>> today in america we have more people living in poverty than any time in the history of this country. at 22% we have the highest rate of childhood poverty on earth

and despite the modest successes of the affordable care act, we still 40 million people in this country but they'll health-insurance, and we remain the only nation in the industrialized world that does not guarantee health care is a right, and we have to change that. [applause] >> there are a lot of angry people out there. see them on tv a lot of the time. unfortunately, many of them are angry at them for the wrong reasons. and whether you are in the occupy wall street movement or the tea party movement and you are a conservative, you have a right to understand what is happening in the economy today. today, despite a revolution in technology, which has made every worker in america more productive, the fact of the matter is that the standard of

living for working people continues to decline. since 1999 the typical american family, a family right in the middle, has seen a decline in income by over $5000. incredibly, that family today earns less income than it did 25 years ago. if you want to know why people are angry, people working long hours for low wages, and men are mentor working, women are working, kids are working. they are working desperately hard and they are getting nowhere in a hurry. and that is not where america should be. [applause] and yes, clearly, and not enough people know this, we are a lot better off than we were when

george w. bush left office and the 700,000 people were losing their jobs in the american and international financial system was on the verge of collapse. yes, we are better off because we are creating jobs. no one in this room believes that we are anywhere near where we ought to be. but the fact of the matter is that most of the new jobs created since the great recession are low-wage jobs, part-time jobs, and in fact, they pay 23% less than the jobs that we lost during the wall street collapse. and here is something that i think all of you now. when you pick up the paper in the morning, they played an official on the women is 6.1%. that is official unemployment.

real unemployment, including those people that have given up looking for work for those people who are working part-time when they want to work full time, that number is 12%. we don't talk about youth unemployment at all, but today the kids are graduating high school, those that drop out of high school, it's 20%. and what went on in ferguson, missouri, when an unarmed african-american was shot. and what you don't know is that african-american unemployment is 35%. and in the st. louis area it is actually higher than that. and we have to put the american people back to work.

[applause] >> the federal government must step up to the plate with a massive federal jobs program rebuilding our crumbling federal jobs program. [applause] >> and i'm glad to event in hampshire is doing her thing. unless i am mistaken, the governor would tell you that you could use a little bit more federal help. and she said yes. and so i want to touch on another issue when we talk about the economy. it is not an issue that is discussed on tv too much, you don't see a lot of people talking about it. but we must be honest. since 2000 and one, hold onto your hats, since 2001, in new hampshire and vermont and all across this country, we have seen the loss of over 60,000

factories. and millions of decent paying jobs. in my view, one of the reasons for that is a disastrous trade he, trade relations with china. [applause] and trade policy, which i have said, with organ america. here it is, you have shut down plants in america come you don't have to pay workers 15 or $20 an hour. you can go to china and by people for a dollar or two an hour. i am proud to tell you that i have never voted for one of these trade agreements and i was right. [applause] [applause] and i'm sorry if some think that

we deserve that. to understand the american economy today, you can talk about it in one way. not so many years ago the largest private sector employer in the united states was a company called general motors and general motors produced real products, automobiles, and they work with unions like the uaw and they paid their workers wages and good benefits. and that was the american economy then. today, the largest private sector employer in america is wal-mart. and wal-mart pays wages that are so low that the people in this room and up subsidizing wal-mart

because many of their workers can't make it on the wages they receive and they have to go on medicaid and luke samson affordable housing paid for by the government. the owner is the walton family. the largest and the most wealthy family in america. in my view, the wealthiest family does not need welfare from the middle last and this country. let them pay their workers a living wage. [applause] and in terms of an education, and a highly competitive global economy, where we need the best educated workforce in the world, right now as the governor indicated, college is increasingly unaffordable and we have hundreds of thousands of young people who have so much to

add to our country that they can afford to go to college. another kids are going to college or leaving school 40 or 50 or $60,000 in debt. i recently met with a young woman who graduated from medical school and she is $300,000 in debt. we need to make certain that every person and not just some people, every person in this country who needs a higher education should be able to get that education regardless of the income of his or her family. [applause] look, here is the reality. the fact of the matter is that in america today, tens of billions of families are struggling hard to put food on the table. they are worried whether or not they will have the money to put gas in their car so they can get to work. because if they don't get to work they will lose their. they don't know what's going to happen to their kids.

that is the economic reality facing this country. middle-class disappearing. and the american people also understand and what really draws people is that they understand that something else is going on in the country. so while the middle class shrinks and so many people are living in poverty, the people on top are doing phenomenally well in the largest corporations in this country are enjoying record-breaking profits. we'll tell you something else that you don't hear much about. when we talk about distribution of wealth, what that means is at the end of your work life, what you have? what do you have in terms of distribution of wealth louisiana we have the more major distribution of wealth than any country on earth and it works

today more so than 1928. so today, the top 1% owns about 37% of all wealth in america. so who wants to guess what the bottom 60% of the american people own imax. >> what you have? >> the answer is 1.7%. and let me say that again. the top 1% owns 37% of wealth in america and the bottom 60%, everyone in this room, together, 1.7% of the wealth. the top one 10th of 1%, 13,000 own over 23% of the wealth in america. and that, that is not what america is supposed to be about. we are a democracy and not an allegorically. [applause] and so today, the walton family,

one family owns more wealth than the bottom 40% of the american people. in terms of income, that is what we make every single year. the last statistics that we have tell us that 95% of all new income generated, have we seen some recovery? yes, we have. but for the middle class, it doesn't matter much whether the growth of 2%, 3%, 4%, 95% of all new income generated since the wall street crash goes to the top 1%. brothers and brothers and sisters, we have to do a little bit better than that. working families deserve a piece of the action. [applause] and everyone in this room is concerned about education and we

are concerned that teachers have been laid off. understand at last year that 24 most lucrative hedge fund managers made more income than 425,000 public school teachers and that makes sense to nobody that i know. now, i have laid out some of the problems and if we have a congress that has the guts to represent working families and we have to overturn this disastrous citizens united supreme court decision.

[applause] and it if you're interested in women's rights, health care, job creation, you must be concerned that a handful of billionaires and others are now capable of this spending and are spending hundreds of millions of dollars for candidates whose sole function in life is to make the wealthiest people even wealthier. and that is not the democracy that men and women often died for. we have to overturn citizens united and move to a public funding of elections so that everyone has a chance to run for office.

[applause] and as i mentioned a moment ago, if we are serious about creating jobs, we listen to the american society of civil engineers has society of civil engineers has tell us is that we need to invest $3 trillion in gross and bridges and water plants and wastewater plant and the rail system as well. when we make that investment and when we transform our energy system away from fossil fuels and deal with the crisis, we create millions of decent paying jobs and that should be a top priority for a congress that cares about working people. and when we talk about the economy, clearly we all understand that the federal minimum wage of $7.25 per hour a starvation wage and not a minimum wage, we have to raise

the minimum wage to a living wage. [applause] and, you know, one of the current phenomenons i don't understand. one would think that if you are the koch brothers and you had $80 billion, just so your wealth increased by the last year under the tyrannical regime of barack obama, think about what they would do if they had a republican administration. i think the psychologist have got to deal with this as well. his $80 billion enough way back i mean, how much more do you need to take care of your family two that is right. and it would seem to me, it would seem to me that if these

guys had any sense of decency, they would not be spending huge amounts of money on those whose job it is to cut socials dirty and medicare. can you imagine having so much well in more money than anyone can figure, and they are spending that money to attack working people and the middle class. one of the goals is to lower taxes for the wealthiest people in this country and large corporations. we should all know that back in 1952, corporations contributed about 32% of the revenue coming into the federal government and today the number is less than 10%. one out of or corporations in the country paid zero and taxes and there has been a hundred billion dollars every year and

