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tv   Discussion with Reporters on Supreme Court Term Review  CSPAN  June 28, 2019 12:29pm-2:01pm EDT

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because there were more calls after that. we just had to keep rolling. how powerful it was. there's something in his voice that touched me. it's so authentic as he searches for the words to say something to a national audience that most of us won't admit in our homes. i'm prejudiced. >> sunday night on q and a, heather mcgee was a guest on c-span's washington journal in august of 2016 when gary called. she talks about that interaction and her follow up. >> part of the reason for that is you have to remember this was august. we had this sort of racially charged summer with donald trump's campaign, with black lives matter and police shootings and tragic events all in baton rouge and dallas. it was really a time when people felt like all they were seeing on tv about race was bad news.
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here was, first, a white man, admitting that he was prejudice, which for people of color was, we kind of just say finally. we take you live to the washington counsel of lawyers. we'll hear about some of the big decisions this last term. introductions began just a moment ago. paul has argued before the supreme court 21 times. i was lucky enough to be in the chamber of the supreme court when he argued on behalf of the
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plaintiffs in the landmark gay rights case. as a young man gay man considering whether to attend law school, i had slept on the sidewalk outside the supreme court for the chance to enter the chamber and observe a pursuit of justice. i would have been really bummed if i hadn't gotten in. it paid off and i was able to hear the oral arguments which were amazing. in addition, paul has argued a number of important voting ri t rights cases. one involving partisan jerry man -- gerrymandering. paul has been honored nationally by a variety of publications and organizations in recognition for his work promoting zifcivil rig and civil liberties.
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with that brief introduction of an extense piive and impactful career, i'll turn the program over the paul. [ applause ] >> thank you david. i was present of the organization 29 years ago. it was a long time ago. this is the view from the press gallery panel every year. let me start to my immediate right.
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david savage has covered issues for the louisiaa los angeles ti 1986. he's written on many of the legal battles in the city. he joined the times in 1981 and has degrees from the university of north carolina and northwestern university. next person down is amy howe. she's like a celebrity. she was until 2016 editor and reporter for scotus blog. a blog devoted to the supreme court. she continues to serve as an independent contractor and reporter. you may have noticed her on the live blog on occasion watching cases come down. amy served at counsel at over two dozen cases in the supreme court and argued two cases at the supreme court.
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then we have tony morrow. he's covered the supreme court since 1979. most recently for the national law journal and american lawyer publicatio publications. he began covering the court in usa today and moved to a publication that most of you don't remember called the legal times of washington which was a wonderful newspaper in town in 2000. it merged into the national law journal and so he's continued to work covering the court of national law journal. we found out yesterday that tony is stepping down from full-time coverage of the supreme court that he's been doing since 1979. a career of great service and friendship for all of us involved. i'd like to ask for a round of applause to tony for that. [ applause ] beth is a friend of mine and
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distinguished supreme court practitioner. many are recovering from yesterday and still trying to digest today's recordorder list didn't feel like they could commit to be here. he was the head of the appellate civil decision in the obama administration and she's practiced for more than two decades at the supreme court. she has 25 supreme court arguments. she has some knowledge to bring to the floor. with those introductions, i want to do this conversationally. i may throw one question at a person but please feel free to
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weigh in. we had a year this year where justice kennedy was replaced by a new nominee, just kavanaugh who went through some of you may remember this far back, a rather seering confirmation process last fall. it really rivalled the confirmation process for justice thomas which was 38 years ago. i was wondering what your impressions are. does it have any affect on how they received justice kavanaugh or how he took to the new job once he was confirmed. >> there's a number of different questions there. my impression is he was welcomed. i thought what was so remarkable is the brett kavanaugh who arrived at the court after that
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really confirmation seemed exactly like the brett kavanaugh some of us knew before the confirmation hearings and the justices sort of say the same thing. he's a very nice guy. very collegial, smart guy, good lawyer. seeing him on television in that very angry response was like a completely brett kavanaugh that now like the whole country has seen on television but it's a different brett kavanaugh than the judges and the justices knew. i'm not part of their private -- i don't know what they think privately but what they say is he's adjusted well. he was very well suited to the job. he was sort of comfortable from the very beginning. he seems like he's trying to recover and in good shape. i'm surprised. every time you talk to him or any of the people around the
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court, it seems like the same old brett kavanaugh that we knew from before. >> that was my impression. maybe throw this to tony. do you have a sense because of the confirmation process has sort of altered how he behaved in his first year. trying to avoid being too ideology or not speak as much on the bench, less visible? >> i think it is possible. rookie justices often sort of hang back a little bit to not make waves right off the bat. i remember some johnsons like antonin antonin scalia who made waves from day one. chief justice robert voted the
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same way 90% of time. still some very conservative decisions. he assimilated very easily. he's a very familiar figure. i think he had an easier time blending into the court than gorsich did. he was not a well known figure by the supreme court. he was from the tenth circuit. he had a quirky writing style and on the bench.
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kavanaugh has been, has really done well. when you're in the supreme court and a new justice comes on, you judge that person by what he or she does at the court. you court of forget what happened before, which is the way to survive at the supreme court since you're going to be working with these other agent people for the rest of your life. you have to be collegial no matter what happened before. >> i think that justice kavanaugh approach in oral argument was similar to his approach when he was on the d.c.
