(AV17911) How Has the Supreme court Reshaped American Law?
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(AV17911) How Has the Supreme court Reshaped American Law?

good evening justice down a little bit
my name is Christa Johnson I’m studying political science and International
Studies here at Iowa State and I’m also a member of the University Committee on
lectures and the national affairs serious planning committee it’s my
special honor to introduce tonight’s speaker who has argued 25 court cases
before the Supreme Court on cases involving federal patent law class
action practice labor and employment and disability law he is also the founder
and publisher of SCOTUS blog which is devoted to coverage of the Supreme Court
and is widely regarded as one of the nation’s premier legal internet sites
he’s currently with Goldstein and Russell and teaches Supreme Court
litigation at both Stanford and Harvard Law School’s now please join me in
welcoming our speaker who has who the legal times praised for quote
transforming the practice of law before the Supreme Court tom goldstein thanks very much I really appreciate can
everybody hear me we just put this mic on yes yes you’re still awake you do me
a great honor and inviting me to come and talk with you about the Supreme
Court can you please just if you’ve ever thought it essential that someone who is
giving a talk wear a jacket like a sport coat please raise your hand okay
excellent there were only two of you tremendous and you you two are evil I’m
gonna talk with you about the Supreme Court which is what I spend my days and
nights thinking about because of my law practice in this website that we have
SCOTUSblog and because of teaching and it’s really amazing for me to have the
opportunity to come and talk with non lawyers to be honest about the court
recognize that when I do that it’s a little bit challenging because there’s a
huge variety and depth and breadth of knowledge about the Supreme Court there
are folks who are intimately familiar with it there are in Supreme Court
practice does not require technical proficiency so there are lawyers here
there are people who are undergraduates high school students younger than that
so if at any point I tell you things that you already know please forgive me
but I’m gonna try and get us all on the same page as we think about the Supreme
Court and what it can do and how it’s changed American life but as I said when
I began I really appreciate the opportunity it’s late the fact that
you’ve taken the time to come and listen to me and then we’ll I’ll do this for
about 45 minutes and then we’ll have a question and answer session and then we
will drink a lot I will drink a lot the but I really would love to get to the
point where we’re talking about things that interest you and I hope we do get
to answer a lot of your questions so to start out in thinking about how the
Supreme Court has changed American life I need you to kind of visualize
something with me and it’s something that I experienced really recently on
June 28th of this year at the Supreme Court of the United States it’s the last
day of the last Supreme Court Supreme Court terms go from October the
famous first Monday in October until the last day of June it’s not set by law
that it’ll end the last day of June but it’s set by calendar the justices
calendars because the justices only stay in town for nine months and then they go
off to very important chamber music festivals in Europe they’re very very
busy people and so they have to finish their term at the last day of June and
on the last day of June in this past year they decided the Affordable Health
or the Affordable Care Act case the big Obamacare case and on that day at 10:06
in the morning you just have to imagine that you’re in the court room of the
Supreme Court and so there are nine justices there and the Chief Justice is
in the middle and the Solicitor General of the United States Don Verrilli is
sitting at the table up front there are congressional staffers all in the
audience because everybody knows the Obama care case is going to be decided
that day and the Chief Justice says I have the announcement in and says the
name of the case and this is a real historical moment and I just want you to
kind of imagine being there at that time as the case is decided because it will
really start to make more concrete for you the fact that the justices
individually because there’s been a lot of talk about the Chief Justice’s own
vote in the case right and the court is an institution really can do
foundationally important things in American life if you just think about
what would have happened if the court had gone the other way and instead of
five to four upholding the core individual mandate of that statute it
had struck it down what it would mean for this president for example would
have meant politically what it would have meant for health care what it would
have meant for the structure of government you may think it good or bad
but it would have been a big deal and so just think about that moment and we’re
gonna use that moment of the decision in the Affordable Health Care case the
Affordable Care Act case to frame our discussion of kind of how what the
Supreme Court is what it does what it’s done historically the problems and
issues that it’s confronting now and what it’s going to be looking at in the
future so to understand how it is that we got there at that moment
10:06 when the chief justice starts announcing the opinion we have to step
back and look at the Constitution for just a second and so article 3 of the
Constitution says there shall be a Supreme Court it’s the oh there’s only
one Court that’s specified in the Constitution all the other courts the
courts of appeals the trial courts were created by Congress and it doesn’t
actually say in the Constitution that there have to be nine justices and at
different times in our history there have been more excuse me they have been
fewer justices but more than has more the number has increased over time
occasionally there have actually been even numbers of justices which is
awkward when there are ties and but we’ve settled into the idea yeah it’s
good to always be able to have an odd number and a tiebreaker
so over time the justices have the number of justices has grown and article
3 establishes the Supreme Court and the other articles of the Constitution
established the other branches of government which are also in the
courtroom the same day I mentioned that Don Verrilli the Solicitor General is
there well Don Verrilli who argued the healthcare case and was kind of derided
you may have heard some of the commentary about whether he had done a
good job or a bad job that day he represents the President of the United
States and the executive branch under the Constitution and there are
congressional staffers there and they are there on behalf of the legislative
branch which passed the statute after all and the weird thing is that when
we’re trying to figure out if the Affordable Care Act is constitutional
we’re in the Supreme Court because if you actually read the Constitution
nobody tells you that the answer to the question is the Affordable Care Act
constitutional or is there a right to an abortion is affirmative action
constitutional all of those questions nothing in the Constitution tells you
that actually the Supreme Court gets to decide the body that decided that the
Supreme Court gets to decide all of these questions was the Supreme Court
now that’s pretty cool if I could just say that actually Tom
Goldstein will decide all these questions right if you have that power
to announce your own authority of what’s called judicial review but we could call
it Tom review that would be an amazing thing and the Supreme Court did that
very early on in its history when the great Chief Justice John Marshall said
well look we will be the final arbiters of the law
and that’s why we’re in the courtroom that day because while the Constitution
sets up a president the United States whose job is to faithfully faithfully
execute the laws the Constitution says while the Constitution sets up a
Congress whose job it is to pass the laws the Supreme Court is given the
final roller has taken on the final role in the country is accepted as having the
having the responsibility to be the final arbiter of the meaning of the laws
that Congress passes and also the constitutionality of them even though
the Congress is supposed to pay attention to the Constitution and is not
supposed to pass unconstitutional laws even though the president is given the
task of enforcing only constitutional laws and obeying the Constitution it is