so i say to the billionaire class and large corporations that you can't run away from america to avoid paying taxes. we are going to demand that you start paying your share of taxes in this country. [applause] [applause] and i want to say a word about social security to you. as wellesley important of social security and the fact that it is probably the most successful federal program developed in this country. a couple of years ago there was a united republican party and some democrats as well. those who wanted to cut social

security. what many of us in the senate it is we reached out to the trade unions and veterans organizations and disability organizations. millions of people who made it clear to the united states in congress that you're not going to balance the budget on the backs of the elderly and the children for the sick and the poor. [applause] and right now, right now we are pushing them back. the goal right now is not cut social security but how we expand social security and get other benefits to the working people that need them. and so let me conclude my remarks by telling you what we are up against in this election right now. there has been a lot of

discussion about the koch brothers. people are unhappy no matter what what their point of view is and i think we all recognize spending hundreds of millions of dollars in the campaign, that is not what american democracy is about. but there has been very little discussion about why are the coke other spinning so much money and what do they actually believe in and what do they actually want. in 1980s, aimee copeland ranford vice president of the united states on the libertarian party and he didn't get a lot of votes, but the libertarian party established their platform and i want to read to you just some of what was in the platform. because i believe they have not changed their views. it is important to you and the american people to understand what it means and why these guys are throwing money against some

of the decent candidates in this country. what is their goal in what and what is their vision for a new america? let me quote word for word from the libertarian party platform from 1980. we favor the abolition of medicare and medicaid programs. and we favor the repeal of the fraudulent and virtually bankrupt and oppressive social security system. they are not talking about cutting social security, they are talking about illuminating social security. they are talking about eliminating social security. we are talking about the repeal of finance laws and the abolition of the federal election commission. do you know what that means?

they are not content with citizens united and independent expenditures. they want to be able to give someone a check directly. here's $50 million, this is what you say. and that is now with the leadership of the republican party believes in. all of you who work in the postal service, here it is. we propose the abolition of the governmental postal service. and right now jeanne ion members of the house are fighting to raise the minimum wage. and republicans are not only opposing raising the minimum wage, but they believe in abolishing the concept of the minimum wage. this is what the koch brothers said back in 1980. they say that we support repeal of all law which includes

minimum wage laws. and you know what that means? and means that if you are in a high unemployment area and your lawyer says i'm going to give you $3 an hour and you say well, i have a choice, that's it, no more job protection, no more safety on the workplace. needless to say, supporting this is the last point. listen to this one carefully. this is their vision of a new america. we oppose all government welfare and all of these government programs are paternalistic and demeaning and inefficient. and this includes the voluntary efforts of hybrid groups. what that means is by unemployment compensation. to buy program in any rural

aids. their vision of america is where corporate america and the billionaires have it all. and if you are old and sick, maybe somebody will give you some charity so the you can deal with your cancer, but you're not going to have medicare. and if you're poor, maybe a church or a private charity will help you little better. but you won't have medicaid. that is their vision of america. what this campaign is really about is not just fighting to protect medicare or medicaid, all of that is important. but there is a eager meaning what that campaign is about. the real issue that we are debating today is whether or not we retain our democratic form of society and whether or not working people have rights or benefits or whether we move

towards an oligarchic form of society in which the economic and political life of this country is controlled by a handful of billionaires. that is what this struggle is about. and i believe from the bottom of my heart that while these guys have more money than you can dream of, they are prepared to spend hundreds of millions of dollars. i believe that when we stand together we when because there are more of us than there are of them. and you very much. [cheers] [applause] [cheers] [applause] [cheers] [applause] >> coming up next on c-span2, a preview and a hearing on the

transfer of military equipment to police departments. that's followed by a town hall meeting with senator bernie sanders. >> saturday night at 8:00 p.m. on c-span, former president george w. bush and bill clinton wants the presidential leadership conference in washington dc. and then large coverage of the harkin steak fry with tom harkin and bill and hillary clinton. and saturday night at 10:00 p.m., but tvs "after words." ken silverstein on the world of oil and then at 6:45 p.m. on sunday night, democratic senator from new york kirsten gillibrand on her life and politics at her call for women to rise up and make a difference in the world. finer television schedule at c-span.org and let us know what

you think about the programs that you are watching. call us or e-mail us at c-span.org or send us a tweet at hash tag comments. join us and like us on facebook and follow us on twitter. >> wednesday, a hearing on the terrorist group isis. >> on the next "washington journal." domestic violence and the 20th anniversary of the violence against women act and a look at issues affecting higher education with doctor james linden, part of the big ten

schools to visit. >> this next program is two hours. >> with congress back from session, here is a message to congress. >> water, it makes up 75% of our life. take waterway and humanity would pierce within a week. it is the most vital substance to the human body yet nearly 50% of estuaries and rivers are unsuitable due to lucian. in the u.s. we have learned to take water for granted.

this all is reinforced by the same idea. water is an unlimited resource. let's do guide and the condition tells a different story. pollution disrupts food systems and the food chain. and animals are not the only one to suffer the negative effects. >> and 2014, we must provide federal funding to enhance water treatment agencies across the country. and it must stop here. >> join us on wednesday during "washington journal" for the 2015 student documentary competition. >> supreme court experts are joined to preview the upcoming term.

this is two hours. >> good afternoon, everyone. welcome back. and those of you that are joining us this afternoon, we are so happy to have you with us. this is the portion where legal experts debate issues and raise issues that the court will hear. before we begin, please keep silent or cell phones. also if you can hold your questions to the end, we will try to get to as many questions as we can. if you would like to sit up straight and smile, that would be great because the c-span network is taping. and we will try to allow time at the end for your questions. i want to welcome you today. our panel include, let me go in

order from left to right. the head of the supreme court practice and the applet litigation practice, we have the chairman, the editor in charge, and the we affairs division of reuters. and lori alvino mcgill who is under justice ruth bader ginsburg. please join me in welcoming them and please enjoy the program. [applause] >> thank you very much. as you have said, i am a partner specializing in supreme court

here in washington and it is my great pleasure to moderate today's program. i am excited and i will try to speak as little as possible so you can hear from the fabulous groups and panels that we have put together to talk about the upcoming supreme court term. while we have advertised this as a preview, i think quite frankly that that is false advertising to some extent as we talk more broadly about the supreme court. and in particular we will start by talking about the roberts court because as hard as it is to believe we are about to start the 10th year in the supreme court under the chief justice john roberts. many view of a certain generation, you remember where you were when president kennedy was shot and i think for many of

us who are supreme court lawyers, we remember where we were when we heard the sad news and i was actually watching college football at my parents house when they broke into the football game with the news that the chief justice had passed away. and i think for all of us, in many ways, it feels like it was yesterday and yet it was more than nine years ago. john roberts had been nominated as a replacement for sandra day o'connor who had retired. but president bush turned around and renominated him to become the chief justice. and so i thought that we will start with some general observations and talk a little bit about the supreme court term that ended in june before we transition into talking about the upcoming supreme court term. i want to start this discussion with the solicitor general who has art event introduced.

this will provide a little bit of one anyway. the solicitor general of the united states, in some sense he is the chief courtroom lawyer and i think in many ways you have a unique perspective to bring to the subject not just because you are the solicitor general, but i do a little bit of googling and i came to the realization that you are almost the same age as the chief justice and of course you distinguish yourself in private practice at much the same time the chief justice was the head of this for many years in private practice and now with perhaps someone different in a relationship as well with the

>> you know, i would like to start this up a couple of observations and one thing, i would say that there are two ways in which the court, the roberts court does this -- one of them is and i get to see this in my job, just about every world argument, usually someone from my office is arguing and i ago together with the folks are there are doing. so i'm in there just about every day and every argument. one thing that i find remarkable about that experience is to observe how extraordinarily engaged in well-prepared that the members of the quarter are

in deciding these cases. it really is astounding. we think about the big cases and even on highly technical cases, frankly most of you won't be paying a lot of attention to. they are really drilling down on some well-prepared individuals. and i do think that the courts, throughout my time in practice, again it has been part of this well-prepared court. and i think in some respects, it is reflective of the way that we approach the law. the other thing that is emblematic of this court, and i don't know how much of this is circumstance and predisposition, but from where i stood they are not afraid to tackle big issues. and the roberts court has taken on a lot of consequential issues

in the law and for the country. and that doesn't show any signs of seating either. so those are the two things that stand out to me. >> is there anything you can attribute that to? do you think that you just resolved big issues? is there something more to it? >> it seems like a psychological disposition, that this is their job and they're not going to shrink from it. they're not looking for ways to avoid these issues. but that seems to me -- i think they understand the responsibility to take on big issues. >> it makes sense to kind of get a perspective of someone who covers the court. we have one of the best here in terms of covering the court now for 25 years and i also know

that joan is currently the legal editor for reuters and has previously covered the court for many years and she has been covering this now for a quarter of a century, not only the roberts court but fire incarnation as well and so i would really like to return the favor in ample measure, i am sure. let's get your sense as to how the roberts court difference from this court both in style and in substance. >> it is one of the few in washington that you can cover.

