UOG Presidential Lecture Series – Paul Smith
Articles,  Blog

UOG Presidential Lecture Series – Paul Smith

Hafa adai! All right. Good evening.
Buenas noches. And I feel like I’m in trouble with seeing all these people from the legal community here and it’s an honor and a privilege to see so many who are amassed here this evening. It’s my honor and privilege to introduce to
the University of Guam and the broader Guahan legal community tonight’s presidential lecturer Attorney Paul Smith. He’s currently on the faculty of
the Georgetown University School of Law. He brings over 30 years of legal
experience, graduated from Amherst College in 1976 and received his law degree from Yale Law School where he served as editor in chief of the Yale Law Review. He currently sits on the Amherst board of trustees. Since he arrived on Guam I also found out that he’s a Dodger fan which is very meaningful characteristic for me in these very difficult and trying times as we anticipate tomorrow’s beginning of the World Series. He also brings a… Alright it’s enough. *laughs* He also brings a record of practice that is marked by his commitments to the defense of civil rights and liberties sometimes in unpopular ways. He has previously argued redistricting cases on congressional, district voter ID laws. But he’s most well known for prevailing in
the Lawrence vs Texas case involving the constitutionality of the Texas sodomy
statute and Brown versus EMA which dealt with video game regulations for children. If you think violent games, video games are a form of protected speech which deserves warnings but not regulations, Paul Smith made sure that you had access to them. He is an experienced litigator in front of the US Supreme Court having appeared in front of Skoda some 20 times. He has been successful most of the time, but not all the time as he painfully reminds us. If this were baseball, his batting average would have been you know extraordinarily successful. If this were medical surgery, the success rate might not look that good but in legal terms, in legal terms he’s extraordinarily successful and the fact that he keeps coming back to the Supreme Court of the United States is evidence not only that he is highly regarded in the legal community but by advocacy groups nationwide. He recently went in front of the Supreme Court just a couple of weeks ago to argue Gill versus Whitford, a
case involving the gerrymandering of districts, legislative districts for
political purposes in the state of Wisconsin. This case has been deemed by
many as the most important case in front of the Supreme Court in many years. It involves the gerrymandering of districts to ensure the victory of one political party over another and generally in perpetuity in spite of the fact that the state is competitive between the parties in terms of identification and voting. If you’re on the side of the winning party you argue that it’s all about math and that no standard can be applied. If you’re on the losing side you point out that one party is basically calling the shots not just for districts but for laws and policies with 50% of the vote, they’re winning almost two-thirds of the seats. Paul Smith argued in front of the
justices that it to allow such aggressive gerrymandering to persist, the
country is going to lose faith in democracy. Well I can’t get Gerry here today because Gerry, Governor Gerry from Massachusetts, has been dead by at least, for at least 150 years near as I can reckon. Instead we got Paul Smith who is
fighting to reduce its abuses. I give you Attorney Paul Smith. *applause* Oh, this is great. Thank you. I should start by saying a lot of thanks. Thank you first President Underwood for the invitation to be here, for that gracious introduction, and for all the hospitality you’ve shown. Thanks to amazing leaders of the legislative and judicial branches of Guam who have taken the time to be here and hopefully will find what I have to say interesting. I pray you will. And thanks to the entire university community, as well. All of you have done such a wonderful job of making me feel welcome in my first visit to Guam. It’s a real pleasure to see your beautiful island in this part of the world for the very first time and it’s really nice to have a reason to get away from Washington D.C. for a while in these rather nutty times. And boy, it’s wild there. Just stay here. I recommend it. Now as President Underwood said, I had
the opportunity to do a lot of work in the Supreme Court as a lawyer. Argued a lot of cases, been involved in a lot more cases. I didn’t really start off as a lawyer back thirty five years ago trying to become a Supreme Court specialist. Indeed in those days the idea of that didn’t really exist. Lawyers, most of the lawyers, who work in the Supreme Court did it once and then went home to wherever they came from. There wasn’t a sort of a club of Supreme Court lawyers but over the last few decades that that’s emerged and there’s probably 20 or 30 of us who were on the list and the people that have encouraged the
development of that specialized group most are the Supreme Court justices themselves who are constantly saying how they would rather just have the lawyers they know and trust argue and not have anybody else because they makes their lives easier and so that puts a great deal of pressure on the clients to when a case bubbles up to the US Supreme Court to find one of these lawyers that the
justices know which means it’s a nice place, to be in that club as a lawyer but other people aren’t so happy about it sometimes because their clients take their cases away from them and they’re given to one of us. Anyway, having done all that it’s also kind of nice to step back in a occasion like this and think about the court in general terms, how it operates, with any concerns I have about it. I had hoped last January when I left
full time private practice and went to teach at Georgetown Law School to spend more time in that sort of contemplative way thinking about the court, the impressions I have of it, maybe writing a book. So far that hasn’t worked out because I haven’t been able to leave the litigation practice behind. I’m doing it at a non-profit now rather than making any money at it but I’m still doing it. As President Underwood said I just argued it in the Supreme Court and this redistricting gerrymandering case three weeks ago, a case that took all summer of preparation and certainly well through September so you can imagine having done that I didn’t really have a great deal of time before I was getting ready to leave on this trip to figure out what I
wanted to talk to this group about other than the title of the speech arguing
civil rights cases in the court but that didn’t turn out to be a problem because it turns out that flying from Washington D.C. to Guam gives you a great deal of time to figure out exactly what you do want to talk about. And write it and rewrite it and then edit it and write it again. So that’s what I did. And basically thought, “What should I talk about?” It seemed like what I should talk about is
