out so that they’re
not doing, having these cases one after another and creating a whole new regiment for lower courts to have to report with cases being variably telling after that, and I can’t figure out what that might be. I’m wondering, you people (mumbles) much longer than I am or actually any of us, so I’ll speak (mumbles). What do you think is the best bet for a letdown decision in some way that says okay, we’re just not going (mumbles) with a million dollars, we’re closing the door to
the bank at the moment? – Anybody who has any thoughts on that, I mean I think one possibility is just to rule out a claim like this, that, rule it out, you just say, I mean the general principle on non-discrimination law is that if the government is prohibiting conduct, which it’s doing in this case, and incidentally affecting speech which is what’s happening, the normal rule is there’s no first
amendment right, period. Now there’s an exception to that that’s been articulated, as the government said in the Hurley case, and so to the easiest route for the court, if it wants to rule the other way, it seems to me is to go get as close to Hurley as you can and say this is just like Hurley, or as the government says, sometimes it seems like it’s saying, and by the way the Hurley case is the parade where the state said you’re discriminating when you don’t allow gays and lesbians
to march in your parade. The Supreme Court said
there’s a normal rule, our normal rule is that when you have a conduct based prohibition, which this was, prohibits discrimination, our normal rule is that’s not a first amendment problem, but here something different is going on because the parade organizers are themselves engaged in speech and because forcing them to accept a contrary message with one that’s contrary to their views would
alter their own speech. If the court is gonna rule, in I think the narrowest possible way it would follow for the plaintiffs, it would follow that Hurley model which is what the government has set out in its brief. – I’d add a footnote to that. If you wanted to narrow it further, if you wanna take that route and narrow it further, I think you might focus on the fact that this
occurred in 2012 when Colorado didn’t recognize
same sex marriages and it wasn’t in the Constitution. One could say that given that set of circumstance, which now applies only historically, it’s difficult to say that Colorado had a sufficiently strong interest to overcome the assertion of the first amendment right, and we’re not saying anything about how that calculation would occur in a different context in which you now have (mumbles) on the books. I think that’s the way
to narrow the thing. – But I think that would be, and I don’t think you’re saying
anything different, I mean tell me, but that would
be a constructive dig. – Yes, that’s correct. – I mean that would be, well, we thought we should take this case, but now we, or four of us thought we should take this case, but now five of us don’t. – Right, and that happens sometimes. – Oh it does, no, I just thought it was helpful to describe that– – Yes, I think that’s right, see I mean this was a grant of four which suggests that four are prepared, what always suggests to me when you get a grant like this, that four are prepared to reverse and they expect to find a fifth, but it doesn’t always work out that you get the fifth, and the fifth may look for some way out and
that would be a way out. – Yeah, what I think makes it interesting though is that I think there really are probably only two suspects
for the fourth vote. They’re either Justice
Kennedy, and the case could look different to him after all the briefs are in than it did at the CERT stage, or it’s the chief and it strikes me as a little bit odd that the chief would want to take this up only to end up with a constructive dig. I just think if you think about who that fourth vote is, it
makes the nuance even– – So I’ve been assuming
the fourth vote is Kennedy. – Yeah, but then I think to get to the constructive dig you’d have to have the case look different at the point that all the briefs are in than it did at the point where all the CERT
petition brief brings in. The one other thing I would say to (mumbles) this question
is, in thinking about this case, it brings I think maybe one relatively narrow way to decide this case is the Supreme Court,
it must be 10 years ago had the case involving Casey Martin about the nature of golf,
and I think this case may end up being on the
nature of cake baking. I mean I really do, which is to say if you conceptualize a bakery as a quasi-common carrier, then I think the case comes out one way, I think if you conceptualize cake baking as the functional equivalent of somebody engaged in expressive
dance at the wedding, the case comes out the other way, and so I ultimately am not sure that the court’s not gonna decide this case principally about the nature of cake baking in a way that may suggest how some of the other cases waiting in
the wings get decided. – Interesting. One other thought I had
about a narrower decision in which it’s one thing
that suggested to me why didn’t they take the photography case, why are they taking the
cake case, the injunction in this case, even
though we don’t know what the facts are about why they refuse to do what they did, but the
injunction literally in this case prohibits them from treating same sex couples any differently than traditional opposite sex couples. If an opposite sex couple wanted a cake that said God bless this union, then a same sex couple
would also be entitled to that cake under the injunction, at least as I read it, and you could see a narrow decision saying that insofar as the Colorado statute requires that, that is actually inscribing words contrary to belief, that it might pose a problem. – I think Irv’s point is worth stressing which is we’re all rightly taken with the events that happened here, with the couple in particular, but their case is to a certain extent moot, they weren’t even seeking damages, what’s really at issue is this injunction that the Colorado Civil Rights Commission and Courts have entered which is forward looking and requires equality of treatment that’s between different sorts of marriage couples and that’s why I think the dig root may
be difficult to get to. Maybe the court will, I think there will actually be nine votes for saying that the customized cake making is entitled to some first amendment protection, that artistic activity like that is not wholly outside the first amendment, but that’s quite far away from saying that they win the case here because of the O’Brien sort of analysis, so I actually think on that there will be a consensus on the court, but going further I think is difficult because of this injunction, now Irv’s right, maybe they’ll draw a line between express words or figurines, can’t compel that, but could compel the cake standing alone doesn’t say anything until the parties themselves, the couple, if they want to give it some meaning at the ceremony, but that’s far removed from the baker. The cake at my wedding didn’t say anything except implicitly
what the cake in Alice in Wonderland said which was eat me. (laughter) It shouldn’t say anything about us. That’s the hardest part of the case I think for the bakery is this is not what Irv calls the front end, it’s not convincing the justices that he’s involved in artistic activity protected by the first amendment, I think they’ll all agree on that, it’s that what Irv rightly says is the second condition which is that my product
itself will speak, it will say celebrate this
couple, and if it does, that injures me in some