[laughter] and it is great and i am glad that you brought us back to that when the chief justice talked about it. when the chief justice died. it was right in the middle of hurricane katrina and he had been very sick with thyroid cancer. during a prior term he had really not unable to be in very much but i remember it was late on saturday night and the funny thing about that wise is that i remember one of our reporters being down there and coming across a man who said we haven't had any news for days. the chief justice really die. so anyway, he was a very different kind of man and he was

a head clerk for the chief when the chief was still an associate justin and right after he had gotten out of harvard law school. and i was there with what he had said about the assessment of him and i would also say that i think that if he doesn't have to go abroad, he will not and i think that we have seen that in many of the rulings where we can build on that. i also think most recently of the chief himself in this term, we saw him may be making a few more moves towards the center in a way that we could have expected of anthony kennedy. i think about the abortion case or he will join with more liberal members on the legal rationale out of massachusetts. and so what most people will

remember is when he swung over with those in 2012 and so i think that he is moving slowly and he was born january 1955. and so he has a lot of this and a lot of it years ahead of him. unlike justice scalia who is barnstorming everything and he doesn't do that forcefully. and he's not going to force that what the law. i would say one other thing about the coalition that he is building with a justice on the right wing, we have seen something emerge with his partner from the george w. bush

appointed years. that is justice alito who took the lead in two very important cases in the last week of the term and that would be a the contraceptive mandate and the union case as well. and it appears that if you are looking for a conservative ruling, who are you going to go to? are you going to go to somebody who might lose the majority for you or anthony kennedy who might move too far to the left of your case. so that is the other point i would make about the court with george w. bush. one other thing that we saw most recently, that is just a sotomayor in the affirmative action case where she and the chief actually got into a little

bit because she was dissenting from the rolling that appel does michigan man including higher education. and so i think that we are going to see more of her using her first voice and i'm not sure how well that that is going to fit. >> that gives me an opportunity to point out that she is about to publish a book which is entitled raking in and the politics of justice, which will come out around the first day of the supreme court term. and so it doesn't raise a follow-up question, which is the extent to which one we think about this court, it's not just about john roberts. because we really have four new members on this court including

justice alito. and you didn't mention justice kagan. so to what extent, when you think about the roberts court, when you think about them more generally? >> i think that justice elena kagan is especially one to watch. she was born in april of 1980. and she is quite strategic already with some of her opinions. she has been firmly with justice ginsburg and justice breyer and i find her to be quite an active participant during oral arguments and even though she's on the far end of the bench of jumping into this conversation.

>> sometimes it is great, sometimes it is not so pleasant. >> she is very effective. certainly of the rank of the chief justice. and the two of them go at it a lot in majority and dissenting opinions and i think that she will continue to play well. >> before turning to our other panel, refer to the fact that the chief justice has talked about playing the long game. including one of these bogus washington raises, you talked about how justice scalia [inaudible] what do you think that means? when they might mean is bad he is moving along incrementally, but of course he has no guarantee of what the makeup of the court is going to be and whether he will find himself in the majority or potentially in

dissent. so how do you think that that factors into this? >> i will give you 28 examples. this is all very unpredictable. his death was predictable. strange things can happen to all of us in our lives and nobody can be guaranteed of this order who will be in the white house. and so i think that is kind of an incremental approach to manifest itself in the case of what we saw first in 2009 where there was sort of a warning shot fired by the chief in terms of intense scrutiny and authorities having to clear any kind of electoral changes and those who have had a record of past

discrimination and the majority was on board with him and said to be careful how this is used. we are not sure if this will be constitutional. but sure enough lasser the chief got a justice majority to effectively got this key provision known as section five on the affirmative action in higher education case i talked about this with the university of texas case last year as well. i think that people like the chief. including anthony kennedy who took a moderate approach at this. so even though he says in another 10 years on i'm not even seven years old yet, the way that this is working, can at least work two or three years.

>> with that risk of seeming obsessed with age, younger members of the panel who happen to be up-and-coming stars of the supreme court, the cohead of the supreme court and a partner specializing in the supreme court and appellate litigation. as it happened, this occurred right around at the time of the transition and i think also it in the first year of the roberts court as well. and the supreme court have kind of grown up with the roberts court. so i would like to ask the two of you to react and offer any additional thought that you

might have as well. and so i will start with you and then if you have any thoughts about this, this might be of interest. >> one thing that we see today actually has almost nothing to do with the chief justice himself but is equally significant with some of the developments that joe mentioned and that is the retirement of justice stevens in particular. and so what struck me as her mentioning that we have or knew just says. in someway we all must have five because justice ginsburg plays a role today that is very different than when she first came on the court and even when i was a law clerk and when i first started before the court. the justice demands was very much a leader on the court of justices who not only agreed with him on particular issues.

and he was a savvy is a justice has ever been. and i think that four times there was a lot of press coverage that he would be able to step up and fill that role and i think that i don't feel a lot of that in his articles anymore and it's interesting to see what she assigned them to herself or other members in each individual case and deliver more of this orally from the bench at the time that this is something that she feels really passionate about and she knows that when she does that, it gets more attention than if it is filed in writing. and so that is one of the most interesting developments that we have had.

and another development that we have had, it has been to the addition of the court with experience standing at a lectern and arguing. and so obviously justice alito served in the solicitor general's office before he became a member of the argument there. and that influences not just how they treat the council and their expectations of counsel, which are very high especially those who wear the tail coat, but also the cases that they take and so to just put one example there, i think you see a lot fewer run-of-the-mill cases and when the court takes a death penalty

case now versus the cases it took in the other corner, the often situation is to illuminate the rather then an out of control lower court and that's not true all the time. but the court takes more business cases and fewer death penalty cases of the kind that they use to take. >> i would just interject and i would love to get your thought and to be close on the changing role and she has of course given quite a few interviews that she has talked quite candidly a route with her role on the court and the range of sensitive matters. >> yes, at nottingham, whether she has plans to retire.