the Supreme Court that ultimately tells us what it is the Constitution means now
that means that we have a system of judicial review so Congress passes a law
the president enforces the law and the the courts all the way up through the
Supreme Court exercise judicial review and tell us what the laws mean and
whether or not they’re constitutional or not over time the Supreme Court has had
to confront all kinds of foundational questions about the meaning of the
Constitution the meaning of different statutes and it has really ordered and
structured some of the most basic things in American life the reason is that the
Constitution is unbelievably vague it turns out we’re here on Constitution Day
well we’re not actually here on Constitution Day but this is the
Constitution Day lecture Constitution Day was September 17th we’re actually
doing the 2013 Constitution Day lecture like 11 months early rather than a month
later than Constitution Day but the Constitution was finally approved
September 17 1787 235 years ago and the Supreme Court has had to figure out all
kinds of things about this incredibly poorly worded is too critical because of
the difficult situation you’re trying to order a country for the next several
hundred years but and we can all agree I think vaguely worded documents so take
the First Amendment the First Amendment so that we have
body of the Constitution I mentioned the Articles that set up the Congress and
the executive branch and the legislature then we had the Bill of Rights and we’ve
had other amendments the First Amendment tells us that Congress shall make no law
abridging the freedom of speech well what’s freedom of speech
what’s freedom of speech in an Internet era is a blog protected speech there’s
tons and tons of ambiguity in that language the Fourth Amendment the right
to privacy and that there shall be note there shall be no unreasonable searches
and seizures well what’s a reasonable search and what’s a reasonable seizure
and the Supreme Court has had to figure that out and so on and so forth gun
rights in the Second Amendment the right to equal protection in the fifth and the
Fourteenth Amendments what is the legislative power Congress has given the
power to regulate commerce between the states well you know what counts as
commerce between the states so over and over and over the Supreme Court has been
tasked with figuring out or has taken on the task of figuring out what does the
Constitution mean and that has given rise to incredible controversies over
the nation’s history particularly in the last century where the court has really
shaped American life so one of the most famous was the basic question of what
power does Congress have to pass laws there was a time in the early 1900s in
which Congress was really having to deal with great economic strain on the
country all the way up and into the Great Depression where we really had a
problem with the economy tanking it’s you know the only time that we faced
more economic strain that we have over the past few years in the nation’s at
least semi modern history and Congress started to pass a whole series of very
significant laws intended to you know pick the economy up get things going put
people to work working for the government a lot of government spending
and alike and the Supreme Court and the Congress and the executive branch were
at loggerheads over whether that was permissible or not because on the one
hand Congress has this kind of vaguely worded power that I mentioned to
regulate commerce between the states on the other hand there was a sense among
kind of legal academics among some judges at the time that there was a due
process right to contract and that is you had a right to make
decisions about your own work your work decisions couldn’t be regulated by
Congress so for example believe it or not there was huge controversy over
child labor laws and whether they were constitutional or not and the Supreme
Court and Congress and the executive branch were just beating their heads
against each other with Congress passing these laws intended to get the economy
rolling and cut and the Supreme Court’s striking laws down and we had the very
famous switch in time that saved 9:00 in which the Supreme there was a proposal
that was put forward by the President to actually add justices to the Supreme
Court where they faced a problem where there was a five justices majority that
was striking down these laws and the president proposed that a certain for
every justice over a certain age that would add new members to the court in
the kind of fake thing about it was like oh you know they’re old they’re not up
to the job but it was just an attempt to get the president wanted to appoint more
people to the Supreme Court so he could have a working Supreme Court majority
and the Supreme Court in some sense blinked and said eh we are really out of
step with the country here and it’s really the most famous moment in our
history in which the Supreme Court kind of shifted ground from a 5-4 majority
one way to the other way and all of this economic legislation that was in grave
jeopardy was upheld by the Supreme Court so that was one incredibly important
time and the legacy of that broad reading of Congress’s power under the
Commerce Clause comes to the fore again in the Affordable Care Act case that
we’ll come back to in just a minute because that’s that same fight and what
you have to recognize is that when you’re in that courtroom on June 28 2012
you are hearing a discussion of the same thing that was debated in the Supreme
Court a hundred years before and it’s been debated the entire time because one
of the very interesting principles of law we’ve mentioned one of them and that
is judicial review right the Supreme Court gets to decide what the law means
and whether the law is constitutional another important principle of law is
called stary decisis and that’s the latin phrase that basically means if
it’s been decided once we’re going to with it so what that means is if the
Supreme Court decides a case one way and decides an issue and you know this is
how we’re gonna interpret the law and this is how we’re going to interpret the
Constitution the general notion is that they won’t change their mind five years
later and change their mind again five years after that because there’s a sense
in which the law should be stable and it shouldn’t just depend on the vagaries of
who happens to be on the Supreme Court at any given time but the Supreme Court
has said that starry decisis doesn’t really apply so much in constitutional
cases and so in here again it’s important for us to divide the kind of
work that the Supreme Court does Congress passes a law you might ask two
different questions about that law one is what does it mean that’s a question
of statutory construction and the other question you might ask is is it
constitutional did Congress have the power to pass the law and if it did have
the power to pass the law did it nonetheless violate my right so just
take any example say Congress passes a new law about wiretapping okay you might
want to know when it is what is it that that statute means when is it that you
can have your cell phone conversations intercepted that would be one question
you would ask that’s the question of statutory interpretation and on this
question of started decisis the Supreme Court would say once we interpret that
law we’re gonna stick with that interpretation if Congress doesn’t like
that interpretation it can pass a new law but even if you understood what the
law meant you had resolved the question of statutory interpretation you would
then ask maybe those two questions about whether the law is constitutional does
Congress have the power to pass such a law almost certainly because
international and interstate communications are classically things
that you would expect the Congress to regulate and not the individual states
to regulate and then you might ask another important question does it
nonetheless if Congress had the power to pass it does it violate my individual
rights and here you would almost certainly be thinking about your right
to privacy that Fourth Amendment is it an unreasonable search or seizure for
your cellphone calls to be intercepted particularly if no judge is giving
approval for it and those would be the kinds of questions who would ask about
constitutionality and there the Supreme Court says star II decisis the idea that
it’s been decided once means it won’t be changed doesn’t apply
so much because Congress doesn’t have the power to come along and rewrite the
Constitution so when we confronted in the early 1900’s this question of