first amendment way, that’s a harder sell, but I think that’s where the nub of the case. – Any other questions from the press? All right, then let’s move on to Gill against Whitford, Paul. – Sure, and I’m sensitive that we have quite a few other cases to cover, so I’ll try to pick up the
pace here a little bit. – This case is real easy to describe. (laughter) – Yeah, well it’s either impossible to describe or it’s super easy, so I’ll go the super easy route. I filed an amicus brief for the Wisconsin assembly and
the Wisconsin senate, so just with that caveat of disclosure, take this with a grain of salt. This case is obviously a case that’s being closely watched by the people up here, if not Nina’s
broader listenership as a case involving about whether the court is essentially going to come up with a standard to adjudicate part of some gerrymandering cases or whether they will continue to treat partisan gerrymandering cases, unlike racial gerrymandering cases, as non-distensible. Just to set the backdrop for this, part of the reason, there are lots of reasons why this is interesting, but at least one of them is I think all nine members of the court at one point or another have expressed opinions or joined opinions recognizing that, at least in certain parts of the country, there’s a strong correlation between race and politics, partisan politics, and so there is a little bit of an oddity of a system where a state legislature can come into court and essentially defend against a racial gerrymandering claim by saying oh don’t worry about it, we weren’t discriminating on the basis of race, we were just trying to help the democrats or help the republicans and the like, so there is that, if you will, instability in the law that you have
prohibitions on racial gerrymandering but not on
partisan gerrymandering. At the same time the
court has tried its hand at formulating a test for these claims that five justices could
get comfortable with. Every 10 years there’s
a census, about every 10 years the court takes a look at partisan gerrymandering to try to figure out whether there is a distensible test and the question in this case, I think broadly put, is whether the court, and more particularly Justice Kennedy, who the last time around had an opinion that expressed a middle ground of not having found the test yet, but not wanting to foreclose the possibility that the test is out there, whether there are now going to be five justices to have a test for partisan
gerrymandering claims. The case arises out of my
home state of Wisconsin. It arises out of really the first time in three decades that
the political branches in Wisconsin could functionally
engage in redistricting. Redistricting is both
mandatory every decade because of the one person
one vote requirement, so all these cases are
frustrating, the legislatures get sued all the time, you’d
think one option is just leave the stupid maps alone,
but that’s not an option. The one person one vote and the fact that people don’t stay put for 10 years combine to four states to essentially redistrict and if they can’t put a politically accountable map in place they’ll get sued for violation of
one person one vote and essentially have a judicial
map imposed upon them. It can be exceedingly difficult for the political branches to come up with maps that make it through the process because you basically have to have,
as a practical matter, both houses of the state legislature in one party’s hands, and
the governor’s office in the same party’s
hands, and in a relatively purple state like Wisconsin that doesn’t happen every time, so last two cycles, and something like four of the last five cycles, the elections took place under what was ultimately
a court written map, not a politically written map. This time around you had the republicans in control of the state senate, the state assembly and the governor’s mansion, and so they got their
map actually through. It was initially challenged on some other grounds, including voting rights act and the like with the exception of one district around Milwaukee, it survived those challenges, it went into effect for a couple of elections, and the republicans did pretty well in those elections which I suppose is not a shock given that it was written by a state legislature controlled by the republicans with a republican governor, and it’s the very fact that the republicans did well in the first couple of cycles that was used as the basis for a challenge to the map on the basis that it was a part of some gerrymander, that it was effectively too favorable to the republicans, either entrench them or essentially skew
too far in their favor. The court, when the case was first brought before a three judge district court, there was a lot of focus,
almost exclusive focus I think when it was very first brought, the other side might
quibble with this a bit, but I think when it was
first brought there was a lot of focus on the so
called efficiency gap. The efficiency gap is this notion that you can look at votes that were cast by the minority party which can be obviously very different
in one state versus another, but you look at the votes that were cast by the minority party and those votes that were cast in very safe districts, above 50% are essentially wasted votes, and the votes that were cast in essentially republican districts where the republican wins, those democratic votes are also counted as wasted votes and you calculate up all the wasted votes and you figure out
comparing the republicans and the democrats, how skewed is this in favor of the majority party? For reasons that are
explained in (mumbles) article somewhere, people came up with the idea that about 7% is the point, the efficiency gap where you get into at least yellow flag territory. Now one problem with the efficiency gap is that it’s really
not at least, and again take this with a grain of salt, but I don’t think the efficiency gap is really neutral because it’s just an observed fact and anybody that wants to look at the map of the last presidential election where I think Secretary of State Clinton only carried 60 counties or something like that, I don’t have the exact number, but it is a political fact that democratic voters tend to be relatively concentrated in urban areas in that republican voters are relatively dispersed in rural areas. Even if you did a map drawn up by a set of non-partisan
commission, like despite my best efforts they have in Arizona, you’re gonna end up
with an efficiency gap, a non-zero efficiency
gap, and some evidence of that is, as I mentioned, the past election map for the last decennial cycle was written by a court as part of a judicial remedy and it had an efficiency gap in Wisconsin of over 7%. In part perhaps because of some of those problems with the efficiency gap being a standalone test, the three judge court, or two judges of the three judge court, came up with a standard for partisan gerrymandering that is essentially a three factor test, it starts with partisan intent, an intent to either entrench the partisan majority or to unduly benefit the partisan majority. It then has an effects test which is a multi-factor test that looks at, consider the efficiency gap but also considers other kinds of statistical analysis to try to figure out whether there was undue partisan effect, and then the third factor is justification or whether essentially the effect that observed is really necessarily explained by the political
geography of the state. And applying that three prong test, the court found that the legislative plan, Act 43, sorta flunked the test. Now I think as a practical matter, all of the work on that test is largely going to be done by the effects part of the test because I think it’s fair to say that if the majority party doesn’t have some intent to favor the majority party in redistricting, they’ll probably have a malpractice suit brought against them or something, so you can almost, I don’t think satisfying the intent part of the test is gonna be difficult, and then the justification test I think is also probably not gonna do a lot of work if it really is a