how remarkable an institution the court is in terms of the number of big huge difficult problems we expect the court to decide and address. The great innovation of our system is that we have this court and the lower courts as well, of course but the Supreme Court in particular whose role is to protect the rights of the minority against the tyranny of the majority to say we have certain constitutional norms that the Democratic elected people can’t trample on. What that means, having that kind of a system where the courts are in charge if they say something is unconstitutional, everybody else has to listen. What that means is that the court ends up deciding an enormous number of really hot-button
issues involving basic constitutional rights, civil rights, and the like. And the list could, I could give you a long list just to give you a few examples but these are the kinds of things that the court decides, you know? Whether there’s a right to own a gun in your home for self-defense, whether abortion should be lawful, whether affirmative action should happen in College Admissions, whether a gay couple should be able to marry, whether voter ID laws are a legitimate basis preventing voting fraud or just a way to burden voting and keep people from being able to vote, whether a travel ban is or isn’t a legitimate security measure or simply a burden on one particular religion. The list goes on and on because we have a system that asks the Supreme Court to deal with all of that. And that raises a really important and difficult question is, which is “How do you square that all of those issues that are decided by unelected judges with life tenure, with our view, that we are a democracy? That this is a country that believes in most fundamentally in democracy?” And the answer of course one level is simple. We are not a pure democracy. The United States is never going to pure democracy. It is a constitutional republic where we believe that the minority rights need to be protected and that’s what the Constitution has said from the very beginning with the Bill of Rights being inserted from the very beginning. But the question still seems like one to think a little bit more about. Why should the court be able to decide really important significant questions particularly even in situations where it seems like what it’s not doing really is interpreting the Constitution so much as creating new rights that didn’t exist based on language in the Constitution? That the people who wrote it would never have understood to mean that at all. They would be astonished, the people who wrote the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment back in 1868 to learn that that meant there’s same sex marriage. Nobody thought about that in 1868 but somehow the Supreme Court in 2015 came to that conclusion. And you know, the Constitution is not like the rulebook of baseball as Chief Justice Roberts once compared himself to an umpire but that the Constitution has open-ended provisions and broad principles that it creates like equality and liberty and federalism and due process that give the Supreme Court a ton of discretion about what the law is going to be. And you know, a lot of people over the years have thought this really goes too far. The Supreme Court shouldn’t be this powerful but one of the things that I think makes it a less of a concern than it might otherwise be to have these judges deciding all of these issues is my main thesis for tonight and I, and here’s what it is. The reality is that when the court is
deciding these issues it’s most of the time not being anywhere near as undemocratic as it might at first appear. To the contrary, far from trampling on
the rights of the majority most of the time when the court is making decisions about these fundamental questions of civil and constitutional rights, it’s
ratifying rights that the American people the majority of the American
people, already believe in and support but differently, for a variety of reasons,
the court doesn’t like being a dictator. It recognizes that it occupies a unique
position in the democratic system of government that we have and its decisions are therefore very often most of the time highly attentive to what the American public actually likes and believes in and supports. For that reason because of that reality, a big part of litigating a case of the Supreme Court like the gerrymandering case I just litigated is working to actually turn public opinion in your favor and then to convey to the court a convincing case that the American public is on your side that that may seem counterintuitive because you think of the court as being an audience of nine and they’re just reading the Constitution. But the reality is they operate in this larger system and they like to think that they are doing things that have broad public support and they’re in their interpretations of these open-ended provisions of the Constitution. Well let me give you a few examples of this just because it does seem sort of counterintuitive, I think. One good example is the Second Amendment, the right to bear arms. The Heller case came down a few years ago. Creating this individual right to bear arms for self-defense in the home. They held unconstitutional in Washington DC law that made it illegal to own a gun for most people in the city of Washington and that ruling represented a 180 degree reversal of what just about everybody thought about the Second Amendment a couple decades earlier including all nine justices who were at the Supreme Court back when I clerked there in 1980. The prevailing view was that the Second Amendment doesn’t create a right of individuals to bear arms that it had other purposes but not that. But by just a few years ago we have this 180 degree reversal. How did that happen? Well it happened because there was an aggressive campaign to transform the public perception of the Second Amendment by the NRA and others into the view that there is this individual right. That was buttressed by a certain amount
of legal scholarship that came along and said that it’s at least unclear who’s right about the historical understanding of the Amendment. And you combine that with the combination of the right appointments by the right presidency you end up with five votes saying there was a right to bear arms for individuals in the Second Amendment. A decision which certainly was a contrary to the views of the majority of people in a city like Washington D.C. where gun control has strong support but was basically ratifying the view that had come to be the majority view in the country as a whole as a result of a long series of efforts by the NRA and others to convince people that this right exists. So in a sense, the court was really ratifying what people already thought they had. Another example is that I’ve been more personally involved in as President Underwood mentioned is the gay rights movement. In particular, Lawrence vs Texas the case back in 2003 that held for the first time that sodomy laws, laws
that made it a crime to engage in gay sexual intimacy were unconstitutional. That was an amazing, life-changing experience for me at the time because of the enormous importance of that issue. Let me try to explain to
you why that was so important before we get back to the reason why I think public sentiment was it, was a factor. If you go back before 2003 which is not very long ago, the Constitution as it applied to LGBT
people in this country essentially said you have no rights at all to be protected from discrimination. The governing decision was a case called Bowers versus Hardwick which had been decided by the court back in 1986 and it
held that there’s nothing at all that’s constitutionally problematic about