Congress’s power with the child labor laws and the like the reason we’re
debating it a hundred years later is that it’s Katie bar the door new Supreme
Court justices can come onto the court and change the meaning of the
Constitution because the words are sufficiently vague that the justices in
some sense have to breathe life into them and so the Constitution continues
to mean different things every 10 20 30 40 years as new problems come up but as
new members of the Supreme Court come on so the one example that I’ve given you
so far is the early 1900’s this fight over the Commerce Clause the breath of
Congress’s power another huge one is race right Plessy versus Ferguson we’ve
had some horrible examples in the country in which not only was racism
which was supposed to be really fought off through the 14th and 15th amendments
through the Bill of Rights but it was actually enshrined in the Constitution
by the Supreme Court through the early to mid part of the last century the
Supreme Court really was way behind the curve in some sense maybe it was a
little ahead of the country because the country was behind the curve but it was
way behind the historical curve of recognizing the importance of enforcing
the constitutional rights of minorities but as we got into the middle to the you
know second half of the last century the Supreme Court really did start to take
the 14th which is about equal protection and the Fifteenth Amendment which is
about voting rights started to take them much more seriously and that’s another
place where the Supreme Court really reshaped the Constitution reshaped
American life in saying that there can’t be state-sponsored discrimination
another thing to pause on when you’re thinking about the Constitution there’s
a big difference between how the Constitution applies at a State
University right at Iowa State versus how it applies at a private university
and how it applies to the police versus a private security force how it applies
to the federal government in Congress versus a corporation and the reason is
that the Constitution is a restriction on governmental action there’s only one
one provision of the Constitution really that applies against private actors and
there’s the provision of a constitution that says you can’t put someone into
involuntary servitude so if you’re like working for a professor even at a
private university and he’s really terrible to you you can invoke the
Constitution but the other provisions of the Constitution only apply as against
state actors and so when you think about racism in the United States there’s a
huge problem a private racism but there was a huge problem of governmental
racism and that’s what the 14th and 15th amendments are directed at and that’s
what as we got into the 1950s 1960s and 1970s the Supreme Court started to take
seriously and through decisions involving for example school
desegregation in particular in which the court really said we are going to force
through decisions like Brown versus the Board of Education and its successors
we’re going to take seriously the notion that you can’t have separate but equal
facilities and that really did take the Supreme Court putting its foot down and
causing the President to send troops into certain school districts in the
south in order to enforce the mandate of the Constitution unquestionably an area
in which the Supreme Court reshaped American life when it comes to race but
as I’m gonna give you three or four examples and then we’re going to talk
about the same debates happening in the Supreme Court last year this year race
is coming back to the Supreme Court take privacy so famously in the 1960s and
1970s the Supreme Court really decided to
confront police misbehavior and bad police practices we had a real problem
in the country in which police officers were kind of just you know obviously
trying to protect the public but really not paying a lot of attention to
people’s rights and that’s when the Supreme Court started to really enforce
things like the exclusionary rule so maybe you all have seen this scenario
everybody’s seen police cases on television so the police come in
they don’t have a warrant they searched the house they find the drugs the it
goes to court and the drugs are suppressed you can’t put them into
evidence right well the odd thing about that is the Supreme Court made that up
when I went to law school and graduated in 1995 I thought that this thing the
exclusionary rule was essentially written into the Constitution but it’s
another place where the Supreme Court had to interpret the vague language of a
constitutional provision so the exclusionary rule says if the police
violate that Fourth Amendment right that there won’t be any unreasonable searches
and seizures that they can’t use the evidence against you they can’t just
barge in violate the Constitution find something and then prosecute you with it
right well that exclusionary rule is made up by the Supreme Court because the
Constitution says there won’t be any unreasonable searches and seizures but
doesn’t say what happens if there are and so what the Warren Court the the
Supreme Court courts are known by the name of the Chief Justice so we’re in
the Roberts Court right now before that we had the Rehnquist court we had the
warrant and Berger courts the Warren Court said came up with this idea of the
exclusionary rule and said if the Fourth Amendment is violated we’re going to
exclude the evidence that was another significant area in which they changed
the country because it caused the police to take the Fourth Amendment more
seriously but they also recognized other things like a right to counsel that if
you are going to be charged with the felony then you have a right to a lawyer
and the government has to provide you with a lawyer because there were a ton
of people who were being prosecuted and had no real way of defending themselves
and there were a whole array of judicial and police procedure questions that made
a fundamental difference in the fairness and how of how people are prosecuted in
this country that’s another thing way in that the Supreme Court changed America
and that too is being revisited and we can go through another list famously
abortion Roe versus Wade and Roe versus Wade is a tremendous illustration of the
tensions between trying to figure out what the Constitution means and separate
that from what you believe personally so all this is
a perfect opportunity how many people here believe that Roe vs. Wade at least
when it’s interpreted to generate some right to an abortion that that’s
correctly decided how many people believe that’s correctly decided all
right and how many people believe it’s incorrectly decided and that the
Constitution doesn’t guarantee that right okay and then there are a lot of
people who haven’t thought about it’s perfectly fine now
what I want to know is how many people when they believe that it’s rightly
decided or wrongly decided that’s the opposite of their personal views about
abortion right so how many people here for example believe that there is a
constitutional right to abortion but are morally opposed to abortion or how many
people believe that it’s not recognized in the Constitution but believe that
there should be such a right there are a couple people but it is really
interesting when you think about all of these sorts of questions when there is
this room to maneuver in the Constitution how you’re know
fundamentally different from Supreme Court justices and how you have to
really recognize and a court that evolves that it changes over time that
its composition follows the presidential elections as present you know more
conservative presidents appoint more conservative justices President Obama is
going to appoint more liberal justices that it’s so hard on all these questions
whether it’s about broad federal power versus state power think about folks who
really believe in the kind of tea party vision of libertarianism and smaller
federal government if it’s about police power depending on what you think of the
cops or not when it comes to things like abortion when it comes to race all these
are infused with our personal experiences and while that’s true for
you and you want to think that it’s not true the justices it really is they all
come to the cases with all of their own personal context biases beliefs and the
like and abortion is really one we’re kind of all of those social issues are
epitomized more than in anything else so the Supreme Court in Roe versus Wade
recognizes a federal constitutional right in the kind of what was knows
what’s been called the pronoun murres of the 14th amendment which means I can’t
