Supreme Court Preview: What Is in Store for October Term 2017?
Articles,  Blog

Supreme Court Preview: What Is in Store for October Term 2017?


My name is Jan Crawford and I’m a correspondent
with CBS News. I cover the Supreme Court and it is my great honor, uh, to be here to quote-unquote
moderate this event, which we’re saying earlier, I have the easiest job you can imagine. I’m
gonna introduce these incredible legal experts, and they’re going to discuss, uh, what is
shaping up to be a pretty remarkable term. I was thinking, you know, having, see I started
covering the court in 1994. So, I’ve gone to a lot of these Supreme Court, uh, preview
sessions, as I know, a lot of my colleagues, we can kind of empathize about this. There
will be years where you sit in the crowd and there will be a fine panel of experts assembled
and there literally are three cases you really care about. So, you’ll have to like kind of
wait for each person to finish their remarks till’ you get to the one case that you’re
really interested in. That is not the case this year. Um, eh, all the cases that we’re
going to be talking about today, uh, are extremely important, differed, different, and, um, I
mean, again, shaping up to be, I think, what is a landmark term. But maybe with, uh, not
at least one of the cases that we thought we were going to get. Um, I’m gonna start
by introducing our panelists. They are going to talk for five or six minutes each about
some of the cases that they, um, are very well versed in and then kinda react to each
other. And we’ll may have some, uh, discussion at the end and then we’ll open up to questions.
So, you guys feel free to, um, um, I’m sure there’s nothing that they can’t answer. Um,
but first of all, we’re gonna kind of start with, um, uh, Professor Samuel Estreicher.
Um, you guys of course all know he is a professor at NYU School of Law. He’s director of the
school’s Center for Labor and Employment, co-director of the Institute of Judicial Administration.
He has taught, lectured widely, um, on matters of federal jurisdiction, foreign relations,
United States, arbitration, complex litigation in US courts, and actively involved in amicus
capacity in a number of cases involving the kind of the place of international law, in
US domestic law, and the Alien Tort Statute. Including, uh, his recent brief on behalf
of, uh, US foreign relations law experts in Jesner v. Arab National Bank. And in 2016,
he was appointed by the UN Secretary General to serve as a member of the UN’s Internal
Justice Counsel. He’s a graduate of Columbia Law School and clerk for Justice Powell. Um,
he will be talking about Jesner v. Arab Bank and the travel ban cases, which he says I
should refer to- Travel pause.
-as a travel pause. Um, Andy Pincus is gonna be up next. He is a partner at Mayer Brown
and, I mean, I think distinguished Supreme Court advocate is really, uh, the, the best
way to describe him. He’s argued 27 cases in the Supreme Court and he’s won quite a
few of them, um. Law360 ranked Andy’s victory and AT&T Mobility v. Concepcion as the most
important Supreme Court class action decision of the last 15 years. And in 2016, they named
him an Appellate MVP. He was recognized in 2015 as a Litigation Trailblazer. Um, his
Supreme Court work, his defense of Mayor Rahm Emanuel’s run for Mayor, right to run for
office, uh, cited by American Lawyer in its article naming Mayer Brown the top, one of
the top six litigation firms in, in 2012. Um, I could go on and on about Andy and all
of these, uh, fine panelists. He’s worked in SG’s office, he co-founded Yale Law School’s
Supreme Court Advocacy Clinic, uh, he has served as general counsel for Commerce Department,
uh, graduate of, um, Yale and Columbia Law School. He’s going to talk about epic systems
as the, the significant arbitration case among others, and, uh, has some thoughts on several
other cases our panelists will be discussing. Orin Kerr, um, is a nationally recognized
scholar of criminal procedure and computer crime law. Director of the Cybersecurity Initiative
at GW Law School. He’s been a tremendous resource, uh, certainly to, uh, not only the courts,
uh, and litigants, uh, but also, uh, viewers of, uh, television networks and in the Washington
Post because of the work he does at explaining, uh, and teaching some of the things that the
courts do and he will be leaving Washington, uh, sadly for us, but happily for him to,
to go teach at USC Law School in January. He’s a former trial lawyer in the Justice
Department’s Computer Crime and Intellectual Property Section, who’s a Special Assistant
US Attorney in the Eastern District of Virginia, argued many cases in the Supreme Court and
the federal appeals courts, testified six times before congressional committees, which
will be easy, harder to do out from out there in LA, Orin. Maybe you wanna stay?
That’s okay. Uh, but you know, he’s authored, co-authored
casebooks, has authored the leading criminal procedure treatise, and, like I said, he posts,
uh, regularly making some of these complex areas of law accessible to viewers, uh, particularly
on the bl- uh, Volokh Conspiracy legal blog. He’s a graduate of Harvard and he clerked
for Justice Kennedy. Sitting next to me is Kyle Duncan, who has argued more than, you
guys getting the theme here? He’s argued more than 30 cases, uh, these, these uh, uh, a
panel of heavyweights. Um, in federal and state appellate courts, uh, numerous cases
for parties and amici in the US Supreme Court, and argued two cases in the Supreme Court.
Uh, from 2012 to 2014, he was the general counsel of the Becket Fund for Religious Liberty,
uh, and, this uh, will not surprise you among other cases, he, uh, was lead counsel in Hobby
Lobby. Uh, from 2008 to 2012, he was Louisiana’s first solicitor general. You’re a native of
Louisiana I do believe. Is that right? Um, representing obviously state and public officials
before the Su- Supreme Court, the Fifth Circuit, uh, Louisiana Supreme Court, and so on. Uh,
he received his J. from LSU, LLM from Columbia, and clerked on the Fifth Circuit. And I was
going to, uh, commiserate with you about your school and your state, you know, and say ‘Roll
Tide,’ but after what transpired in my great state last night, I don’t really think I can
say much of anything. So, maybe Louisiana doesn’t look so bad after all.
Did Nick Saban quit? Uh, fortunately for Alabama, we still have
Nick Saban. Oh.
Uh, everything else is going down on down there, but I don’t, I don’t really wanna-
Let’s move on. Um, and finally Carrie Severino. Uh, chief counsel, policy director of the
Judicial Crisis Network. Uh, she’s testified before Congress, uh, on assorted constitutional
issues, briefed senators on judicial nominations, obviously, uh, recently taking, uh, really
the lead in, uh, supporting the Gorsuch nomination. Um, she’s been extensively quoted in the media,
again, kind of bridging that, you know, kind of taking these complex issues of the law
and then presenting them to the people through the media. Um, she’s appeared often on television,
including CBS News. Uh, and she’s just written and spoken on a lot of judicial issues, particularly
constitutional limits on government, the nominations process. Uh, until 2010, she was a Fellow
and Dean’s Visiting Scholar at Georgetown University Law School. She’s a graduate of
Harvard Law School and she clerked for Justice Thomas. And I might add, on the way over here,
uh, she stopped by the Museum of Amer- African American History and Culture, uh, to see,
uh, its new exhibit, which does now have, um, a mention of Justice Thomas. [applause]
So, you may wanna ask her about that. Sorry about that.
You see you thought it looked- It took about a year, but th- they, they finally
remembered that he’s one of the most significant and, and admired, uh, fig- African American
figures in American politics, certainly today, so-
Um. Yeah, well and you said it was pretty well-done as which, with Thurgood Marshall-
Yeah, it, it was, it was, you know a small, a small corner wi- t- on him and Justice Marshall
that they had also left out. So I think they, they kind of had a serious blind spot-
Equal opportunity. -um, for the Court, but it is now, uh, I,
you know, uh, I suppose better late than never. Glad, glad to see that the oversight has been
remedied. We still, I think there’s still little bit of a heavier focus on some of the
less significant, uh, issues than they need, but it’s good to have him there.
Um, all right. So, as you can see, this is, uh, like the best possible group to talk about
this, um, what’s looking like a really interesting term after a real snoozer last year. Um, so,
I thought, let’s start with you, Professor Estreicher. We’re gonna talk about, uh, Jesner
v. Arab Bank and the travel pause cases. On Jesner involves the Alien Tort Statute,
which was enacted in 1789, and until the Second Circuit’s decision in Filartiga, uh, this
statute was cited only twice in all the US courts, and Henry Friendly called it the Lohengrin
of US law. Um, and, uh, the statute is very broadly worded. It simply, it was a [inaudible]
section of the Judiciary Act of 1798. It simply says its federal jurisdiction, uh, over actions
involving torts committed in violation of the law of nations or of treaties. And virtually
no litigation on the treaty clause. But under the law of nations since the Filartiga, the
decision has been, um. The Supreme Court had its first crack at this case in a case called
Sosa, the statute. Case called Sosa ver- v. Alvarez-Machain, where the US government argued
that the Alien Tort Statute was only jurisdictional. The Court rejected that argument. It said
that there is a cause of action there. Actually, the Sosa decision’s almost entirely dicta.
A dicta is, uh, dicta is data when we deal with the Supreme Court. I call it dicta because
the Supreme Court actually rejected the plaintiff’s claim in that case, but, uh, Justice Souter
wrote a very elaborate opinion on, um, the notion that the modern international law violations
can be reached by this statute. Uh, these actions have to involve international norms
that are, uh, universally accepted, uh, as binding rules and that are sufficiently, clearly,
and definitely stated so they could be the basis of a federal cause of action. The, uh,
decision had lots of ex- possible exceptions and open issues, uh, such as, you know whether
the exhaustion would be required. And one of the open issues was who are the parties
that can be sued under the Alien Tort Statute. Uh, in this Second Circuit, uh, the Second
Circuit took the position, uh, early on, uh, that, uh, corporations cannot be sued under
the Alien Tort Statute because there is no clear, universally accepted, definite rule
saying that corporations are liable for violations of customary international law, and that is
true to this day. Uh, even in situations like, uh, uh, Nuremberg and with respect to the
creation of the International Criminal Court, uh, corporations were not included as defendants.
