tv Supreme Court Discussion at American Bar Association CSPAN September 6, 2019 12:36pm-1:58pm EDT
it's fully volunteer can issue pickets were interested managers and interested neighbors can go to get information on a wealth of issues that are confronting the offices. many of these issues they've never confronted before. >> you can watch this entire hearing from house modernization committee on support for new moves of congress, listen with the free c-span radio app. >> appellate attorneys and legal experts talk about the supreme court's recent term, preview upcoming cases and, in fact, the president has had on the court system. due to a technical issue we will join the first american bar association panel in progress. >> and one is somewhat mild, this term and i think kannon shanmugan echoed it was in terms of applications and the court written ways certain justices were 20 the legal, a majority of the cases so you agree this is
kind of a quiet interlude to what might come? and then maybe talk about very much your area of expertise, the gerrymandering case. and does it portend other future decisions that we should be aware of? >> so i can but else i just want to say like mickey rooney, i'm just happy to be in the show. i think kannon is right, that the term mischaracterized in part by the cases the court took them by the case the court postponed taking. to make very high cases that were key to pry the beginning of the term and i think one set of them were actually on the summer from last year were cases about the scope of title vii, whether it covers discrimination based on sexual orientation or an gender identity. the court could have taken those cases last september and it
didn't. it held off on those until april. it once again dodged a question that it had up in front of it in masterpiece cakeshop by sending the flowers case back in light of masterpiece cake shop which i think it of interest because masterpiece cakeshop shed the light on the question. so it's a little bit, you know, you wonder what their expecting the lower court to do. the daca case was left hanging up there for quite a long time. i think they thought maybe the census case would shed some light on that, although at the end of the day it didn't. gerrymandering cases show i think in real powerful way what the departure of justice kennedy met in some ways. you could get a a sense of this from the fact last year the supreme court had the question of partisan gerrymandering up in front of it into my cases, and the case called swinford fizzled on standing grounds and justice kagan wrote an extremely long
detailed concurrence that was designed to be a bloodbath to the plaintiff of what they should do on the issue so we get to the supreme court. it seems clear to me from being that opinion should know i get justice kennedy was about to leave the court. because like you all that guidance if he's not going to be there? the guidance was quick decide to say this is what you should say to justice kennedy to getting to find a medical gerrymandering. the cases that came up this year have different -- they've been litigated with one set of ideas and then you got to the supreme court. in part because the point joan made, the point chief justice william wanting to avoid the court seemed to be part of a partisan battle in an increasingly polarized country. but gerrymandering cases were
very unattractive court. for two reasons. it's going to really hard to cite the issue without the public thinking that the court is getting right into the middle of the political thicket with reporters say this case when it this way because the republican justices thought this and the democratic justices thought that. so the court did really want that. and the second thing is that the devil in the details here, which is the last bastion of the supreme court's mandatory appellate jurisdiction where cases go to three-judge federal district courts with mandatory appellate jurisdictions rather than discretionary treasury review the statewide legislative apportionment cases and congressional redistricting cases. so if the supreme court had declared partisan gerrymandering judicial, it would virtually guarantee after consensus is going to get probably 30 or 40 cases on its docket that involve one of the two political parties claiming that the other party
had done that and unfairly. and the last thing the supreme court wanted to do was to have to decide all those cases unless they could come up with a mechanical rule that would allow them to affirm or reverse, is very -- >> but that's hardly unusual and supreme court jurisprudence. i have a ruling, out into my constitutional law students that the court will often decide a case, send it back and then the circuit go all over the place with you. after then, if after the second time they have to advertise through a flaw, then they send it back and they split in every different direction. it comes up a third time and they say we will settle it. and they declared victory and see the field. a lot of cases sort of have this -- >> in these cases they can't deny cert sourcing area where
unless they are really eager to spend a lot of time on the area, it's not, it's not a good look for the. >> what happens next in gerrymandering? what is your next step? >> nothing, right likes to make things. nothing at the federal level. there was a throwaway line about how maybe the state courts can deal with this which i think confronted a line from justice case against dissent saying what do they know that we don't? which i think is fair. part of what chief justice was saying was look, they're up in politics since the beginning of history of the country. it is impossible for judges to come up with a line we can say there's too much politics. there's so many politics that up from here it is become unfair to one party or to the citizens.