necessity test or a real, almost like strict scrutiny type test. I think a lot of the work will be done on the effects test and I think figuring out whether there really is a workable test for discriminatory effects on the basis of partisan identity is really the hard question that I think will probably be the focus of a lot of the questions in the court. The last couple of things I’ll say about this is in this area, because of the (mumbles) case and the fact that everybody looks at the goal here, if you’re a challenger, to articulate a justiciable test, or a test that justice Kennedy will think is justiciable, because
that’s the mission here. There’s this weird
almost disconnect between the test and the arguments to the party about justifiability and the underlying constitutional theory. Sometimes it can get lost and I wonder whether at least some of the justices won’t press at the argument about, okay, even if we could have a test to identify it, what, how exactly does it violate the equal protection clause to engage in undue partisan gerrymandering, or as Justice Kennedy suggested last time around, is this really more of a first amendment claim, that that’s the nature of the problem and it’s not really the equal protection clause that’s doing most of the work here? One of the things I think is interesting about this three prong test that has been suggested is I wonder if you applied that test to non-redistricting legislation, how much legislation you might strike down ’cause it seems to me, maybe I’ve just been here too long and I’ve grown cynical, but it seems to me that a lot of legislation gets passed for partisan advantage that has a decidedly partisan advantage or impacts the voters of the republicans or the democrats that are in charge in a way that favors them and as to justification, oh there’s almost certainly a better way to do this, but we’re gonna either benefit the unions in this way or we’re gonna harm the unions in this way or we’re gonna cut taxes this way or we’re gonna raise taxes in this way. I think there must be something for the argument to work, there must be something that’s very distinct about the redistricting process and I’m certain, Paul Smith’s a great lawyer, he’s gonna be ready with answers for this, but I do think that’s something
that, in the briefing, with all the obsession about the standard, that gets a little bit lost in the shuffle a little bit, and it’s related to, the other thing that’s
going around in this case that’s lurking is
a standing question. The Supreme Court in the race districting, the racial redistricting context has been quite clear recently that you really have to bring a claim that’s
not a statewide claim, but is a district specific claim. I think in the race districting context the understanding of the constitutional injury is that you as a voter have been put in one district rather than another on the basis of your race. Yet in the partisan gerrymandering context this challenge, and to be fair almost all of the challenges, are brought on a statewide basis,
and the lead plaintiff for example in this case
is a voter in Madison. I assure you that there is no way to draw a district in Madison, Wisconsin that does not produce a democratic victor. It’s not like that person is suffering the same kind of injury that the plaintiff is suffering in the race redistricting context, and so there’s a lot of this discussion about standing, but I think ultimately that is a discussion about what is the nature of the constitutional injury here. To me frankly it’s a little bit easier to understand why you can bring a statewide case if it’s a first amendment injury than if it’s an equal protection clause injury, so again
I think there’s a lot, just because of the way this case has been briefed and all the focus on whether these are justiciable, I think there’s a lot of this iceberg that’s below the surface and I think some of that will probably be explored at the argument. – Thanks Paul, anybody else wanna add thoughts on partisan gerrymandering? – I would just make a couple
of quick observations. First picking up on Paul’s point as it is hard to see how in
framing the 14th amendment the founding fathers
or their reconstruction era successors were concerned about the efficiency gap, I mean I think there is a real disconnect between these almost legislative proposed constitutional standards and the constitutional prohibition itself. Even if you disagree with that, I think that the court is gonna I think be quite concerned about the prospect of unleashing district courts around the country to apply whatever standard it comes up with knowing that because of the variation in district judges, and of course they will typically sit in three judge panels, but the variation of approach in judges around the country, any standard that recognizes this type of claim is inevitably gonna require a fair amount of subsequent superintendents by the Supreme Court, I mean if there’s one thing we’ve learned from redistricting jurisprudence generally it’s that the Supreme Court has had to engage in a great deal of that supervision and I think it’s an open question whether the court’s gonna wanna do that in
this context as well. The only other thing I would say is that I think there’ll be some concern as well about the inevitable politicization of the judiciary that’s going to result from recognizing these sorts of claims, the so called political question doctrine has become relatively dormant, at least on
the Supreme Court level in recent years, but I do think that there will be a concern that embroiling the courts in these quintessentially political disputes is
going to be problematic. While there’s no doubt that political gerrymandering is engaged in with a greater degree of mathematical precision these days, I think that those concerns about the impact on the judiciary are gonna weigh pretty heavily
on the court’s mind. – Anyone else who wants
to weigh in on this one? – I was just gonna say that when I was reading the briefs to
Paul and Kannon’s point I kept thinking of Eddie Haskell. Gee whiz, Mrs. Clever,
I had no idea there was self-dealing going on
in state legislatures. I mean I think the court is gonna have a little bit that kind of reaction, this has been going on since we’ve had elections in America, so I think there are gonna be serious questions about why, what does it even mean to talk about discrimination on the basis of political party affiliation
in the electoral context. – I’d like to push back a little bit on that idea just because
I think Justice Kennedy, if you read his opinions in (mumbles) and other cases, he actually does think this is constitutionally problematic and there’s a good reason for it and there’s a good reason he cites the
first amendment cases. In virtually every other doctrinal area from first amendment
to ballot, messages on ballots and the like, access to auditory and the like, the court is set in a bunch of different contexts, of course it is constitutional impermissible for this state, for the government to structure the law, and certainly the election law, to try to favor one partisan political party, that’s just an illegitimate governmental objective and yet Helgi’s obviously
absolutely right, it’s been going on since the dawn of time. Justice Kennedy thinks
this is very problematic from a constitutional