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circu circuit. i had an argument before him that involved administrative law. it was very much like arguments i had before him when he was on the d.c. circuit. i was arguing in that court. he was very prepared. not playing games and very straightforward and asking questions that are pertinent tor resolving the case. i think that was to be expected. i can give you two examples when he was on the d.c. circuit. the majority ruled for us on the commerce clause. justice kavanaugh dissented but on a procedural ruling about the
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anti-injunction act and he went through and talked about the merits and indications were that he was thinking very much along the same lines as the chief justice. it was a nine judge d.c. circuit and they all ruled in our favor but again justice kavanaugh did it on a jurisdictional issue. he took a more institutionally preserving view. those approaches are very similar to the approaches that the chief justice takes on
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various cases. it's this similar approach. >> i went back to see what he said about his reception on the court after his own hearings. he probably devotes a page to this but he says the justices could not have been nicer and more accepting and he quotes, i think it was justice, like, i get them mixed up but i think it was justice white who said to him pretty much the same thing that tony just quoted for the idea that once you're on the court it doesn't really matter how you got here. what matters is what you do once you're here. some of the justices who are on the current court like justice thomas had their own bruising
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confirmation battles. last cupper reading a lot of justice kavanaugh's e-mails from the time he was in the white house counsel's office. i didn't cover him on the d.c. circuit but i don't know what he was like as a judge. he took a lightly different tact. there were rumors about how they were aggressive. we did not hear one word to that
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affe affect. the statistics about the overlap between the chief and justice kavanaugh, this helps to illustrate justice cakavanaugh d gorsich were appointed by the same people. they went to the same high school. you're not building some robotic conservative justice. conservative justices can come in different shapes and forms. justice kavanaugh seems more like a john roberts
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conservative. >> there's aical cliche hold wa? >> the biggest example in the difference of swapping justice kavanaugh instead of kennedy. as someone said yesterday, if you go back and look at justice kagen's opinion in the wisconsin partisan jerry mangerrymanderin it's written to bring claims with these cases would come back and justice anthony kennedy
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would still be there. another place we're seeing the effect of the switch from justice kennedy to justice kavanaugh will be in the area of the death penalty. it's become an issue they have been divided. the chief justice joined the liberal justices in a case of dementia back to the lower cases. there was another lethal injection case involving a man who was challenging legal injection because of this very rare medical condition that would prompt him to suffocate on his own blood. the courts conservative majority turned him down. i think it was a case granted
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when justice kennedy was still on the court. >> on that death penalty point, it's interesting because so many of the justices come from the d.c. circuit. they've had no experience with that. i served in a court where there was a lot of death penalty. you really see this ramp up to justices getting used to those death penalty cases when they haven't had them before. it's very different at many levels. >> they describe it as like adding a new person to the family. there's ag there's eight of us and suddenly there's a new uncle. you have to explain yourself to the new uncle and the stories they have to repeat them. i don't know how it's going to play out but they all say it sort of changes the conversation because there's a newcomer there and he doesn't know what i think
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about this and what she thinks. they have to go through this whole new conversation about a whole series of issues because the newcomer doesn't know. it's an interesting period. it's very hard to tell how that will play out. kavanaugh is a different person than justice kennedy. he's willing to go along with a five person vote. justice kennedy wanted to keep that open. always there's a possibility we'll come up with a formula. brett kavanaugh arrived, five vote shut down partisan gerrymandering. i think there's a whole series of things, the conversation that goes on in the court is just different with gorsich and kavanaugh than before. >> since the jerry -- jerry mandserring cases come up.
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>> i don't run in and out. i'm down in the press room getting the opinions as they are handed out. >> listen to what's been said. >> listen to them but it's not the same as being there. >> this has been a combination of a huge series of case, most of which i've lost. i was wondering. was. to see kagen reading her emotional dissent out loud. anybody in. >> it was kind of dramatic. the chief justice announced the opinion in a matter of fact way. but then it was justice kagen's turn. she was impassioned about it. toward the end of her summary of the dissent, her voice seemed to quiver as she seemed to
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almost -- at the point of tears. >> and she makes a point of saying she was dissenting respectfully but with sadness. that's unusual. one of the interesting things about this partisan gerrymandering issue is people are always asking me why does it break down politically for this issue? i never have a good answer. anybody want to try? >> no. that was a point justice kagan kept making over and over. she would be like the north carolina one, it was republicans gerrymandering at the expense of democrats in maryland it was democrats gerrymandering at the expense of republicans. >> yeah. and ultimately, you could be cynical and say well, maybe more of the gerrymanderers in this decade were republicans. in the end i think if you look at the opinion and the way robert's questioned me in the wisconsin case last year, i think ultimately his real concern is with the fact that there's going to be too many of these cases if they allow them, and they have mandatory appellate jurisdiction.
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there's a paragraph in the opinion from yesterday saying these things are going to keep coming and coming. and he expressed the concern from the bench that whichever way they rule in any one of the cases, they're going to look political. it's unfortunate. i think they're going to look political not having allowed the cases too. they were kind of caught between a rock and a hard place. >> paul, i have a question for you on that. since you're the real expert on that, how is this going to interact with racial gerrymandering cases? it just seems -- i think it's difficult for the public to understand too, that there are different lines of cases, and so does now the defense to racial gerrymander become like it was political? >> that was always the defense. they were arciguing we drew the lines for party reasons instead of racial. the court accepted that ultimately. >> what happens to racial gerrymandering? >> i think racial gerrymandering
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is probably going to go away. the reason is people in the modern era, the cases that have come up from north carolina and alabama and virginia that are racial gerrymandering cases where they've unduly packed african americans and set rigid quotas for the population, the underlying reasons why they were doing that was to try to nullify democrats and amplify republicans because in the south, in these particular states the way you do that is pack the african americans. and so what the court held in those cases was maybe you have a political motive underlying but you can't use race as a proxy for accomplishing that. now we have a model for how to do that differently now. north carolina was held to have done a racial gerrymander. they had to go back in 2016 and do it over. that's the case that's in the court this year, and the model is take all racial data off your computer. tell your guy to draw a 10-3 map.