but if that's true there's no way to define when there has been a violation. we cannot tell whether this is a violation. so to that extent the first line injustice cajuns dissent was a bit of effort she opened up icing this is a first time in history with the court has refused to remedy a constitutional violation when the point of the courts the pain was taken to whether the was a constitutional violation. but to put a little bit of a morrow on that judgment with the chief justice said was like maybe the state courts can do something about that. it's inconsistent with the judgment that this is incapable of being susceptible to judicial standards. >> i think what's going to happen is, you're not going to bring a cause of action this is this is a lyrical gerrymander. we've seen this already in the past couple decades, is people are going to try and shoehorn
what is a gerrymandering claim into one of the cause of action. and then there's a little kind of observed case from georgia in the 1990 round of redistricting i think it was the supreme court, lower federal courts announced, firmed really dug in one person, one vote and said tiny deviations in georgia were unjustifiable because they were fully done for political reasons. faye packed more people into the republican districts by about 5% and into the democratic district. it deal, you see people try to repackage your claims or one person, one vote claims to get around the fact they can't bring them as political gerrymandering claims straight up. >> to be fair to the chief come you said there's really three -- this whole history of this crime goes back in 1886 where the
court had sort of held any fractured decision these claims are judicial. but then there was a number of vacation including yet another fractured opinion in the case where there were members of the court he took the view that these claims are non-transix. justice kennedy kept saying i do know, maybe this case but maybe there is a standard. it's not the court is not trying to get sick or had a number of since 1986 in which people can come up and going what about this, justice kennedy? is this a good shiny object? justice kennedy wilco not this time. and so after the seventh or eighth time the people try this, the court finally said, we're done. >> can i i put you on the spot? you think it is judiciable?
>> i sort of come one of the things that's interesting that gerrymander is both, the technology of having gerrymandering change and also the same kind of competition power that allows you to do much more efficient gerrymandering today than in the past allies to do something that a lot of good social scientists have shown, which is you can now run simulations of redistricting on computers and see just how huge of the partisan advantage that a particular plan gives to the party that to it. anyway they couldn't do before. at the end end of the day, andi imagine it's, the chief of the city, the question of how you find the hook in the constitution for exactly where to draw that line is a kind of naughty one. in the same with the coming up with a hook of one person, one vote was a little bit naughty. if you go back to baker, the
court said claims are judiciable because the familiar standards of equal protection clause can be applied. and then two years later out of thin air they said no, no it is actually mathematical inequality. which is not a well developed as a standard but it's one that works really well. >> right. the jury case is standard deviations. >> exactly. >> there are statistical benchmarks to use. >> can ask one question? if these things are judiciable is at an equal protection claim a first amendment claim. the latest three entity to -- was a first amendment which came with a standing very that has no bounds. >> yeah. if i were king of the forest, not praise, not do, not earl, i would do it as a guaranteed clause claim, you know?
>> that opens up a huge can of worms. >> when you referred, both referred to the concurrence that justice kagan had written last year in the wisconsin case that even though it was labeled a concurrence, essentially could asked for a dissent with the chief was doing last year in wisconsin case the dip at the roadmap there, not just based on an idea that justice kennedy had still been on the court but also trying to highlight the first amendment association claim. and so but that was, every possible claim was made in these cases that we had up here this year from maryland and north carolina. the chief has shut the door on all of them. one other thing i would just mention to follow up on the comment on this could go to state courts, justice kagan in an incredibly passionate dissent from the bench will be the most passion i've ever heard her speak during a dissent in the courtroom, talked about what to
state courts know that we don't know? but she also scoffed at this idea that the chief has put forward that maybe independent commissions can do these. we had a case, the chief had written that into his majority opinion but we had a case from territory a couple years ago which the court narrowly upheld independent commission to draw lines on a 5-4 vote for the chief was on the scent of that. didn't think the commission was valid. we have a lot of crosscurrents going and what they're saying is you are throwing up your hands. it's important for everyone on election day to believe that their action exercising a vote rather than the photos are been taken away from them, and takene away from it through the sophisticated gerrymander is. but it won't be the supreme court to solve it at this point back. >> a point of clarification. under the equal protection cases you usually only are entitled to
challenge a district in which you live. and so the problem with these gerrymandering cases is the challenge that you want to make is to statewide plan. and so as an equal protection claim, you usually have a problem of standard because you can't challenge districts outside that of which you live. people came up with a first amendment claim on the theory that if you're a democrat you really feel for the democrat in other parts of the state are getting a raw deal out of the apportionment. and that's a violation of your rights of free association because you feel for the fellow democrats. but it probably claim is on this theory i live in virginia which sued california because i feel bad for my fellow republicans who are in a squashed. >> that's why i write the guaranty clause as the actual locus of making these claims,
which is a palm is about the structure of government and the fact you've got rid of the idea that the people actually picked a the legislative instead which have his legislative picking the people which is kind of speakers which is a cascading effect. raleigh-durham, they trot around the room and north carolina and then chapel hill, the fact i'm not part of chapel hill, basically gerrymander estate has a cascading effect. the standing argument may be better. >> some of those cases are silly. some guy versus a democrat and live in madison, wisconsin, sued because he felt bad about estelle democrat in other parts of wisconsin. i don't believe there's ever been a way in which somebody was a democrat and medicine isn't going to have a democrat is representative, right? it's sort of a silly thing to have its why you standing there at the end of the day if your
theory is that i'm entitled to suffer for my people of my same party in other parts of the state, you can sue about other parts of the country. >> so kannon, i want to build on this term, virtually every, if not every senate judiciary committee, they bring up precedent arises and there's a mantra that is repeated that of course we're going to be faithful to president and then were not so sure that actually happens in practice -- faithful to precedent. how do you read the court as we start to think about future cases their adherence and faithfulness to precedent? >> one of the prominent themes of his last term was stare decisis, the question of what to do if passed precedence with which the court might today disagree and were a number of pretty high-profile cases or
actually i think relatively low-profile cases that became high-profile because they turn into debates about the appropriate role of stare decisis. i think it is sort of famously hard to try to come up with a mathematically rigorous test for stare decisis and if the part of the problem is that by definition, i think the court feels it has to have pretty flexible standards for determining when to adhere the past precedence. but i think what is happening is that you have the more conservative members of the court being more willing to revisit past presidents and yet more liberal members of the court now wrapping themselves in the flag of stare decisis. i think that's the way the court is now press looking at future fights to come on high profile questions. the were a number of cases, i think ultimately only to my cases this year with the court
actually expressly overruled past presidents but in both of those cases there was sort of a -- but have court should approach stare decisis more generally. unless it sounds like and be too cynical about this. i think that our junior disgrace on the court about stare decisis i think there's some -- justice thomas' thinks it's all about the merits of the prior decision and if the party decision is wrong, the court should revisit it. i think if of the members of the court who take a somewhat more institutionalist view and to think the court needs to have some sort of plus factor beyond that. the problem is the court has hard to articulate exactly what that speedy the joy of being in cases not present an how to do with precedent. >> somewhat ironic. >> and the kasich about our nick and i, right?