There isn’t, in fact, an international consensus, uh, on when corporations can be sued for violations
of criminal law or, or international as a matter of their, of the customary law of nations.
That was the position the Second Circuit, uh, took. This caused a great deal of alarm
in plaintiff circles because the only defendants that are sued under the Alien Tort Statute
are corporations, and they’re sued on a variety of different theories that access, accessorial
liability, aiding and abetting liability. Uh, so a case from the Second Circuit called
Kiobel v. Royal Dutch, uh, went to the Supreme Court, uh, and Kiobel won. The case was granted
by this Supreme Court, the certiorari, uh, was granted on the theory we’re gonna decide
corporate liability that wasn’t full briefing in an argument, and then the Justices decided
we want, we gonna set this case for re-argument. And so there was Kiobel Two. Kiobel, Kiobel
Two, uh, was ultimately decided by the Court. It went against the plaintiffs. The theory,
uh, that the Court advanced was, uh, the statute has to be read against, the Alien Tort Statute
has to be read against the presumption against the extraterritorial application, and, uh,
given the fact that nothing in that case involved the United States or any US events or any
US parties, the Court said that these complaint had to be dismissed on the grounds that it
was impermissibly extraterritorial. The Court left open some language, which is gonna require
litigation. The, uh, the claim has to touch and concern US interests is what the Court
said. And there was a, uh, elaborate, uh, concurrence by Justice Breyer, uh on the notion
that, uh, wh- what, what his view of touch and consume was. So that was Kiobel Two. The
Second Circuit had, had a third case now involving Jesner v. Arab Bank. This is a case, again,
where all of the events occur essentially outside of the United States. It involves
the biggest bank in the Middle East, uh, it’s headquartered in Jordan and the claim in that
the bank has facilitated, uh, payments to terrorist organizations. The bank denies this,
the Uni- the United States has certified that the bank’s procedures are up to snuff with
respect to, uh, with respect to the antiterrorist measures that the Treasury Department and
State Department have, uh, mandated. Uh, the only connection with the United States is
that this bank, on some transactions that where the parties want dollar-denominated,
uh, uh, currencies, they have a, uh, correspondent bank, small correspondent bank in Manhattan.
And that’s the only connection with the United States. The case is now, uh, went to the,
er, was in the Second Circuit, and the Second Circuit said corporations are not liable.
That’s our position. That we, we, we announced in Kiobel One and, uh, Rosemary Pooler wrote
an opinion for the Second Circuit that, as much as she could, uh, criticize the Ki- Kiobel
One, but said that’s the law of the circuit and the case has been, uh, was granted by
the Supreme Court. So, the issue of corporate liability is back to the Supreme Court. There
is a problem with the case because all of the events occurred outside the United States.
It’s a problematic case under Kiobel Two, that should have been the ground, uh, that
was, uh, a-adopted by the Second Circuit. It’s not the basis of the petition that’s
filed, although it is, uh, strongly urged by the, uh, by the respondents, by the defendants
that the cases should be dismissed under, uh, Kiobel, uh, Two. Uh, the United States
government, uh, interestingly, uh, filed an amicus brief in support of neither side where
they essentially, uh, said in the brief that there, there should be corporate liability
on the Alien Tort Statute ‘cause there’s no expressed exception for corporations and
because there, you know were analogs to, to corporate liability in the United States.
Few with respect to admiralty lawsuits against pirate ships, ships that engage in bi-radical
activity. Uh, that is suf- sufficient evidence. The congressional intention in 1789. Um, US
government said there is corporate liability, but there’s a very serious question about
extraterritorial application, uh, and we don’t, we urged the Court not to decide it here,
but to send it back to the Second Circuit. Even though there are no factual issues about
the, uh, the extraterritorial application of question. So, my prediction, ordinarily,
I do not make short-term predictions. I can tell you what’s going to happen in 30 years-
[laughter] -and will stand by it.
But wait, does that mean, so we’ll be okay? You’ll be okay. Uh, I think it is likely that
the Court is going to decide the case on the, uh, Kiobel Two grounds, acts with extraterritorial
application. On the other hand, see I’m not gonna give you a 50-50 kinda thing, that is
the strong basis for deciding it. We urge in our brief another basis, and that is the
Alien Tort Statute does not apply where no duty of the United States is alleged to have
been breached to a foreign nation. And, indeed, the whole theory of the plaintiffs, eh, in
their complaint, is that the Arab National Bank is breaching US regulations, not that
the US is doing anything wrong. We think that was the purpose behind 1789 statute and that
should be a ground. Now, the Court seems to want to decide corporate liability. Um, because,
you know, I was there for the argument in, in, Kiobel One, and, and was a degree of,
uh, discomfort. On the other hand, uh, eh, this is, in fact, the big issue under the
Alien Tort Statute. So, my prediction is, and notwithstanding the US government’s recommendation
in all likelihood, even though the Court might wanna decide corporate liability, this is
a lousy vehicle for deciding it cause of the very strong, uh, extraterritorial application
problem with the case. Should I go on to the other case?
Travel pause. Travel pause. Um, now this is a case that’s
very, uh, uh, very much a moving target because, as you know, there were deadlines, uh, expiration,
uh, dates set in the, uh, initial, uh, executive orders, uh, by the Trump Administration. And
now the Trump Administration has come out with a new, it’s called a proclamation by
the way, not an executive order. But it, to my ro- uh, reading, it seems to solve a lot
of the problems that the, uh, the lower courts had. Not all the problems, but a lot of the
problems that the lower courts had with the previous executive orders. There’s no question
the first or-order was a very, uh, slapdash job, uh, when I teach a NYU class, I say it
must’ve been an uptown job. Even though, I went to Columbia Law School I, I try to eng-generate
some NYU patriotism. [laughter]
Um, but a very, very sloppy job in every respect. Uh, this new proclamation exhibits a great
deal of, uh, inter-agency review, uh, it seems to do a very good job. It makes the findings
that some of the lower courts insisted were missing. Uh, and it changes the number of,
uh, countries that are involved, uh. So, I, I just did a little checklist on this. Chad
has been added, a-a-as a nation that has inadequate procedures for information sharing and i-identum-identity
verification. Um, Venezuela’s been added. I don’t know if we have a lot of visitors
from Venezuela. I sus-suspect we will, given the, uh, the turmoil in Venezuela, but Venezuela
has been added to the list. And not surprisingly, North Korea has been added to the list. All
the other countries were on the, on the previous list. Two countries that are off the list
are Yemen and Sudan. I don’t know why entirely. I think there was a lot of uproar about having
Yemen on the list. This order purports to be based on this inter-agency review, uh,
of the procedures of over 200 countries. Pro, their procedures for information sharing and
for verification of identity problems. Uh, it’s what the, the Trump Administration should’ve
done initially before they, they let out the, the order. So, I think, uh, you know, it strikes
me as a, as a, as a reasonable attempt to deal with the problem. A whole bunch of exceptions
to it, so happily, uh, permanent resident aliens are, are excluded from the travel pause,
and if you’re here for diplomatic reasons, you’re excluded. These are inclusions that
were not present in the first executive order. So I think a lot of the problems have been
solved. Not all of them. Because, uh, w-we know there is a, the theme of the lower court
opinions and the briefing was that the president, uh, the adminis- the president is impeached,
uh, a-and not being able to use, I shouldn’t word, use the word impeach. Barred! The president
is barred from exercising his plain statutory authority under the immigration laws that
deal with this, with visa issues because he said, uh, incautious things on the campaign.
Uh, or at the least st- uh, statements that are capable as being viewed, reasonably viewed
as exhibiting a bias against, uh, Muslims. Maybe that’s why we have some non-Muslim countries
on, on the list here. That, that’s something that’s being said in the media. So very odd,
uh, notion, uh, that you can be impeached for your campaign statements. Even though,
in this case we’re, we’re engaging in inter-agency review and does that mean that the president,
uh, the real practical problem is the president barred for both terms for making immigration
decisions? Does the president’s comments also bar the people he’s consulted, like the attorney
general, the secretary of state, secretary of the Department of, uh, of uh, National,
of uh, Domestic Security? What’s the name of that agency again? Um, DHS.
DHS. DHS. The Department of Homeland Security.
I, I resist the word homeland. The Department of Homeland Security. Uh, it, it just can’t
be the case that we have this, this sort of rule. And of course, the Supreme Court precedent
in this area is Kleindienst v. Mandel where the Court said you essentially have to take
the government’s word. If it’s, if the, uh document, if the agency action, if the presidential
action is objectively neutral on its face, you’ve gotta take the government’s word. It’s,
you don’t, you can’t impeach, uh, for motive. Now-
Pppp-professor, let me get, let me ask this, this kind of the bottom line. I mean it’s-
Call me Sam, Sam, by the way. Sam. Okay. It seems that, I mean the Court
has taken this case off the counter while it considers whether or not it’s moot. It
seems to me that it, that it, you’re suggesting, bottom line is that whatever’s gonna happen,
that case is gonna come off the counter, probably will be moot, and we’ll then have new litigation
over it- Right, I think-
-Over this new, uh, travel pause that sounds to me like you’re saying should withstand
muster. Unless- In, in the long run-
In the long run. -it will. It may take, we’re gonna have this
litigation, I think Andy and I have predicted it’s going to bedevil the Trump Administration.
Uh, in part because we’re all under a kind of Trump disease, what-whatever our politics.