putting people in jail for having some sort of sexual intimacy with their own
partner, if it’s his partner of the same sex. It was a decision that upheld sodomy laws and did it in a very dismissive and almost hurtful way. The court was almost sarcastic about the idea that there might be any constitutional protection for the gay lifestyle as it, as they would have called it in those days. In the case, as a result, made it effectively impossible for any advocate to make any serious constitutional claims for protection of gay men and lesbians
because what could would be worse that you could do to somebody than to put them in jail simply for engaging some in gay sexuality. And it’s, the impact of that Bowers decision was enormous. It effectively left the gay community feeling it wasn’t like, it wasn’t fully a part of the country. Certainly the constitutional, the Constitution was not for them. It was for everybody else. And so a long and careful effort was made over 17 years to overturn the Bowers case and changed that relationship between the gay community and the rest of the country. That, that effort involved going state to state and trying to get some of these sodomy laws repealed or held unconstitutional by state courts, but it also involved a multi-pronged effort to change the point of view of the American public to the Bowers case came down in it back in the eighties, a time when most Americans didn’t think they’d ever known a gay person and didn’t have any nice things to think about them. But over the next twenty years, a whole variety of things started to change partly as a result of efforts by civil rights activists. Demonstrations, meetings, advocacy, writings were happening but also individuals were making courageous decisions to come out to their family and friends. The media portrayals of gay people changed very dramatically over the 90s and into the next century. And so by the time 2003 comes around, a
time of Lawrence versus Texas 17 years after Bowers, the public perception of LGBT people was quite dramatically different. The level of public support and awareness was much, much, much higher than it had been back in the 1980s and then the Lawrence case itself came along at the right time in the right place to give the court the opportunity to overturn Bowers and change the whole situation. The case arose in Houston, Texas where two gentlemen were arrested and charged with violation of the Texas homosexual conduct law. There’s a whole book out there that goes into great detail about what actually happened that night in that apartment in Houston. It turns out I think this book proves there was actually nothing sexual happening in the apartment at all. These two, these four deputies broke in after they got a false report that there was some sort of disturbance and they, they ran into these two guys who weren’t doing anything with each other but they were quite intoxicated, quite angry, and very gay. And so the deputies figured, “What am I going to do with these guys?” We want to arrest these guys. They did arrest them but they couldn’t think of anything to charge them with other than this, this sodomy charge. So they, they basically made up the story that they had witnessed them engaging in sexual activity and the, the two gentlemen involved Mr. Lawrence and Mr. Garner chose not to contest the factual story that had been told by the deputies. They pled guilty but with a procedure that allowed them to appeal and challenge the constitutionality of the statute claim that Texas didn’t have the right to regulate this behavior, that Bowers versus Hardwick should be overruled effectively. So that case got going as a result of that particular prosecution and it went up through the courts and they lost at every level in the state courts of Texas but eventually the chance was there to go to the Supreme Court and that’s where we got involved up in Washington. We were asked to work on the case and we were thrilled when the court agreed to take the case and even I was even more excited when I got the opportunity to be the person who was going to argue this case. There was a sense that we were making history that was quite profound because this was viewed at the time as the most important gay rights case that had ever come along or would ever come along. The feeling was that even like notes that you were taking and things like that all should be preserved because they were historic and that feeling actually turned out to be true. After the case was over, I got a call from the Smithsonian Institution Museum of American history and they came and they took that, the binder that I had up at the podium and the tie that I was wearing that day and the court, they put them into the American history collection of important American historical artifacts so I’m not sure they’ve ever actually been on display in the museum but they’re nevertheless there and I have a little receipt to prove it so you know it was a historic case. And you certainly knew that when I was arguing the case that day in court I don’t know if everybody knows this, I know many of you know this. A Supreme Court argument is only an hour long. Each side gets half an hour. But an enormous amount of stuff gets packed into that half hour that you’re standing up there. And the pressure to be right on and prepared to answer every question that could come is extreme. That’s why specialists end up doing a
better job on this thing then the generalists do. In this case this, the atmosphere in the Supreme Court courtroom was completely different than it, I’ve ever experienced at any other time because of the importance of the case and because of who was there in the audience. Every single person in the country who had been at a committed gay rights activist for the last 10 to 15 years was there to look the court in the eye and say we’ve got to fix this problem. This is terrible. The law just can’t be this bad and as you can imagine this put a lot of pressure on me being the one person who was standing up there making this argument. But we were also pretty optimistic that it was going to turn out, turn out well because the court didn’t need to take the case and they had voluntarily gone ahead and taken the case. And there wasn’t any reason for them to do it if they were gonna say, “We still hate you. We still like Bowers. We’re gonna leave it in place.” So we thought we probably had five or six votes. And about 20 minutes before the argument started, I heard a story about how Justice Sandra Day O’Connor had just recently taken a baby gift to the home of one of her former law clerks and that woman’s female partner. I thought well that’s a good, encouraging story to hear before you stand up and argue and so we did get through the argument pretty well. We ended up winning the case 6 to 3 and I was suddenly like the most famous gay rights lawyer in America thrust from obscurity. I got to go all over the country, give speeches like this, get awards. It was a real life-changing experience for me personally and I had the good fortune of being in the Supreme Court courtroom the day the case was announced. You usually don’t get to do that because you don’t know when your case is going to be decided. But this was the last day of the term so everybody knew that the Lawrence case had to come down that day. We were all there to watch it and there was this moment when Justice Kennedy is reading his opinion says that Bowers