the two cases refers president. let me first mention for those you come your all lawyers, a white even talk about precedent. the idea is the court want people to be able to rely on past decisions and mrs. can conduct themselves in people through their individual rights the know what's coming. the idea of stability in the law and reliability, and in the hyatt case, a tax case from california that had come from nevada -- [talking over each other] -- exactly right, which is been up to the court before obviously. justice breyer in his dissent referred to the casey opinion data suggesting and said, what's next for what precedent would be reversed? some of us are always looking for story, mention that he felt
abortion precedent to say what's next? and then the next property rights case that kannon also hinted at, estes kagan pulled a page in her dissent from justice breyer and said what next? we didn't have to wait long. here we have another reversal of precedent. this was an unusual term in that during oral arguments several of the justices were actually articulating their view of president to say this is what we think it is. this is what -- so very much on center stage and it's a dry, dusty concept but a very important one that will determine when they will turn the back and both of these cases that are mentioned, the president was from the '70s and what else is from the '70s but roe v. wade from 73. that's why it's very much in play at the same time the state to drink so much with abortion. >> one thing that's interesting, they are different kinds of precedent in the sense somebody presidents are really about i
may conduct the ethnic average people in the everyday lives. some of the presidents are more about how courts should go about doing their business. and you might think there should be a slightly different view of those sets a precedent because the latter set a precedent don't actually affect people's everyday lives directly. and when you change the precedent, you have a lot of settled expectations and courts are particularly express that. so the next case is that which court system do you bring -- it's not about whether something is or isn't a taking. there was some argued back and forth about that, but either way theoretically a case should, roughly the same. it's just a question of do you bring it under -- i think i'm kind of getting that right. >> whereas some cases are really about how people organize their lives in ways that have involved a huge amount of investment in
human capital, in relationships. i think those things might be different. so, for example, i think even justice issues think that, really dislike the president an example in obergefell will not reverse of rockefeller because what you do about the marriages that in that the editor under existing regime? it would be hard to unwind that. whereas a case that you bring a particular claim state court a fellow core, very easy to unwind going forward. >> well, i mean, i think i'm with kannon on this one. i think we're our reason able to come up with a number of distinction as to why the cases that we like fall on the right side of the line and, therefore, shouldn't be touched. and those, sympathetic to come maybe we should take a harder look at. if you follow the confirmation
hearings where judges and justices, there is an elaborate dance about how you look at stare decisis and a look at precedent. all of which is all about roe v. wade. there's no other subject that is actually be discussed other than roe v. wade. >> i think affirmative action is as well. >> that's fine, but when -- it's all code for we get rid of the cases that we really like? if you get on the courts and you get rid of cases that you believe are inconsistent with the social justice, hooray for you, right? and so when you have obergefell case which is perfectly lovely and maybe a good thing for the country, there was, in fact, a supreme court case which was a summary by from the lower courts that has be overruled for obergefell to come out that way. there were federal statutes that have to be determined
unconstitutional so that the case couldn't go that way. there were not many people on the winning side of these cases was sweated that out a lot and even the people who purport to be institutionalist usually think these are really important weighty matters. these are all questions that really do turn on whether your sympathies on the side of the side you think are going to be winning. .. one that they think is going to favor or not favor. anybody who tells you that, actually not being completely honest. there is a certain set of honesty.
i don't want to tell you if i think that this is correct or not. probably not. really wondering what is correctly decided. there is something that is good about someone recognizing about how i really care about this. often really saying i care about the things i care about. actually, i would rather -- >> i would just add over here, i think it is a practical matter. i think it's always been true. just how wrong the decision is. it articulates. a feeling about precedent. driving the discussion to
overrule it. the only thing that i would add, you know, having a conclusion at the end of it, i think there ary all that desirable. very tempting for the court. and precedent. without sort of coming right out and did knowing what they are doing. >> also, religion test. >> the court said something about what it was doing. >> the idea of whether it's going to be death by 1000 cuts or if it's going to be done out right. most of the time it's not.