But this is actually bad for the sound administration of laws to have this kind of, uh, impeachment
for bad motive when, when you’re dealing with governmental actions. So we’re gonna have
a litigation. But I think that Ninth and Four, Ninth and Fourth Circuits will be a little
more, will be deterred. It’ll be harder for them to do it with respect to this order,
but, you know, I guess under the rules of the circuits, eh, once they file the complaint,
uh, uh, they’ll be filings before the, you know, the same panel. It’ll be the sa- so,
we may end up with the same panel decisions. I’m hoping to see more of a, uh, uh, uh, sp-
girdening of the loins and some courage from the other members of those circuits. It’s
a very serious problem. This happened during the Obama Administration and maybe our voices
should’ve been, uh, louder. To have a single district judge, uh, issue a ruling for the
entire nation, it’s inconsistent with what the Supreme Court has held about their bi-defense
and defense of non-mutual estoppel not being available against the government. Letting
the government, uh, uh, re-litigate issues because that’s necessary to, uh, for sound
administration of the laws. It’s a problem. So, I’m hoping that the th- Third, the Fourth,
and Ninth Circuits, um, uh, see some problem with continuing the path. But I, I, I, I don’t
think it’s, I think they will find some way, uh, to come back and, and, uh, and they may
have to shed some aspects of their rulings. So, we did some research this morning on a
case called Munsingwear. Uh, when a case is, is, uh, dismissed as moot, there’s no automatic
vacator of the ruling, but the Court on motion or on its own suggestion will, uh, vacate
the ruling. So, the government, I think will be happy with that outcome. Vacating of the
ruling and, uh, it’ll be a signal, hopefully, to the circuits.
Alright. I know, Andy, you wanted to, to kinda weigh in on this. Um, thanks very much, Sam.
Um, if, if you want to weigh in on this and then just kinda, we’re gonna also anyone else
in the panel want to react and then we’ll take it from there.
Sure, I, I, I think there certainly will be more litigation. Um, and I think, you know,
Sam is probably right that the motive arguments are gonna become more attenuated as time goes
on. But, but to me the interesting arguments are the statutory authority arguments, which
was the basis of the Ninth Circuit’s decision that presidents relies on, uh, this provision
of law 11-80-2F, which seems to give very, very, very broad authority to a president
to bar the admission of almost anyone, uh, for any general reason. And one question,
uh, that the Ninth Circuit grappled with is, could that really be so open-ended? Wouldn’t
there be a delegation problem if the authority really was open-ended? Is there some judicial
review? If so, what are the limits? And some people it said, for example, that one of the
limits, if you look back at how this authority has been used in the past, was time limited.
This is the first time, uh, that the authority will be used to permanently, at least with
no time limitation, uh, impose restrictions that are different from those that were enacted
by Congress. And if that authority is upheld, you really wonder about the stability of our
immigration system, because a president presumably could just say I’m gonna rewrite the immigration
laws using this authority and override all of the rules that Congress set up for various
categories of, uh, of immigration and visas, and that seems like that would be a very strange
result. So, my guess is, there’ll be a lot more focus on both the duration and, uh, whether
there’s some justification for overriding the otherwise existing rules that, that Congress
put in place, for example, to screen out terrorists. For the bottom line, I mean, this, we’re not
gonna be getting arguments in, in travel ban this year?
No, no, I don’t think, I think the Supreme Court is gonna say the, they’ll, the order
that we’ve granted review to consider is gone Is moot.
And this is gonna be sent back and there’ll be lots more litigation. Good for lawyers.
Alright, well do you want to talk about a case that we actually are gonna hear arguments
on? Yes! Yes, I will do that. Uh, I have to bring
one comment about Jesner and the Alien Tort Statute, just cause this group will appreciate
it. In particular, in the Sosa case Sam referred to, Justice Scalia, uh, filed a separate opinion.
Um, basically saying, although the majority says they’re just opening the door a crack
to claims under the Alien Tort Statute, that won’t be so and this will be the font of lots
of litigation. And he was incredibly prescient because, since that day, there has been, uh,
a whole little industry of Alien Tort litigation that, uh, that bottle has not, the genie hasn’t
been close to putting, been put back into the bottle. Um-
All against corporations, by the way. Yes. Uh, well that’s where the money is. Uh,
so thanks, first of all to the Federal Society for inviting me. This is always a, a great
event. I’m gonna talk about, uh, the arbitration, uh, cases, uh, called Epic Systems. There
are three cases that were granted and consolidated Epic Systems, Murphy Oil and Ernst and Young.
Uh, they are the first argument in the term, of the term, uh, of the first Monday in October
at ten o’clock. And, uh, probably the most consequential arbitration that should come
before the Court in the last four years. Even though there have been, uh, a number of arbitration
issues, and just to make a disclosure in this case and probably a bunch of the other cases
that we’re going to talk about, I filed briefs for various parties. Um, the question in this
case, uh, put simply is, is it an unfair labor practice to include a class action waiver
in an agreement to arbitrate that is part of an employment contract? Uh, since employment
arbitration agreements, uh, routinely include class action waivers, this case affects the
validity literally of tens of millions of arbitration agreements around the country.
Um, people sometimes hear the NLRB or the National Labor Relations Act, and they think,
well that only really has to do with unions. Not so. Uh, it’s authority, uh, extends to
all employers of over a very small number of employees. So, this is a dist- an, an issue
with very broad ramifications. Um, the Supreme Court held in, uh, 2011, in the Concepcion
case, uh, that the Federal Arbitration Act preempts state laws, uh, that would invalidate
arbitration agreements with class waivers. Uh, because the FAA, uh, preserves the idea
of individualized arbitration, one to one dispute resolution, as a core aspect of arbitration.
Uh, so the NLRB, uh, just, uh, the very next year in 2002, uh, it ruled that it is an unfair
labor practice to include a class waiver in an employment arbitration agreement. Uh, relying
on Section Seven of the National Labor Relations Act, which, just to give you some statutory
language, uh, protects the right to self-organization, to form, join, or assist labor organizations,
to bargain collectively, and, this is the key language, to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protection. Uh, the
NLRB said that catchall clause, uh, includes, uh, the right to participate in class actions.
Uh, class action waivers prohibit class actions, and therefore, they constitute a violation
of Section Seven and violations of Section Seven are unfair labor practices. Therefore,
they can’t possibly be enforced, and the board said the FAA, uh, does not bar the application
of the NLRA to invalidate all of these agreements. Um, but, uh, there is a long line of Supreme
Court cases that hold that, uh, the Federal Arbitration Act does not just preempt state
laws, it also applies to federal laws in a similar way. It limits the applicability of
federal laws that would invalidate an arbitration agreement. Unless, there is an expression
of congressional intent to the contrary in the text of the other federal statute. In
other words, the FAA sets up a general presumption that federal law is favorable to arbitration
and a general presumption that arbitration agreements will be forced according to their
terms unless there’s something in some federal statute that indicates Congress meant to override
that general rule. Uh, the problem here is that Section Seven, the language I just read,
doesn’t say anything about arbitration or litigation. Uh, it does talk about collective
action by all in the bargaining context, labor organizations, things like that, it’s awfully
hard to see in tho- in those words a congressional decision, uh, to favor litigations over arbitration.
Um, and that’s basically the argument of the proponents of the arbitration agreement. They
say Section Seven doesn’t contain the necessary congressional intent and the NLRB can’t fill
that in by interpreting ambiguous language. Maybe it can say that outside of the arbitration
context, where the FAA applies, there’s some protection for class actions, but it can’t
supply the requisite congressional intent to override the FAA. Now, the other side says,
uh, this is a substantive right conferred by the NLRA, substance is important, all of
those Supreme Court decisions that I mentioned talk about procedure. Uh, for my money, uh
wh- any argument that turns on the difference between substance and procedure really doesn’t,
is labeling and not substance. Uh, and so it’s hard to say why something is procedural
if there’s a statute that says you have a right to go to court in the context of sub-
creating some cause of action. Why is that procedural, but this, but this is substance?
It’s very hard for me to see the distinction, and of course, the Supreme Court has said
repeatedly that Rule 23 is a procedural provision. Uh, the opponents also rely on the FAA’s savings
clause. Uh, the very end of the critical section of the FAA, Section Two, says, uh, arbitration
agreements are enforceable and the magic language is “save upon grounds as exist at law or
in equity for the revocation of any contract.” So they say, well, the NRLA makes this contract
illegal. Uh, therefore, uh, all that’s happening here is we’re applying the general rule that
illegal contracts are unenforceable. Uh, a problem there is that if that were true, all
a state would have to do would be to pass a law saying all arbitration contracts are
illegal and then say, oh, we’re not singling out arbitration, we’re just applying the general
rule, uh, that, uh, illegal contracts can’t be enforced. So, that proves too much, I think.
Um, a little bit of background on the case. Uh, the Obama, this is not a one-off, uh,
Obama Administration anti-arbitration rule. There was a whole raft, uh, post-Concepcion,
in particular, of anti-arbitration regulations issued by just about every alphabet soup agency
you can think of, HHS, Department of Ener- the Department of Education, the Department
of Labor, the Consumer Financial Protection Bureau. Uh, many of those have been enjoined
or reversed. Uh, this one, uh, hasn’t been, although it will be interesting to see if
the NLRB continues to stand behind its decision on Monday, uh, the fifth member of the NLRB
was confirmed, and so now there is a full complement, uh, of NLRB members, and so who
knows what, uh, the current NLRB’s view is of, of this rule. Certainly some of the existing
members descended, uh, from the application of this rule in, in some cases that they decided.