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admit you're trying to maximize the number of seats for one party and not the other, and if you do that, you're home free, and so they didn't pack african americans to the same extent, but they certainly packed democrats into three 80% democratic districts and that's how you gerrymander. my button seems to not be working. >> we've shut you off? >> i've been cut off. maybe i ran out of juice. maybe i'll share this with you. that's awkward. but i don't think people are going to do it by race anymore, and the death of one doctrine is probably going to lead to the death of the other eventually. >> i do think they were just horrified at the idea of having to do this over and over again. and remember that these are the maps that we were talking about in the gerrymandering cases yesterday are the fallout from
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the 2010 census. we're just about to have another census. it would be essentially a full-time job. you saw a little bit during the maryland case when everyone sort of took it as oh, justice kavanaugh is from maryland and so he was really getting into how the maryland district was drawn, but they're looking at whether or not -- i can't remember the exact details but, like, the i-270 corridor should have been included in this district or not. i think they were imagining doing that all the time. >> right. but the result is that basically we're going to have a decade's worth of maps drawn without any meaningful regulation. the fight now is going to shift to askihaving to state state ba initiatives and state court initiatives. but it's going to be a lot of places where you take wisconsin where i've been suing for years, there's really no check at all there on gerrymandering. it's an unfortunate thing. but let's go back to where we
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were on the script. back in the good old days when i had my own microphone. >> there's a script? i didn't get that. >> so do you have -- there's a perception out there. i'll throw this out for anybody. that court and particularly the chief justice this year was trying to tone down the whole term, avoid as much interesting controversial work as possible. and trying to defer things. i wonder if do you share that perception, and is that coming to an end assuming you do. anybody want to try that one? >> i think that there's some truth to that. certainly when -- it echoes a little bit when justice scalia passed away in an untimely manner. there really was an effort that some of the justices admitted later to try and find a narrower ground on which to rule in some of the cases to avoid 4-4 separates that would just affirm
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the court below. i think it's very much this interest in the institution, the integrity of the supreme court that chief justice robert has as chief. he plays a different role there than as the justice he acts differently during oral argument, et cetera. so i do think there is that effort. this case i argued this term was this patent case. i think they were very relieved it wasn't political. they were really enjoying it. i have to say. and you could get that sense that it was -- they were very active, because there was none of these big issues at stake. with the new justice, i think it plays back to what folks were talking about about the different dynamics among the group that happens too, and i loved david's explanation. the new uncle has to hear everybody's stories because he has to figure out the state of play on these issues. and that makes sense for why they would not necessarily start doing things their first term until all of that kind of
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historic relationship and knowledge is out there. >> there's also i think a reason that they would want to avoid everything turning on a dime with one change of personnel. it makes the court look political like everything turns on who won in the last presidential election. it undercuts the court as a legal institution rather than political institution. if you can defer things and push them back -- they denied things like the successor to the masterpiece cake shop case. they denied it in the indiana abortion case. the other thing is they've delayed petitions and so even if they're taking them, the title vii sexual orientation, the petition sat there eight or nine months before they were granted. it seems a lot of that kind of stuff, the doctor case they took today is another example where they're trying to push things into next year. >> but the problem with that theory is that they're pushing
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it back to next year which is an even more political year than now. >> i guess it depends on what politics you worry about. if you're the chief justice, you worry more about other things. >> i think it's the case that the court chief justice in particular, was determined to put off decisions on things like abortion any time soon. i wrote a story a couple weeks ago with a headline that said the supreme court is not anxious to overturn row versus wade, at least not soon. i think that's -- i think there's a good chance that several years down the road they'll take several of these cases and chip away and at some point faced with the decision of overturning row, but they don't want to do it soon. they don't want to do it in an election year, and as you saw what happened. all the republican states said hey, we've got brett kavanaugh. there are five conservatives. let's pass extreme abortion
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laws. we'll send it up to the supreme court and they'll approve it right away. you could tell they don't want to be part of that. they don't want to play into that. every one of the cases that raised a big abortion issue or even something like rerunning the wedding cake case, the sort of culture wars case about gay rights versus religious rights, they've put it off. they haven't decided it. they'll put it off and take it up in a year or two. but they definitely didn't want to do it too soon in an election year. >> and if you look at what i think most people consider the two biggest cases of the term, partisan gerrymandering and the census. the par sant gerrymandering case they had to take because it was part of the court's mandatory appellate jurisdiction. and the census case, they didn't have to, but it would be unusual for them to say that the trump administration can't include this question on the census because a district court said they couldn't. >> i was going to say don't you
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think they sort of thought we've got to decide it because the government said -- >> exactly. we have to decide it now. >> right. >> they seem anxious to take that case, but they don't usually turn down the solicitor general in a big case. that was not surprising. what's the outlook for abortion next year? if you can pause it they don't want to take one of these cases like the heart beat bill, but they have a louisiana case coming out of the fifth circuit. the fifth circuit you could argue issued a ruling upholding a louisiana statute that's contrary to the decision of the court just two years ago at the texas whole women's health case. they pretty much have to take that case, wouldn't you think? >> yes. >> elaborate. >> and they will. they put it off, and they will take that case, and it will be interesting to see what they do with it. the argument in the fifth circuit was it's the same law texas passed but louisiana is a
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different state than texas. >> a different letter? >> that was the argument. this had a really big impact in texas but louisiana is a little different. there's one or two clinics that may survive. and i don't know how -- it will be interesting to see whether john roberts and four other conservatives are willing to approve that louisiana law and then if they do, watch what they say, because you could decide these cases narrowly on sort of factual questions about how much regulation of abortion clinics can states do. it doesn't go quite to the question of is there a right to an abortion. i'll be interested to see what they say if they were to uphold that louisiana law, because that will then set the next stage for the debate. >> it's two interesting aspects. one was the stay application where they had validated -- the district upheld it, and roberts joins with the liberals in an interesting move there.
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>> put it off. right? >> right. >> put off a decision. >> you can imagine there might be a fracturing of the right wing of the court where some of them are writing roe v. wade opinions and some are writing about bidding privileges. it will be interesting. >> while we're at it, what do you have now as the big cases of the coming term? we picked up at least one today. maybe more. the daca case challenged the solicitor general seeking review of the decision, throwing out the repeal of the daca program that deferred deportation program for the dreamers. does that count as one of the big cases for the next term? >> yes, i think it does, and i think it counts as a big case, not just for the obvious social issue in the coverage but also because it's part of this other trend in the court i think from the travel ban case.