>> there were different opinions on the cross take. it was a fascinating opinion. a fairly incremental test. this is ginsburg and soto meyer. it is definitely in the eyes of the beholder. also, what is in the eye of the writer here. revealing how much precedent there is. >> as a practical matter, the fabulous most recent book, the chief justice is really a big lever in the notion that it is better for the court to narrow house precedents. preserving the institutional reputation with the court.
it is going to be very interesting to see in the coming years whether that's the mo of the court as well. my plan is to talk about more issues. his appointees will protect the unitary executives and the executive branch. the crystal ball for how the schools will fall on the executive privilege and executive our side of things. >> trump presidency.
it was really the question of should the court take into account what everybody knows or should they act as a normal administration. a much more activists and fluffing down the executive branch in recent years. on the other hand, if you act as if this is normal, are you normalizing a very different kind of country than the country we had before. i think that that really went back and forth. you saw that in last terms. it is written as if it kind of goes like this. at the very end, over here. how much deference we will give to the commerce department. deciding how to run the senses and everything. the judge for whom he clerked. do not be naïve as a judge on
something everybody knows. the administration claimed the enforcement of the voting right act. to quote jerry seinfeld, a jew and a comedian. it is just absolutely ludicrous. what does the court do when they are faced with something that makes it look to uphold what they would normally do. >> much further. the travel ban had elements of that. >> but, when the chief wrote the opinion of upholding the trump travel ban. the third iteration of that. she said we know what he said about muslims. we know what he said during his campaign. we have to treat him like any
other president. she said get real. you have to listen to him. this time, it was so much further. talking about the material that came out in media publications about some of the motivation of congress secretary wilbur ross. the trial judge in this matter said i think the chief wanted to lay down certain markers that frankly for the future any administration can. it just cannot lie to a court about what it is trying to do. i think in this case it just went too far. recounted about the decision that the chief wrote and what had been written to a full dissent. twenty-nine page opinion opinion by the chief. twenty-three pages.
all about how wilbur ross can answer questions. at that point in the opinion, brother and out of the right. there is no constitutional enumeration clause with asking the question. there is no administrative procedure problem with asking it. the u-turn that they just gestured on, you just cannot live. the sole reason you want to do this is to collect decent voting rights data. the interesting thing about this , i would really like to know when the final decision was made. during the oral arguments in late april, the chief justice asked not a single question that would have suggested he thought this was contrived. only one justice to even used a variation.
they seem to be buying the voting rights act lying. as i mentioned, the judge had really laid out all the evidence in both the administrative record and the trial record that would lead you to believe that wilbur ross is lying about the reason. you did not get a feeling of that from the majority during oral arguments. that opinion, obviously, went against the administration and the end. the constitutional question. my little part of adding to adjusting your question of what will this do in the face of the trump administration pushing very hard on the law and different areas. i think it will be one case at a time. b determine not just by the particular case and the fact but what else may be going on in the country at the time.
>> at the beginning of this administration, there were those, mostly skeptic of the president, that will take up a lot of the supreme the supreme court's time. in the end, there has been pretty much exactly the year, first the travel then case and then of course the senses case. next term, the docket docket case. having a real common thread. the question in each of those cases has been to what extent does the administration have to show its homework before launching one of these initiatives. going to the question of the extent to which the president and executive branch have to provide explanations that can stand up for actions that would otherwise be indisputable in their power on the constitution. that is a little bit of an oversimplification. constitutional challenges to the travel ban as well.
at its core, that is what these cases are about. a really interesting question. the extent to which these will have future administrations and other contexts. i think the census case with its scrutiny of its reasons for the president's actions, you know, in my opinion, probably will not have audit force and other administrative contacts. stick to this only supreme court decision. by the time we get to the end of the administration, what the law looks like. whether it affects the way it is reviewed. >> have they done their homework #. >> i'm going to take the easy way out. [laughter] >> i was going to say there was an old opinion.
justice scalia in that case. >> the first line with something like the facts are -- it was about the neighbor. who then fought the right child. there was a dispute under california law. the core of what was going on was this was not in the clause. this was this, that in the the other in the apa. the fact is, if you are three feedback that. a very easy case within the administration. this is a question that you should have in your senses.