Um, the other interesting thing to note about this case is, uh, the Justice Department,
although in the Obama Administration had filed, uh, a cert petition on behalf of the NLRB
after the change of administration, uh, the department authorized the NLRB to continue
to litigate the case, but filed an amicus brief, uh, on the other side of the case saying
that its view, uh, was that the NLRB’s position, uh, is wrong. Uh, not at all an unprecedented
thing to happen in a change of administrations, uh, happened a number of times in the Carter
Administration. Uh, but, but, certainly has given the case some extra profile. Um, I wanna,
if I can, talk briefly about one other case. Uh, case called Oil States. Normally when
I mention patent law in a general audience like this people say, “Oh my God. You know,
is he gonna put up some formula or diagram?” Uh, and I, my rule about litigating patent
cases is don’t ever handle a case that has a formula or diagram because that’s too scary.
Stick to the law. But, but, Oil States, uh, is, is arises in the patent context, but it’s
a quite important separation of powers, uh, case, and I think as we’ll talk about later,
this term, one of the themes may well end up being, a very significant series of rulings
on separation of powers issues depending on what happens uh with some cases that are in
the pipeline. So as everyone knows, patents are granted by the Patent and Trademark Office.
Um, recognizing that errors can occur, particularly because the granting of patents is not an
adversarial process, patent examiners may not uncover all of the relevant information.
Congress created a procedure for third parties to petition the PTO for correction of erroneously
issued patents. That procedure sort of, was first created, the first version was created
in the 1980s. It’s been revised a couple of times most recently in 2011. Um, and those
decisions of the PTO of course are reviewable in the federal circuit. Uh, that process is
being challenged on two constitutional grounds. First of all as a violation of Article III
that it’s an obtrusion on the judicial power to allow adjudication of these questions by
an Article I tribunal. Because these are private property rights. Uh, Justice Thomas wrote
a dissent in a case called B&B Hardware in the Trademark Context in which he adverted
to this uh being a potential problem. He didn’t come down one way or the other, but flagged
it as a question in the trademark context, not in this patent context. And the second
constitutional allegation is that this is a violation of the Seventh Amendment that
uh the patent owner has a right to a jury determination of the issues relevant to the
um, validity of the patent. Um, the argument on one side is this is a property right, and
property rights should be protected by these two constitutional provisions. Uh, the argument
on the other side basically has been this is a right created by the government, it doesn’t
exist apart from the grant by the Patent and Trademark Office. And therefore, the PTO reconsidering
its own decision uh, doesn’t reach any constitutional constraint. Um interestingly, there’s some
Seventh Amendment history in, in, England of the Chancer, in the courts of Chancery,
invalidating patents challenged on, by third parties. So in, history is always important
in the Seventh Amendment context. And I think there will be a lot of debate about public
versus privates rights. Again, I think this is a little bit of a labeling uh, fight. The
Court has said public rights can be adjudicated by non-Article III tribunals. Um, I think
some patent owners are worried that if patents are put into the public right category, that
may call into question takings and other kinds of protection. I don’t think that’s necessarily
true, but I think that’s part of the argumentation uh, that you’ll hear. In the big picture,
uh, big consequences for the patent system, depending on how this comes out, there’s been
a lot of concern, uh, about overbroad patents strangling competition. Obviously if there’s
a patent and you have a new invention, that patent could be blocking your new invention
from getting to market. Uh, and so if that patent is overbroad and is unlawfully granted,
you’d like to have it taken out of the way. Otherwise, you’re gonna have to pay that patent
owner some kind of a toll in order to get your invention to market, so big competition
questions in the patent system. And more broadly for administrative adjudication as a whole,
if this government-created interest uh can only be uh, looked at and perhaps revised
by an Article III tribunal, what does that mean for other government-granted interests?
We can all think of licenses, benefits, payments, all kinds of things, those things all have
to be put into the Article III court system. Thanks a lot. I know Sam wanted to follow
up, but I’m gonna, can we just hold that ’til the end?
Sure. Because we still have wedding cakes, cell
phones, political redistricting- Absolutely.
So we’ll, gambling, yeah. So we’ll, but let’s uh, yes we’ll come back to that at the end.
But I’m gonna go to Orin now, who’s gonna talk about Carpenter.
Great. Thank you, Jan, and thank you to the Federal Society for the invitation. Uh, Carpenter
v. United States is probably the biggest Fourth Amendment case that the Court has had in at
least five or six years. Maybe longer. Uh, it is, uh, bringing together a bunch of important
questions about how the Fourth Amendment applies to new technology, to the internet, um, to
a world in which we’re using new devices and the government’s collecting new kinds of records.
Uh, and the question is, what’s the line between what is up to Congress uh, and what is up
to the courts. That is, what is something that we can have privacy legislation on and
what is something that the courts say this is covered by the Fourth Amendment prohibition
on unreasonable searches and seizures? Uh, the question in the case is about cell phones.
Uh, in particular, whenever your cell phone is on, it’s trying to communicate, and likely
is communicating with local cell towers, which it needs to deliver the call or text messages,
or anything to or from your phone. Your phones don’t work by magic. They work by connecting
to local towers that the cell phones companies own, and then they route your communications
for you. It turns out that the uh, cell phone providers keep records about where, which
cell towers were connected to which phone accounts, uh, historically. So your phone
company has a record of which towers you used to connect uh, when you were, when your phone
was on or when calls came in and when you sent calls. And those records can be very
useful in government investigations, so you get a basic idea of where somebody was located.
They’re not particularly precise records. Usually, they vary, but usually, we’re thinking
sort of whether someone’s in a particular neighborhood, not whether they’re on a particular
block or in a building or in a room. Uh, but, so the information of knowing where a phone
was in what neighborhood is not hugely important on its own, but it can often but very useful
when combined with other information to figure out, for example, a group of people went from
one area to one area in that, uh Carpenter case, it was used by the government to show
that Carpenter and his conspirators were in the area of a string of robberies. Each robbery
would occur and what do you know, all the phones used by the conspirators were always
in that area, helped to show that Carpenter and his co-conspirators were the ones behind
the robbery. The government collected records about the location of Carpenter’s phone uh
from two cell providers, covering more than a hundred days of coverage. So a lot of records
ob- obtained. And it did so under a federal statute called the Stored Communications Act,
a particular provision enacted in 1994 which says that for the government to collect non-content
records about an account, whether it’s an internet account or a telephone account, the
government needs a court order from a judge, and it needs to show specific and articulable
facts that the information to be obtained as material to an ongoing investigation. This
is, for those of you that follow Fourth Amendment law, the Terry v. Ohio standard of what the
government needs to do to stop somebody and temporarily detain them. Congress enacted
that same standard in 1994 for non-content records and that includes cell site records.
So the government went and got these court orders used the location information. The
question in the case is whether the Fourth Amendment, uh, uh, effectively requires a
higher standard. The probable cause standard. And whether obtaining the records about individuals’
location from the cell site records collected by the providers, uh, is a Fourth Amendment
search of the interests of the users that would require a probable cause warrant. Uh,
two questions in the case. One, is it a search of that person in their interests, uh, to
get the records. And then second, if it is a search, is it a probable cause requirement
search, or maybe there’s some lower standard, like perhaps, the statutory standard. So those
are the, that’s the issue in the case. It’s hugely important, because although this case
is just about uh, cell site records, really, it’s about much more. This is the first case
that has touched on Fourth Amendment rights, what is a search in the context of new technologies
in several years, and really the one that is getting to the fundamental basis of what
is constitutional, and what is not covered by the Constitution in the surveillance laws.
The traditional rule that the Supreme Court has supplied is that the government, it does
not conduct a Fourth Amendment search when it is obtaining records from a third party
business. So there is, you can sort of imagine the world from an investigator’s standpoint.
There’s some investigative techniques that aren’t covered by the Fourth Amendment, other
techniques that are covered by the Fourth Amendment. Government doesn’t conduct a search
to use an undercover, government does conduct a search to wiretap a phone line. Government
doesn’t conduct a search if it collects bank records from somebody, but does conduct a
search if the government goes into, breaks into somebody’s home. And so, the, the world
of criminal investigations is divided between that are searches and things that are not
searches. And that line is what’s that issue in the Carpenter case, not just for cell site
records but for uh, internet records, for bank records, for, um, credit card records,
for telephone uh, records, of who called what at what time. This is really going to be about
where do we draw the line between what is constitutionalized and what is not, for broader
surveillance powers, broader than cell site records. So, so it’s a hugely important case.
The government in its, its brief which was filed just two days ago on Monday, relies
on the Court’s precedents, effectively established that third-party business records are not
uh can be collected without a search occurring. They’re the third party, somebody who’s communicated
with a third party, given their bank records to the bank, or called uh, the phone company
effectively to deliver their phone calls. Uh, the companies there have collected their
third-party business records, it’s not a search for the government to go to that, effectively
sort of eyewitness to the conduct and say, “Give us your records about what you saw.”
And so Smith v. Maryland and United States v. Miller, cases from the 1970s which are
probably the best known example of these cases, would say that it’s not a search for the government
to collect the cell site records. And that was the reasoning of the Sixth Circuit and
other courts of appeals below. On the other hand, Carpenter says, we’re in a new technological
world here, we can’t follow, necessarily, the old uh, rule that was used in a different
technological era. And Carpenter relies a lot on the concurring opinions in Unites States
v. Jones. Jones was a case from a few years ago involving installation of a GPS device,
a tracking device on a car, collected information about the whereabouts of the car. Very precise
information, over a long period of time. Uh, I think it was 28 days. A majority in an opinion
by Justice Scalia says a search occurred when the government installed the device, but the
concurring opinions, uh, collectively including five current Justices on the Court, said that
there should be a different rule. that it was over time the collection of the records
were so precise, and they collected so much information about somebody, that at some point,
that became a Fourth Amendment search. Uh, the reasoning of Justice Alito’s concurring
opinion being that you know, short-term surveillance is different from long-term surveillance.