was wrong when it was decided. It’s wrong now. It should not be the law anymore and it’s hereby overruled and this, this sort of wave of emotion sweeps through the courtroom and there were like 20 different attorneys in the room who were weeping. This is not what you see very often in the Supreme Court courtroom but you did see it that day. So it was a big deal case but to return to what I was talking about as my main theme what was striking at the time, one of many things that were striking at the time back in 2003 was how consistent this ruling was. This ruling that you can’t put people in jail for being gay, how consistent it was with the instincts of the American people. I never got a single call or email or letter criticizing the position we had taken in that case. You would, I’d thought at least one piece of hate mail or something but nothing ever arrived criticizing what we had the case or the way we had won. Indeed on the day that the case was decided, there’s this guy, Rush Limbaugh, on the radio back in the, in the states. I don’t know if you get to have him here but he’s a notorious right-wing radio talk-show guy. And he started going into his usual denunciation of the liberal Supreme Court and for the Lawrence decision and his own listeners called up and said, “No. Come on, Rush. Everybody thinks this is right. How can the government be going to someone’s bedroom and arresting them for what they choose to do with their partner? That makes no sense.” So this was something that most of the American people were shocked to learn was not already a right that they had. The idea that the government can do that, people found profoundly shocking. And so Lawrence, I think, is another case like the Heller gun control case where the court was in a sense following public opinion or certainly like to know that the public opinion was on their side, that this wasn’t going to cause a major conflict between the law and the court’s interpretation of the Constitution and what people instinctively thought was the right thing. And that made it a lot easier, I think, for the court to do it. Now, the next step in the movement for LGBT equality of course was beyond the right to be left alone in your bedroom was to move toward marriage equality. And the Lawrence case, the way it was written created a powerful momentum in that direction. The reasoning of the Court of Justice Kennedy’s opinion in Lawrence was that same-sex relationships play the same role in people’s lives as heterosexual relationships. They had the same value. They’re just as long-term. They should be respected just as much. That was the first prong of what the court held in Lawrence and the second prong was that the government, the state doesn’t have the right to make decisions about what families people should form in this country, that those choices get to be formed by individuals and that the moral judgment of the government is irrelevant when two people decide they’re going to form a couple
and make a family together. That’s, that’s an individual right not the government’s decision to second-guess. And once you basically take those two propositions that same-sex relationships are equally valuable and the government doesn’t get to make a moral judgment about whether they’re better or worse, there really isn’t anything left to justify withholding the legal protection of marriage to those relationships. The logic of the, of those two things taken together make it impossible to come up with any really rational justification for why the government should withhold marriage equality from same-sex couples and indeed Justice Scalia, in his dissent in Lawrence, said judge said exactly that. He said, “Look, the die is cast. The way they were, Justice Kennedy’s written this opinion. We’re going to end up someday with marriage equality. Don’t think this is just about people being arrested in their house for violation of the sodomy
laws and that was true. And eventually Lawrence was the foundation for what happens but back in 2003 when we were getting all this public support for the, for leaving people alone in their homes and in their bedrooms. People’s views about marriage equality were very, very different. Same-sex marriage in 2003 was extremely unpopular with the majority of the American people. Indeed in 2004 the very next year, there were more than 20 states where the voters passed on Election Day state amendments to the state constitutions banning same-sex marriage. And these amendments were passed overwhelmingly by massive margins in most of those states because the polls really just reflected that people did not like the idea that these gay men and lesbians were going to be allowed access to the institution of marriage. It was just extremely controversial and unpopular. And as a result of that, nobody thought at the time back in 2003, 2004 that the court was ready to read the Lawrence opinion and applied the logic of its own decision and find a basis for marriage equality
in the Constitution. Indeed the lawyers, lawyers like me and others who are working on these kinds of issues were very careful not to even consider going back to the Supreme Court for a number of years. The last thing we wanted to do is get up there and lose like we had in Bowers versus Hardwick back in the 80s and even a little, a few years later when the cases did start to get to the Supreme Court the Court did everything it could to delay the day when it would have to decide this question. It, in 2013 there was a California case where it said that there was the jurisdictional problem. It didn’t reach the merits. In 2014, there were a bunch of cases that they could have taken and they decided to deny review. It was only when there was finally a conflict among the Federal Circuits that they had to take the case and they ended up having to decide it. Why were they delaying? Because they knew that every year, public support for marriage equality was growing very, very quickly about two or three percentage points a year between 2003 and 2015. It changed from a strong majority of the American people opposing marriage equality to a strong majority of the American people supporting it. And that made the court’s life a lot easier when in 2015 in the Obergefell case, they ended up actually concluding as Justice Scalia had predicted back in Lawrence that there is indeed a right to marriage equality, that same-sex couples deserve the same protections and respect under the law as everyone else. So as with the gun control case, the progression from Lawrence to Obergefell I think teaches the lesson that the court would prefer to follow public opinion on these controversials and high, controversial and high-visibility cases rather than lead public opinion or at least get too far out ahead of the American people. And as a result civil rights advocates have to think about that, make sure they have a strategy to turn public opinion in their favor in a very visible way or they’re gonna lose their case. And they also need to seek to communicate to the justices that the mainstream of Americans is behind them. In the Lawrence case back in 2003, one of the ways we did that was we had a friend of the court briefs filed. There’s a lot of other briefs filed by people at our parties in these cases and we had them filed by the most established organizations we could find. The American Medical Association, the American Bar