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now, can daca anded a min traitive law, the role of the executive branch, executive orders, the authority there to engage in conduct that has a broad range of discretion for the president. i think that that is going to be a very big case and kind of constitutional terms as well as policy. >> others people want to mention? >> certainly the title 7 case, the transgender and sexual orientation cases, whether those are covered by title 7, and those are very big issues. because you know, it's just that it hasn't been resolved, and i -- i'm not sure how it will be resol resolved, but it's very important to business and businesses and how they handle
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people of that nature, and it -- i think that's one of the very big cases. >> i think it's also interesting from a lawyer's point of view of here's a law that's passed in 1964. it says employers may not discriminate against sex. no one thought at that time, and no one would argue, i think, today, congress in 1964 meant to extend protections to transgender employees or because of sexual orientation. but if you're like justice scalia and say we don't decide what congress is thinking. we decide what the words meant. if a person comes to work and says i'm a man now, and a transgender employee, and the employer says okay, you're fired, it seems like that person has been fired because of sex. so i think it's a very interesting what do they do? they want to say we decide cases based on the words of the law,
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and this sure seems to be a type of discrimination based on sex. >> right. >> and indeed, your mention of justice scalia. justice scalia's past opinion on another case would suggest he would rule that way. he held based on the language, same sex harassment, claims against an oil rig against another were covered. there's another theory that there's a change in sex and if a change of religion is discrimination, change in sex would be also. they're interesting arguments based on a 1964 statute. >> there's a complete disjunction between your assessment of original statutory intent and the meaning of the language. the argument that when you fire somebody for coming in to work the next morning as a different gender, that's got to be a basis of sex, very strong, and the
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argument of sexual orientation. you're firing a man because he's romantically attached to a man. you wouldn't fire a woman because she was romantically attached to a man. obviously in 1964 there's no reason to think anybody had any of this in mind. and justice scalia said we don't care what they thought. we care what they wrote. but the other thing is we start -- that case and the daca case are going to come down in may or june of 2020. there is going to be a series of pretty hot cases coming out as we head into the convention summer of a presidential election year. are we missing others that come to mind? >> yes. potentially. the court has right now on the docket for next term, the first second amendment case in some time. it's a challenge to a new york city law that bans someone who has a licensed gun from taking it outside of the city including
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if you have a gun in the city and you want to take it to do target practice or if you have a gun in the city and have a second home out in the country and you want to take your gun there. new york city is trying desperately to get rid of this case. so it may go away, but it's my understanding, i will confess, i haven't looked at it closely, that there is a whole group of other second amendment cases that are now on hold, waiting for this case. so even if this case goes away, the supreme court could take up one of the other second amendment cases. >> new york city has two choices. get rid of this ordnance or have it overturned by the supreme court. >> and they've changed the ordnance already and there's new -- maneuvering. >> other issues lurking out there with the new court include things like affirmative action where you have to come to the conclusion if the issue is back up there that fisher is in deep trouble, but that may take more
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than a year. the harbored affirmative action case is probably the most likely to get up there. still waiting for decisions on this unless it springs up more quickly from out of nowhere. >> may i ask you regarding the daca case. one of the interesting issues in the case, you remember yesterday's opinion in the census case john roberts ruled against the trump administration because basically he said wilbur ross didn't come up with a legitimate explanation for why you needed to add the citizenship question. he sort of agreed that the government could do that, but you need to give an honest explanation. and he gave us a contrived explanation, we wanted to do it to enforce the voting rights act. everybody said come on. the voting rights act has been enforced for 50 years. you haven't had a citizenship data. so it was sort of a phony reason. the trump administration has had a year or so to come up with
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something that sounds like a legitimate explanation and they didn't do it. and roberts joined the liberals to say we're not going along with that. daca is the same problem. why is the administration seeking a repeal of daca. jeff sessions said it was unconstitutional for barack obama to put forth this policy in the first place. and the lower courts said no, it wasn't. the president had the authority to do this. so you've got to come up with a better explanation. i'm surprised. i've asked what is the explanation? they said well, there's still a disagreement -- we don't -- they basically don't have a good explanation. i think it's interesting to see whether this plays out with other cases where the supreme court and particularly john roberts is not willing to go along with the sort of phony explanations for why the government -- the new administration is making a major change in policy. >> let's talk about that case.
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obviously that was a fascinating decision which we're all still digesting yesterday. and something of a surprise coming out of oral argument, the supreme court press, maybe not these three, but others were saying no, it's a lay down for the government, and it didn't turn out that way. one of the possible explanations is the laydown got turned into a different outcome with the release of the information that doubly showed the voting rights act explanation was a bit of a fraud. what do folks think about that? >> well, i think that's probably right, and just to finish the point about how surprised this was. i was at the opinion announcement, and chief justice roberts was reading his or summarizing his opinion. it sounded like he was very
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comfortable with going along with wilbur ross on the census question issue and all of a sudden he said we agree to appoint. that's when we knew something different was going to happen. and that's when he announced the view that we're not naive. we -- the government had basically made up its rationale for the census citizenship question. it actually kind of reminded a lot of us of the affordable care act decision when roberts started the -- started announcing that opinion and it certainly sounded like let's see. which way did it start? >> it sounded like it was going to be validated under the commerce clause. >> and it went on for quite a
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while. >> right. and the reporters, you know, decided the court was -- the -- >> not scotus blog. they got it right. right? >> right. >> and then roberts said, well, we have another point of view. so it was -- >> staggering, actually. if you read the actual opinion, the first part is deferentable and finds the arguments against we're losers. it's hard to imagine anybody could have written any of that if at the same time you're thinking the person you're deferring to as lied to you flat out about why they're doing it. i think the first four fifths must have been decided -- he couldn't accept the pretext anymore? >> also it was run before a lot of the information came out, too. so that had to have been written. >> maybe. it was obvious from the beginning it was a pretext.
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they hadn't filed a voting rights act in the last two years. >> but there wasn't the written documentation to support that. i think that came in later. >> and it was just an extraordinary last 48 hours or so before the decision was issued, because they were all of these other -- all these filings in the case and then there were these parallel proceedings going on in the fourth circuit and then maryland in one of the other cases. so the first thing i did when i got up yesterday morning was to hit refresh on the supreme court docket to see if anything else was filed overnight, and i think it had. >> it had by the new york state -- >> i will just sort of applaud. i'm only an independent contractor for scotus blog, so this is not self-aggrandizing to a point, but mark walsh's point, he was in the courtroom when the decision was announced and sort of draws the parallels to the announcement of the affordable care act and is watching some of the players in the case who were
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in the courtroom and their reaction as the splis or the -- as the chief justice is reading his decision and likens it to a roller coaster. it was really kind of hard to imagine as the evidence came out that it couldn't somehow influence what was going on behind the scenes, even if dr. hofelle, the restricting strategist whose evidence was at the heart of the new filings, didn't actually make it into the supreme court's opinion in the census case but did make it in the gerrymandering case yesterday. >> did. >> the chief justice really likes surprise endings, i think. about two months ago i think -- you could look at the end of the term, and there were two big questions. both of them about political power. is partisan gerrymandering constitutional, and can the trump administration put this citizenship question on the census? everybody knew that would have a big political impact.