and i think that it's fair to say that she has had every opportunity to repeat any updates on its years retiring. so i think that she kind of developed a stronger voice if that even makes sense, given what her position was at the time, starting on 2006 or 2007 when she started and it may have been part of this decision. and it was big news that any justice, let alone does justice

and i think that she has she has felt that she has taken on this role not just as justice stevens in this room, but the older woman in the room and i think that she feels like she still has more to do. and i want us to touch on something that we have been talking about. the transition between both courts and i think that i was actually in this office with the rehnquist regime. and so i witnessed a lot of oral argument last year and then it was watching him sort of navigated how he was going to run the courtroom, that was interesting. he has definitely made some decisions to run things differently than his predecessor. one of those things that you pick up on almost immediately

has to do with his history of having been behind this. and so the chief will not tell you to sit down if you dare to go past the red light and sometimes he will let a colleague finish a question if you ask it. and that's something that's very different. so i wondered as i was putting their which case it was and that case escapes me. but i wondered if he ever regretted the loosening of the normal rules were formalities around argument protocol. because we do see on occasion and this particularly with justice sotomayor, you can see getting upset that someone is either talking over another

question or overstepping in some way and there was at least one occasion this past term when i felt that he physically shut it down in a way where she was trying to restore order. and i'm wondering if we will see this term have everyone on a better behavior. >> one thing that i would like to interject on a that the chief justice did only very rarely is allocating more than the normal amount and in a significant number of cases this year the chief has, i assume it was the chief, from my experience that makes such a huge difference because this is such an active time and they all have their

questions and they kind of compete for airtime with a 30 minute argument. and the questions are not necessarily related to the other justices questions either. and so when they extend this to 45 or 60 minutes, the arguments just go much better and they get a little bit better chance to elaborate and it goes back to something that was said. probably that does come from his experience where there are going to be situations where it makes sense where this would go better and so i think that it is very good about that. >> he has even done that on the fly on a couple of occasions. [laughter] >> she hasn't said i'm going to give you five more minutes.

but that you can keep going. and then you don't know when he's going to say, okay, stop now. [laughter] >> you to have to wait and sort of figured out. but in general we have so much more ability to let the argument struck out. >> one thing between the two observations is that in general, this is a court that values the orb oral arguments to get to the heart of what the case is about, which is not always as perfectly clear that we in the bar might like it to be and it is our fault. but also as a way of communicating with each other in a way that they don't do before cases and it seems this is a case that will be argued next

week. in the first opportunity for them is in the context of oral arguments. not all the questions that you hear are purely a part of us. and some of it is more pointed and more aimed at the weakness in this case and i think a lot of that has begun to become a part of world argument as well. >> i think it is part of the conventional wisdom that the oral argument only rarely alters the outcome of the case. the cocoa. .. ..

i have an instinct as to which way that is going to come out or thinking this case is genuinely hard to call. >> i think much more of the form than the latter. i think that is in part a

function of the kinds of cases that an sg argues, which tend to be the big cases and the cases in which the justice is have put in the most work and thought and probably in many instances have the most well-developed sense of where they think the law and is should be. i will say on this oral argument, one of the benefits of getting to go every day and see arguments, i think there are other cases that lawyers in my office have argue that may not be the super high profile cases, maybe a super technical case about the meaning of a statute or how one statute insects with another statute. and it seem at the beginning of the argument that the justices are not buying what we are selling, seem kind of hostile, but it's because they don't really understand the way the statutes work, and the flowers the office have to work through the court how the statute

operates and fits together with another statute. and although you never know for sure, two or three instances it seemed like minds were changed by that process of education and argument. i don't know if it's true for sure. and doesn't tend to happen in the high profile cases, but wouldn't surprise me me if some of the outcomes changed. >> i'm the one person who hasn't worked behind the scenes as a clerk, but i have been able to interview all the justices over the years for various folks and other projects, and they do say to a person that it matters. and they have hard time quantifying it because it is an elusive factor. first of all, as lily just said they'll use oral arguments to telegraph to each other their open positions or what they believe are holes in a competing position, and i think we saw a little bit of what don was referring to even the cell phone case of the most recent term, where they were -- they seemed quite hostile to the idea that

police wouldn't be able to search the contents of a cell phone, but tend you were uncertain where they would come out and turned out they were unanimous, putting a new requirement on police for cell phone searches. it is part of the whole process. they do not actually talk in any formal way, and i think informally, before oral arguments about the case, and their conference is typically at the end of the week. they have a wednesday conference on the early week ones and a friday conference on the halter oral arguments, and that's when the actually start talking about it. i think from everything you all suggest who work behind the scenes what i heard from them, the conversation actually begins way before they get to the conference, and part of it is in organize arguments, which is why it is so crucial for all you've who gets to argue these cases because it is so high protile. >> john, you have given me the

perfect opening to talk about last term, you talked about cell phone searches, riley versus california. as a journalist who covers the court, would you describe that as the most consequential decision from last term or other decisions that will have long-term consequences. >> politically anytime we have any kind of ruling recording the obama-sponsored healthcare law. that's a big deal. and we're see the issues of the contraceptive mandate playing out. the union fees cases that could be consequential down the road for labor issues. i think for all of us regular folks, the cell phone case might be most important because we all can -- >> can i provide a little background. >> the issue was, when you're stopped and -- when all of you are stopped and arrived as matter of course, and -- >> doesn't look like a particularly felonious crowd. >> it doesn't.

do police need to get a warrant to search the contents of your cell phone that's been confiscated. a smartphone, essentially. what the police argued is -- was pair of case -- they shouldn't have to quickly get a warrant because, as a general rule, because somebody could tamper with the contentses. there could be a lot of issues that would lead to destruction of it and it would be a routine kind of cursory look anyway. but the justices by a 9-0 vote, said, no, you do need -- in usual circumstances, unless there's some sort of danger or chance that the contents would destroyed immediately, you do need to get a wayne. the interesting thing about oral arguments then during that case, you felt like the justices might not be aware of smartphones. there was a moment when the chief justice -- [laughter] -- when the chief justice himself suggested, at least, who would carry two cell phones unless he was a drug dealer, and we know for a fact that -- at

least i know for a fact that at least -- [laughter] -- justices kagan and justice ginsburg carries two, and justice sonia sotomayor happen to have a couple of devices on them in their purse or whatever. so he got set straight pretty quickly on that, probably even in the robing room. >> someone sent him a text? [laughter] >> and justice kennedy, who is our key voter we're always watching, many of his questions from the bench were all about police and police concerns and he seemed to be very much taking the point of view of law enforcement. so, that was a really interesting ruling. and so what it means is, when we all leave here today, if we get stopped for any reason and our smartphones are confiscated, they would need a warrant to search. >> other cases that were of significance for the last term that people want to comment on?

>> we saw a split the baby, 9-0 in a case about recess appointments. that's another case i think of when i think of long-term implications for the future. anytime you have the judiciary talking about the laments of executive power, tends to be a big deal. the sort of case that even though it was kind of a compromise decision that allowed recess appointments in a narrow window of time, it's the sort of thing that can have long-term implications. >> that must have been a particularly interesting case to argue because a rare opportunity to argue about a decision the supreme court had never spoken about. >> this was amazing. the provision -- we talk about it here in this forum last year before the argument -- that

gives the president the authority to make appointments that would otherwise require confirmation of the senate, if the vacancy shall happen during the recess of the senate, and the question was -- really three questions. one was, does the recess mean only the recess at the end of one session of congress and the beginning of the next? in between those two points? or any recess during the session of congress and the second being, does the vacancy have to arise during the recess or arise before the recess. the third being, what about these pro forma sessions of the senate where they have agreed to come back every three days for a 30-second session so they weren't in any lengthy recess, at least as a technical matter. and the case turned so much on the historical practice precisely because there really

wasn't any precedent in the supreme court from our country's history, resolving what the scope of this power was, and ultimately the court said, yes, the president can make appointments for any recess of ten days or longer and, yes, the president can make appointments even if the vacancy arose before the recess, but, no, the president has to respect the senate's assertion that it's actualfully session for these 30-second sessions, and that the court is not going to look behind that. so as lori said, somewhat of a split decision. and this may just be looking at the world with rose colored glasses, but i think from the perspective of the -- from where i sit, representing the interests of the economictive branch of the government, actually there was a lot that was very positive about that decision because it said for the first time in our country's history that, yes, the president does have the authority in these circumstances, and that prior exercise of the authority by

presidents, going back a very long time, has been validated and that will be there and be solid going forward so future presidents will know what the scope of their authority is. so that was quite an interesting case. >> we talked a little bit about the constitutional cases that the court cited last year, but really in terms of the cases of interest to, for instance, the business community, one thing that came through loud in clear last year, this is a court that is enter interested in resolving issues concerning intellectual property and particularly patent rights. can you comment on that and i know we'll be talking about next term and cases of that variety on the court's docket as well. >> i think have this right. last term the court took six patent cases, two copyright cases, one of them very kind of cutting edge and significant, and two trademark or false advertising cases. it was an absurdly high slice of intellectual property on the