really find it in there but I really think it’s there I happen to you know
I’m not trying to be critical of the recognition of the right but it is you
know there is something to the criticism of
it’s hard to locate in the text of the Constitution and in the the right to
privacy but at the same time there are other things that aren’t in the text of
the Constitution that almost everybody believes really are fundamental right so
for example the same right that undergirds Roe versus Wade also is the
right to contraception there actually were states where you couldn’t first for
even for some married couples but certainly for unmarried couples couldn’t
get contraception right and so there are these rights that the Supreme Court over
time has recognized among them is the abortion right and that too is
constantly being revisited so what I’ve tried to identify for you is three or
four or five ways that I think it’s common ground we could recognize our
instances in which the Supreme Court has changed the country whether it’s on the
question of abortion whether it’s race relations in the United States it’s the
power of the federal government and now what I want you to recognize is that
everything that is serious in American law and American constitutional law in
particular is hotly contested I mentioned to you before that this notion
of starry decisis that we’ve decided one so we’re gonna stick with it doesn’t
really apply in constitutional law and that means that if you believe that
these earlier cases decided from about 1910 through about 1970 are wrong the
battle is never done for you because you can always reshape the Supreme Court in
a way that will cause those issues to be revisited and that’s exactly what’s
happening so in the Reagan administration
that’s where a group of lawyers really came together who had concluded that the
Supreme Court in the previous decades had been literally out of control it had
just been making crap up that you know that we had the Constitution you look at
the Constitution and I look into the thing it doesn’t have anything about
abortion in it it doesn’t have this exclusionary rule in it the federal
government is completely out of control was their view in terms of aggregate
taking on too much power for itself and excluding the states and they set a
mission under attorney general nice to reshape the Supreme Court and get the
Supreme Court and their reading of the Constitution back under control in their
views and one of the among the many incredibly important young lawyers to
this effort were John Roberts now the Chief Justice of the United States and
Sam Alito Justice of the Supreme Court and you can agree with them or you can
disagree with them but what you have to recognize is that they grew up
professionally in an environment in which they had a very strongly held
belief that the Supreme Court had gone totally off the rails and needed to be
brought back into a better narrower reading of the Constitution and what you
are seeing across an array of issues is the effort of a decades-long is the
results of a decade’s long effort to reshape American law reshape the reading
the Constitution into a way that they think is more correct and so now let’s
just go through that same list of issues that you might have thought was kind of
foundationally settled really core important constitutional things remember
we are 235 years past the act of the signing of the Constitution you would
think we would have gotten our act together and figured out what the thing
meant you’d be wrong because nothing is ever finally settled and when you go to
law school if you go to law school when your kids go to law school if your kids
go to law school you’re their grandchildren whatever all these debates
will continue to happen so take race this term the Supreme Court is hearing
oral arguments in Fisher versus the University of Texas that is the question
of the constitutionality of affirmative action in public school and university
in particular admissions now the Supreme Court confronted this question just nine
years ago and it held by a five-to-four majority involved in a case involving
the University of Michigan Law School called Grutter that public universities
are entitled to use race as a factor in evaluating applicants in setting up
their admissions classes and that was a case in which Sandra Day O’Connor our
former swing vote was in the majority provided the fifth
and she said I think that my sense of matter is that 25 years from now
mostly affirmative action won’t be required but until then at the very
least this is part of the transition away from a sorry history of race
relations and the treatment of minorities in the country and it’s
constitutional and the basic view of those who favor affirmative action is
that the 14th amendment which guarantees equal protection of the laws is intended
to help minorities and so it doesn’t invalidate a statute that is also
intended to help minorities on the other hand the more conservative view the
dissenters of that case of the Grutter case say the thing says equal protection
of the laws and it was intended to end racial discrimination and if you
separate people on the basis of race if you say African Americans and Hispanics
and Latinos they are going to have a special treatment what you’re doing is
you are actually isolating them more by making us focus more on race and you are
at the very least discriminating against whites and so that’s actually racial
discrimination and those are just two incredibly competing views of that 14th
amendment and what its promise of equal protection means and what happened after
9 years ago in that Grutter case when it was decided the Supreme Court changed
Sandra Day O’Connor her husband had gotten Alzheimer’s and she decided that
she was going to go and take care of him and so she were designed from the
Supreme Court there was actually a very odd situation where Chief Justice
Rehnquist and she came and met and Chief Justice Rehnquist had anaplastic thyroid
cancer which is an incredibly debilitating you – it’s a very nasty
cancer and he was dying but didn’t really want to admit it and he said to
Sandra Day O’Connor well we can’t both leave at the same time because of how
difficult it is to get justices confirmed through the Senate and she it
was a very awkward conversation and she interpreted that as meaning that she
needed to go ahead and retire and so she did and while her she said I will retire
upon the appointment of my successor and while
that was all pending rehnquist died and her husband also his condition
deteriorated to the point where I think if she had had the opportunity she would
have stayed on the Supreme Court but it didn’t work out that way she didn’t have
the opportunity to and so she retired and she’s actually very active in
retirement the upshot is this very personal series of events the kind of
miscommunication between her and Rehnquist and net1 meaning even what was
going on with her husband led to a situation in which John Roberts replaced
William Rehnquist but Sam Alito replaced Sandra Day O’Connor and that one move in
the Supreme Court from our you know she was appointed by President Reagan she
was a conservative but she was a centrist conservative kind of was my co
in either way in any given case with Sam Alito who’s a much more solidly
conservative justice has meant that a whole series of issues that were settled
ten years ago in one direction are now swinging dramatically in the other and
so on this question of race whereas the Supreme Court just nine years ago had
said that affirmative action is constitutional
they have the people who voted that way have lost their fifth vote and having
four votes in the Supreme Court is nothing but depressing it doesn’t get
you anything it will not even get you the proverbial cup of coffee you have to
have five votes in the Supreme Court and the left and the center of the court
that would combine with the left have lost their vote and so the Supreme Court
this term is going to dramatically dramatically constrain affirmative
action in public education because the fuck now there’s a conservative majority
on the Supreme Court right or wrong I’m not trying to be critical or endorse it
but right and wrong believes that affirmative action and school admissions
is discrimination and so in the Fisher case they’re going to say that you it’s
very rare that public education probably public educational institutions can have
race as a factor in admissions take abortion the Supreme Court under Sandra
Day O’Connor its most recent major abortion case was called Gonzales vs.