Association, the American Psychological Association, various mainstream religious groups, etc. And we had each of those briefs written and filed by the largest most mainstream law firms we could find in Washington, in New York, and places like that. All communicating a message that the American people are behind you on this. This is not getting too far out on a limb. And so that is I think an important lesson that every year people are more aware of. That you have to communicate to the court that they’re not too far ahead of the American people on these big controversial cases. The same lesson was something that we were very aware of in doing this gerrymandering case just this year. And in order to finally get the court to do something, at least I hope to do something good on gerrymandering which is to say that there is an actionable constitutional limit on how people could, how biased people can be in drawing these district lines. We not only tried to do as good a job as we could on litigating the case, but we set up an entire communications operation trying to change public opinion, trying to galvanize public opinion, and trying to communicate the message to the court that the American people were upset about this problem and they strongly supported doing something about this problem. And so, part of that was getting lots of articles written in the press. Part of it was actually commissioning a poll which we did and we had which we released in a press conference and ended up having that cited in the New York Times editorial showing that some, by 70/30 or something, the American people wanted something done with gerrymandering that they were blaming it for ruining the politics of the country and they just thought it was un-American and unfair and that was true of Republicans and Democrats alike. So that was all part of a deliberate strategy to convince the court in particular of Justice Kennedy, in this case it was kind of a one-man
justice the swing vote on this case that it was time to do something, that in
addition to the fact that we had very powerful legal arguments, that this was a case that needed his attention and one on which he ought to be attentive to what our arguments were. And so I don’t know, I don’t know yet whether we’re gonna win that case but I think the way the court operates it
was demonstrated by the enormous amount of money and effort that went into swaying the public view of the case even as we were preparing the briefs and
arguing the case down in Washington itself. Again it may seem counterintuitive that you, to win a Supreme Court case you have to have public opinion on your side, but in my experience in these kinds of hot-button cases that is what the way the court would prefer to operate and that when you’re trying to ask them to do something that’s going to get them way out ahead of the American people they are very reluctant to do it. They have some experience in their past where they have been far out ahead of the American people. One is Brown versus Board of Education, the case in 1954 that integrated the public schools. There was a lot of support for that decision for desegregating the schools in the North. There wouldn’t have very much support for it in the South and they spent the next 20 years trying to get that decision implemented against massive resistance in the South. I don’t think anybody would say it was a mistake that they did that. But that’s an example of a case where there was not exactly an immediate embrace by the American people of the wisdom of the court’s judgment and it left a very difficult problem of enforcement in place for a long time. Another case where some people at least think the court got too far out ahead of the American people is Roe v. Wade. The, the abortion decision back in 1973 and you know with, I don’t have a view myself one way or the other on that question but Justice Ginsburg does. Justice Ginsburg who’s obviously one of the leading feminist advocates and great liberal has written and spoken many times. She thought the court made a mistake by going so far, so fast on abortion before the American people were ready for it and that the result was a backlash that, to this day, has made, that’s one of the most vexing problems both politically and in, for the court itself as it continues to always have to deal with one more case after another on the subject of abortion. So Um That’s my basic theme. We’re hoping that the same idea will work with the Supreme Court on gerrymandering. The kinds of situations like this, that case a perfect situation for the court where the American people are on one side but they know that the democratic
institutions, the legislators themselves, are not going to fix the problem because
they have a conflict of interest. They can draw the districts to benefit themselves so there’s a political blockage there and that’s a, I think the kind of thing that the court likes to fix. Particularly Justice Kennedy likes to fix. At least I hope so. We’ll find out early next year whether we were right and whether all this effort to turn public opinion and get articles in the newspapers and make gerrymandering the issue of the day was worth it and was successful. But those are my insights to the extent that you consider them insights on the Supreme Court and how it relates to
democracy that it’s often following the majority of the American people, not
leading the American people and therefore perhaps it’s a little less
undemocratic than you might otherwise think to have them making all of these
hard decisions for us as a country. Thanks very much and I’m happy to take
some questions. *Applause* Justice. Going back to your, the Wisconsin
gerrymandering case. While the questions may not necessarily, from the justices, may not necessarily turn out to be how they cast their vote in the end. Uh In, in terms of the questions of Justice Kennedy since it seems like that’s the may be the swing vote that There doesn’t seem to be any debate about that. So, so from the questions that Justice Kennedy asked at the oral arguments that you get a sense of whether or not his concerns were addressed from the last time he cast the the concurring vote, concurring vote It was a little hard to read it because he didn’t say too much. He didn’t ask me anything but he had asked a couple of hard questions to the other side which suggested maybe he was sympathetic to us. The whole case was cast in to try to satisfy his demands. He had written the opinion back in 2004 saying, “You know I think this gerrymandering stuff is bad and it’s unconstitutional but you got to give me some way to measure it, figure out how I can separate the really bad gerrymanders from just their politics as usual you’ve got to give me some measurements of techniques and we think we’ve done that. Now there are these social sciences stepped up and given us a couple of other different ways in which you could assign a number and say this gerrymander is at ten while this one’s only a four and allows you to make comparisons across the country and back through history about how this particular gerrymander ranks. And so you know the fact that he didn’t ask me anything that said suggests he was, had problems with those techniques I found encouraging because he’s not a guy who’s shy about
pointing out concerns he has when he has them so we went away thinking we have a good shot. Any other questions? Please raise your hand. While I’m very personally, very happy