perspective, he doesn’t think that’s the way it ought to be and it’s not clear to him why in this context alone that ought to be a legitimate reason for using the power of the state to shape how things are going, but I agree with my fellow panelists that he’s gonna be probably very uncomfortable with any of the tests that have
been proposed to him. This is one of the odd
political question context. In most other political question doctrine contexts the resolution by the court is well this is okay because the Constitution has assigned some other
party, the president, the Congress, the senate
when it comes to a trial. The responsibility not only to do the action in question, but to decide what’s constitutional and what’s not. There’s no pretense of that here, no one’s say it’s up to the state legislatures to decide
what’s constitutional and not, everyone agrees that they aren’t, they don’t care about any
constitutional constraints here. What Kennedy’s worried about is that he thinks that there is widespread constitutional violations that have been going on since the dawn of the republic, and a ruling that the courts are gonna be out of it means no one will be remedying this problem. The question I have, and I’m glad Paul raised the Arizona case which most of you are probably familiar with from a couple terms ago, the five-four decision that allowed the people of Arizona to determine that a neutral independent commission should draw the lines rather than the Arizona legislature. I think Kennedy thinks
that’s the solution. I wonder whether Paul’s loss in that case actually would benefit his clients in this case in that Kennedy might be giving some comfort that that’s the wave of the future, now it’s going to be much easier to get there in I don’t know how many, 11 states or so that have initiative processes rather than expecting state legislatures and governors to impose these sorts of neutral, let the experts draw the maps rather than the politicians. I think that he’s enamored of that solution, that’s why he’s, one of the main reasons he was in the majority in the Arizona case, and if he thinks that that will carry the day in the long run, either
through initiatives or just through good government, sort of arguments that are made or their success in California and Arizona in that realm, he might think okay, the courts can stay out of it because it may take several decades, but that will become the norm, we’ll take it out of the hands of politicians altogether, at least in many of the states if not most of them. This is complete
conjecture and speculation, but I just wonder whether Paul’s last case actually might have an impact on the way the court decides this one. – Okay, so it was a victory then? – It was a victory for one of your clients and a defeat for another. (laughter) – The only thinh I
would add to that though is I guess what I would say, I think Marty raises an excellent point which is in some political question cases where you have a strong textual commitment to another branch, the court isn’t necessarily saying Katie barred the door on this, they’re saying look, the other branch of government has a responsibility to enforce the constitutional norm. There is a sense in this context in which it’s a little hard, if the court says it’s nonjusticiable, then it’s almost saying, it’s coming pretty close to saying there’s not a
constitutional problem. This is a practical matter, that’s what they’re saying, but I
guess another observation I think that follows from that is I think that perfectly explains
his vote in (mumbles). Which is all right, we’re not gonna get involved in this because we don’t have judicially administrable standards, but you shouldn’t view this as a complete green light because if some legislature out there behaves like a total pig, I might be willing to do something about it, and I guess I just wonder though, I mean what you suggested as one change that may make him even more comfortable with that resolution, I’m not sure I see the change that’s going to make him less comfortable with that solution. Which is to say I think maybe that’s where he is on this issue which is we shouldn’t say it’s definitively nonjusticiable, but we also shouldn’t affirm the two judge district court here. We should just keep this sword of Damocles that I might get back involved in this hanging and that’s sorta the best that we can do. – Yeah, I think that’s the question. Is that the way he reacts, or are we at a point where he says well it’s just gone too far, we have too many of these situations where it’s 50/50 states with three to one legislatures and that’s a problem that absent this initiative and referendum process can’t correct itself. That strategy doesn’t
work, and I don’t know, I mean I agree there’s
significant impediments to Justice Kennedy making the decision to actually intervene here, but I do think it’ll come down
to that sense of whether things have just gone
too far such that the sword of Damocles isn’t
having its intended effect. – And just to add to that, the two other factors that seem to
me could weigh on him. One is that it’s just
gotten so much easier over time to practice political gerrymandering to a precise degree that he no longer have, I think they used to call them dummymanders which is people would set things up in a way that they thought would work and then it would explode once there was any shifting in democrats to republicans or republicans to democrats and now the science is there to try to make this last for the decade. The second is this is his last chance. For those of you who
think as I do that this is his last term, this is his last chance. – It’s his last
gerrymandering case anyway. – Yeah, so questions? Yeah. – [Press Member] Well that was partly what I was gonna ask (mumbles) whether it showcases the signs of (mumbles). And then second, I wonder if the test is what the documents in the case show (mumbles) republicans only get 48% of the statewide vote in order to then (mumbles) but democrats go back and get a 52% statewide
vote and (mumbles)? – Yeah, and I mean just on both points I feel like this is a case that they absolutely had to take. I’m not sure we can read anything, I mean they basically said, four of them had said we don’t thinK these things are justiciable, one of them had said maybe, but I haven’t seen the test yet, a two judge court so you’re on a pellet review, not even (mumbles) review says oh we found it, here it is, here’s the Holy Grail! I mean to me there’s no way they could’ve avoided that case, so I don’t think this is a
situation where you can read too much into the
fact that they took it. There certainly are some off ramps as there are in every case, but I mean I’m not sure they’re as obvious as they are in some other cases because you could go off on standing, but if you say you gotta bring partisan gerrymandering cases on a district by district basis you really are cutting back on at least the claims that have been brought to date. Then as to your point, I mean there’s different ways to do it than the efficiency gap, but even what you’ve just said is at least partially a product of political geography which is to say people start with, you’d like to start with the notion that it should be 50/50, but there’s two problems with that, one is that builds in a notion of proportional representation which the court has never been super comfortable with, but then the second problem is that’s actually not right as a matter
of political geography. Because if you’re gonna have any respect for the county lines and precinct lines and voters of one party
are more concentrated than the other, then you’re gonna get some skew from 50/50 just based on that. I guess the only other observation I’ll make, and this is the one you should probably take with the greatest grain of salt given my involvement in the case, but if I put myself in the perspective of the