Carhartt and it involved the the kind of horrifying subject very
difficult to talk about have so-called partial-birth abortion a very gruesome
procedure rarely used but nonetheless held very symbolic value for those who
are opposed to Roe and also for those who are trying to preserve the right and
under standard a O’Connor the Supreme Court had decided five to four that if
you were gonna have that kind of statute you could ban that procedure but you had
have an exception for the health of the mother Sandra Day O’Connor leaves Sam
Alito comes to the Supreme Court and in a case involving the same doctor also
called this another case called a Carhartt the
Supreme Court contra confronted a federal statute and on the exact same
issue came out the other way and said no you don’t have to have that exception so
race abortion and now we come in the Affordable Care Act to the Commerce
Clause so on June 28th as the Supreme Court is announcing the decision on
Obamacare we are confronting again one of the big issues that one might have
thought were settled in the earlier part of the last century and from 1006
through 1012 in the morning the Chief Justice explains why it is that the
Commerce Clause is narrower than really anybody thought it was in a very
significant respect so the argument in the Affordable Care Act case just to
take you down into the weeds for just a second is that the individual mandate
that underlies the federal health-care legislation which says that in the main
people are going to have to buy health care the idea behind the statute is that
we’re going to take people basically the people in this room the healthy people
write too many healthy people are not getting insurance because they don’t
feel that they need it people young people who are in pretty good shape are
saying insurance is expensive I don’t think I’m gonna get that sick and so
they’re under insuring as a consequence they are not taking on the risk you’re
if you don’t enter the insurance risk full if you don’t buy insurance then
what happens is the insurers don’t have enough
healthy people who aren’t going to need health care all they have is people who
are more sick and insurance gets really expensive and becomes harder and harder
to get so the idea of the individual mandate is that they’re gonna make you
buy insurance even though in the sense you don’t really need it as much so that
you can make insurance less expensive for everybody else and so that will have
more affordable health care it’s a it’s a subsidy in a sense and so the argument
in the Affordable Care Act case was that Congress which I mentioned has the power
to regulate commerce between the states and one would think you know health care
last time I checked it’s like we’re thirty trillion dollars in commerce
right this isn’t exactly some tiny little thing and a health care companies
and hospitals deal with the interstate stuff all the time
well the argument in the Affordable Health Care Act case was the clever odd
notion that yes you can regulate commerce between the states but you
can’t create it the idea was that by forcing you to buy insurance they were
creating the commerce that they wanted to regulate and in kind of the legal
world this was kind of laugh-out-loud funny just the whole notion that
insurance and massive healthcare issues weren’t regulatable by Congress was
regarded as completely you know silly and kind of crazy but the Supreme Court
that morning on June 28 actually agrees with it a majority of the Supreme Court
says that’s absolutely right Congress doesn’t have the power to create
commerce and thereby significantly changed potentially the scope of federal
power in a rule announcing a rule 235 years after the Constitution gets signed
that never had existed before and in fact came very close to completely you
know shifting the groundwork of health care in the country and the shape of the
presidential election by invalidating the president’s signature achievement
because as has been rumored but the rumors are actually true the Chief
Justice had voted not just to accept this argument about the commerce clause
but it had actually voted to invalidate the statute
all together but he had changed his mind between the world argument in the case
and the decision coming down and that is just an incredible illustration for you
not just how the Supreme Court can change American life but how one person
sitting back reading all the briefs listening to their arguments and just
mulling the question over and trying to get it right one individual person one
individual vote in the Supreme Court can change American life because I think we
all have to agree that if the statute had been invalidated things would be
very different the whole presidential election would be different the
availability of health care for people would be different better worse who
cares but it would have been a very different situation and that’s in some
sense a good illustration for you of why it’s not exactly right to say how the
Supreme Court changes American life and maybe the right way to look at it is how
individual justices can change American life and how it is right to say that
maybe there isn’t US Supreme Court but there are nine different people who have
vastly different views who come together in different majorities because if you
were to say look as President Obama changed American life would how many
people believe that a president Obama has changed American life a substantial
plurality at least now but you would never really say has the White House
changed American life right because the White House changes based you would say
that’s true but it would be kind of a meaningless statement it wouldn’t tell
you very much because who’s in the White House would tell you much more about how
the executive branch has changed American life and so too with the
Supreme Court and if ten depends very much on the individual justices and the
fact that John Roberts voted one way to invalidate the statute and changed his
mind but still adopted a very conservative legal rule eventually
upholding the statute under another provision of the Constitution the tax
power is a good way of thinking about the Supreme Court because it really puts
a fine point on the fact that the presidency matters when it comes to the
Supreme Court and it’s kind of amazing how many people here who are
eligible to vote are going to vote in like one of the top three things will be
in terms of your choice of a presidential candidate will be Supreme
Court appointments you came to this lecture so it’s kind of cheating yeah
you know the people who are here or have a greater interest than most in the
Supreme Court but even then we’re talking about twenty percent of the
people in this room and it’s really interesting because the lasting legacy
of a president if you say you know what is the lasting legacy of Ronald Reagan
right now in American life you know what’s the lasting legacy of the first
President Bush the longest lasting legacy of our presidents in some
respects is really their Supreme Court appointments because now there’s this
real emphasis on putting people on the Supreme Court when they’re basically
teenagers like who’s gonna be the next Supreme Court appointed you have to look
at the people who are like 43 44 or 45 people went to law school at the time
that I did and that’s how you’re gonna really get a sense of someone’s gonna go
on to the Supreme Court be appointed and be there for 25 or 30 or 35 years when
the president is long long long gone so those are some illustrations of you for
you of things that the Supreme Court you know settled at one time have become
unsettled are being revisited again another excellent example I should have
given as I mentioned it before is the exclusionary rule remember how I said in
the Warren court era they found that if there was a violation of the right
against unreasonable searches and seizures they would exclude the evidence
under the exclusionary rule well the Supreme Court has said that it’s not
going to expand the exclusionary rule at all anymore four justices have said they
would overrule the exclusionary rule and allow the evidence to come into the
trial even when there was a Fourth Amendment violation and if the just if
one more justice one more conservative justice comes on to the Supreme Court
they will eliminate the exclusionary rule altogether and if one more
conservative justice comes on to the Supreme Court there’s an excellent
chance that roe v wade will be if not overruled entirely it will be