court roz docket, the kind of thing during the rhenquist court you would in the never see. those cases would be replaced with someone searching a car in california. i think about the copyright indication that dealt with the streaming of basically live tv over the internet, involving a startup called aero. in some of these cases the supreme court doesn't have the traditional guidance for which cases to take. usually in a -- the sort of simplest version of the supreme court's criteria for cases to hear is, the court looks to see if this appeals court has decided the same issue one way and that appeals court decided it the other way. all patent case goes to the same court that has a nationwide jurisdiction over patents. so it's hard to figure out the cases which the federal circuit,

that court, us not deciding in a way the supreme court is comfortable with. hsu sometimes they ask the sg to weigh in and say, is this the patent case we should take? sometimes they listen to you, sometimes they don't. last term, one of the patent cases got there because you asked them to take it. others did not. the supreme court reversed the federal circuit in every single one of the cases. they generally don't take patent cases because they're happy with what the lower court has done. there's been a lot of reversals. that might signal in the cases they don't take they're fine with what the lower court is doing, but it still requires the court to take and engage with a bunch of different issues of pat tent law, which patent practitioners often think of as quite settled, and the court has for next term more on that subject. the copy right case, there was no circuit at all but the court decided it was time to jump into

this fairly hot, fairly interesting legal issue, and the parties both jointly asked the court to jump in and settle it. the rhenquist court might have said, no circuit split, slim case, go work it out. >> just to follow up on that briefly, i've actually argued a pat ten case at sg in each of my three terms. i've been told by many people i'm the only sg to have argued even one patent case, much less three, so i think that's a sign of willy's point, that the intellectual property docket is becoming increasingly important to the court. >> not -- >> go ahead. >> what this reminds me of. do you remember the letter that ken starr wrote to "the wall street journal" about business cases -- ken starr had been a solicitor general -- everybody knows him for the starr report with monica lewinski and bill

clinton, but relevant to this crowd, he was solicitor general at one point, and after he left the sg's office in the 90s, happened to write two pieces in the warm about how this court was not hearing the right business cases help didn't say what will request said, you keep hearing these search cases from california. can't you take some business cases? he thought some hoff the clerks weren't quite up to speed, and john roberts, who once was a clerk, certain his up to speed on issues of intellectual property and the very high-tech business cases. it's been such a transition from the rhenquist years to now, but that was something the bar had been pointing to. >> let me ask something of a pointed question. is the court taking the right kind of cases nowdays? the court, of course, is a court of discretionary jurisdiction, only hears 75 cases a year circuit has the great luxury of

deciding which cases to hear, and i'm just curious whether anyone on this panel has any thoughts about whether there's a particular category of cases the court should perhaps take more of, whether it's a particular category of cases the court is taking too many of. any thoughts on that? everyone on this panel as a practicing lawyer will say, they don't take enough of my cases. >> that's absolutely true. >> they take almost every case we -- the government asks them to take so we think they're getting that just right. then on the i. p. point -- i'm saying something obvious but intellectual property has become such an important driving force in the economy, it's not such a surprise the court is taking as men cases. go back to the late 19th 19th century, there were a lot of railroad cases on their docket and that makes sense in view of the nature of the economy, and this makes sense. >> one issue that seems to have fallen off the agenda a little

built in the roberts court are case that involve federalism and cases involving claims by states, and that was an area that was obviously of great interest to chief justice rhenquist, but seems to be a little less of a pry north terms of the court's docket with this court. >> that's true. we lost our true westerner in sandra deo connor, and that -- sandra day o'connor, and the state authority in the case of some sort of mandate from washington was a big deal to her also. so both she and the chief, chief rhenquist, made that a priority, especially in the '9. so. >> it is interesting because justice kennedy also seems very interested in federalism but seems unable to do what the other two were able to do, which is get other people interested enough to grant in these cases. >> well, let's talk about the cases the court has actually granted review on for the coming term, to avoid that lawsuit for

false advertising about this program. let's talk about the upcoming supreme court term. we're really talking about half of the upcoming supreme court term because the court has filled a little less than half of its calendar for the upcoming year. it will continue to grant review in cases in the coming months to fill out it's calendar for the upcoming year but we're going to focus on cases that are coming up during college football season, the case on the court's docket for october, november and december. and i want to start with the solicitor general and as we were sort of talking about cases we were going to discuss today, we came up with probably about ten or 12 cases, and the common thread of the cases you're going to talk about is they are cases that seem to involve the separation of power and the relationship between branches of the government. so i know you're going to talk about a couple of cases. the first case is one you have argued already, the case called -- -- the secretary of

state has changed since you arguedded the case, as have the legal issues. this is a case he will be arguing in november. >> this is a case that is back for the second time in my tenure. a case, separation of powers case. the recess appointments case we talk about earlier was a separation of powers case last time, allocating authority in the constitution between the president and executive branch vs. the congress, and this is also a separation of powers case and involved a clash between the congress and the president over who has the authority under the constitution to decide whether to recognize and how to recognize a foreign country as sovereign. it's quite an interesting case. and arises out of a statute passed in 2002, and the statute's tight ills the following. the titlele is: united states policy with respect to jerusalem as the capital of israel.

and then the statute has four sections. the first urges the president to begin the process of relocating the u.s. embassy from tel aviv to jerusalem. the second one says that the united states funds can't be used to fund u.s. consul in jerusalem unless it's supervised by the ambassador israel. third says any government document, like a map, that lists national capitals, has to list jump as the capital of israel. and the fourth says that any american citizen born in jerusalem has the right to have israel listed as the country of birth on his or her passport. that statute was enacted in 2002 when push push signed it into law as part of a big omnibus kind of statute. when he did he said that executive branch, particularly the state department, which issues passports, was not going to follow those provisions. it wasn't going to allow citizens to have israel listed

as their country of birth if they were born in jerusalem. the recent for that is that going back to 1948, when president truman first recognized israel, the united states has not recognized the sovereignty of any nation over jerusalem. it has said that until the parties in the region work out among themselves who will be sovereign over jerusalem, the united states is going to remain agnostic about that question. and the concern about issuing passports to people born in jerusalem, listing israel as a country of birth, would be it would be in effect a statement by the executive branch of the united states government that jerusalem is indeed a part of israel, and president bush said that he wasn't going to enforce that provision because it infringed on the president's exclusive authority to decide what countries to recognize and what borders to recognize in countries. and president obama has

continued with the same policies president bush had of not enforcing that statute. now, someone brought a lawsuit under the statute saying, hey, that's statute says i have a right to have israel list offed as my country of birth because i was born in jump, and the state department has to be ordered to give it to me. they're refusing. that made its way through the federal courts of appeals and one of the arguments the government made to the courts is, hey, that's a political question. this is something that the court shouldn't get involved in. you ought to leave it to be fought out between the president and the congress, using the usual tools that each branch has to bash the other branch with, and the court shouldn't get involved. now, the court rejected that in a decision back in 2012 saying, no, no this the kind of question the court should answer under our system because it involve to the constitutionality of a statute and sent it back to the lower courts. and that case is now back in front of the supreme court to decide the constitutionality of

this statute. and the question, is a guess i said, whether that statute infringes on the president's exclusive authority under the constitution to recognize foreign sovereigns, which case the president wouldn't have to follow it, or whether it doesn't, and it's a valid exercise of congress' powers under article 1. the problem with this case, one thing that makes it really interesting, is that the text of the constitution does not, at least in so many words, assign to either the president or to congress the power to recognize foreign sovereigns. and the president's side, the constitution and article 2 give the president the power to receive ambassadors, and starting with george washington, presidents said in order to receive an ambassador i have to recognize the legitimacy of the country from which the