we had it in every sentence we ever had. since then, several different ways. it should have been a relatively easy thing for the secretary of commerce to say we understand. policy reasons of its own. you are overruled. the opinion of the chief justice can do that. the problem here is that instead of doing that and sort of illustrating the administrations talent was wilbur ross got him to understand to try to get them to claim that he had been very dear. what happened was they ordered a whole bunch of discovery. as a result of that, it came to
light, you know, wilbur ross, the justice department, some claim for the judgment. which made it into a memo that was used as the justification. when people say we cannot ignore that this is what really went on, what happened, it came to light that the memo that the secretary of commerce signed, having a secretary, mind you, was actually forced. i think what general roberts was reacting was it's fine enough that we had this president. we cannot have a secretary lying to the court. if you come into court claiming this is the reason you did something, we cannot actually turn the other way and allow the
course, yes, this is okay. this is one step too far for the chief justice to say, yes, i'm going to find that this is legal under the administrative procedure act. it probably would be legal to justify it. >> not the crime, the cover-up. >> the opinion makes it perfectly clear. just that, you know, the, the way around it, the court said, you gave a reason that discovery showed it was false. it was not a reason to be doing this. you sorta send it back. the interesting aspect of it was future epa.
what you do every time you have a challenge to a new administration or party. trying to get that discovery. that will be interesting. the chief justices said this never should have been admitted. a lot like casablanca. >> everyone appear i know remembers, they originally took this case on the discovery question to be heard in february we could have easily had a five- four ruling in favor of the administration should you allow any of this evidence into the record. the chief definitely, you could feel the chief did not wanted in the opinion that came out. even some early signs in fall of
2018. the court did not want the administration to be up put on the spot. that is why the judge when he wrote his opinion in january, okay. here is what was in the administrative record. he delineated it so the chief, you know, would have already said, even if you had what was in the administrative records, we would say the challengers win. what the chief said was, okay, we did we did not want that in there, now that you've shown it to us. >> coming out a couple of times today. >> there kind of art. >> there are cases out there. >> it has been up there.
>> much more about the actual facts in this case than the issue. louisiana law brought by jim medical. it came up before the court on an emergency request back in february where the chief voted with the more liberal members to make sure the law did not take effect. in terms of the timing, the petition, the state had gotten a delay in its filing for its response. that was filed just in july. >> basically, as far as i can tell, tell, whole women's health with a cajun accent. >> except if you take the opinion seriously, all of this will be deeply contextual.
how far the next hospital is and how many forceps are available and where there are enough tissues. >> it is also a pretext case. nobody with an ounce of integrity thinks a reason the states are passing this is to actually protect the health of the women involved. everybody understands it is to drive the clinics out of business. a little bit more honesty about that. >> my point is anyone who believes the opinion would be hard-pressed to find anything of law in it. >> what does it mean to talk about an undue burden. saying you can go to another state therefore it is not an undue burden sort of makes a mockery of the decision.
the jury cannot say to black people, there are law schools and other states, we will pay for you to go there. a place where you can get an abortion. we will even pay you to go there. >> if you're going to construct a legal system, you write opinions on how many forceps you have on hand. you will keep having states, been saying this. that is basically the construct that people have come up with. i will grant you the practice. they are just taking advantage of the standards. >> the undue burdens. sort of a balancing task. >> he did write that opinion back in 2016. justice kennedy signed it. justice kennedy was in the majority. narrow majority about 2016 to
strike down this texas legislation similar to the louisiana one. now we are at a moment without justice kennedy. this will be a really big test here. >> the chief justice granted the space. >> he filed what i sometimes refer to as a deer susan comments note. i am sure he will respect the president on abortion. justice kavanaugh dissented. he wanted to explain why he did. >> i think the interesting question is what will happen with all of these states that are passing laws that are really adversely designed to test roe versus wade and whether any of the cases challenging those laws will get to the court. i have some degree of skepticism that they are going to. depending on the way the litigation plays out in the lower court.
>> the question is, do you get to judges on a court of appeal who want to say -- those laws cannot be squared with row against wade. there is no way you could say row against wade. >> that is the question. if you are a circuit judge and takes her oath of office seriously, you have to hold those laws unconstitutionally. question is whether you find to judges on one of the appeals who are really eager to get this issue up there and just disregard. >> seven cases in the supreme court that say in so many words even if you believe that there is a president of the court and will no longer be filed by the supreme court, the supreme court and you have to follow it. there is no way that any court of appeal judge doing his or her job can vote to uphold any of
these jobs. >> right. >> i think the supreme court would not uphold this law, but i have to. >> earlier about honesty and lack of honesty. i think i am roe versus wade. the exception may be in the project of row against wade by finding huge amounts of stuff not to be a huge amount of burden. if i had to guess where the chief justices in this he would likely keep doing that project. i don't think he is eager to overturn roe versus wade. the at-large part of the american public. it only takes four justices to grant an issue. the question really will be whether justice thomas who i think would overturn roe against wade tomorrow if you working of the forest, whether there are four justices do that or whether
they would rather just leave row against wade. you have a little bit of a decision in the box case where there were two issues from indiana. one of them was a law about the disposition of fetal remains. the other was a law that for bid abortions for various selective reasons. sexmac, race, disability status of the fetus. if the court overturned the circuit where everybody kindly agreed it was the standard for the fetal remains and then denied on the seventh circuit decision to strike down the selective abortion prohibition or selective abortion. in doing that, the court had a line or two in the opinion. a conflict among the circuits. we think that that was their way of saying do not create a
conflict in the circuit on the, you know, the survival of row against wade. >> very fascinated to hear you say other than the chief who may be tempted to grant cert. i thought the claims on the other side, you know, thinking that the chief would never vote to overrule roe versus wade. i thought the liberals would grant that. make him reaffirm row. doctor casey, something they could take to the bank. i would not think the conservatives would be foolish enough to put them in that spot. they might think if the president gets reelected, no thanks to his own talents, making another appointment, maybe then there would be a petition to put that on the table. >> yes. >> still work for the public
bureau. [laughter] it would seem to me if somebody had an interest in putting that? the table sooner rather than later it would be the left side of the court. rather than the right side of the court. >> so many chest moves ahead of me here. >> all of your pieces are knights. [laughter] >> yes. i can only get so far into his brain. i do not think he wants his cord to be reverted as a core that would be known for reversing roe v wade. i think he understands the political side of that. it would be handing democrats a real gift.