significantly limited again you may think that’s the greatest thing ever you
may it’s the worst thing ever but it is
really interesting how while we’re so used to Congress changing the law all
the time we have just this felt sense of the Constitution as being more immutable
than the vagaries of new Congress is coming in and turns out not to be true
so let me then just flag for you the big issues the big constitutional issues
that are coming to the Supreme Court this term and you can see kind of how as
time evolves over the course of the nation’s history still it’s amazing the
new questions that come to the justices or new variations on old questions and
it’ll be really interesting to see what the justices do with them and then I’ll
stop and we’ll talk about questions and we’ll start drinking so the big case
this term I’ve mentioned already Fischer the affirmative action case the next big
case is that on November 26th the Supreme Court is going to announce that
it is taking up same-sex marriage now it could take up same-sex marriage in
either of two different contexts one is the federal Defense of Marriage Act
section 3 of DOMA is the provision of law that says we
have a federal definition of marriage and what the federal definition of
marriage has always been is that if you are married in a state then you are
married for purposes of federal law and that might mean you get you know the the
benefit of various provisions of the estate tax various survivor benefits all
kinds of things if thousands of provisions are very complicated federal
law DOMA says for federal law purposes we’re changing that sorry instead in
order to be recognized as married for purposes of federal law you have to be
an opposite sex couple and there have been a number of constitutional
challenges to that saying that look if my state is willing to recognize my
same-sex marriage you have no justification in the federal government
suddenly changing and refusing to recognize that and every federal court
pretty much that has considered that question including the Second Circuit
Court of Appeals in New York today has held that section 3 of DOMA is
unconstitutional it’s a very interesting illustration because remember I
mentioned that the president’s representative Don Verrilli
is in court with us on June 28 waiting to hear if the Affordable Care Act has
been upheld or struck down well the Obama administration has
refused to defend this statute a very unusual maneuver the president has
constitutionally assigned the responsibility to give force and effect
to laws the Congress passes but there is a recognized exception that if the
President believes the law is unconstitutional he can refuse to
enforce it and in that case then the Congress can defend the law itself and
that’s what’s happening in DOMA so the Supreme Court is going to take up
same-sex marriage maybe in definitely a man context they will take up DOMA for
sure but the other case they have in front of them is Prop 8 so proposition 8
that litigation is over the situation in California where the California Supreme
Court recognized a state constitutional not federal constitutional right to
same-sex marriage and then California voters in an initiative overturned that
and got same-sex marriage taken out of the California Constitution and the US
Court of Appeals for the Ninth Circuit out west
ruled that giving someone a right to same-sex marriage and then taking it
away for reasons essentially of hate and invidious discrimination that’s
unconstitutional and so the Supreme Court may take up prop 8 at the same
time that it takes up the gentleman question other significant issues
involving privacy are going to be in front of the justices this year so take
there are two good examples one is going to be DNA testing so a number the
federal government a number of states have passed laws that say if you are
arrested if you’re arrested we will take a blood sample from you and we will test
your blood against a database of people that we know we don’t know who they are
but they committed crimes right and so at what point you haven’t been convicted
of anything but being arrested what privacy interests do you have in your
own DNA it’s a very very interesting question
another privacy question that’s coming in front of the justices this year you
are pulled over the officer thinks that you have been drunk now they don’t have
time to go to a judge before alcohol would drain out of your system would you
know breakdown so can the officer require you to take a blood test at that
time where do they are they kind of stuck unable to test you if there hasn’t
been an accident or anything else – more privacy cases involve drug sniffing dogs
we have a general rule under the Constitution the reasonable expectation
of privacy says that if we’re going to do a search of you then we are gonna
have to go ask a judge but can the cops come up to your door with a drug dog and
sniff underneath your door the Supreme Court said in a case called Kyllo that
they couldn’t come to your house with a heat a machine that can look through the
walls in the sense and a thermal imager and see kind of what’s going on looking
for grow lights none of us knows what that is but the the very high-powered
lights that grow ferns and things inside homes and the Supreme Court said looking
into the house that way is a search well what about sniffing under the door
looking for marijuana is that and so on and so forth can you patent genes is in
front of the Supreme Court this turn an incredibly important question for the
future of science and technology and so on and so forth so my point to you is
not that any one of these cases is necessarily more important than the
others although the same-sex marriage thing is certainly very very interesting
but rather that you know I could come back or you could talk with your friends
next year and the year after and the year after and you’re after and lots of
things that you imagine were already decided by the Supreme Court make it
undecided and decided the other way or new questions if technology new
questions of privacy and the like are constantly coming up and the justices
are always have in front of them the different ways in which they are
reshaping American life because of how they read the Constitution and read
various statutes so maybe I’ll stop there and we can talk for a while just
about questions that you may have about the court and about appointments in the
election and all of those sorts of things
um but thank you very much so it looks like Pat has a microphone
and said how we’re gonna do this is that right and do you want to bring the
microphone to people or do you want people to go to the microphone okay sure
I want people to be able to hear the questions so I do want to go to the
microphone or I’ll repeat the question okay all right right yes yeah well so
just let’s go and play it out with one more level of detail the question is so
we could just talk a little bit more about how Obamacare was decided and kind
of what the upshot of the legal rule is so we’ve settled the fact earlier on
that it’s not in Congress’s power to create commerce on the other hand the
Constitution gives power to Congress to tax and it’s the case that what happens
actually with the Affordable Care Act is if you don’t buy health insurance you
don’t go to jail instead what happens is that you are required to pay a tax on
your 1040 form it actually is the case that if you don’t pay the tax nothing
happens to you weirdly it’s a very unusual tax the only thing that can
happen the government has a very funny line in its brief that says well if you
don’t pay the tax you may be called by an internal revenue agent to encourage
you to pay the tax but the Congress actually wrote a provision of law that
says in this very unusual tax that you can’t be prosecuted for not paying the
tax what they can do is withhold your tax refunds but it has a very limited
enforcement mechanism and I will say that it’s a very odd vision of the
Constitution right or wrong because one of the things that you the the parties
arguing against the statute said look we know that there is this taxing power and
we know that it’s on your 1040 form but everybody in Congress swore up and down
and the president said when it was enacted that this is not a tax because
they remember the political environment if everyone had been free
and honest and said this thing is the tax it would have never passed because
everyone was so anti-tax and the Supreme Court said we’re not gonna really talk