about your Lawrence taxes case, my other side being a colonial subject in
the territory What do you believe we need to do to get the Supreme Court to overrule the Insular cases? Oh. *laughs* Yeah. It’s not, Mr. Speaker, it’s not a subject on which I claim great expertise in terms of the Insular cases and how they apply and that sort of thing but I do know that they’re viewed as very problematic decisions by lots of people and that you know it’s gonna be a problem because it’s not a problem well it’s, those are very significant issues here. Back in the states nobody spends a great deal of time worrying about it. I sympathize. I come from an unrepresented territory as well in the District of Columbia where we have no representation in Congress. And we saw also what happens in Puerto Rico and you don’t have representation in Congress. But these Insular cases are a particular problem because they mean that the Constitution only partially applies in some places instead of fully applies and that is a concern. I’m afraid I don’t have a great answer for you on that. You probably would be a better source of information about how to accomplish this than I would be. You probably thought about it an awful lot more than I have. Sorry about that. I had a question about when public opinion
is wrong. Like it, for example in the Japanese internment cases and the court follows according to your theory uh, public opinion Yeah. How do you reverse that kind of decision? Well the court Matsu case obviously is fully consistent with what I’ve said to, this evening in that if you’d ask the American people in 1940 whatever it was, ’42 whether this was a constitutional thing for the government to do I assume the large majority of the Americans would have said so as you suggest in your question. There are going to be times when the court has to stand up for principle and even when it’s contrary it’s contrary to the views of the public
I think they prefer not to do that when they can because they think they work
better as an institution when they’re sort of in sync with the American people
but I don’t deny that there are times when looking back following what the
majority view was but it was a produced one of the most terrible decisions in
the history of the Supreme Court I mean to say there was nothing
unconstitutional about taking perfectly law-abiding American citizens and
locking them up for the duration of the war that’s a pretty terrible decision
and the court has done better on some occasions like Brown versus Board of
Education is an example where they were willing to take it you spend a lot of
their capital and take a lot of risks to accomplish a very important thing for
the country so there are times when that happens but I can’t think of a lot of
others I don’t know do you have other examples where you think the court has
stood up to public opinion being I can ask you you’re the Chief Justice right
so you’re supposed to know this stuff you think there there are times when
when the court has done a better job than they did in Korematsu to of defying
the sort of majority view uh-huh yeah right the capital punishment
is interesting and public sentiment shifts very back and forth a lot on that
but I think you’re right that they were probably in in terms of saying we’re not
going to let you have capital punishment for for non murder crimes for people who
have mental retardation for people under 18 those are probably unpopular
decisions for with especially for if you read the facts of the case those murders
are often very very terrible and I think that would sway public opinion even
though the court ended up saying we’re not going to allow a death penalty in
this context or that context yeah interesting oh I’m sorry Thank You professor Smith and this is a
wonderful opportunity for our students and certainly faculty in community and
certainly thank you dr. Underwood for inviting professor Smith I just want to
make one quick comment about the Bowers case Georgia Attorney General Bowers is
also prosecuting heterosexual couples as well as gay couples I mean it was a very
invidious kind of kind of law and I just wanted to just make that brief comment
but also I had a quick comment what is the future of civil rights in the United
States what what kind of things could we expect in the future well you know on
the first point you make the sodomy laws were in some states we’re applicable to
straight couples as well as gay couples although it 99% of the people prosecuted
were always gay couples because that was just the way the world was law in Texas
in Lawrence was only about gay sex overt discrimination there the future of civil
rights is partly that we’re going to continue to keep fighting for the same
on the same turf that we’ve been fighting on forever we have we now see a
enormous amount of racism including by the government in a way that law is
enforced we have tremendous problems of sexual harassment and gender
discrimination still exists in the workplace in a lot of other places the
fighting the fight for LGBT equality is hardly won by any means if there’s a
backlash going on there we have cases about people asserting the
constitutional right to discriminate against gay people there those battles
are never fully over they just you just keep fighting them and try to move the
ball forward and avoid too much moving backwards and there there are new fights
that that emerge the whole issue of transgender discrimination is something
that is very very commonly being litigated now but 10 years ago was not
really you know anybody’s radar screens and so that’s certainly an issue that is
going to be I think highly important for for quite a while on in terms of civil
rights advocacy so you know in some sense I think there the past is prologue
on these issues you just have to keep fighting do you do you think a case like
Gideon versus Wainwright could get to the court today because you seem to be
describing an environment where if you have the resources to sway public
opinion then you can get somewhere but doesn’t that mean that the the truly
enfranchised whether it’s somebody’s sitting in a prison library or a small
territory like Guam really can’t get before the court Gideon versus
Wainwright which is the case where they recognize that you have a right to a
lawyer before you can be put in jail for a crime back in the early 60s was a case
where this the petition was handwritten by this guy who representing himself in
jail and somehow or other they the court Gideon’s trumpet it’s a great book about
this story I think that well first of all there’s like 9,000 petitions a year
file so the odds of any one petition getting granted are very low they only
take about 80 cases a year so very low success rate and filing those kind of
things but you know are there cases nowadays where the court might decide to
do something dramatic that is not a subject of popular popular push but just
sort of because they think it’s the right thing to do I think that can
happen whether it would happen through somebody doing a handwritten petition I
don’t I think that’s probably a pretty rare thing these days that that but but
one thing that’s changed that in that whole
now is there an awful lot more lawyers trying to get a Supreme Court case and
so many of those people who would otherwise be filing their things pro se