ambassador hales, so, therefore, the president has the power. and then more generally the president is in charge under our constitutional system of to diplomacy, and so those of are the sort of constitutional arguments on the president's side. the congress has said we have enumerated powers in article 1, section 8, to regulate foreign commerce to regulate naturalization and the fewer declare war, and sometimes recognition or nonrecognition of countries is bound up with the power to declare war, and it's long recognized that congress can pass laws using these power to regulate the content of passports and that's all we have done here. so this is a case a little bit like the recess appointments case we talked about, in that very, very little law -- ask there's actually no law addressing the question of whether the recognition power resides as between the president and the congress. history will tell you that there's a very, very long

history of presidents exercising the recognition power, and no history of congress actually exercising the recognition power, but actually there are numerous instances of congress tangling with the president over the recognition power, enough of them so the thing is not entirely clearcut. as a structural matter, what the folks favoring the constitutionality of the statute will say, most presidential powers are subject to a check in the congress. the president can negotiate treaty but it has to be ratified by the senate, for example, and it would be odd that this power isn't subject to a check, and so the congress should have a role. on the other side of the coin one of the things we'll argue on behalf of the executive branch is that, as a functional matter, just can't work to have the recognition power reside in the congress because sometimes the power has to be exercised instantaneously. for example, president truman

recognized israel 12 minutes after israel declared its independence. sometimes there are very sensitive reasons why you might want to delay exercise of the recognition power. and going back to the founding, congress wasn't around for about half the year, at least, and so it would be hard to exercise the recognition power under those circumstances. so it's going to be actually quite an interesting space somewhat like the recess appointments case, i think insuring that you have to really dig down deep to the first principles of our constitution struck tour and function, and look -- structure and function and look at history and see what you can learn from it. >> the other case you would talk about is not the allegedly improper excess size of legislative power but the delegation of -- allegedly improper casting awl us a of power. the department of transportation versus the association of american railroads and also case about the powers available to congress under the constitution. the different kind of question

in this case, particular a question about whether congress can delegate any of the government's decisionmaking authority, the federal government's decisionmaking authority to a private entity. arise out of a statute that congress passed in 2008 to try to improve the on-time performance of amtrak. [laughter] >> you laugh. it's doing much better as a result of this statute, doing much better. outside the northeast corridor, amtrak doesn't -- amtrak runs on tracks that are owned and maintained by freight railroads. and by law the freight railroads have to let amtrak have right of way on the track and have to actually give amtrak a preference so it can increase it on-time performance. but before 2008, on-time performance was pretty abiz mall, and -- abysmal and is costing the government a lot of money because the amtrak is not profitable, the government has

to subsidies it. and so -- subsidize it. so congress passes the statute to improve on-time performance. the statute said that amtrak and at the federal railroad administration, government agency in the department of transportation, should get together and jointly set metrics for performance, for amtrak. and that if they agreed, great. those would be the metrics that govern amtrak performance. if day disagreed, then the statute provided for the appointment of an arbitrator to make a decision. so, amtrak and the federal railroad administration got together, actually agreed on metrics, published them as proposed rules, and the freight railroads, whose tracks amtrak runs over, challenged them, and they challenged them on the ground that congress impermissibly delegated government decision picking power to a private entity. probably asking who the private entity is. well, am attraction the private entity because -- amtrak is the

private entity, and although it's heavily subsidized by the government and has numerous other features that's may make it seem like a government entity, when congress created amtrak to preserve passenger rail service in the country, one thing the statute said is this is a private company. it's not a government entity. and then why do the freight railroads care about this? because if amtrak is falling short of these metrics on the fraying railroad's lines, and amtrak can show the department of transportation it's the freight railroad's fault that amtrak is late, then the fraying railroads have to pay damages, and so the freight railroads are complaining about that. now, this case went first to the d.c. circuit court of appeals here in washington, and the d.c. circuit struck at the case down on the ground at that time under our constitution, congress cannot delegate the government's

authority to a private entity and that's what happened near this case. and that was quite a remarkable thing in the sense that a ruling like that, a ruling saying that congress had impermissibly delegated its authority to private actors, had not occurred in this country since the early days of the new deal. one of the things that happened in the early days of the new deal and one of the more famous cases, carter vs. cart are cole, was case in which before the switch in time that saved nine, the supreme court had held that one of the key provisions of fdr's first new deal, the nra, was unconstitutional because it delegated, in the case of carter cole, to a consortium of private entities, the coalminers and the coal company officials and private citizens, the power to set terms of competition and set wages and set working

conditions, et cetera, essentially delegated governmental functions to a private entity and that violated the constitution. that is one of the real major flash points of the new deal controversy between fdr and the supreme court back in the 1930s, and since then there hasn't been another case holding that delegation was are was unconstitutional. but we have one now. and it's on the docket. and i've given you a feel, think, for what the challengers have said and will say in the supreme court. i'll give you a little feel for how we're defending that statute. we're trying to defend this by narrowing the scope of the issue, really, and saying, look, the reality here is that it isn't right to think about this statute as a delegation to private entity because, at the end of the day, amtrak doesn't have any final decisional authority if the federal railroad administration and amtrak together agree, then the

federal government has agreed to the met tricks. if if the federal government and amtrak disagree, then an arbitrator is appointed, and you can construe the statute to require that the arbitrator be a government official, and so a federal government official can have the last word and therefore the private intent doesn't have the last word ask therefore there isn't a delegation. besides amtrak is the government. it's not a private entity. [laughter] >> reasons why we think amtrak is the government is that eight of its nine members of its board are appointed by the president, and the ninth is the ceo of the company who is appoint by three eight, and the supreme court has held that amtrak is the government for certain purposes under the constitution, like the first amendment, and therefore you ought to consider the government here, too. so i don't think this is a case as quite as serious an issue of separation of powers or governmental power as the

sitokosky her to cannon case did but it's an interesting case about the scope of congress' authority. >> i want to put a proposition to the panel, maybe, general, start with you. the proposition is this. this supreme court is not at all shy about refereeing disputes between the two political branches. i want to know whether you agree with that, and i you agree with it, i want to get your speculation as to why that is true. >> well, think they aren't shoe about it, then you have to watch how they rule. the separation of powers is a very important topic to the chiefs, and it was always a topic to our most senior conservatives, anton scalia. he always talked about to that part of the constitution would capture more of his imagination thang due process and equal protection issues. it seems like just hearing as you describe, you're giving on both of these the court a way to go narrow north do anything too

dramatic and threat what happened in canning. the canning ruling rolled back the d.c. circuit's bolder idea of limits on presidential power, correct and so that was, i think, for both these that's potential, especially given what the d.c. circuit did in the second one, but i think that this court isn't afraid to take those up, but i also think this court isn't interested in dramatically scale back anyone's role in the separation of powers. >> willy and lori, any thoughts? willy, like me, checked for justice scalia who has in many ways been kind of the leading proponent for the court resolving separation of powers issues. >> yes. although also, he and the chief justice both have been strong advocates of the enforce. of the limitations the constitution places on the court's ability to referee

abstract disputes or disputes brought by -- brought to court by people who don't have a -- >> to in other words, limitations thon company court's jurisdiction. >> yes, standing is the heading that a lot of these case goes under. don, die remember correctly the supreme court in the first divitoski case asked you to brief the merits and then didn't decide them? >> correct. >> i thought that was interesting. the court, having had before it the opportunity to resolve this, ultimately gulped and end it back town to the d.c. circuit. >> what is interesting the prior decision had been it was a political question the court shouldn't get into. when we got throw oral argument the first 15 of the 30 minutes for both the lawyers was on the merits, and it was advocates had to be forced back to talking about the political question issue by the justices. >> but the political question