about that the Supreme Court said look it looks and walks and talks like a tax
and even if Congress formally said it wasn’t a tax it’s still a tax so the
rule of law that comes out of the decision is very mixed in a sense and
that is Congress can’t create commerce but it can force you to pay money if you
don’t create commerce and so it can do accomplish basically the same thing and
so one would have you know if you wonder where imagining creating a Constitution
would you really write a constitution like that would it make much sense for
you to say I care so much about limiting Congress’s power that I’m gonna tell
them they can’t create commerce oh but then you know you can tax people if they
if they won’t create the commerce for you
it admits that it doesn’t hold together very well for me what it does do though
is it puts the Supreme Court in a pretty good spot the conservative majority of
the Supreme Court adopted their in a couple of other places some very
significant rules of law going forward particularly in the other in another
part of the challenge that doesn’t get talked about very much but didn’t up in
a massive piece of economic legislation which it really hadn’t done since that
period that I mentioned at the very beginning of the last century and so
what it did do I think is insulate the Supreme Court I’m not saying that this
is what John Roberts was trying to do but one of the up shots of what happened
is that it has really insulated the Supreme Court from political attack as
being too aggressive too active but nonetheless created some very
conservative legal rules and so I think that’s probably the the lasting legacy
of the decision yes I will talk about it anyway don’t worry yes sure so this is the something you
all have seen a ton about and that’s the retention in the wake of the same-sex
marriage decision in Iowa this is an unusual situation we have seen around
the country for a variety of reasons people be you know voted out on the
basis of decisions judicial elections are a very odd thing in my book you know
you want the under article 3 of the Constitution federal judges are
appointed they’re not elected and they’re appointed for life assuming good
behavior and everybody behaves well enough to satisfy that centered we never
kick our federal judges out in other places where you have elected
judiciary’s it seems to me and particularly we have after citizens
united which is another big change in the law right or wrong with the Supreme
Court has recognized that much stronger First Amendment right to spend money in
electoral campaigns where you have judges being voted in and voted out I
really worry about the Independence of the judiciary and it is you know it is
relatively rare around the country for one decision to so in danger state
Supreme Court justices position on a court but it is purely a question of
state law and that is even though what might be recognized the state courts
have to handle both state law questions and federal law questions and so imagine
that a state Supreme Court the Iowa Supreme Court recognizes a federal
different in the situation but imagines it recognizes a federal constitutional
right to same-sex marriage or what happens that judges sometimes get
criticized for they issue a big death penalty ruling the death penalty is
unconstitutional or something like that even though they are deciding a question
of federal law if they get voted out if the system in the state is that we vote
in people we have retention elections we can recall justices that is not a
problem it may be a problem but it is not
unconstitutional and it can never get to the US Supreme Court it cannot that is a
question for the states they pick their own people and put them on and take them
off as they see fit I do because I look it turns out I think that citizens
united is not going to change the balance of the presidential election
each height has roughly 60 trillion dollars that they’re spending in the
election but take citizens united and put it on a more granular scale and
think about judicial elections right so you might think the plaintiffs Mar is
trying to buy the state judiciary you might think the State Chamber of
Commerce is trying to buy the state judiciary but there are elections that
are cheaper than the presidency that don’t cost literally a billion dollars
where are $100,000 or $200,000 can make a huge huge difference in a state like
this one and that’s where I think that citizens united is actually deeply
unfortunate because people who have national agendas or just have a lot of
money can come in and really reshape the ability the public’s perception of any
injured into any individual race and think again about your state Supreme
Court in the same way you think about the US Supreme Court where a single vote
can make the difference and if you can change that dynamic you can change in a
way that you know you would have to change the entire state legislature to
have the same effect and so that’s where I think is the overlooked unfortunate
legacy of citizens united is in state elections in particular state judicial
elections ma’am yeah yes yeah so right so citizens united one
of the so just to step back most people know what this is but citizens united
over rules a prior body of Supreme Court precedent and says that corporations
have a right to spend unlimited amounts of money however much money they want in
elections that they are like people too now they can’t contribute to candidates
just like people can’t contribute to candidates and the notion is that
corporations have are represented an important part of society of an
important aggregation of wealth or it may be a viewpoint but that there are a
lot of rights actually that apply to corporations so for to take the simplest
example when we were talking about unreasonable searches and seizures
imagine what’s a company that has a big plant near here John Deere okay so the
police can’t come in to John Deere and search through John Deere’s files right
that would be an unreasonable search and seizure it would violate the
Constitution it would violate their rights
you couldn’t have let’s assume that you had a corporation that principally
served African Americans you couldn’t have a law that says that corporation
can no longer continue to operate in the state of Iowa that would violate the
Equal Protection Clause and so it actually is the case that a variety of
provisions of the Constitution kind of uncontroversially do apply to
corporations but but the application of it the First Amendment and the ability
to spend this amount of money in elections is a substantially more
controversial thing because of look you just got a this is this is a real
dilemma look if someone came up to you and said look we know you care
passionately that Mitt Romney should be elected or Barack Obama should be
elected but we’re not going to let you talk about that obviously a violation of
the First Amendment what if they came up to you and they said you could talk
about it all you want but you were gonna pay a thousand dollars to spend to put
flyers up on campus we’re not gonna let you do that
probably still obviously a violation of the First Amendment you want to
participate in the electoral process and so it’s very hard to draw lines of
what’s okay and what’s not okay now I happen to come down on the side of
saying that citizens united is wrong and that it really creates a distortion in
democracy to allow such massive amounts of money to be spent but you can I can
see the other side of it because it’s just so hard to know when you’re dealing
with something that’s so fundamental which is participation in elections
which is really what the First Amendment is at its core about exactly where to
say that this is okay but that’s not let them vote yeah a good example of a
provision of the Constitution that does not apply to corporations it doesn’t
apply to a lot of people but absolutely I think that there are that’s another
another good example of hard lines to draw what rights corporations have and
which ones they don’t absolutely sure so this is a great part of my day job I
argued that my 26th case last week and my 27th case OB in three weeks it’s a
very intense thing to argue in front of the Supreme Court because we have eight
justices who are very active Justice Thomas famously does not ask questions
yes he asked me a question seven years ago and that was the second-to-last
question that he asked I may have just put him off the whole idea of two asking
questions and you know in the course we get 30 minutes it used to be that