are now going to a supreme law school clinic and getting law students to write
the petition for them under the supervision of a professor or other
places there are so there are a lot of resources out there for because the
lawyers want to get the Supreme Court cases they’re looking for the clients
and and so you know I think the odds of these days of the court granting
something that was not lawyered up pretty well are pretty low but there
still could be some new issue that the court takes up that is not the result of
popular feeling so much it’s just the Court’s own sense of justice like the
right to counsel and though that’s probably an era the era of Miranda and
Gideon where the court was kind of doing things because of what it thought was
right not so much because the American people were pushing them in that
direction the war in court was a very aggressive court about trying to help
equalize the criminal justice system in a way that was probably well ahead of
the mainstream of the American people when I speak to the elders in my
community back in the States about civil rights and things that we can do to make
a difference their point of reference is of course marches and sit-ins and
boycotts right but now we see young people participating in marches and it
too looks to be a negative approach I’m wondering what some of your ideas are
for encouraging young people to be activists and participate in the civil
rights movements as of today that’s kind of getting beyond my area of expertise
but I will say this I does seem to me that the way civil rights movements work
in our country is you have a combination of courts and popular activism and
eventually the legislature is all kind of reinforcing each other and without
the popular uprising part of it a lot less happens a lot less quickly that the
you know if you look at the the african-american civil rights of the 50s
and 60s there was a there were marches but there was also Thurgood Marshall
going to the Supreme Court and they were helping each other in a very complex an
interdependent way and the same was the gay rights movement certainly that
the the marches were important as well as the litigators and how to encourage
young people to be more involved in these issues than they were in the past
I you know my my sense is that people are getting very involved in these
issues these days and that there’s a there’s a perception that many things
are threatened that people used to take for granted and that levels of
involvement in politics and and in in levels of concern about basic civil
rights among young people are probably higher now than they were have been for
the last 10 or 20 years so maybe this problem will self resolved if only
because we have so much more to worry about right now in certain ways yeah yes
mr. Smith I was wondering what are your views and you think further implications
of the upcoming masterpiece cake shop versus Colorado I have views on this
subject this is the case about the the Baker who for religious reasons said he
would not make a wedding cake for the same-sex couple in Colorado and was then
sued for violating their non-discrimination law the the bans
discrimination by commercial businesses based on sexual orientation and claimed
a First Amendment right to engage in that form of discrimination it’s
primarily a speech case not a religion case the claim is that creating wedding
cakes is a form of expression that people shouldn’t be compelled to do when
they when what they’re effectively expressing is support for something they
disagree with in this case for religious reasons but it could be just for other
reasons and I think that allowing that claim to prevail would be very dangerous
and hard to limit the law has always been in the past that if you if you open
up a commercial business you have essentially taken on the obligation to
serve everybody without discriminating on the basis of race gender sexual
orientation etc but that is the nature of what commercial businesses have to do
that when people have a right to discriminate in other aspects of their
lives and the social clubs that they form and join in their churches and the
people they have over to their house or whatever it may be but we’ve always had
a line between those areas where people get to make choices about that sort of
thing and the commercial businesses which have no constitutional right to
discriminate and I think once you breach that line you’re going to have a lot of
trouble limiting it to that particular wedding-cake context you know a lawyer
or a doctor occasion expression when they serve their clients or their
patients are they going to have a First Amendment claim if they don’t want to
serve gay people or black people or women and if so how do we do we allow
those claims to prevail and you know the the whole thing starts to unravel if you
allow these First Amendment claims to be made by commercial businesses so I hope
the court will see that I mean I’m sympathetic with the guy in some level
and it’s a very good case for the other side to a Brock because he seems like a
well-meaning guy and everything but and religion is obviously something that we
respect in the United States but I think it would be a terrible mistake frankly
for the court to start to allow those constitutional defenses to
discrimination to be made by a commercial business for the first time mr. Smith thank you so much for coming
here to talk about arguing civil rights cases before the Supreme Court you you
said that in in general the court should be sympathetic to public opinion but as
a Chief Justice Rehnquist wrote in Planned Parenthood versus Casey he said
that once the court turns to public opinion regarding issues it enters a
bottomless pit for it’s there’s no extracting itself and as you know there
are some cases where the court must rule against public opinion like in Texas
versus Johnson and Snyder versus Phelps so word what line would you draw between
the court as being sympathetic to public opinion and having to overrule popular
public opinion well you know I was not really here advocating that the court
should follow public opinion it was more an observation that they tend to in fact
like to do that and feel more comfortable when
they can find public support for their positions but as you say there
absolutely are cases where they need to do things that are contrary to the
majority and I think you’ve got a couple of really good examples there Texas
versus Johnson is the flag-burning case if you ask the American people should
people be able to burn the American flag it’s a demonstration I assume a large
majority would say no but the court said you have a constitutional right to do
that under the First Amendment snyder versus phelps was picketing by the
Westboro Baptist Church of the the soldiers funeral with all sorts of
horrible hateful things said about him and everybody and stuff and a
constitutional right to do that and so I think those are two helpful examples of
why the court should not always be listening to the public of it and and
needs to take strong stands particularly in those kinds of First Amendment cases
but I think the point I was trying to make is that the court will be much more
aggressive in a lot of contexts where when they feel like they’re not getting
ahead of the American people and if you can as an advocate sway public opinion
to be on your side and communicate that to the court you’re going to be better