plaintiffs in this case, I wonder whether this was the right state and the right map to bring up to the Supreme Court because Irv’s point about the technology getting more and more sophisticated, and there’s something to that, and if that was used to produce a map that looked like 72 squashed salamanders and things
like, then maybe you can have something that really
ties all that together. My own view is this, in the context of political maps drawn across the country, I don’t look at this one and just say wow, that was some real work they did to six land crossings to
get, and oh never mind that there’s a lake
there and a river there, and part of that is this is a map that complies as well with
the state constitutional provisions, and in Wisconsin you have to draw your assembly districts out of senate districts, you have to have a fair amount of respect for county lines and things like that, so it just doesn’t lend itself to a kind of
Gomillion against Lightfoot like okay, that’s ridiculous, now we can figure out why it’s unconstitutional. I think that’s part of what’s gonna be going on here too, so I don’t know. But to answer your question most directly, I don’t think this is a case where you can look at the grant, or even the fact that the grant put a stay in place and read too much into that. – [Press Member] I have two questions. One is if you ever thought your suggestion (mumbles) that this is
Kennedy’s last chance, on the other hand if he really does want to retire this year, what would you do? Would you unleash this whole new way of doing things and then leave (mumbles). But my question is there’s been an enormous amount of (mumbles) unusual suspects, let’s put it
that way, people who could not take on this position before (mumbles) republican politicians including some who were on the
other side of (mumbles) to one of the people who helped supervise the mechanism, that drew the mechanism and who cooperatively, that technically is for either side (mumbles). So is there any of that
kind of thinking in focus? – So I mean I think to the extent that you see Justice Kennedy being reluctant to leave a mess behind, I agree with you, he would be reluctant to leave a mess behind and then the question will be is he leaving a mess behind. If he’s leaving somewhat of a mess behind is that overwritten by the need to do something about this problem. I do think the fact that they got some republicans in amicus briefs behind doing something, will give him slightly more comfort, I don’t think it’s to do something now. I don’t think it’s enough. All the rest has to fall into place and in particular one of these measures has to strike him as right in capturing the first amendment, and I agree with Paul, I think it’s the first amendment problem he sees in excessive reliance on partisan considerations, and unless one of these tests that the plaintiffs have come up with strikes him as actually capturing what this is all about, I don’t think he’ll be
moved or anything else. If he’s uncertain about it, I think that’s gonna argue in favor of what he did in (mumbles) which is to say I don’t see anything here that I can sign onto, but I’m not
ready to give up yet. You’ll then have four justices who say time to give up, four justices who sign onto some version of what the plaintiffs are proposing, and then, I quite agree with Paul about what Justice Kennedy was doing, it’s an interim effect on legislatures to say look, if you go crazy and do something completely crazy, then I would step in and that could be his parting shot. Others who wanna respond, yeah? – [Press Member] A very brief question. Am I correct in understanding everybody on this panel to believe that Chief Justice Roberts is not in play? That he would go just like (mumbles)? – I think he’s not in play and others can speak for themselves. – I would never suggest
any justice isn’t in play. Just with that caveat I’ll leave it. – But how much are you
worried about him really? (laughter) – And to be slightly
more serious, I mean… There’s the question
of whether he’s in play as a completely independent variable and then there’s the question of whether it seemed like Justice Kennedy was in play for something, whether he would write a six-three opinion that he wrote as opposed to allow
there to be a five-four opinion that he was in the descent, so that’s another potential dynamic here. – Absolutely. – Other questions, yeah. – [Press Member] (unintelligible question) – I’ll just go with the yeses
on the latter questions, it’s not gonna happen
until this is decided. – [Press Member] To be
perfectly clear on the standing issue, if
that’s the route we take, is that an off ramp or rather a delay? What do we say (mumbles)? – I think it’s more than just an off ramp because if you have a standing rule that takes out the lion’s share of the partisan gerrymandering claims that have been brought to date, that’s more than just some sort of technical ruling, but that would lead the possibility of the Maryland case, and maybe it’s just ’cause I’m not involved in the Maryland case, but I do think, to me that’s a little more of the model of the kind of case that might push somebody over the edge just because, and again I’ve read your article on it and a couple of other things, so I’m not steeped in it, but that’s one where you get people in the district or just outside the district, I forget which, who were hacked off, and you got something that looks pretty abnormal, so you have more of the makings I think. There is there weirdness of
the statewide challenges. Since the unit of analysis is statewide, they are a little less focused on the weirdness of the lines. It’s the net effect of all the lines and how that favors the
party in power that matters as opposed to the fact that they produced a map that looks like just, it’s like a Rorschach test or something, and I do think there is a connection between the increase of the technology, some of the things that might bother
a justice, and some of the things that might even map on to a first amendment theory that maybe the statewide, even if it’s not a standing problem, maybe a statewide challenge isn’t necessarily the way to win these cases in the long run. – Why don’t we move on to
Kannon and cell phones. – All right, so I think we
have 11 minutes for four cases so I will be very quick about this. – I think we stay over a little hopefully. – (mumbles). – Actually I think this is the most consequential case that’s currently on the court’s docket,
but I think it also has the virtue of being
pretty easy to summarize. This is a case concerning
the constitutionality of the government’s obtaining without a warrant so called historic southside vocation information from
a mobile service provider. The petitioner is an individual by the name of Timothy Carpenter, he was suspected of involvement in a series of robberies of RadioShacks
back when we had RadioShacks, and the
government proceeded to– – They didn’t have money to steal. (laughter) – And the government proceeded to– – [Helgi] And T-Mobile stores, that’s actually relevant to the story. – And T-Mobile stores as
well and that is relevant. The government proceeded to obtain from two cell service providers under a statute known as the
Stored Communications Act which does not require a showing of probable cause, information about Mr. Carpenter’s
whereabouts, the government ultimately obtained approximately 100 data points per day from approximately a four month period about Mr. Carpenter’s location and on the
basis of that information they were able to obtain convictions for I think six armed robberies of these RadioShack and T-Mobile stores and thanks to the joys of consecutive sentencing in the federal system Mr. Carpenter was sentenced to 116 years in federal custody. He brought a fourth amendment challenge and the sixth circuit