Supreme Court oral arguments would last days or weeks and can you imagine
listening to me for days or weeks and so they’ve cut it down to 30 minutes per
side and can get asked in that time just to give
an example Sonia Sotomayor Obama appointee who believes in the
constitutionality of affirmative action that one Justice asked 22 questions of
the plaintiffs in the Fischer affirmative action case John Roberts the
Chief Justice believes that there are real constitutional problems with
affirmative action he has 27 questions of the lawyer for the University of
Texas now those are individual justices and then you multiply that out and it’s
basically just a kind of firestorm the other interesting thing about Supreme
Court oral arguments is that the justices they decide about 70 cases a
year and for judges that’s not many and they have four law clerks each and they
do a huge amount of preparation for the cases and so when they come to oral
argument they don’t have a lot of actual questions they felt a lot about it they
have all these briefs in some cases they may have a hundred briefs already the
world argument is ironically the opportunity for them to talk to their
colleagues because they don’t meet about the cases ahead of time and so really a
lot of Supreme Court questions are statements of position with a question
mark at the end isn’t it the case that as they try and persuade their
colleagues and all I am is just that I just have the best seat for hearing
what’s gonna happen in my case as they bounce things off me to try and persuade
their colleagues so you know the amount the the amount that I can actually
accomplish in an oral argument is limited for that reason so in an oral
argument what I’m actually trying to do is try and find the one justice who’s
open to persuasion about just one or two points figure that out and just survive
the rest of the time but it certainly you know it’s great fun as soon as it’s
over yes well let’s talk in very specific terms
the question of what happens to roe after Mitt Romney is elected if that
were to happen really depends it’s a two-stage thing what happens to the
Supreme Court so for a while the average age of Supreme Court justices was 126 it
was a very old Supreme Court that’s no longer as true you know we do have a
bunch of you know we have several justices who are more newly appointed
who are in their 50s now but if Mitt Romney is a
then our two oldest judges who are conservatives would be the ones who
might conceivably retire in Justice Scalia and Justice Kennedy Justice
Kennedy being our center vote the oldest justice on the court Ruth
Bader Ginsburg who is 78 will do anything possible to not retire under
Mitt Romney she will go into cryogenic freezing under this in the summer okay
she will have her her body rolled up to the bench okay and that’s just the way
things are now justices vote when they voluntarily
retired they retire under President who will appoint someone essentially the
same ideologically and so what’s going on with all of these retirements is the
question of when someone will literally run out of time and that they will
involuntarily retire under a president so if regrettably something were to
happen to Ruth Ginsburg under Mitt Romney or the reverse under a second
term of Barack Obama then the law could change so you have one big assumption
and that is what will happen to Ruth Ginsburg because she won’t voluntarily
retire but let’s assume something unfortunate happens and she leaves well
Justice Kennedy who’s our center vote who’s quite conservative believes that
existing abortion jurisprudence gives too much power to Roe vs. Wade and he
has strongly signaled that he would limit the abortion right already so the
Supreme Court hasn’t had an abortion case in a few years they have just you
know people have not been litigating them states haven’t been passing a lot
of the statutes and so we don’t have an immediate abortion controversy in the
Supreme Court but if Mitt Romney were able to replace Ruth Bader Ginsburg with
somebody who’s more conservative than Justice Kennedy and Republican
presidents have gotten so good at getting really solidly conservative
justices on to the Supreme Court John Roberts Sam Alito we had this thing of
David Souter who is appointed by the first President Bush there became this
mantra of no more suitors among Republicans that they just thought that
he was way too liberal he was a kind of northeastern Republican
and so you would expect that whoever would replace Ruth Ginsburg would be
substantially more conservative and Roe vs. Wade would either be overruled
outright but that’s probably a little unlikely because of what would happen in
the country you know you just take the example of the Affordable Care Act the
Supreme Court tries not to create massive controversy but it would be
substantially limited and what that would mean is that it wouldn’t mean that
abortion was illegal it would mean depend on where you lived and States in
more conservative states would be much more willing to pass more significant
restrictions and so it would vary the availability of the abortion right would
vary tremendously from state to state we have time for one more question with the
big group but if you have additional questions we invite you to join us with
the reception afterwards with mr. goldstein so one more question sure well it actually has been the case
and this was the great frustration for Republicans it was actually the case
that not infrequently Republican appointees would move to the left now
they would always deny it but if you take David Souter from the first
President Bush John Paul Stevens who was really the leader of the left on the
Supreme Court Harry Blackmun who wrote Roe versus Wade
appointed by Nixon there are through those are the three most significant
examples of people expecting very conservative results from justices and
then turning out to be substantially more liberal and that will never happen
again for just that reason Republicans in particular have come to
really valued the judiciary now that’s not to say that Democrats are unaware of
the importance of the Supreme Court but you just look President Obama invested
himself in the Affordable Care Act not in getting judges appointed to the lower
courts which he has been he has a really bad track record on both for his failure
to appoint and Republicans being really good at blocking them but Republican
presidents invest themselves in judges and Supreme Court justices and they
created an incredible farm team so that Mitt Romney will not have to look far at
all to find you know a dozen candidates who are 45 years old who have incredibly
rock-solid conservative credentials and you just take one great example of how
the Republican base will not permit that kind of what they regard as a mistake
again and that’s Harriet Miers remember the second President Bush takes
Harriet Miers who’s a Republican a good friend he knows well and people went
bananas on her nomination to the Supreme Court because the Republican base really
cares about judges and said we want someone who has a solid established
conservative track record and nope and you know she was forced to withdraw
because of the firestorm from her ideological team if you will and because
of that no Republican president will make the same mistake what is really
unfortunate and very interesting to watch is what happens with a Mitt Romney
as president for example and a Democratic Senate right if you try and
put on somebody who’s really conservative will Democrats filibuster
will they vote the nominee down what will happen at that point because a
Republican president will is only going to appoint somebody who’s very very
conservative now of course President Obama’s nominees are regarded by
Republicans and conservatives as extremely liberal you know compared to
where our conservative sits they are very liberal but come there is nobody on
the Supreme Court right now that is remotely as liberal as the Supreme Court
in the 1970s that every single member of the Supreme Court right now is more
conservative than every single member of that Supreme Court essentially that’s
how much the law has shifted for better or for worse there has just been an
incredible realignment ideologically of the Supreme Court okay
please all join me in thanking our speaker thanks join us for some snacks and drinks more
conversation Thank You more conversation thank you more conversation thank you
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