off it doesn’t mean that that’s the only way to win I mean as the the two really
good examples you came up with illustrate thanks for that question um hoppitty thank you so much for being
here I was just wondering what would be would be some key actions that you think
that schools or that teachers at a secondary level won’t be key actions
that they can take to respect transgender students in their school a
transgender the school thing an issue I have some experience with I was involved
in the case in North Carolina involving issues of bathroom issues for
transgender students you know the the thing that is so unfortunate about all
that that litigation and all of that hubbub is there have been transgender
students and in schools for a long time not a lot not nearly as many as there
are now but some and the whole issue of gender identity has never posed a
problem people just would use the facilities that correspond with their
identity and nobody was bothered by it but now they’ve stirred this into this
huge issue of trying to force people in to use bathrooms that are contrary to
their identity and it just doesn’t work and I think it’s it’s really unfortunate
it is an issue that has been kind of raised by the people who are looking for
ways to push back on LGBT equality the bakery case is another one but those are
the two areas where they’re trying to find ways to push back progress toward
equality and they think that the transgender issue is that when it is
particularly sympathetic to a lot of people who are worried about people
going into the wrong bathroom and threatening little girls and that sort
of stuff but the reality is it is a non problem and that most of the schools in
the country allow people to make the choice to use a restroom consistent with
their gender identity and it is a it does not cause significant issues I
think that there is a there is a strong sort of mainstream view that that’s the
way to handle it it’s just some people are making the contrary argument is kind
of a way to stir up the pot and at least that’s my view about this I’m not
unbiased I’m afraid but that’s that’s the view I developed in working on that
case in North Carolina the House bill the big case that caused everybody the
boycott in North Carolina for a while thank you thank you sir
I have a question but that you might have already answered it and I apologize
because I was a little bit late but I asked it anyway and if you answered it
in you don’t have to do it again I know the from the political point of view I
understand what is going on in America but from law point of having good to
know Ellis but from the point of view of the law what you think about the the
policy to denying Muslims from coming to America especially in certain countries
like I said I understand the political aspect of it but from
point of view what do you think about them it’s an interesting question
because the law gives the president an enormous amount of discretion about
these sort of things for security reasons and the courts have been
enormous ly aggressive I think in terms of pushing back on this and because I
think they did it so poorly with the president announcing in advance that
he’s gonna have a full Muslim ban and for the whole world and then they’ve
done it sort of clumsily my guess is on the third try they’re probably they’re
gonna go back to the more usual deference to the president now that
they’ve got countries included that are not Muslim countries at all and they’ve
studied the issue more carefully and in the end of the day the courts are
uncomfortable I think taking on an issue of national security like that but they
have been willing to do that because they thought that the the rhetoric of
the presidential campaign about Muslim bans and banning a whole religion was so
troubling so there’s been a remarkable degree of pushback but I think in the
end of the day if they keep working at it and they may have done it now that
you know they will have a they will have redrawn the policy in a way that the
courts will allow it to go into effect mr. Smith
recently the Supreme Court rejected to hear the Gavin grim case do you think
the the reason behind that is because as you mentioned before previously they had
rejected to hear LGBT cases until public opinion came around or is that more in
the influence of the current administration
so the Gavin grim case was one of these transgender bathroom cases that was
actually in the Supreme Court for a while and then they decided to dismiss
it and send it back to the lower courts and the reason that happened was
actually a very technical one which is that the decision of the Fourth Circuit
had been based on this interpretation of title 9 of the federal statute that the
Obama administration had adopted as a as an interpreter protection of what the
statute means as applied to bathrooms for transgender people
and the Fourth Circuit had said we have to defer to that interpretation of the
statute and then the Trump administration got rid of that that
whole interpretation and said that’s no longer our interpretation and so the
decision below was it was no longer valid in a sense that the the the the
reasoning that the Fourth Circuit had relied on deference to this
interpretation didn’t make any sense anymore because the interpretation was
gone and so they basically had to send it back to get a ruling from the lower
courts about what the statute means without the benefit of that interpretive
document that they had deferred to before so I don’t actually read much
into the court’s decision not to keep that case other than the the Trump
administration changed course in terms of how the statute was interpreted by
the Department of Education whether or not though they’ll take it again later
we’ll just have to wait and see we have one last question here cool okay so when
I think of the US Supreme Court I think of this body that’s kind of unreachable
for you know regular citizens and so my question is how does the public besides
public opinion how do they fit into the puzzle when you argue these civil right
cases in front of the Supreme Court well I guess I mean I guess how do I guess
how do we gain access to these large cases that come up before the Supreme
Court how does the public are they able to put their own opinions in that one of
the nice things that the court does is it’ll take it an amicus brief this
friend of the court brief from anybody they never turn them down and in those
big cases it’s routine for them to have 50 or 60 and on each side of briefs you
know written by lawyers but representing all sorts of interest groups and
sometimes even just individuals just expressing their views sometimes about
the law sometimes just about what the relevant facts are out in the world and
so they’re actually a fairly open institution in turn
of that form of written input which is the they would rather have that than
people demonstrating in front of the building or something like that I mean
so the truth is I think there is an enormous amount of ability of people
when they get themselves organized to express a view about these big cases and
the court does look at those briefs and take them seriously so it’s not quite as
isolating it I saluted in places you might perceive it to be probably okay
thank you very much for your questions how about another round of applause
thank you everybody

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