Nobody would expect long-term surveillance to occur, for the government to collect so
much information. And therefore, that begins to violate a reasonable expectation of privacy
at some point. Uh, Carpenter says, “Well this is just like Jones.” Uh, this is a long-term
collection of records. Government responds, “This isn’t like Jones at all because records
are so much less precise. And here we’re dealing with third-party business records traditionally
covered under the old rule that it is not a search.” What I think makes this case fascinating
beyond its importance for the internet and for the technological era, there’s so many
directions that the Court could go in, and so little of what the Justices have written
themselves on these issues. So, uh, the Court took this case without a split. There was
no clear split from the courts of appeals suggesting they want to take a look at it.
Which of course that maybe suggests maybe they want to have a different rule, because
they didn’t wait until there was disagreement. But I suspect, this is just my speculation,
that they wanted to take a look at something which is hugely important to the structure
of government investigations in a networked world. And on which none of them were on the
Court when the precedents that they were relying on had been decided. So we have cases from
the 60s and 70s and early 80s. The current Justices were not on the Court at that time,
and I think they want to take a look. And there’s just a lot of different places they
could go. Really tough to predict I think, what the Court might do. Uh, you can look
at the concurring opinions from Jones saying maybe they’ll go with that. But there’s also
reason to think that was kind of a one-off for that one kind of case, and that this case
is distinguishable. In particular, an interesting angle to watch I think, is the role of legislation.
So in the Jones concurring opinion, Justice Alito says, uh, “In the absence of legislation,
it would be great if we had legislation that covered the use of GPS devices. In the absence
of legislation, we’ll, we’ll, you know, adopt this Fourth Amendment rule.” And Justice
Sotomayor and her Jones concurring opinion also suggests that in the absence of a coordinating
branch doing anything, we need to cover this uh, under the Fourth Amendment. Well, the
cell site question is something that legislatures have been very active on. So Congress enacted
the 1994 Terry v. Ohio standard that applies at the state and federal level. Congress has
had a bunch of hearings, by my count, five of them on whether to raise the standard to
probable cause over the years since then. Several states have enacted the warrant requirement
for collection of cell site records that would only apply for state and local investigations.
So we’ve got a lot of legislation, including quite recent legislation at the state level,
and it will be very important and interesting to watch whether the existence of legislation
makes the, or leads the justice system to think about surveillance a little bit differently,
and makes it more kind of where does this Court step in where the legislatures have
acted, versus the Court sort of occupying the field. Traditionally in Fourth Amendment
laws, sort of the courts are nothing. You know, it’s a question of whether the government
needs a warrant to break into to a house. That’s gonna be something that’s a traditional
Fourth Amendment function. And here we have the added angle of new technology, uh, and
also legislation being active here. And the Court’s going to have to figure out, you know,
what is up to legislatures and what is up to courts. Again, introducing or reintroducing
the separation of powers theme to the current term. So I’ll leave it at that.
Do you want to uh, mention, uh, the one that’s working its way up, Microsoft? Do you want
to just come back to that at the end? Whichever you uh, whichever you prefer.
Why don’t we come, remember to come back to that.
Sure. But I mean I guess just going back to Carpenter
then, I mean, um, so, sometimes you tend to, we tend in the media at least, as you guys
all know, exaggerate things sometimes. Like “this is, you know, the most significant.”
But this is really a case, as you were saying, on the cutting edge of how the Fourth Amendment
is going to kind of unfold in this new technology world we’re in.
Yeah, this is the case that’s gonna- And you can’t, you can’t overstate the importance
of this case, really. Well as somebody who writes in this, I think
the entire world is basically- [laughter]
Because I have a lot of a law review articles that are either going to be prescient or completely
outdated based on what the Court does. But, but yeah this is really, you know, this is
the case that’s going to determine limits on the government’s surveillance power at
the state and federal level in new technologies for years to come. And I think the Justices
know that. And this is not a surprise to them or secret. I think they took this case in
order to figure out, “Okay, what are the surveillance rules in this new technological era that we’re
in?” And it’s funny if you look at the briefs in Carpenter itself, you think, “Well wait
a minute, wh- why does this matter?” So already, there’s a specific and articulable fact statute.
So that’s one threshold. And a bunch of states have gone to probable cause. The stakes for
cell site data are actually much less significant I think than for all the other information.
So this is a case for cell site records technically, but really it’s about internet surveillance.
It’s about uh, network surveillance. In a world that the Justices are certainly aware,
moving towards online communications and spending, you know, a lot of time on the internet, as
many of us, certainly I do. Um, you know, this is the case that’s gonna set the ground
rules for that. So you know, certainly the FBI cares a lot about what’s gonna happen,
and the NSA cares a lot about what’s happening. And you know, this is going to be really the
big surveillance case for the internet. Happens to rise in the term as cell site records.
All right, great. Thanks a lot. Um all right, so we’re gonna go to Kyle now to talk about
wedding cakes and uh, maybe a little bit about bedding.
Thank you, Jan. Yeah, I get to talk about cakes and gambling and Governor Chris Christie.
So yeah I get to talk about the really interesting cases.
And Christie is not involved in the cakes case.
Not the cakes. That’s the gambling cases. Sorry I couldn’t resist.
That’s all right. The Masterpiece Cake Shop v. Phillips of, I’m sorry, v. Colorado Civil
Rights Commission, is a, as Orin was saying, if that’s a blockbuster Fourth Amendment case,
this is a blockbuster First Amendment case, because it poses for the first time, and of
course not long after the Obergefell decision, about the conflict between uh, the rights
of same-sex couples to marry and also to be free of discrimination in, in public accommodations.
Put over against the, the rights of a religious entrepreneur not to participate in the ceremony
that violates his own religious beliefs, and also not to engage in speech or expressive
activity that he doesn’t wish to engage in. So this is, this case has gotten a lot of
attention already. It was relisted, I tried to count, something like 14 times, which is
SCOTUSblog can tell me if that’s a record or not, but 14 times. It was finally granted
almost a year after it was first filed. What are the facts? Petitioner is a Christian cake
designer or cake artist um, if you watch as much HGTV as we do in my home, you know that
there are shows about cake artists. Ace of Cakes, is I think a particularly good one.
Um, the, he declined to design a custom wedding cake for the respondents who were same-sex
couple. They wanted the cake for their upcoming wedding. When they filed a complaint against
Mr. Phillips, is his name, Jack Phillips, um he was found to have violated the Colorado
Anti-Discrimination Act for engaging in sexual orientation discrimination. And he was ordered
to engage in various remedial measures such as reeducating his staff, uh, providing his
cakes on an equal basis for gay and straight weddings, uh, and other measures like that.
The Colorado courts rejected his argument that this application of the anti-discrimination
law violated his rights under the free speech clause and the free exercise clause enforced
of the First Amendment. Um, there’s so much one could say about this case. Let me just,
and the briefs have come in on one side, and on the other, so I’m at a little bit of a
disadvantage. The petitioner and his amici have filed, you know, tons of amicus briefs,
as you might expect. Um, let me just sketch out what uh, I imagine the free speech claims
are gonna be on both sides, not just one. The free speech claim, uh, is going to come
down to some very basic and interesting questions that free speech law doesn’t quite totally
settle, as you might expect. Such as, when um, when a cake artist, or is it, you know,
some sort of artist that’s not a traditional artist that we think about, is he engaging
in First Amendment-protected expression by designing a wedding cake? And if not, is this
the kind of expressive conduct that we might see in cases like uh, like O’Brien v. United
States, which is the burning the draft card, when somebody engages in conduct that has
an expressive component. If it’s expression under either one of those categories, is application
of the anti-discrimination law compelling speech in violation of the First Amendment?
So the briefs on the petitioner’s side are talking a lot of very familiar, but you know,
as Orin was saying, very old cases that don’t address anything like this scenario. Instead,
you’ll end up talking about cases like Barnett, West Virginia v. Barnett, which is the pledge
case, involving Jehovah’s Witness student who didn’t want to be forced to say the pledge,
and who won of course in that famous decision from, I think from the 40s. Um, [inaudible]
say the petitioners are trying to construct their case so that it’s the next Barnett case.
Um, and then there’s a number of other First Amendment compelled speech cases such as Hurley,
the Irish parade, uh, gay parade marching gays. Willy v. Maine or the Live Free or Die
case, uh, I just spent a long time in Maine, and we saw a lot of cars from New Hampshire,
I point out to my children every time a Live Free or Die car would go by. “Look, that’s
an important constitutional principle there.” They were not interested at all. On the respondents’
side, and I’m judging this from the way that the Colorado courts dealt with the issue and
although they might develop all sorts of new arguments as well, um, I would imagine the
respondents are gonna, are gonna stake their ground on one point, for example, the activity
of making cakes isn’t speech. It’s not expressive conduct at all. It’s not inherently expressive,
and so the case is far less like a case like Barnett or Hurley and more like Rumsfeld v.
Faire, which is a very recent case involving law schools who object to, on expressive association
grounds to hosting military recruiters during the time of Don’t Ask Don’t Tell. And they
lost that case because, oversimplifying, the Court said: “That’s not inherently expressive
activity to host military recruiters.” Um, they might also ask, I imagine their briefs
are going to ask, “Well if it is speech, whose speech is it? Isn’t it the couple’s speech
who’s getting married and not the baker’s speech?” These are very interesting uh,
claims. You got a ton of amicus briefs on their side, uh, I-I have to say, the most
interesting brief is filed on behalf of neither party, but it’s filed on behalf of cake artists.