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it would lead to a severe undercount in places like california and los angeles. all the areas with large numbers of immigrants. it would also pave the way for some states like texas to say we're going to redraw our districts based on the count of the voting aged citizens, not the total population. that's a way of shrinking the political power of the immigrant communities. so two big political questions. and i said to people just standing in the press room, you'd think, boy, i wouldn't think john roberts wants two five to four decisions to come down at the end of the term where the five republican appointees vote in favor of something that helps the republican party and the four democratic appointees dissent. but then i thought how does he get out of that? and so i had the right idea, and then i guessed wrong. i thought they'd figure out a way to do something to keep alive partisan gerrymandering but in the end, there would be a 5 -4 vote to rule for the administration.
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so i get no points for being half right. >> this is my theory. for the entire term i was telling people john roberts has to find a way to vote with the liberals in one big case or the courts could look terrible like a totally partisan institution. we have the five republican appointees and the four democratic appointees. but justice kennedy was a different animal. every term he did fischer or whole women's health or lawrence or something. so without him, i think there was some pressure on the chief to find a case in which to vote against the sort of conservative grain. it does seem like he was resisting that pressure until the very end. >> he picked a good one to do it, because -- >> how's that? >> in other words, isn't it the case we talk about this every year at the end of the term. the census case was the biggest case to be decided this term, and it came on the left.
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by the way, did you notice he also arranged to have the two biggest cases decided the same day. never great news for us, because it's tough to deal with one big case, but two of them the same day, and that succeeded in keeping the coverage sort of micked. what do you say about chief justice roberts at the end of this term? it's an interesting mixed picture. you can't accuse him of being too much this or that. there's one big decision on both sides. so -- >> the fact that the right -- >> the reaction to roberts on the census point has been so fierce from conservatives. there's a movement to impeach the chiefs justice because of what he did. i think that won't go very far, but people really -- the conservatives really are angry at roberts for not being a -- towing the line. >> it does seem like there's a feeling if you're on our team,
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you can't ever variy. we saw the debate on the press in the last few months where people were saying legitimacy is at stake. and conservatives are saying that's crazy. that's just vote your conscience. you wouldn't be worried about this legitimacy concept. it's made up by liberals. >> it seems if there's going to be an impact, and i -- from a kind of hostility toward this or this impeachment movement, imagine the impact would be what the speakers would want. i just cannot imagine that affecting the chief justice. so -- you know, for political reasons or whatever, but again, i think we get back to that idea that what the chief is looking at is the long-term picture of his legacy. the institution of the court that he cares very much about, and i think a lot of thatto.
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>> a case that grew a fair amount of interest, although probably less interest than if it came out the other way which is a 44th cross just over the district line. and which the supreme court ended up saying is not an establishment clause violation even though it's owned and operated by the state of maryland in a middle of a public intersection in the middle of two public highways. the court upholds with a fairly narrow opinion by the justice, it's okay because it's been there such a long time and world war ii is a special case, and it would look hostile to tear it down than extreme opinions from
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gorsuch and thomas with only ginsburg and sotomayor dissenting. >> it seems both appropriate and not a surprise. i thought there was like four members of the court who are pragmatists who care about the middle. roberts, kavanaugh, justice briar and justice kagan. the argument on this one, the cross was going to win. the only question was what was the basis for winning? was there going to be a narrow decision which is what briar and kagan wanted and kavanaugh and roberts were willing to go along with to say this cross was put up 100 years ago as a war memorial. it was basically a community -- it was not a city saying let's put up a big christian symbol to show everybody that this is a christian community. it was essentially a war memorial just like at arlington cemetery there are crosses, and
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justice briar made this point before. he didn't want to go down the road of telling the aclu and lawyers hey, let's go up and try to tear out monuments around the country, little county courthouses that have the ten commandments on the wall or moses holding -- you know, we don't want to go back and tear up monuments that have been there for 80 or 100 years. and so the way to write that opinion that you could get a good vote was to say we're deciding this because it's a war memorial. it's been there a very long time, and we're not going to tell the government to tear it up. it doesn't -- it's a different question if some community reaches that opinion and says this is great. let's put up a big cross in the front of the town hall to show that we're a christian city. i think they see that is a different case. >> clearly that's unconstitutional. >> this is a good moment for the court where the liberals and
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conservatives found a middle way that seven of them could agree on. >> i agree it was obvious from the argument obviously they were looking for the pragmatic approach. they were concerned about how many other memorials might be effected by it. and justice kagan asked more questions aligned with justice ginsburg and sotomayor saying isn't a cross about resurrection? that's why it's used for a war memorial for those who have died, that type of thing, and justice ginsburg kept that theme in her dissent and talked about no, she understood there are all these world war i images of fields of crosses, but there are also stars of david on veterans from that era. and justice kagan i thought really went with that pragmatic effect. and theirs is okay, we're one, but no more. if this case came up with a new
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monument, i do not think it would be upheld. >> a couple things about -- we talked about this, the idea that maybe the court this term was trying to avoid the controversial decisions, and i feel like maybe they sort of got boxed into taking this one because it was out fourth circuit and one of the arguments made in trying to get the court to take the case was if this decision is allowed to stand, there are these crosses at arlington that might have to come down. and so i think that might have really pushed the court to grant review. another thing that struck me, the justice kagan joined the majorities that also had a separate opinion in which she went out of her way to compliment another justice on how well written the opinion was. >> it was like this, really. >> yeah. and then i think as david suggested, there's sort of this core of pragmatists and then you saw in the separate opinions, the four justices that haven't quite gotten on board yet with being the team players.