first of all, he has never found a regulation to be an undue burden on women's right to choose. i think he could keep going down that path. i think this june medical case will be a big test of that. he dissented when the majority rejected the texas law. i can see him siding with louisiana and saying this time around it should stand. he could hand it off as he handed off other abortion opinions. i could also see him saying this is not an undue burden. stressing row is still the law of the land. >> distinguishing it on the number of forceps. >> i think, people can argue anything persuasively. i think he would be in a position to try to distinguish it. >> religion. a continuing issue for the court. we had the case, represent the
issue. allowing for education generally funding for religious schools. equal protection clause of the federal constitution. where's the court going on religion? >> where is it going to end up? >> an example of the larger problem. this comes from the blaine amendment. a leader, a u.s. senator, blaine who got into his brain that we should have a constitutional amendment that would prohibit a secretary and institution. loosely, it was at a time of very heavy sentiment. it was a part of the movement,
basically. this failed as a federal constitutional amendment. thirty-seven states basically had constitutional amendments that have some form of this. thirty-seven states have their own little blaine amendments. montana is one of them. basically says you cannot have public aid, et cetera. the court has grappled with these things over the years. this sort of instance, you know, facing the problem of can you have public education grants. that sort of stuff where a parent makes a choice to take the aid and said the kid to a secretary in school. the montana held their own blaine amendment. the question is whether that is consistent with the first amendment. you think the answer to that is
obvious because, yes, you are basically denying somebody based on the program, based on the exercise of his religion. the problem is the 2004 pole. in which none other than the chief justice held the joints of the states to be able to separate themselves from religion. themselves the establishment of religion. would not, you know, and establishment of religion. and, so, a couple a couple of years ago the court had another case. 72 the other way. chief justice roberts. a lot of confusion on these
issues. in the latest one, basically, could be distinguish in the theory of the aid in that case had been used by the student in question to study theology. what was said at the time is the state had a very special interest in not educating the ministry. maybe they will have a special exception for a state interest in not getting entangled. more generally, parents who just want to send their kids to school. >> i think we will see the court moving modestly in the direction of religious liberty and context like this. this is kind of an odd case for a number of reasons. montana supreme court dealt with the case in a somewhat unusual way.
you had a state scholarship scheme. montana supreme court aware of the fact that there was a federal constitutional issue lurking. the client to decide that issue. a sickly just said our remedy for the problem will be to eliminate the program all together. i think that the case in an odd posture as it comes up to the supreme court. i do think that the current court, with the change in membership will tilt a little bit in the direction of religious liberty. i don't know if we will get a really radical movement and how the court approaches cases, particularly after what we saw where there was sort of a distinct lack of clarity for certain types of challenges, but, i do think that this is one of the areas where it will make something of a difference.
>> referring to the trinity lutheran case. a little bit like the trinity lutheran case involving funds for a playground. that one yielded several opinions, too. i think what we will have is most of the court moving a little bit more conservatively on this. the main protesters to that. incrementally. i don't think there is any turning back. >> the chief justice who is a highly accomplished technical lawyer. >> this case applicable only to rubberized playgrounds. no other cases. [laughter] >> i think it was written for justice kagan.
nobody else. >> pam, title vii cases for the court this year. >> we are arguing one of them. the question is whether title vii covers sexual orientation, transgender, sex stereotyping, the whole kit and caboodle. >> there is a consolidated set of cases and then there is a separate case. involving the question whether went title vii prohibits discrimination because of sex, a decision by an employer to fire someone because he is gay is that form of discrimination. in our case, the second circuit
circuit -- very rare for the second circuit to overrule a second circuit decision based on three separate theories that discrimination against someone who is gay, for being gay is discrimination because of sex. the first of the series is that it is a formal causation under the supreme court decision which says if the person was treated differently, had the person been a woman or man rather than a woman, that is a discrimination versus i hire men two oh man named bob -- the second theory off the supreme court's decision in the price waterhouse case which is a case that says treating people differently because of sex stereotypes is a
discrimination. the stereotype that is involved in cases involving people who are gay is a normative stereotype. women should not be attracted romantically and sexually to other women and men should not be attracted to other men. the third theory is a theory of associational discrimination which is, for a long time the courts have held that discriminating against somebody because they are in an interracial ship is because of race. the same thing by analogy would be of treating people differently because they are in relationships with somebody of the same sex rather than someone of different. a conflict among the circuits of this. the other question is a case that involved a transgender woman that works at a funeral home.