And it’s full of beautiful full-color pictures of cakes-
[laughter] -that are astonishing. Astonishing. My favorite,
and I hope this doesn’t reveal too much about me, is a cake, a cake where a cowboy is riding
on a pig. And it’s just an astonishing, I have no idea why somebody would want a cake
like that. [laughter]
Because it’s probably very private. But it’s a very, very interesting cake. And uh, I think
the point of the brief as it said, is not to support either par- party but to show that
there is in fact expressive activity in making cakes. Um, very quickly, there’s also a free
exercise claim. Just to raise the stakes of this case even higher. The free exercise claim
is that by compelling the petitioner to engage in what he considers a uh, a religious event,
a wedding that goes against his beliefs, by compelling him to participate in a meaningful
way in that, it’s forcing him uh, to, it’s violating his free exercise of religion, I
suppose to abstain from doing that, um. And the technical legal issue, uh, under that
claim is extraordinarily important. I don’t know if the Court will reach it or not, but
it’s how the Smith decision, the infamous Smith decision from 1990 applies. Smith says
that a law that is neutral and of general applicability, essentially can’t burden free
exercise rights. That’s oversimplifying, but that’s what Smith seem to say. It was very
controversial. Justice Scalia wrote the opinion. So the question is, is the Colorado anti-discrimination
law here a neutral law of general applicability? Or is it being applied by Colorado in a way
that is not. Uh, and the petitioners, again, I don’t know what the respondents are going
to say back to this, I’m sure they have an answer, but the petitioners are saying, “Look,
there are cases from the Colorado Civil Rights Commission that have recently allowed cake
artists to refuse to put anti-homosexual or anti-gay rights messages on cakes. And so
they’re not playing fair, they’re playing favorites uh, by, by requiring the petitioner
in this case to have a pro- uh, same-sex marriage on his cake. But that raises a very interesting
issue about whether the record actually discloses what he was asked to do on the cake. I don’t
know that it is, I, I was reading some commentary on the internet that suggests well that there’s
nothing in the record that says he was required to put a pro-same-sex marriage on the cake.
And so, that raises all sorts of interesting questions. The case will be a blockbuster.
Um, uh, about 20 states have come in on the side of the petitioner. And we’ll see no doubt,
states and all sorts of amici on the other side. Um, I’ll be quick about this as I transfer
to Governor Christie and gambling. Um, Christie v. every sports league you’ve ever heard of,
NCAA, NBA, NFL, NHL, major league baseball, are, are involved in a titanic dispute over
federalism. This is an anti-commandeering case uh, which, as y- acolytes of federalism
know, is a very important Tenth Amendment doctrine that says the federal government
can essentially tell the states how to legislate or tell state executive officers to administer
a federal program. Those are cases of New York v. United States and Prince v. United
States. Court hasn’t had an occasion to revisit this doctrine, but now it does in this very
interesting and, and I have to say, as I got more into this case, difficult to understand
both procedural and substantively, um what’s the federal law at issue? Let me try to simplify
it. Um, the Professional and Amateur Sports Protection Act, or PASPA. It’s a 1990 law
that prohibits states from doing a bunch of stuff, I paraphrase, with respect to sports
wagering. One of the things that it prevents states from doing is from authorizing sports
gambling by law. Which I think will turn out to be the key statutory phrase in this case.
Uh, New Jersey, initially, had an exemption from PASPA if it wanted to start and regulate
sports wagering in its state within a year of its passage of the law, but it didn’t take
advantage of it. But then in 2010, evidently it had second thoughts and decided to enact
a regulatory scheme to regulate sports wagering, which of course violated PASPA. It was sued
by all the sports leagues in a case called Christie One, and it lost in the Third Circuit.
And specifically, it lost on the issue uh, the argument that it was making, PASPA commandeers
states. And when I first read that, I thought, “Well how does PASPA com- commandeer states?
It just says don’t do that.” Right, that doesn’t sound like commandeering. But as I got more
into it, it got a little bit more complicated, because the way that the third circuit seems
to interpret PASPA is to say, “If you repeal existing prohibitions on sports wagering,
which of course don’t apply to just the state but apply to private parties, then you’ve
authorized sports wagering by law, by repealing your state law.” Which, if that’s true, if
that’s how PASPA works, and of course the sports leagues will say that it doesn’t work
that way, but if that’s true, then the federal law is telling states to keep sports wagering
prohibitions on the books if they have them. Which does begin to sound a little bit like
puppeteering uh, the state legislative processes. Very, very interesting case. En banc, Third
Circuit said no commandeering. Really, uh, interesting opinion by Judge Rendell for the
majority, nine or ten judges. Really interesting opinion from Judge, uh, I almost said, I might
get this wrong, Vanaskie, I almost said Zabriskie, but that’s different. Vanaskie saying, “No,
no, no. This is commandeering.” Um and, and very interesting, big lawyers on both sides.
Ted Olsen arguing for New Jersey, Paul Clement I-I assume will be arguing for the sports
leagues. Huge, huge federalism case. I’m gonna say just one point and then I’ll stop. The
first time around, I thought this was fascinating, the first time around in the Third Circuit,
uh, this, the New Jersey lost and they [inaudible] cert, and the United States solicitor general
at the time, I think it was 2014, told the Supreme Court, “Well look, there’s nothing
to worry about here, because PASPA still allows New Jersey to repeal its sports wagering prohibitions
in [inaudible] Park. Nothing to worry about here.” I’m paraphrasing of course but that’s
what they said. Um, so then it went back. New Jersey did that. From New Jersey’s perspective,
they were just doing what they were told they could do. Um. And now this time around, they
find that repealing it means authorizing it by law, and so, this is a big part of their
argument. Um, and uh it will remain to be seen how the Court deals with this very, very
interesting and important case. 18 states and the governors of three other states have
weighed in and favored New Jersey. Also a bunch of associations like the National Governors
Association and the National Conference of State Legislatures. Okay. Sorry for the speed
talking, but I wanted to get through all of them.
Thanks so much. Um, and finally, we’re gonna go to Carrie uh, Severino to talk about the
redistricting case and Gill. Right.
And then after that, I think we’ll open it up some questions from the audience.
Great, so um, anyone who’s been, who follows the Supreme Court redistricting cases knows
that what um, what we’re going to see here is basically, uh a, follows a very typical
pattern which is a case comes up with sort of a messy history of facts, trying to interpret
an even messier set of gover- principles that have been derived from the Constitution in
elsewhere by judges. And at the end of the day, they come up with a decision that, you
know, changes or doesn’t the actual contours of these districts and provides little to
no guidance going forward for the future cases. So, what the backdrop that the case is coming
from is, I guess, two major cases. Neither of which had a clear majority. So this is
what we’re working with here. Um, Davis v. Bandemer in 1986 and Vieth v. Jubelirer in
2004, and the big question is, is partisan gerrymandering something that the courts can
even address? So it’s something that I think a lot of us feel uncomfortable with. I think
a lot of the Justices aren’t happy about and may even have questions of whether it’s,
it should be inherently lawful at all. It really, in many ways boils, these, that line
of cases boils down to is this something that courts can even look at? And uh, there’s a
lot of disagreement. Both of those cases came up with plurality sorts of decisions. Um,
and, so in the 1986 case, they said, “Well yeah, we think, we think you can come up with
a judicial standard, and here’s the standard we think kind of works. Is there, is there
a partisan intent? Is there a partisan effect?” And then when the Court reconsidered it in
2004, they said, “Look we’ve been using this test for 18 years, it’s proven to be virtually
impossible to apply, so when they thought they were coming up with a, a discernible
standard, um, and one that was manageable, it really wasn’t. And there you had four Justices
who said, “This is just a political question doctrine.” You know, saying, “This is something
that we can’t, the Court can’t even look into, because there’s no, there’s no way we can
get to a standard to apply here.” And then, four Justices who said, “No, we can look at
partisan gerrymandering claims.” And then Justice Kennedy. Justice Kennedy uh, concurred
in that case, basically saying, “Well, I’m not willing to say, you, you can’t prove a
negative. And I, I’m not willing to say it. There’s no judicial, uh judicially discernible
standard until you can prove that there is no standard,” which is of course, logically
impossible. “So, I’ll just say,” and this is sort of fits with Justice Kennedy’s general
penchant towards not actually, you know, not completely coming down with a clear answer
in everything he can, so he, he basically said, “I’m leaving the door open in this one,
this standard is not a use, there’s no standard that they can come up with in this case that
satisfies me. But you know, who knows, eventually somebody might come up with a standard.” So
cue 13 more years of legi- litigation trying to guess what, you know, guess what would
Justice Kennedy do. What standard might be something that would appeal to him? And I
suspect that that’s gonna be the out, what we see in the case today. Now it’s significant
that in that concurrence, he did acknowledge that some levels of political gerrymandering
actually is acceptable. That just the mere fact that you can point to, “Hey politics
were a factor in this,” um, doesn’t mean it’s overturned. Which is a good thing because
frankly, that would probably mean that every single redistricting effort ever that has
ever happened in this country would be unconstitutional because I can’t imagine that, that there’s
ever been a case where politics has been wholly absent. Or maybe even predominantly absent.
We, there’s lots of evidence that political gerrymandering has been having for the entire
history of the nation. Even if it has been criticized for the entire history of the nation.