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justice gorsuch has this opinion questioning whether or not the plaintiffs in this case even had standing to bring the case. the special snow flake standing. >> the government can put up a sign endorsing religion. and offended observer doesn't have sufficient injury. that's an extreme position. >> he would say the it only applies to things coercive like making you recite a prayer, but simply putting things up is not sufficient. >> right. and then justice ginsburg and sotomayor were like what do you mean the cross came to symbolize world war i? that was a symbol of christianity, period, full stop. >> right. beth, let me ask you to weigh in with a little bit of discussion of one of the things the court seems to be trying to figure out is how to get rid to the federal
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administrative state. the gunby case seems to really hold a promise of a really radical readjustment of the balance between what legislation has to say and what regulation can do. >> yes, and indeed justice kgan's opinion suggestions if this is not okay, then a vast majority of the federal government is unconstitutional. it involves the nondelegation doctrine. it's really a doctrine that explains the constitution, gives the legislative authority to congress, and that they cannot just turn all of that over to the administrative agencies. there has to be some kind of principle that's discernible a principle that tells the agency how to exercise that power. but this nondelegation doctrine has not caused much problem for a long time. there were two cases in 1935
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struck down under it. since then there has not been anything struck down under it. the case came up to the court a couple years ago about the sex offender registry act. the federal statute that requires sex offenders to register. the evidence, there wasn't language in the statute that said whether it applied retroactively to someone who had a sex offense before the enactment of the statute. it was told the attorney general was to figure out how to enact it in a reasonable, prompt manner or something like that. when that came up to the court before, the court did not address this delegation question, but in a separate opinion, justices ginsburg and scalia said is there a problem with that? that's just an invitation. this took on this new life and everyone thought, you know, this might be the case where they start turning back to that doctrine. but that did not happen.
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in an interesting division of votes. so justice kagan wrote the majority for four, and then justice aledo was the extra vote, but he had a separate opinion, and then there were the three dissenters i'm sorry. four, that's only eight. you think there are only eight votes. four, one, three. that's because justice kavanaugh did not participate because it was argued four days before he was on the court. they could have reargued the case. they reargued other cases and he could participate. they left it as it was. the majority said that there was a question of reading the statute. statutory construction. the dissent was quite vehement about the problem with all of this authority being given
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without adequate guidance to the administrative agency. justice ledo said, well, if there's a majority of the court who wants to reconsider this, i'd be interested in that, but we've certainly upheld other statutes that have less guidance than this, so he upheld it. in justice gorsuch's dissent, he noted even though he was calling for a very broad reconsideration of the guidance that has to be provided in statutes and justices and comments and the chief both joined that, he did suggest in there, i'm not saying all these other statutes would not have survived some scrutiny, but it's the wrong examination. re-examination of the administration state we've been paying attention to in the kaiser case which i'll say in two seconds it was about whether or not courts need to defer to a federal agency's interpretation of the federal agency's own
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regulation and then there's the chevron doctrine out in the wings. all of this is how the court is looking at the relationship with federal agencies whether it's court reviewing the actions or how they're getting their power from congress, and i think it portends for a lot of action in the future. i think this will be an issue like the federalism revolution of the rehnquist court. this is going to continue for many years and in many different shapes. >> i agree with that point. it is the sort of future issue they're going to struggle with. i'm biassed in favor of good writers. so my favorite justices these days are neil gorsuch, and kavanaugh. you should read gorsuch's opinion in gunby. i started to read it.
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it reads like a liberal opinion. he's basically saying there are 500,000 people, former sex offenders not a very popular group, and the question was are we going to apply this new registration requirement and leave them vulnerable to a ten-year prison term for crossing into a state where they haven't registered? a law that was passed after they had committed their crimes, and gorsuch was basically saying if congress is going to do that, bring 50 -- 500,000 people to subject them to this, they ought to say it. they wouldn't require the attorney general to say well, i've decided we're going to apply it to all those people because congress left it open. gorsuch was setting what i thought to me sounds like a reasonable principle. if congress is going to decide something big, apply a criminal law to thousands of people, we ought to have congress say it.
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most people thought that if you get a new conservative justice, it's going to be more power for the executive branch. but this is actually an opinion saying no, congress is supposed to write the laws. we're not supposed to leave it to the executive to make up the laws and decide who is covered. i thought this is a really interesting, good thoughtful opinion, but because it's -- all the liberals on the other side saying no, no, we ought to leave this to the executive. we don't want to get into this. read the opinions. it's an interesting argument. i'd agree with beth. this is going to come back in the years ahead. >> on the particular facts of that case, i can see how it's appealing. but it has been a tenet of the conservative academics to revive this doctrine because they don't like the administrative state. they may be okay with the executive branch. it's not the epa's regulation governing smokestacks f. if they
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make congress make the policy decisions, there will be less law. >> and look at the difference -- i think outtis gorsuch's side, these were good facts. it's straightforward. one factor decision to make or not, whereas as paul is mentioning, this is really the nose under the tent to start looking at really complex heg tory schemes about clean water, clean air, those types of scientific based things where it would be very difficult for congress to perhaps legislate in a way that meets all of that. it's also interesting to think about the political dynamics for certainly business interests are troubled also by the uncertainty that comes from this, because the oftentimes it's easier to be regulated by one regulation nationwide that is established and there's some predictability about that. the more you have this reconsideration of complex
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federal regulatory schemes, you're going to start seeing more action in some of the large states i think new york and california have already been involved for years but even more so in some of this regulatory action as well. >> so another theme from the term has been a discussion of the whole issue of starry desigh sis, following precedent, and what does it mean and is it at risk, and we have these opinions, dissents from briar and then from kagan in which they say they're overruling this case. well, what's snnext? it could be anything next. an interesting concurrence from justice thomas in the gamble case involving the double jeopar jeopardy dual sovereignty issue. she agreed they shouldn't overrule precedent. the gist of the opinion seemed to be the concept of the constitutional cases and maybe
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even statutory cases, anybody want to talk more about that? >> just this has been a term where overturning precedence has been a big issue, a talking point about the court. there's some people who say this happens all the time. the court overturns precedents when it feels like it which is true, but it seems like a more -- there's more momentum to this movement or to knocking down precedents than there used to be, and i think it's partly because we've just come from two confirmation for supreme court justices where it's mentioned a lot, and precedence. it's part of a side way to get at do you believe row versus wade should be overturned or not, or other cases as well. but it's kind of in the news.