she told her boss said she was going to transition and the boss fired her. the question is whether firing somebody because of their gender identity is discrimination on the basis of sex. the supreme court assured in that case. >> wears the court going to go? >> it is going to do the right thing. [laughter] it will hold title vii. making it pretty clear that regardless of what congress may have expected, sex discrimination. >> the balance of circuits is on that side. seventh circuit in the second circuit when en banc. pretty overwhelming vote said it was sex discrimination. i think they both got it right. >> i do not know that much about the cases.
i think this is one of the cases where it is going to have a tough time. i think textually, they admit admit that interpretation. those judges who would think, well, that is true and there is the pool for those that would think it's in the mind of the legislature. was it enough that this was within the meaning of the words used. is it, you know, reaching the court had in the '90s about whether it was sex discrimination if you had same-sex harassment. yes. even though that was perhaps not what people had in 1964. it may have been a difficult case for the court for those
that would like to say that the answer is no. >> one of the reality is is just that the supreme court has appointees, but the lower court has many. they are shifting. how is trump's presence as you are seeing what is happening around the country and the circuit affecting the judicial business? are you seeing the effects? >> i mean, look. i should start by stipulating. it is probably not obvious to you, but i am sort of a republican. it is very painful these days,
actually. [laughter] especially when i have to admit that the incumbent, the president of the united states is the first republican candidate who i failed to vote for my entire life. but, you know, the demands of the people who vote for him, most of the people who he has appointed. very accomplished lawyers. would have been eliminated and appointed by pretty much any republican president. i think, if you look at the set of people that get appointed by either party, a judgment of more or less the same high quality people that will get appointed depending on who the administration is.
in general, high-quality justice and the in the federal courts. i do not think that there is a particular partisan tendency with the courts based on who the incumbent president is appointing a particular judge. there are different then methodology depending on who is doing it. certainly clear that people that get appointed tend to have an arsenal of pools that is perhaps somewhat more expansive than those appointed. they tend more readily to look at legislative history, for example. these are respectively differences in the methodology. intelligent lawyers and judges can have.
i think that they are perfectly healthy to have. having an effect. the quality of justice that people get. when you get to the level of the supreme court, while people kind of assume that you have these appointments by a president that had consolidated a right wing majority in the supreme court, look at the outcomes. very pronounced differences in the methodology. tending to be more consistent among themselves. as a result of that, you see the justice voting with the liberals a delegation case. kavanaugh. even the chief justice twice in two different cases. because, all all of these methodology was extremely able
justice in a very able colleague can pick them up by going to them and persuading them that under their way of looking at things. it is not all -- like you would think. >> i would not necessarily agree with that as a comparison to the left. i would not say that brier would be -- let me just say about his administration. there is so much we have seen about this administration and how it runs. evidenced by what we were just talking about the department of congress versus the new york case. a census that does not work. obviously, it is contriving things. it has been a very well oiled machine. it started, started, obviously, and spring 2016 with don mcgann
helping with very strong input from the society and heritage foundation create in list of judges that president trump issued to instill confidence in the more established republican voters. it did do the trick. that's why we had the vacancy pending. on the lower court, there have been a record number of appointments to the appeals court post. through, again, the, the formal white house counsel with the federal society of just screaming people, looking for this report level. at the appeals court level for the supreme court. by putting out names and by encouraging people to sort of almost buy for these positions.
it has been much more advert, i think, and opinions we are seeing generated below. many of these people would probably be writing as they are doing, but there there is a lot of attention that i'm seeing in the lower courts. almost designed to play two people from the federalist society that would be looking for folks to move up in sequence. i went to new orleans for the affordable care act challenge that is out there. that is a very strong challenge. heard by the fifth circuit. you know, i was aware there of just how strongly conservative, that is a circuit, unlike the ninth always been traditionally conservative. obviously, getting more so now with the trump appointments. i am seeing it in lower courts
where it is a big deal and it's making a difference. obviously, to the victor goes spoils. the supreme court is interpreting the law of the land it's the appeals court where most of the cases stop. >> first of all, i completely agree with the point about the increase in the number of attention-getting opinions from the lower court. that is a subject for another day. i think that it is easy to focus on the number of judges that the president is getting confirmed. the reality is, with every administration, ucd immediate impact on the lower court. you will always have a certain number of vacancies on those courts because of the sheer number of judges. when you have a president who is aligned with the senate, which does not always happen, you will see this.
there's been some analysis on this, but probably not as much as there should be. through the judges are replacing. i think in this administration, and my observation, a much further on loyalist of liberal judges who voluntarily leave their post. it is often these replacements on these courts. you have older, more conservative conservative judges retiring and being replaced. >> the d.c. circuit would be a good example of that. >> yes. there has been no sign. >> why would he leave? >> it is true that he might not. >> suggesting that judges do not chase -- >> i don't think david.