So the specific facts of this case, um, this has to do with Wisconsin redistricting um
and uh, basically their current redistricting was, has been challenged by a group of 11
different plaintiffs. There’s not one from every single one of the 99 districts, that
becomes a problem as well. And uh, the court below was a three, three-judge court as happens
in these cases, overturned their current system, and mandated that they redraw the lines in
the meantime. Significantly, the Court stayed that order. So uh, when they accepted this
case, they actually stayed simultaneously the order to redraw the district lines. The
state was arguing, “We shouldn’t need to do this. Why not just wait for the Supreme Court
to tell us whether they’re okay or not. It’s gonna be a huge amount of time, effort, state,
and a tax on state resources to do so.” And that’s, that’s very interesting. First of
all, it’s interesting because four Justices did not want to stay that order. So I think
it’s safe to say that in it, those are the four typical liberal Justices, I think it’s
safe to say that they likely um, lean toward the fact that there’s a real potential for
these uh, these districts to be overturned on the political gerrymandering basis. Um,
and then five Justices obviously must have voted to stay. And we know which five they
were, because they didn’t dissent from deny- the uh, stay. So, um, the other five Justices,
and of course, said that this order, that the lower court was going to be stayed. That
suggests that they also may have a thumb on the scale in terms of thinking that there
is a success, a likelihood of success in the merits of this case. And so, the real questions
being considered here, um, are first of all, a, a serious question of standing. As I mentioned,
you have people from a subset of the districts, one ninth of the districts are represented
in the case, but they’re challenging statewide the redistricting. And this is, has been,
does raise an issue of do they have standing to do so? Do they have a dis- a particularized
injury, um, as to something that happened in another state? There’s, for example, one
plaintiff was in a predominantly Democratic district that was won by the Democrats. So
you know, where’s the harm? Under both, under both pre- and post- this new redistricting.
And the, the appellants, in this case, it’s appellant, not petitioners, point out that
this could be a problem because, in racial redistricting cases, um, typically you have
to be from the actual district you are challenging. You can’t just challenge statewide, racial
redistricting they said would be a very perverse result if it’s harder to get into court to
challenge racial gerrymandering than it is to challenge partisan gerrymandering. In a
world where we all, you know, we have a specific constitutional amendment addressing the, the
right to vote and, and it’s very clear that the equal protection clause is supposed to
address that as well, um, and, and yet historically we’ve, political gerrymandering has almost
been a safe harbor and an escape from racial gerrymandering claims. Traditionally, when
the states come in and they say, “You’re racially gerrymandering.” They say, “Oh no, it’s just
politics.” And we had one of those last term. “Oh, it’s okay, it’s just politics.” “Oh okay,
you can do political gerrymandering”. Um, it would be very strange to say that it’s
actually easier to make those political gerrymandering claims which have been, traditionally have
been kind of let go when, when you wouldn’t be able to challenge a law for, for racial
gerrymandering. I think, then they have five questions granted, it’s, it’s an amazing
number. Which also differ from the appellees’ four questions presented, so I think the Court
goes with the appellate. And then second, they ask if there’s a safe harbor under the
Vieth case, that was the 2004 case for traditional redistricting principles. So if you were using
these traditional principles, you have a safe harbor, because they point to all of these
traditional principles they have looked at. Um, and, and so the Court will look at that.
And then, they, they criticize, in the third question presented, they say, “Are we just
going back to the Davis v. Bandemer standards?” So the standard proposed in this case, is
very similar in some ways to that, to that standard of the plurality in Davis that seems
to have been uh, updated in the 2004 case and, and not adopted by them. Or certainly
at least four members of the Court said it wasn’t workable, and Justice Kennedy suggested
it wasn’t workable. And that was the combination of intent and effect. Discriminatory intent
and discriminatory effect in the, in the law. The appellees in this case propose a third
prong as well in their test, which, and they, they specify that it has to be a significant,
uh, discriminatory effect, and they use particular social science you know, they have a particular
social science standard they have developed. The efficiency test, although the court didn’t
even apply that. They applied yet another, slightly different test. So there’s a million
tests already in the room. And then they also add the third one which is that they don’t
have a, you can’t kind of justify it. Maybe it’s sort of a burden-shifting thing of, well
if you can shift then the burden back and say there’s a neutral reason we um, we had
this discriminatory, or apparently partisan discriminatory effect, then we can get out
of this. Um, so the question, that question seems to ask, “Is this just the same dis-
disfavored test that was used in a previous one?” And um, and then there was the last
two. The fourth one has to do with whether they can, whether the trial went well. So
effectively, did the court come up with this new standard midway through and they didn’t
have the opportunity to introduce proper evidence because the court did kind of invent a new
standard after um, after it had already been, um that three-part test had already been proposed
by the appellees, the plaintiffs in that case. And then finally, whether these claims are
even justiciable at all. So I think they’re there, I think is gonna be um, an uphill battle
for the appellants, just insofar as Justice Kennedy has already asserted that you cannot
prove a negative. I doubt that in the intervening 13 years he has been convinced that now, now
it really is clear that there is no judicial, judicially discernible standards, but whether
he’ll find this one any more compelling than he found the last one um, is also a question,
tough question for me, so I’m not sure how, if they’ll be able to distinguish the test,
and that’s how, what’s going to be going on in the oral arguments. You’ll have the appellant
saying, “Look this is just like Vieth. This is no more, this is no more useful a test.
And frankly, you should throw us all on standing in the first place.” And then you’ll have
the appellees saying, “No, in the me- intervening time we’ve seen uh, amount of partisan gerrymandering
increase. We’ve seen new technologies which make it easier and more effective to do partisan
gerrymandering, ‘cause we can pick and choose who lives exactly where with these great computer
programs and data collection things we have. Um and, plus we have this new, shiny new social
science test that you can apply, whether that’s compelling. I don’t think it’ll be compelling
to the four members of the Court who already think that this is not politically judicable.
Or this is not judicial, judicable because it’s political question. But I do think, um,
it’s possible you could, we might see Justice Kennedy swayed one way or the other. Even
more likely though, just based on you know, the pattern we see in these cases, it’s not,
there’s not going to end up with a very clear test by the end of the day, however this ends
up working out. I wanted to just comment because I know we’re at the end here about, because
I think we have so many interesting, we have so many interesting cases today, but some
of the most interesting ones almost are that form some themes in this term haven’t even
been granted yet. So just to flag a couple of them, first, um we had, Kyle mentioned
the Masterpiece Cake Shop speak, compelled speech case, or at least one aspect of his
compelled speech. And I wanted to flag a case from the Seventh Circuit, the Janus case,
which is also a compelled speech that in the context of public sector uh unions, many will
remember from a couple terms ago, the Friedrich v. California Teachers Association case that
was uh, heard just before Justice Scalia’s death. I think everyone thought it was a clear
five-vote victory for uh not being able to force public sector employees to pay, not
technically dues, but effectively a very similar amount to a union that they didn’t want to
be a member of. Um, so it was a compelled speech. In that case, it seemed like it was
going to overturn, the precedent that allowed that to take place, that compelled speech
to take place. And uh, then Justice Scalia died. I think this um, could be the kind of
reboot of that case, and if so, I would suggest, suspect that Justice Gorsuch would also be
very critical of the Abood line of cases, which is, which was at issue there. That could
also be a very interesting case. And then the second set is kind of fits along with
the Oil States case that Andrew’s talking about. It have to do with these major structural
constitutional issues. There’s two cases coming out of the DC Circuit, the CFPB. One challenged
the constitutionality of the CFPB. Um, that the CFPB lost, and then was recurred en banc.
And then the one challenging the constitutionality of administrative law judges, called Lucia.
And in that case, the petitioner, or the plaintiff lost, and the SCC won, but also I think that
one is going en banc or is going en banc at the DC Circuit. And I think those are both
very significant. They make similar types of arguments of here is a, in the case of
CFPB, here is an agency that is not constitutionally organized. You have someone who they have
no check on the head of this agency, either from the Congress or from the president with
removal powers, et cetera. And how can this exist in our constitutional system? And similarly,
the challenge to the administrative law judges, um it kind of fits a little bit with what’s
going on in the Oil States case where you have really a parallel um, quasi-judicial
system going on there. I’ll point out that I do think in terms of the Oil States case,
that I agree it’s going to turn on the question of really whether patents are property. But
I think when you look at the history, there’s actually some really strong historical evidence
all the way from, from our 18th century cases. American law to common law cases in Europe.
I mean the Seventh Amendment talks about cases at common law and that patent cases in England
had been dealt with at common law. So it seems like this is, it fits very squarely into the
concept of here’s a property right, and when you pair that with some of the real serious
due process issues that are going on there, I mean obviously there’s the question of are
these people appointed properly under Article I or Article III? But I think when you look
at the Patent Trial and Appeal Board and the due process questions they’ve had whether
it’s stacking panels or you know, just the standards of proof are very different than
you would have in an Article III court. And they seem to with a, with a over two-thirds
I think patent invalidation rate, and they seem to have a sort of an agenda that uh,
that doesn’t seem terribly well, well-masked. Or maybe I’m not even sure if they’re attempting
to. I think they sort of view it as their agenda to try to get rid of as many patents
as they can. Um, and that’s something that the chief judge has embraced to a certain
extent. Um, I think that’s exactly what our constitutional system was designed to protect
against, by having, having all these due process guarantees that we have, and so, I think that
will be really interesting when you, if the Court is I think, if they think they ought
to recognize that, this, if is actually a property right to have a, a roving, uh, some-it’s
been called a death squad for patents going out there without any due process protections
is really uh, very problematic, constitutionally. So all three of those cases will form an interesting,
you know, way for the Court to review what those constitutional, uh, structural uh, protections
are supposed to, are there to protect, so. Thanks so much Carrie. And I just want to
say thank you to all our panelists. I mean I bet it-
[applause] -was um, I very much appreciate uh the context
and insight and what’s gonna be a, a really exciting term and obviously cases on the horizon
as well. Um, I thought we’d take a few questions um, uh, briefly if there’s anything that you
guys um, would like to kind of flag, or if our panelists would like to, if people would
like to come to the microphone, anything that you would like to weigh in on what we’re waiting?
Well while we’re waiting, I’d just say a word about Carpenter. I’d just want to echo what
Orin said about how in a way, the focus on the cell phone location data is really, really
the least relevant kind of third-party information if you think of your own information and the
emails, documents, photographs you have stored in the cloud, right? Those are all in the
hands of a third party. All of the information, you know, if you’ve got a Fitbit, all the
information that that device collects is stored in some Fitbit computer somewhere, so multiply
that by every kind of device that you use. There’s a huge, huge amount of data that is
now in the hands of third parties that just you know, let alone in the 1780s, even in
the 1980s, uh, didn’t exist. And what the Court decides about the parameters for, for
government access to that is just going to be critical, uh, for privacy protection for
the next number of years. Just a word about the consum- the arbitration
cases. The Consumer Financial Protection Board also has a rule banning class action arbitration.