rejected that challenge. The issue before the Supreme Court is yet another in a series of cases that the Supreme Court has been hearing about the application of the fourth amendment to emerging technologies. There are basically three
primary issues in the case. The first is the question of whether there is an expectation of privacy in the cell sight location information, we only have the petitioner’s brief, the merits of my presentation might be inherently one-sided, but the petitioner’s argument is that if anything this is even potentially more detailed information than GPS data. It may not be now, but it certainly could be in the future, and this is precisely the sort of location information in which individuals have indeed traditionally had
an expectation of privacy. The argument on the other side is that that’s not the case and indeed what you’re really dealing with here are business records that are produced essentially by the cell
phone providers and that many consumers
don’t even realize exist. I think the second question, and the one that will probably get the most attention is whether the fact that this information is in the hands of a third party somehow takes it outside the scope of the fourth amendment and in a pair of cases, most notably in Smith versus Maryland, a case that involved telephone dialing information, the Supreme Court said if you’re talking about information in the hands of a third party that’s categorically outside the purview of the fourth amendment, the petitioner argues that a different analysis should apply in the digital age by virtual of the pervasive information that is now held not only by mobile service providers, but by other private parties. The third issue, and potentially the issue where the rubber is really gonna meet the road, is whether if there is a search here that search
is in fact reasonable. Petitioner suggests that the court need not reach that issue which to me is a little bit of a yellow flag, the petitioner has real
concern that they’re gonna lose on that issue
if the court reaches it. Petitioner’s argument is that you gotta apply the traditional fourth amendment framework, typically we require a warrant and/or probable cause and the government had neither
of those things here. The problem for petitioner, I think, is that there is this federal statute, the Stored Communications Act , which was enacted in 1986, certainly before the advent of modern mobile technology, but that requires the government only to make a showing that there are specific and articulable facts showing that there are reasonable grounds to believe that the records being sought from a covered communications
provider are relevant and material to an ongoing
criminal investigation. The government’s argument in response, which I think was foreshadowed in the government’s brief at the (mumbles) stage is that that statute essentially changes the analysis, it reflects
the congressional judgment that all that is required here is again reasonable grounds for belief. The government further argues that if anything the Stored Communications Act provides more protection than you would have in a tradition subpoena context where there isn’t even an additional showing of specific and articulable facts and that the appropriate lens of analysis here is the standard that applies in the subpoena context where the government is obtaining records from a third party. I think that that’s the issue on which petitioner may actually have the greatest challenge, whether or
not the Supreme Court will reach that issue is anyone’s guess. – So anybody else wanna
add thoughts on this? If not, why don’t we turn to the press. Any questions from the press on this one? – I guess I would add, to confirm Kannon’s sense that there’s a very real possibility that the court holds that this is a search which I think will be seen as a victory not necessarily for this case, but for other emerging issues, but that the standards of the Stored Communications Act satisfy the fourth amendment, at least some justices, maybe Justice Alito will be very enamored with that solution. The reason might be, it’ll be interesting to see how the United States treats the Grand Jury subpoena
issue that’s lurking out there because this provide the defendant more protection than a Grand Jury subpoena
would and traditionally the court has allowed an extraordinarily wide birth to the government when it comes to Grand Jury subpoenas, and I wonder whether that’s an issue the court wants to revisit, almost certainly not in this case, it’ll be interesting to see whether the government really presses hard on the Grand Jury subpoena analogy or whether, it cuts both ways ’cause you could also say to the government why do you need this if you can get it through
a Grand Jury subpoena. That’s something to watch for, but I think something for both sides result is a very real possibility. – So let’s move on to the do we get to bet on NCAA games case. What’s the answer to that? – This is Christie versus the NCAA, Gibson Dunn is council
for Governor Christie in the case and Paul is representing the sports leagues, so I’m sure Paul will have some input on this case as well. It’s also going to be among the most high profile cases of the
term, but probably the only one that’s ever
mentioned on Sports Center. (laughter) I don’t watch Sports
Center myself, but some of the associates I work with tell me that it’s essential to their lives. The question presented is, as Irv suggested, whether the 10th amendment allows Congress to prohibit states from repealing existing
prohibitions on sports betting, we call it sports betting, Irv. – Not sports gambling? – Paul calls it sports gambling. – Oh I didn’t mean to take
Paul’s side inadvertently. – [Paul] It’s okay. – The important linguistic
nuance in the briefs, but we think, I think Christie has all the makings of a great
case, particularly from the point of view of the press, it’s got a colorful and a famous
governor, racehorses, bookies, the National
Football League and the Anti-Commandeering Doctrine,
what’s not to love? (laughter) For those of us on the panel who were of the vintage to have clerked during the late Chief Justice Rehnquist tenure you may recall sitting around and singing show tunes with the chief, and this case reminds me of Guys and Dolls and the classic song I’ve
Got A Horse Right Here. You can just see the bunch of swells from New York and New
Jersey, nice and nicely, Benny and Rusty Charlie,
or here Chris Christie, Roger Goodell and the speaker of the New Jersey house hanging out at the racetrack with their cigars trying to figure out which horse can do. Which is the winning horse here? Well, and pardon all the puns, but Irv suggested it would be good to be funny at least toward the end. (laughter) To try to be. But it’s been 20 years
since the Supreme Court has invalidated a federal statute under the Anti-Commandeering
Doctrine and if I were a betting person,
and in fact I’m not, I’d put my money on a proposition that the court is about to strike down a statute under that doctrine again. The statute at issue of course is the Professional and Amateur
Sports Protection Act, or PASPA, and whenever Congress uses the word protection in
the name of a federal statute you should probably
reach for your wallet. (laughter) The statute forbids a state to sponsor, operate, advertise, promote, license or authorize by law sports betting. It also bars individuals from operating a sports betting enterprise
pursuant to state law. PASPA exempted Nevada and a couple of other states to allow them to continue sports lotteries at the time and it actually gave New Jersey the option to authorize sports betting in Atlantic City if it did so within a year, but New Jersey didn’t pursue that course. What New Jersey did do was in 2011 to have a constitutional referendum and the voters voted to amend the state constitution to