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and the other thing i think is happening, partly because of the justice thomas's zeal for overtu overturning precedence is that lawyer -- the supreme court bar lawyers have become more bold about, say, you know, they put it in the question presented. you know, should such and such a case be overturned where it used to be they would be a little more discreet and say, you know, can you -- take another look at this precedent? it's much more explicit, and they've been emboldened by thomas that to go ahead and ask the court to -- explicitly to overturn a decision. >> i wonder if it's going to become a self-perpetuating
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phenomenon. the case mentioned, this interpretation is asking the justices to take up that question whether or not to overrule this doctrine called our deference. where you refer to an agency's interpretation of the own regulation for several years now. it was just this year the supreme court finally granted it and took it up. >> i recommend this opinion of thomas. this is interesting read in the gamble case. the gist of his theory is we know what the constitution means. we have unlike our predecessors in decades past, can read the constitution and interpret and we have a legal duty under the constitution when we know this is what the constitution means, and we know that some opinion written by the warren court came of the wrong conclusion, we don't defer to it. there's no room for deference. the rule of law requires us to
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overrule all the cases. that's officially where he's coming from. >> i mentioned to this paul the other day. i think there's a parallel development that also we saw last term and a little bit the term before in the solicitor general's office. the solicitor general's office is the office that represents the united states before the supreme court, and there's a long, long standing norm that you defend the constitutionality of a statute if there was a reasonable ground on which to do so. i see a parallel. that was a high standard to change positions when new administrations come in, sometimes it would be they were usually in cases like affirmative action, that type of thing. abortion, where they might change. but not on how you construe a statute. last term there were several cases including interpretations of federal statutes where they switched positions. it's just a parallel feeling. it doesn't violate a war or
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anything. it was just a norm. it was an expectation. if you are going to not defend a statute, paul was saying, reasonable minds could differ on a lot of cases but your job was to defend it if you could. and so i see that as maybe also emboldening in the court, or certainly a similar trend, i think in the government as a litigant before the court. >> i sort of -- i guess a partial dissent on this. the thomas opinion seems extreme. i also think all of them know that if there were, for example, a liberal majority now, merrick garland on the court and there were five liberals, they would be in the process of overturning the death penalty and the conservatives would say we've been upholding capital punishment for 20 0 years. how could you go back on that? they'd say we have a new understanding of how the death penalty system works and can you imagine?
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this is a hard hypothetical to create, but suppose five years out there's a liberal majority, and there's a bunch of bad partisan gerrymanderers around the country and the issue comes up to the supreme court and says you ought to defend the right to fair and equal vote. >> i'll argue that case, i promise. >> they would immediately overturn yesterday's ruling because they thought it was dead wrong. >> they've got a standard. >> yes. >> i guess i think that you know, as tony said, precedent is a good talking point. they've got to give some deference to precedent. it's part of the law. part of stability. but in the end, you know, if five justices think a constitutional ruling is just wrong, they're going to overturn it. >> tony, i want to switch gears. you wanted to talk a little bit about the law clerks that are helping the justices reach the conclusions and tell us what you had to say about that subject.
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>> okay. i've been sort of studying the supreme court law clerk phenomenon for decades, and i think it's really fascinating. i think they're so important and powerful. of course, law clerks either say they're very important or they say we're not important at all. somewhere in the middle, i think is the truth. but anyway, i think it's a really important part of the court. the justices rely on them to a great degree. and this term was unusual in the sense that it was the first time that the law clerk class j so to speak, was -- there were more females than males. 21-20. which is a milestone. and it's partly because of justice kavanaugh. all four of his law clerks were
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women. and kavanaugh before he became a justice, i interviewed him a couple times about diversity in the supreme court law clerks. it's been a big issue for him. he actually has -- he went out to minority law student associations to try to drum up some interest in applying for clerkships, and he has been successful in a lot of the african americans or several of the african americans that the court has hired as law clerks came from kavanaugh's chambers on the d.c. circuit. another unusual thing. for this year, the court had the first certified native american law clerk in history.
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and i was just looking yesterday about all the indian cases that were decided this term, and there were two, and both times the court ruled in favor of the tribes involved. which doesn't happen that often. now, i'm not in any way suggesting the presence of a native american law clerk made that happen. but the justices have said over time that that story telling is important at the supreme court. they talk about thurgood marshall's stories about his upbringing, and having diversity among the clerks and among the justices is important, and kind of educating the justices about
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things that are outside their purview. who knows? i don't know if this native american clerk whose name was toby young, whether she had that kind of influence, and justice gorsuch hired her and he has as a 10th circuit judge, a lot of indian cases on his docket. maybe someday, i hope toby will be able to talk about this, but she can't now as a law clerk. but i think it's an interesting development. >> could i say one thing? it's interesting. when you go back years, and i think it's interesting. tony is looking at this. it's hard because there were statistics like this in the old day. in the year i clerked in the 80s it was a high water mark.
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we had 11 or 12 women. back then if you looked at the population of law schools, it was actually a parallel percentage, more or less, that was in law school. you wouldn't know it from the numbers. you'd have to compare it from the body it was pulling from. justice blackmen hired so many women law clerks. people it was diversity. he had three daughters who were brilliant. one was a lawyer. one was a doctor. i forget what the other one ultimately ended up doing, but it was really early in his career, and i think tony's point about this is so important. what happens to those people? well, judge diane wood, one of the all star jurists was a law clerk for blackman. my years are with three women law clerks the year before three and then justice o'connor started catching up.
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i think there was an era that actually in justice blackmen hired a law clerk who was native american. he was very interested in indian law. he came from minnesota. that was something he focussed on. and i think tony is right. those kinds of experiences affect the justices not in a pa justice blackmon specifically would talk about being in conference with justice marshall, and hearing about his experiences and it really affected justice blackmon. it affected him on the death penalty because the racial injustice was ultimately deeply troubling for him. >> i guess at this point, we have a little bit of time, not a lot, but a little bit of time for some questions, if there's, i think there's a microphone floating around. is it over here? so make sure you talk into the microphone so our tv audience can hear you as well as everybody in the room.