CFPB of course, its constitutional status, as was pointed out, is up in the air because
it’s the single-member agency, not a multi-member agency. And it’s not supervised by the president,
and on top of that, it doesn’t have to worry about congressional appropriations because
it gets its money from the Federal Reserve, so it really is a power unto itself. That’s
another case. I think there’s an overlap or connection between Chevron issues and the
uh, survival of these class action, no class action provisions. Uh, because I think in
both cases, certainly in the NLRB case, there is a question whether the board has this authority
to begin to regulate nonunion systems. Uh, it can, it has the authority to protect people
as they seek access to whatever four are available out there if they involve workplace issues.
But the board does not have the authority to regulate those, those forums. So it’s not
just an F, Federal Arbitration Act question, it’s the statutory authority question, and
it raises the issue of Chevron, especially in the context of where the agency is reaching
out beyond its usual sphere of responsibility. I want to, um, if no one has any questions
for them, at the mic, I want to kind of ask us to kind of go to about 10,000 feet and
just look broadly about what we see as themes that might be emerging from this term, or
you know, if you want to talk about Justice Gorsuch, um, I mean obviously it looks like
he’s uh, developing some relatively predictable voting patterns, though Justices certainly
can change. But if you could just kind of step back and give us some of your broader
thoughts on whether a Justice or theme, potential retirements. You want to start with you?
Sure, um, one thing that occurred to me as I was listening to the comments was, we’ve
got a new administration, obviously, we got a new solicitor general, we got a new Justice
Department, we got a new attorney general. His SG was just confirmed. I’d be curious
to see what effect on the Court may happen from the change in position from one administration
to the other on important legal issues. I forgot to mention in the Masterpiece Cake
case, the Uni- the Justice Department has filed a brief on behalf of the petitioner
in that case. And I don’t know if that’s formally a change of position, I just don’t know, but
it has raised eyebrows that the um, US SG’s office came on the side of the petitioner.
Um, I may be mistaken, Andy forgive me if I am. I thought you said that the uh, DOJ
might have changed position in some way in the arbitration cases.
Totally. Absolutely, absolutely. [crosstalk] Good, I just didn’t want to overstate it.
So totally, I mentioned that in the Christie case, the SG had seemed to take position that
was sort of pro-New Jersey being able to repeal its laws back in 2014. I don’t know what their
position’s going to be in this new case. Um, that’s curious and interesting dynamic on
the Court to watch. All right, we have a question.
Thank you, and Carrie, thanks for the plug for the Janus case, my colleague is litigating
that. Um, my question would be in regard to the new solicitor general as I’m sure most
of the people on the panel maybe in this room know, Noel Francisco litigated the Knoll Canning
case. Which Judge Sentell’s decision in the DC Circuit was a model of originalist thinking.
Does anyone foresee a greater um, focus on originalism from the SG’s office now that
he’s in charge of that uh, shop? Well, I certainly would view that as a wonderful
step forward. I think there’s a lot of cases that we talked about already where that, that
factor could play in. Whether it’s the, you know, um, some of the original understanding
of whether patents are property, or um what searches and seizures are and how we play
that into, I mean there’s all of these cases that I think could benefit from some analysis
on that front. What the original understanding of whether, you know, partisan gerrymandering
is or isn’t something the courts can even look at. I think there’s a lot of them that
have that, that factor in them. You certainly might-
If you have a good original understanding argument, use it. That’s my motto.
You’re not gonna lose your votes. We were gonna wrap up at two. We got just
a few minutes late, so if it’s okay with people in the audience, we could have another question,
and then maybe have our panelists just kind of say some concluding remarks.
Kenneth Joseph, Supreme Court Yearbook. In one of these sessions, one other expert suggested
that Justice, Justice Thomas’ joining the Court pushed Justice O’Conner toward the left,
and I wonder whether, and, and his implicit suggestion was, Justice Gorsuch’s joining
the Court might push Justice Kennedy to the left. I wonder if um, what any of you have
to say about that possible prediction. To the right you mean. Don’t you mean to the
right? What do you mean to the- I think to the left.
No. I’m, he said- Oh, I see, as a reaction to his former clerk.
Backlash. Gotcha.
I think one point I’ve made along those lines is I, I think it is different when you’re,
so Justice Thomas replaced Justice Marshall, which is definitely a, uh, shift in approach
on the Court, right? Justice Gorsuch replacing Justice Scalia to the extent that Justice
Kennedy, I assume, would be the likely one in addition to the fact that he obviously
knows Justice Gorsuch better and so maybe he’s less likely to react negatively to him.
It seems like there’s no need to shift in order to maintain the balance. The balance
of the Court is actually pretty much exactly where it was two years ago, right? So um,
I don’t know whether that will play into it or whether it’s more into personal things,
but if you’re, if you’re worried as a Justice, do I need to balance a shift, there’s no shift.
I mean I think, even before Justice Scalia passed away, you could look at the Court as
the conservative side of the Court is having, sort of three, two distinct groups, right?
Three and two. And I think that distinction is probably becoming even more pronounced
if you just look at the recent decisions. Even yesterday’s, uh, stay in a death penalty
case. So it seems to me that one way of looking at the Court is you have, you have a three-justice
group. Justices Thomas, Alito, and Gorsuch, you have the Chief Justice and Justice Kennedy,
maybe more toward the middle. On the left, you probably have Justice Breyer and Justice
Kagan. A little bit toward the center. And then you probably have on, obviously, this
is an oversimplification, Justice Ginsberg and Justice Sotomayor in a different place.
So I don’t, I think, you know, the sort of paradigm is, oh it’s you know, four-one-four,
and Justice Kennedy is in the middle. You know, that’s oft- sometimes true. But I think
the breakdown is actually a little more complicated. I think the more significant change is Justice
Scalia’s not there anymore. Because I think he had an enormous impact on how the cases
were argued and reasoned by the Justices. So the very strong emphasis on textualism,
uh, that he imparted, I think, is not there in the same way. I don’t think Justice Gorsuch
at this point is gonna play that role. All right so-
My question goes to the uh, Masterpiece Cake, uh, case? And whether uh given that now we
are in a post-Obergefell, um, situation, uh what are the implication, uh, for this, uh,
litigation in terms of balancing different interests that are at stake?
I think it’s extremely important. Um, I think you were seeing these kinds of sort of, to
coin a phrase, I mean, wedding vendor, wedding participation kind of cases, arising, popping
up. Um, uh, there was the Elane photography case out of New Mexico, I think? Um, that
presented some, some of the similar issues to this one. The Court turned it down. Um,
you have the store man’s case out of the Ninth Circuit which didn’t have to do with same-sex
rights but it had to do with sort of forced participation against someone’s religious
conscience and behavior they didn’t want to participate in. And that case was distributing
Plan B I think. That, that was turned down by the Court over a very strong dissent by
Justice Alito. Um, and now the Court’s wading in. Um. And I think the way you put it in
was right. I think the Court as a whole has been struggling to find the proper balance.
Um, and uh, they won’t be able to make everyone happy, of course, not in these cases, you
never do. But the sort of balance that they decide to strike in this case, uh, it won’t
determine every case after it, but it will set a template, I think, for how these issues
are to be worked out. That’s very important. Um, well again I’d like to thank everyone,
uh, here for this enlightening conversation, and thanks to the Federalist Society and Lee
for uh, bringing the panel together and giving me the opportunity to moderate it. Um, which
I said, I wish we had another few hours to go on. I’m just gonna ask, if there are any
final thoughts, any points that you guys want to make? And then sadly I think we’re gonna
have to wrap it up. Orin, you wanna-? I know you were quiet about Justice Kennedy. (laughs)
Is he going to retire this year? Yeah, I have no inside information. So, so
uh, I think a really interesting dynamic to watch this term is gonna be the reaction of
the Justices beyond Justice Kennedy, although including Justice Kennedy, to our, the current
occupant of the White House. You know, there’s been writing in the popular press, uh, and
on blogs and the like about some Trump effect of sort of Justices or judges thinking, wait
a minute, this, we’ve got a different situation here in the White House and we should be modifying
how we approach certain issues in response. I wouldn’t be surprised if we see a couple
of big cases this term that reflect some sort of Trump effect at some level. Whether that
should happen or not is of course separate. But I wouldn’t be surprised if we do.
Anyone in particular? You’re gonna be watching? I mean obviously, you could make the argument
that the lower courts in the travel pause cases certainly, were doing that.
Yeah, that’s I think the easiest one to watch. But we may see it in other cases too.
And that, that effect overlaps with a general concern among a number of Justices about the
administrative state and Chevron and the separation of powers issue that we’ve been talking about,
and so, I think it is just another factor at play in all of these cases that will involve
deference to agencies, structure of agencies, responsiveness of agencies to the political
process. All of that is sort of up a piece. A concern I have is the Trump effect is its,
people are gonna forget I think about the institutional values that need to survive
the presidency. And uh, the willingness to entertain this impeachment evidence, for example,
and travel-gate case, and we’re seeing in other cases. The sanctuary cities case. We
got to think about the issue of what effect it will have on the institution of the presidency,
going forward. Do you think that’s the reason that the Court
kind of, handled the travel ban case the way that they did? Because they didn’t want to
reach a decision in that case? I think it played a role.
Yeah. I think it played a role.
All right. Well, thank you guys again much. That was awesome. That was fantastic.

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