allow sports wagering. A year later, the state legislature repealed the ban on sports betting and authorized its agencies to license and regulate the activity, the NCAA as well as all four of the major professional sports leagues quickly filed suit, their argued that New Jersey’s actions violated PASPA and New Jersey argued that PASPA violates the Anti-Commandeering principles. The third circuit initially held that PASPA just prohibits states from affirmatively authorizing sports wagering, thus narrowing the statute, upholding its constitutionality and striking
down New Jersey’s action. So what does New Jersey do? They took the third circuit at its word and passed a new law that merely repealed its earlier ban, but only as applied to casinos and racetracks, so Paul ran back into court, sued again and the third circuit again stuck
down New Jersey’s effort. The third circuit said that by selectively repealing the prohibition
on sports gaming, New Jersey had actually authorized sports gaming and therefore violated PASPA, but to reach that conclusion the court had to reject
its prior statement that PASPA only prohibited
affirmative action. The Supreme Court then granted CERT on the question whether
the Anti-Commandeering Doctrine only prevents
the federal government from requiring states to do things or if it also prevents the federal government from prohibiting states from repealing or modifying state laws. The court of course granted CERT despite the absence of a split and over the opposition of the United States so one would think that the odds might at this point favor the petitioners. New Jersey’s argument in this court is a lot like what it was below, at least in the first round, which is that Congress can’t tell the states what it has to do with respect to its legislation, even if Congress would have the power to take that action, to prohibit certain conduct on its own. If Congress wants to
outlaw sports wagering pursuant to its powers under the interstate commerce clause it should take the political heat
and do that directly. One interesting historical tidbit in the briefs is that New Jersey is now benefiting in this case from the framer’s rejection of
the so called New Jersey Plan at the Constitutional
Convention of 1787. The Virginia Plan, as
I’m sure you all know, prevailed which forbade
the federal government from acting directly upon the states, but only upon the citizens of the states. Back in 1787 I guess New Jersey did not take the adequately
long view and understand that at some point in time they would like to have more sovereign authority over important matters
like sports betting. But back to 2017. The sports leagues in return say that PASPA’s just a preemption statute. It’s not subject to the commandeering, Anti-Commandeering Doctrine at all, it just prohibits
contrary state action and we’ve got lots of preemption
statutes out there. Is this case a commandeering case or is it a preemption case? I think the court will say
it’s a commandeering case and I think the reason they will say that is because I don’t think they’re gonna buy the affirmative/negative
command distinction, that there’s a difference
between affirmatively requiring a state to do something and banning a state from repealing or modifying existing laws, at the end of the day the state’s being forced to regulate conduct that its voters, and the state legislature would prefer to leave unregulated or to regulate in a different way. You can think of a lot of examples of situations where Congress could enforce a social policy without taking action itself, for instance it could tell the states you cannot repeal any existing prohibitions
on the use of marijuana instead of passing an
anti-drug law itself. So in terms of counting the noses I find it interesting, or I found it interesting to see that Justice Kennedy had joined the majorities in the two prior Anti-Commandeering cases, New York and Prince, so when you add that together with Justice Gorsuch and some of the others, I think what we might see here is a resurgence of the late Chief Justice Rehnquist’s federalism principles
that marked his court. There are some remedial questions that I think are interesting issues to keep your eyes on, what will the court do with the ban on individual operation of sports wagering enterprises, even if it says that the ban on state licensing or authorization violates the 10th amendment, I’ll spare you the gory details of the legal arguments on there, but there is a possibility that New Jersey will win with respect to the state action part of the statute, but that the ban on individual operation will remain in effect and so the Thoroughbred Association and the casino owners in New Jersey actually won’t be able to lawfully operate their business, so it could be a win
for the 10th amendment but a loss on the practical side depending on what happens with the remedies. – Paul, do you wanna weigh in here? – I can’t resist adding
just a couple of notes here. One is it sounds tempting, and we talked about this in the context of the Gill case, to read
a lot into a CERT grant. I do think the two things that are worth keeping in mind, one is when this case when up there the first time around the court denied CERT, so in Christie one the court denied CERT,
only in Christie two did they grant CERT, so it doesn’t seem like the court was dying to get into this case in the first instance. The other thing that’s worth keeping in mind is that the third circuit granted (mumbles) in this case after the sports leagues had prevailed. And of course at the point that the third circuit granted (mumbles) and vacated the sports league’s victory a lot of people thought well they’re gonna come out the other way and ultimately they ruled nine to three in favor of the sports leagues in the constitutionality of PASPA. I think that reflects that however the court decides this case, figuring out what’s commandeering and what’s just preemption is pretty darn difficult. It’s actually worth,
if you’re so inclined, to take a look at the Prince decision that Justice Scalia wrote because there’s a lot of language in there where he talks about trying to narrowly distinguish
the Anti-Commandeering Doctrine being applied for the second time ever in print and ordinary principles of preemption, and he, it’s easy to pick some rhetoric out of the Prince decision or the New York against the United States decision that says Congress
can’t tell states how to legislate, but Congress
does that all the time. Congress passes laws that says that states can’t legislate on certain topics. They pass laws that say you can only legislate on certain topics if you legislate in certain ways. No state can have a law authorizing the regulation of transportation rates for trucks or rates for airlines because Congress has preempted all of that. The line here is not that easy to police and this just doesn’t,
if you look at this, this just doesn’t look like commandeering, certainly not in the Prince case. Prince, they’re telling
federal law mandates that state officials do certain things. To essentially implement
the federal program. You don’t have commandeering
in that sense here. The other thing that’s worth keeping in mind here is that Congress passed this statute in the first instance because it was concerned with
particular state action, namely states authorizing state run lotteries that involve sports gambling. When you look at all