doctrine is a restriction that the court has kind of placed on itself and the strength of it has waxed and waned. used to be in reapportionment cases the court teams those to be a political question but in the 1960s the court changed its course. i think there's a strong majority of the current court, just about whatever the issue is -- the majority might shift -- generally a strong majority of the court, whatever the dispute is, thinks the court can resolve it. how they might resolve it is a separate question. the same-sex marriage case from california being a notable exception to that, where a narrow majority of the court decided because there was not a person with standing to defend california's initiative before the supreme court, it wouldn't can take that up. >> that standing ruling might have been designed nearly to avoid answering the merits question at that moment in time and not because of some

principle of adhering to principles of standing, limits on the court's power. >> it might have been, but if you look at the alignment of the justices in that case i don't think you can think, here are five justices afraid of who share the same view of where the court ought to come out on this case, and, yet there are five justices -- a majority agreed to duck the case. >> well, turning to something completely different, joan, i wish i could couple with a common thread for the cases you're going to discuss but haste -- >> railroad travel to -- >> and then redistricting. none of which really have anything in common. so joan is going to talk about the case involving religious liberty in the prison context, holt versus hobbs. >> this case will be argued october 7th, and in some ways this involves religious rights for prisoners and does pick up a

bit where we left off with the case that some of us referred material 'er as the hobby lobby case involving the contraceptive mandate of the obama healthcare law in which the justices narrowly ruled by 5-4 that closely held corporations, operating for profit, could assert religious interests to avoid abiding by the insurance provision on the contraceptives. based on the beliefs of the owners. and that case came to the court under a 1993 law known as the religious freedom restoration act. and this new case comes to the court on a cousin of the law, called the -- let me get ill right -- it's the religious land use and institutionalized persons act. from the bench i'm sure we'll hear, -- they go off and engage in these awkward acronyms. under this case prisoner who is

a fundamentalist muslim wants to be able to grow a beard in prison. he is in arkansas. arkansas has a policy that says no beards allowed, not even a half inch beard. and the prisoner lost in the lower courts with judges ruling that prison officials have great leeway here now they run the prisons, and even though this law i referred to, the religious -- the religious land use and institutionalized persons act, even though it says the government cannot restrict somebody's religion unless it has compelling interest and is exercising that interest with the least restrictive means, the lower courts said, prison officials have much more latitude in this area than just about anyone else. and the courts took the case. the prisoner appealed to the supreme court, saying that, okay, right, prison official

does tend to have great leeway in terms of how they run their institutions. there are matters of security, public safety. but this rule doesn't even meet the most basic standard because 44 other prison systems in america do allow beards for religious reasons and that law was just -- this one involved a half inch one. the question is how much deference to give to prison officials under this federal statute. and the prisoners' lawyer -- they raised issues all the -- going back to an 1879 case that involved a no-braided hair policy that a chinese prisoner was objecting to, and justice fields wrote that violated the equal protection clause because it was so severe on chinese prisoners who at the time had long braids. and the prisoner's lawyer in this new case said it was-a-any

institution, in this case the? i san francisco -- mandated that all prisoners in the jail should be fed pork even though they're jew wish made no difference the ordinance was wherein in general term thor prison officials raised concerns about health and discipline. this court tends to be very careful when it comes to prisoner issues. i think it was four years ago we had the stricter case out of some counties in new jersey, where the justices ruled that prisoners -- people who had just been arrested, not even charged with anything could be strip-searched if they were going to be put into the general population. that case was brought main who was stopped in his fancy car in new jersey and suddenly nut with the general population, and was saying why shy be strip searched. the justices ruled against him, saying there should be deference for the prison officials. comess at an interesting time

because by a different 54 vote awe few months ago the court really took special heed of religious rights and religion is a tricky topic for them. we also saw that in theten town of greece ruling that didn't come up earlier but that's where the justices just last term gave city councils more latitude for prayer before legislative -- before municipal hearings. so, this one will be closely watched. as i said it comes up october 7th. and a lot of -- as you can imagine a lot of prison rising groups have come in on the side of the inmate here, and several states have come in on the side of arkansas, saying, let it be up to the states, even though 44 correction systems might believe that it's important to allow this kind of religious exemption, for certain inmates, in this case muslims, that overall it should be left the prison officials. >> i think there's something else going on october 7th, is a recall.

>> that book coming out. >> a book coming out that day. flash forward to november and the completely disconcept of redistricting. the supreme court is wading back into that thicket in a case from california. >> in the 90s we hawed al all he redistricting fights. most of you are aware or voter i.d. cases in challenge, as we march toward the notify mid-terms, where the supreme court left off was with the shelby county vs. hold are ruling in which the justices scaled back on the voting rights act and protections that -- for individuals who might be trying to get an early challenge to electoral changes in states where there's been a history of discrimination, and that case was from alabama, and this case is also from alabama and it's called the alabama legislative

black caucus versus alabama and the democratic conference versus a.m. and the question is whether a run sponsored plan -- in alabama the house and that are republican majorities -- whether their new legislative plan drawn every 20 and institute fled 2012 packed froms into a limited number of districts, diluting their voting power and making it difficult for democrats outside those districts to win. that's why the black caucus and democrats are bringing the case. now, this is a complicated set of facts below. in fact the plan actually was cleared by justice, right? he cleared it. it was cleared by justice. but the justice department has come in on this case saying, i think taking, again, sort of a modest step -- okay so the lower -- the special three-judge panel by 2-1, upheld the plan in the face of these challenges

from the black caucus from democratic lawmakers in alabama, and what the sg is saying is it used the wrong standard under the voting rights act and equal protection guarantee. instead of looking at whether race was the predominant reason and the cause for packing blacks into these districts, as a whole, the lower court actually -- the lower court actually should have again district by district and put more scrutiny on is in. the issue for these supreme court and what was below was, was race the predominant factor? did the lawmakers just decide, look, we're going to just consolidate in a certain way that goes beyond whatever kind of mandate there might be to strengthen black votes in southern states but, rather, ended up diallyling and it made sure the politicians in power could keep going. it's actually one of those cases that it will depend on how broadly the justices go, how

much it matters. state legislative districts at issue here north congressional districts, and it is part of a generation of cases that will probably on incrementally be ironing out things when we have large event percolating in texas for redistricting and voter i.d., a voter i.d. case to be arguedded in the seventh circuit. all part of the franchise and who gets to exercise the franchise and human these -- so many elections come down to just a few votes and such a critical question of turnout and this will be important before the november elections, too. >> i want to ask one question, drawing on your experience covering the court. i think there was a time when everyone thought as abortion as the third rail issue for the court just as is it for politics more generally, but it seems nowdays, particularly under the roberts course, as if the third

rail issue is race. do you think that's fair? >> i think it in -- well, first of all, he is not shirking from it. is not afraid of it. this stems in part because of the chief's own background. as many of you know he came up through the reagan administration at a time when the reagan administration was actually fighting a lot of racial policies, thinking the time had come to end those, and that was in the '80s, so he has for a long time felt that it's important not to classify people on the basis race, even when it's to compensate and to help for past discrimination or bring about diversity, for example, higher education. and even before he took the lead in the shelby county case we referred to, he wrote in another racially charged case about this business -- the sort of business of divvying up people according to race. it's something that very much turns him off and turns off some of the other conservatives, even

though, as someone like right bader ginsburg, who dissented so poignantly in the shelby county case said it's not time to be able to say we don't need to take these steps. >> perhaps maybe third rail issue the wrong term. i didn't mean to suggest the court avoids it. it's more that when the court gets into it, sparks fly. >> definitely. >> the area of the flaw which passions seem to run. >> 5-4 rulings, yes. >> one that that you might add on this subject, why has the court had one voter i.d. case in the last decade but a bunch of redistricting cases. it's because they have to. when you have a challenge to a statewide districting plan, state legislature or congressional districts, that's one of the few areas the court has no control over its own docket. heard bay special three-judge panel and then an appeal goes straight to the supreme court and they have to either sashays is so clearly right we're not going to hear it or have to hear it on the merits.