>> for a nano second. >> someone who was appointed by a a republican is more apt to leave now. a lot more liberal judges will dig in and say no. i could see that maybe with a different administration may have wanted to leave. ruth gator bins berg -- ruth bader ginsburg. what happens to the composition of the court if donald trump is reelected in 2020. republicans continue to control the senate. ruth bader ginsburg holding on for another four years? what happens to the court?
>> i am a lawyer, not a doctor. [laughter] >> am a lawyer. not a fortuneteller. eighty-six. did not step on until he was 90. she recently told a great joke. she said she quizzed him while they're on a trip to lisbon. she wanted to wait to retire until she got his age. he said, stay longer. [laughter] when she has told that, people have applauded. i've a feeling that justice ginsburg will hold out as long as he can. actually turning 81 this month. the 15th. >> impossible to predict what will happen. justice scalia was a relatively young man when he passed.
>> he was 79. >> by the standards of a supreme court justice. nobody was looking at him as if, you know, he's in his way out. he was a vibrant member of the court. a full life, it appeared. it is certainly the case that i do not believe anyone on the left side of the court will leave voluntarily if the president is reelected. it is far from clear what will happen in the 2020 election. we have all learned to be surprised. i do not think that the president is likely to get reelected on his own merits. the ability of his opponents to get him reelected again. there you have it. >> one thing they are thinking about because we are a year and
a half away from election, the prospect of the presidency in the senate being controlled by opposite parties which could happen in either direction. what that would mean for judicial confirmation. when you are talking about the modern judicial process, the smart smart bed is on the clinical side weird i tend to think if we have that happen where we have split party control, we will see absolutely no confirmation to that. i just think that the vitriolic when it comes to the confirmation process gets ever worse, there was an interesting story in politico a couple months ago about how this administration, there then record numbers of no votes by the democrats. sort of across the board to all of the court of appeal nominees. i have no doubt that if the shoe were on the other foot, the republicans would act the same way. >> the history of where we have been the last 20 years. increasing on each part of the party. when the next one is up at bat.
you know, the reaction is, well you well you did this to me last time, i will see you and raise you. the republican party said we will keep the seat open. i would not be shocked if we had an administration run party and there is a vacancy if say a democratic senate says, you know what, keep that seat open for four years. it would be a perfectly natural progression. >> is there a light at tunnel? is there way to break the impact >> i don't think in our lifetime. i think it has only escalated. recently, mitch mcconnell said if he could -- he could see easily trying to push someone through 2020.
clarence thomas decides, even though he is only 71, that he wants to step down a good president to give president trump an opportunity to name a younger version than him, mitch mcconnell, the filibuster change, all he needs is majority to do it. >> i think he would try to sell a vacancy if it occurred on january 19. >> that is my point. >> not try want to leave that as final word. [laughter] >> eight am on january 20. [laughter] >> please join me in thanking our spectacular panel. [applause] thank you to the audience. >> former defense secretary recounts his military career. offers his thoughts on leadership in a discussion about his book. live coverage begins from george washington university this
evening at 7:30 pm eastern on on c-span two. online c-span.org. listen live on the free c-span radio app. watch c-span campaign 2020 coverage of a democratic residential candidate at the new hampshire democratic convention. our live coverage is saturday 9:00 a.m. eastern. online or listen with the free radio app. saturday on book tv. our interview with disability rights attorney and author in her book she details becoming the first graduate of harvard law school and how she maneuvers through a hearing world.
>> a student can just go to school and expect the teachers to teach them. i could not do that. i had to think about what i might be missing. what are the potential unknowns here. how can i find those unknowns. all my life has been this process of trying to identify unknowns and figure them out and come up with solutions. >> at 10 pm on afterwards, american american university president talks about his book on how to be an antiracist. interviewed by author princeton university professor. >> i do not think even well-meaning people, people who are trying to be part of the movement against racism recognize really that the history of this term. when a eugenicists classified as races, they said i am not racist. when jim crow segregation as were charged with being racist, they said i'm not racist. today, even white nationalists saying i'm not racist. no matter whether they are in
the white house or planning the next mass shooting. >> at 11:00 p.m., jim mattis recounts his military career and his thoughts on leadership in his book callsign chaos. learning to lead. watch book tv every weekend on c-span two. >> what is your vision in 2020. asking students what issue do you most want to see the presidential candidates addressed during the campaign. student cam is c-span's nationwide video documentary competition for middle and high school students. $100,000 in total cash prizes at stake. including a $5000 grand prize. students asked to produce a short video documentary. reflect differing points of view information to help you get started is on our websi