those different words, you’re sponsoring, authorizing, advertising, it all makes a lot of sense in terms of saying all right, we don’t like this trend of there being more and more sports lotteries that states are offering and we wanna stop this where it’s going and no further. It sure isn’t written, and I’m not saying the court can’t get there, of course they can, but it’s not written as a statute that really says the state’s, I mean as Helgi describes it the states have to maintain their existing prohibitions on the books. I mean that is not the way
that statute is written. The last thing I’ll say is this is a funny case from a federalism standpoint because Congress, when it’s acting, the state of New Jersey has to concede that if the federal government wanted to it could have passed a more comprehensive statute that said it is unlawful to engage in sports gambling, it is punishable by two years, or if there’s an aiding and abetting violation and that’s one year, I mean it could’ve regulated it for everywhere in the country, or it could’ve exempted Nevada, but it could’ve done that
at the federal level. Instead it looks around, and at the point that it’s legislating 49 states already prohibit sports gambling, and each of them prohibits it in their own way, they have their own penalties, they have their own ways of prosecuting or not. It’s a funny federalism argument that says that Congress can get in and regulate directly national standard for what the punishment’s gonna be and essentially displace, if they want to, all state law to the contrary, but somehow there’s a commandeering problem if what they say instead is look, we just don’t want any states to authorize this stuff and as far as keeping your existing things in the books, go ahead, regulate it however you want. The one thing you can’t do is authorize it and we can have a healthy debate about whether a “repeal” of a prohibition only at casinos and racetracks, only for people 21 and over and only if you don’t engage in betting on New Jersey college sports teams is a “repeal” or a defacto authorization, I kinda like my chances on that
particular piece of the case. – So I’m gonna allow a
rebuttal if you wanna have one. (laughter) – Come to the argument,
you’ll hear it all. – Anything from the press, yeah. – [Pete] If New Jersey wins, what does it mean for other states? – If New Jersey wins
on the broader grounds then it means that other states can repeal existing bans on sports gaming and the broader sense that other states can repeal, well I’ll just limit it to sports gaming I think, I think the argument is that if New Jersey doesn’t win, if we lose, then Congress will be able to force a bunch of states to basically implement federal policy without passing a federal law, directly regulating the topic itself. But it would leave other
states free to modify or loosen any existing
bans on sports gaming. – And Pete, I was gonna
say if New Jersey wins, you remember in A Wonderful
Life when our hero has– – Oh, Guys and Dolls versus
It’s A Wonderful Life. (laughter) – When our hero has in fact not been there to help save the day and the main street is covered
with gambling parlors, dance halls and all sorts
of, that’s what’ll happen. (laughter) – Paul’s the good angel I think. – Do we have other questions? So we’ve reached the time for closure and so I wanna let the panelists who’ve dedicated their time
here to go if they choose and the press who want to leave to leave. If there’s a critical mass still here I’ll be happy to do the last
two cases and if not– – Tell them what you
were gonna talk about. – I was gonna talk about the NLRB cases on arbitration agreements and corporate liability for human rights violations. – [Press Member] Can I ask one quick question that I bet all the press would be interested in
knowing the answer to? That’s whether the
members of the panelists (mumbles) that this is Justice Kennedy’s last term on the court,
and if it is (mumbles)? – I think everyone’s being
far too quick to assume that. I just, I’m not sure he’s decided and I think we should
not presume anything. I have no inside information, I just don’t see the case other than this little tidbit about what he might have told some clerkship applicant. I think he’s looking to see what happens with Trump appointees in his own way. I don’t know what his
family situation is and his health and I just think we
shouldn’t assume anything. – [Adam] May I ask a
question and also (mumbles). – [Press Member] Hey, he
asked for the rest of you! – I’ve gotta run. (laughter) – Adam, can you keen Kannon
here, is it that interesting? (laughter) – [Press Member] Nobody
else wants to weigh in? – Oh I agree with Marty,
I agree with Marty. – I think Irv’s probably right. – It’s two to two, Kannon! (laughter) – [Press Member] What about Paul? – Well Paul? – I will say I love Irv, and I think he’s very very wise, but I was a little surprised how definitively he put that. – Yeah, Don was too at
the, remember at Stanford? – Yeah, I was. – You were shocked that
I said it at Stanford. – I don’t think we have anymore information than you do, that’s why I’m– – [Press Member] Yeah, but does Irv? – Does Irv? (laughter) My experience is Irv always
has more information. – Other questions? Yeah. – [Adam] Would one of you characterize for us (mumbles) compared to the last term? And don’t stare like that, Irv. (laughter) – So I would just like to ask who can remember the most important
case from last term? ‘Cause I can’t. – Right. I read something that said there’s more blockbuster cases set for argument– – That was Adam! – In October of this term than there was for the entire last term. – Adam wants us to quote himself back. – [Adam] (mumbles) for when? – Yeah, more blockbuster cases set for argument in October of this term than there were during the entire 2016 term. – What I would say, Adam, is
that this is my kind of term. – [Press Member] Can I ask what you guys think (mumbles) and also because personality and try to (mumbles). – I think he’s gonna be a
very timid, quiet justice. (laughter) I think he’s demonstrated that he is, so far anyway, not at all reluctant to take idiosyncratic views and to articulate them in big cases and in small, he issued more separate opinions in one week, I believe, than Justice Kagan did, she being the most recent justice before him, in three or more years. He did so even when it meant opposing the chief and what the chief was doing. He is not shy about stating his views. Now Justice Stephens, although the tone was very different, Justice Stephens early in his career also was very reluctant to join any opinion he didn’t agree with everything in the opinion, would write separately all the time with sometimes very interesting idiosyncratic separate views. Over time of course, especially when he became the leader of one faction of the court he changed to become much more strategic and to understand the value of the court
speaking with one voice. Whether that will characterize Justice Gorsuch, and if so how long that will take is anybody’s guess. – And, I’m sorry, go ahead. – No, Helgi, please. – I’m sure everybody’s noticed there’s definitely a budding bromance between Justice Thomas and Justice Gorsuch and I would expect to see that
continue, more joining of each other’s opinions
on important issues. – I mean as you all know,
Justices Alito and Thomas, in the last three or four
terms wrote separately I think just in record numbers in terms of dozens and dozens and dozens of cases, more than the other justices, and I think what we’ve seen so far
is that Justice Gorsuch might join them and become, the three of them might write
separately a great deal. The real interesting question is how often they will secure two other votes to become a majority and I
think that just depends on the docket and a lot
of different variables. – All right, thank you everyone.

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