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questions? over here, okay. >> i apologize for spending more time on the census case but it's really procedurally crazy right now. what does the panel believe [ inaudible ] i don't know what you want to say about it, what is the protection of the claim revived by judge hazell in a stinging opinion on monday and also the extraordinary fourth circuit, maybe you want to enjoy it judge hazell which was surprising the fourth circuit would be so explicit about that. as equal protection claim this court doesn't seem like there's a lot of future of it but procedurally where is it going to end, how is it going to happen? aside from the commerce department come back with a good reason but equal prosection claim will still be alive. >> i'll defer to the journalists, since my firm has active litigation in it. >> thanks a lot, beth.
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you desert us just when we need you. >> this was your chance. >> it's an interesting claim, but my guess is it ended up not being crucial to the outcome, that because of what happened yesterday that my guess is that the administration is going to lose, because they're not going to come back with an acceptable explanation to convince a district judge and then ultimately the supreme court, so i think that equal prosectitect claim is important but not decisive at this stage. >> did the government file last night? do you know the answer? >> i don't know. >> it was supposed to file -- >> district court in maryland? >> in the district court before the opinion craziness yesterday, yesterday the plaintiffs had, the plaintiffs, the district court had told the government that if it wanted to oppose a motion for a preliminary
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injuncti injunction, they needed to file something i think by 8:00 last night, and i haven't seen anything, but i haven't been looking. >> it's not clear there's anything to enjoin at this point. >> exactly. that's why i'm wondering what the government would say. >> i'm interested to see what the government's going to say on the timing that you highlighted before. we need it right away. wait. >> yes, there's almost an estopple problem really. another question? no? well, if not, i can ask another question myself. we seem to have probably gotten to the point where we're not going to have a retirement at the end of this term, although we thought we were there last year at the end of the last session and three hours later, there was this rather zinger of a news flash that came across everybody's phones, but there have been rumors in recent times, i assume you've heard them, justice thomas might step down to be replaced by a younger conservative, anything like that. did you hear those rumors, and
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if so, where do you think that was coming from? >> i don't know where the rumors were coming from. he's done a couple of public appearances like this year, in which he's indicated that he was not retiring. >> right. no, but almost wondering whether some people were trying to hint maybe he should the way they cited justice kennedy. >> you could imagine those rumors are coming from the right, not the left. nobody thought he's going to retire, but justice thomas has been unusually public in saying i'm not going anywhere. i'm not retiring. don't believe it. even if my wife says it, don't believe it. he's made quite clear he has no plans to retire any time soon. >> i think there was some of his writings this term seem to be, it could have been sort of valedictory, putting down his markers for the future, and hopefully my successor will go
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in this direction. he has a very unique jurisprudence, not like -- he is a solo, you know, he goes solo a lot, but it seemed like he was trying to speak to the future, but that could have, you know -- >> the other thing seems clear, he spent the entire year pushing for them to get going faster on the agenda that's now possible, given the new conservative majority, and feeling rather frustrated that, for example, they didn't take the planned parenthood case, because it had an abortion subtext to it and other situations where he was like whether that indicates he thinks he only wants to be around a relatively short time or not, i don't know, but maybe he feels like i've been waiting for a long time to have the five votes for a lot of the stuff i want to do. it does feel like he's real anxious. >> my sense is that there are three justices on the right, thomas, alito and gorsuch, who would move very far, very fast,
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and chief justice and brett kavanaugh are inclined to take it slow, move slowly in the direction. you can tell there's a real difference of opinion among those two factions, kavanaugh, roberts and the thomas, alito gorsuch wing that we sort of talk about them as if it's a five-member republican conservative majority but they're very different in their views. >> we talked before how there's a four-person centrist group which breyer and kagan clearly relate differently to the conservative wing than ginsburg and sotomayor in certain situations. >> definitely. >> the cross case being just an example, but one of the things you see with justice kagan and justice breyer is a rather persistent effort to reach out and find common ground, and >> exactly right. justice kagan is really very always interested in sort of working the middle.
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is there a possibility to get a moderate decision here that doesn't do a lot of damage, and she's always at least open to a discussion about is there a way to rule here that she and breyer could go along with and decide something narrowly. i think ruth ginsburg and sonia sotomayor are their preferred view and stay out to the left and don't participate. but justice kagan is i think one of the smartest, shrewdest really interesting people to follow, also a great personality and temperament. all the justices left and right, if you ask them who do you really like, elena kagan, she's really great. whoever it is, she gets along with them well and she's an interesting, engaging person to talk to. >> i want to talk about seating assignments and the effect.
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you see them talking a bit and we've also heard justice sotomayor and justice gorsuch were talking about getting along and they sit next to each other. whoever sits next to justice breyer, he chats a lot. he used to talk to justice thomas a lot sitting up there, so i like the fact that they have those seating assignments, because it does mix up the ideological -- it's just by seniority, but it's really, i think that's a very positive view for the court and i do think that justice breyer and justice kagan, as paul was saying, they were the two that went with the chief to try to find the narrower cases when they were the 4-4 court, so i think seat assignments is really a positive aspect of the new court. >> it's fun, actually, to watch gorsuch and sotomayor, because it's hard to -- as people as the justices go, they're about as different as two people can be in terms of their sort of
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background and ideology and they're clearly chatting away. they serve justice o'connor's i-civics board together and there was a point, i can't remember the case, maybe david or tony will, justice sotomayor was trying to illustrate some point of the oral argument and she reached over and pinched justice gorsuch, and he didn't know it was coming. >> i missed that. >> he was actually amused. he thought it was pretty funny. >> there have been a few times, the census case is an example justice sotomayor was clearly gotten under the skin of some of the other conservative justices because she's very active on the bench when she cares about something and will not let go of it. you see the scowls forming. perhaps i'm imagining things. >> you're not imagining. particularly by the end of the term, i think, david talks about it being like a family. it's also kind of like the end of one year where you're kind of tired of everybody in your section but you could. the press sits on the same side
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of the bench as justice sotomayor, and so sometimes you could kind of see the chief justice just kind of look over. >> right, it seems like the break where they could kind of get away from each other for a while, is a very good thing, and i guess i will use that as the moment to ask you all to thank this wonderful panel for coming. [ applause ]


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