campaign finance is one area, and redistricting is the other, where they have to have more cases on this subject than they might like. >> i want to make sure we have just at least a few minutes to talk about willy's and lourier's cases. willy, you were going to talk about some cases involving business docket. maybe it makes sense to make some general observations about the cases as well as to talk about the specifics of cases on the docket. >> sure. i think that the business docket is sometimes an overgeneralization because there are lots of cases that some people might call business case and other people might call, for example, a self rights case -- civil rights case, and one of these cases falls in that course, under the pregnancy discrimination act. it's 2009 statutes that congress passed to slap down the supreme court and tell us it had gotten the law wrong. in the late '7s so the supreme

court was asked whether discrimination against one on the pregnancy was sex discrimination. and the supreme court said no, and congress passioned a law that said, yet, it is. so this is a case in which a pregnant driver for ups wanted access to the same lying-duty candidate schedule that is made available to some but not all ups employees. for example, if you injured on the job, ups under the check temperature bargaining, you can have a lying diet duty schedule. if you were injured playing rugby or in your hobby being a rodeo clown you can't have access to the light, duty schedule. so the statute says, basically, that women who are pregnant are to be treated without regard to

pregnancy, but compared to people with the same ables and limitations. and so basically the question before the court is going to be, is this -- if you make an accommodation available to anyone, so, for example, the people who are injured on the job -- must you also make the exact same accommodation available to pregnant women who want it? or the fact that -- is the fact you don't make it available to everyone, you only make it available in certain categories, is that significant under the pregnancy discrimination snack and the business community, which sees this as a business case, which is already subject to various kinds of regulations of what accommodations to offer people on the basis of temporary and permanent disables in their able to live their life. i think is treating this as another case that could make it harder to run a work place, especially a unionized work place where this accommodation

has been carefully negotiated between the employer and the union as a way of keeping people employed by ups after long service if they're injured on the job. but title vii, a landmark civil rights statute, sauce what says, pregnancy discrimination is going to override a collective bargaining agreement if this is the right way of analyzing it. so this is one of these cases where the justices' own outlook on statute -- not just statutory interpretation but the legal regulation of the work place, could have a significant difference, and i think if justice o'connor were still on the court it would be interesting to see what she would make off it. the somewhats a pragmatic justice who could balance a lot of things easily. one thing we haven't said about the current makeup of the court is that while it is divided -- there are six men and three women -- the three women are all on the more liberal side of the court, and so --

>> only one of them has ever been pregnant as far as we know. [laughter] >> i'm sure that changes perspective as well. [laughter] >> i didn't mean to throw you off there. >> i'm not sure what to say in response to that. >> willy is exercising the fifth amendment on that. perhaps turn to the other cases on the business docket. >> we have more intellectual property on the court's docket as well, and i'm going to be somewhat terse in describing this case because i'll be litigating it. but the supreme court has agreed to take up a question that has bothered the patent appeals court for a long time, which is basically how do you divide the work between a trial court and an appeals court in interpreting what patent means? patents are complicated documents and if you ever read one, my condolences.

i feel for you. they are written not for normal people and not for lawyers even. they're written for scientists. or technologists or experts in whatever the field is, whether it's mechanics for fluid dynamics or biochemistry, and the patent office actually encourages you not to put too much background science into your patent, but it's all teams to be there. so, when a -- all teams to be there -- all deemed to be there. so when the judge get this case they have to figure out that the patent means to figure out whether it's a valid inexpense whether the defendant's invention infricks the patent, and often thanks to a ruling the supreme court had 20 years ago, they have the what is called a markman hearing, which is base late minitrial before the court, not a jury, where they decide what the terms in the patent mean, often you have experts testify. usually in federal court when you have experts come in and

testify and the judge decides which expert he believes and which expert he doesn't, that kind of thing is reviewed very differentially on appeal. the patent appeals court has decided it's going to review everything for itself. it's not going to extend any deference to the trial courts on the interpretation of a patent, and their overarching animating principle is we're the single patent appeals court. be have to make everything uniform. our interpretation has to be what controls. we don't want different interpretations in different district courts to survive show. u.s. supreme court, which is really the final answer, has to decide whiffit believes the federal circuit's justification for reviewing these things for itself or whether we'll see a little more deference to the trial courtness patent cases, and in a whole host of cases involving the software industry or pharmaceutical industry.

these could be -- could really change how patent cases are litigated. right now if you lose before the trial court, you know that the federal circuit will hear the whole thing over again, as if this slate is wiped clean on appeal, and if that option is no longer there, it may change how the cases are litigated. the third case, even more rick for me to talk about than the case i am handling myself because canada is let gaiting -- he is litigating it. >> i'm here to correct you and confident i won't need to. >> one thing that is a constant of the supreme court's quote-unquote docket is securities litigation. and different areas crop up over time, but last term the supreme court heard a significant case in which it promised to think about fundamentally changing its approach to securities class

actions and then didn't. perhaps the biggest bust of the business docket last year. but securities class actions often are brought under a provision of the securities laws that require you to not lie to the market knowingly, but the case called omni care is under a disprovision of the securities law which is also about false statements to the market which usually has no -- doesn't take account of your mental state. it's usually just what we call -- in the law call strict liability. if you say something false in the registration statement for your securities, you're liable, period. however, what if it's statement of opinion? you state in your registration statement for your securities that we believe a certain thing to be true, we believe that our contracts are in accordance with the law. we believe that our accounting is in accordance with generally

accepted accounting principles, and the legal question in this case is basically, how do you analyze one of those statements of opinion for truth or falsity? and added to that is congress in the mid-90s made it easier for security cases to be essentially kicked out of court based just on the complaint, without the parties exchanging documents and going through the process of discovery, because that it what makes cases extremely expensive to litigate. so congress made the other type of cases under the first category of cases easier to kick out on the pleadings, especially if you didn't per swayssive -- persuasively come in with an allegation that the defends knowingly misled the market. well, there's no mental factor in this case so will businesses be able to point the fact that the statement in their document is a statement of opinion and,

say, well, you haven't alleged i believed it was false. or will the test instead be something more objective, whether no reasonable person would have believed it was false, or something else more objectivity that doesn't require you to allege this guy was lying, this cannon's clients are a bunch of liars. >> i'll leave the defense of compliant's veracity for another day and concern to lore rhythm lori will talk about the very important question of the circumstances in which the destruction of fish may cause you run afoul in federal law. >> you want me to start with fish? >> it's a securities case. >> well, all right. i will start with the fish case, otherwise known at yates vs. the united states. the court the court will consider in this case is whether mr. yates, fisherman, was

dedeprived of fair notice that the destruction of grouper would fall within a federal statute's prohibition which makes it's crime for anyone to knowingly alter, destroy, mute laid, cob seal, or make a false entry in any record, document, or tangible object, obviously such as a fish, with the intent to impede or obstruct an investigation. for context are this provision is part of what is known as the sarbanes-oxley act, commonly referred to as the antishredding provision. but in this case the government was creative. no offense. >> don0s argue. is going to be it isn't an offense. >> the government was create consecutive and used the statute to prosecutor a fisherman for allegedly tossing three undersized groupers back into the gulf of mexico. you cannot make this stuff up.

the court is hearing this case. yates -- the fisherman, says the term, tangible object, is ambiguous and undefine ned the statute, and like nouns accompanying the other nouns accompanying tangible obtuse its possesses no recordkeeping, documentary, or informational content or purpose so goes the argument. he had no fair notice that his conduct of throwing back the undersized grouper was prohibited and so that would be a violation of the due process clause to convict him. so, this is actually -- it's a criminal case but actually a business case. so the u.s. chamber of commerce has weigh ned, in support of mr. yates, which i notable, and the chamber argues that consistent with the text in context and the legislative intent of this antisome redding provision itself should cover only documents, records and record-keeping devices, rather than sweep in the actual inventory of goods, and the chamber's brief warns the