maybe you have a weapon or something like that. but this is a warrant to do whatever. it is a little-known fact. >> that they have a reference to keep them up-to-date on the technology. >> [inaudible] [laughter] that violent do violent videogames thatcher remember when she was expecting concerned about the breath of the ban in the statute she made a comment about the clerks back up the chain so they can get educated. >> and justice sotomayor mentioned she's a fan of technology and has more than one device and i think just having that degree of diversity on the bench and technological experience diversity for one's is important.

>> disney hd or whatever it's called. >> okay let's go to this gentleman right here. we will ask all of you if you could just introduce yourself and tell us if you have any affiliation and then ask your question. >> i am an adjunct professor at georgetown university law center and i would like to ask professor kenrick can you please tell us what is the procedural history of that case? >> so this is a case that arose as a third circuit. so, he was in the process of splitting up with his wife were moving out from the family home. he made some threatening statements on facebook about a coworker and got fired for that and was continuing to make a more threatening statement. most of this was through his facebook account. so, eventually he is charged --

mostly it's about the statements with his wife although there are other statements. there is one about how many kindergartens are nearby and how many -- now i'm getting into the statements and, you know, with one weapon how much damage you could do at a kindergarten and the only question is which one and these sort of things. as people began to investigate him, he began to pile on at it and find some new targets in the speech, so eventually he is arrested and he's brought to trial. it's a pennsylvania case. the instruction that's giving up a try to lift standard that i was mentioning about the reasonable person, what a reasonable person would think that these are threatening statements. and that standard was upheld by the third circuit on the appeal and now what we have is in his seeking the supreme court, it

seems likely, of course the court doesn't disclose what the reasons are but it seems likely that fact that there is an established circuit out with the standard is, it probably had a lot to do with them granting the case. they recently looked at it and passed on another case raising the same issue. perhaps they thought that case had some issues that would stop them from getting to the sensitive question, but that is how we wind up today. >> was he arrested come in jail, charged with a crime or what? spinnaker there is a federal statute that is a federal threat statute and he was arrested and charged under that statute. it's also not clear from that statute with state of mind you need, which is why part of this thing has become become a first amendment issue because there is not a glut of clear direction from the statute about what is necessary. but yes, there is a federal

threat statute under which he was charged. >> as the first questioner graciously demonstrated and i also ask if you could stand when you ask your question if you are able to. we are not going to ask you to lift 70 pounds but it gives the camera a better opportunity to find you. did someone begin to say something and i stepped down okay, sorry. i'm hearing voices. the gentleman with the microphone is next. >> gabriel hopkins. a lot of the topics that the panel has covered our kind of hot button issues and i'm wondering if there are any sort of sleeper cases out there that makes it very dry in the service or maybe procedure issues or, i don't know, financial issues -- spinnaker that might have a larger impact that the people might not be anticipating. >> of course. thanks. >> anything that comes to mind? i have a bunch of those. [laughter]

the one that will have the most significance for the nation's economy is basically about whether states can regulate the energy markets or whether or not it is only the federal law that controls the state or the many billions of dollars and the question in the case is ten states protect consumers with antitrust laws or is the federal government won't preempt and sweep away all the state laws that makes the federal law supreme over the state and the federal government congress has regulated the energy markets for a long period of time and the question now is how they occupied the field basically basically, have they pushed away that state regulation or if the states can regulate them we have to play by the lowest common denominator and operate, you know, toward whatever the most restrictive state is whereas if it is a national we have more

certainty and predictability and again, kind of dry but something that is going to matter on everyone's energy bill each month. >> here is another case. i don't know that it will necessarily have broad input but it's relevant if we think about the amount of crisis and the number that was lost in the foreclosure and this case asks whether a homeowner who has a mortgage and wants to rescind that mortgage writing within the statutory period can do it simply by contacting the mortgage lender in writing or must be initiating the suit to rescind the mortgage, and obviously the higher the bar of the more difficult it is for the precision the more likely you were going to find folks facing foreclosure and so the economic impact of that case is something that we should probably pay some attention to. >> i want to to follow-up on one thing neal said. generally speaking, when you ask

the question -- [inaudible] >> i'm putting words in your mouth, sorry. the sleeper cases, that is a better way to put it. neal immediately brings up the preemption case and i think that generally it is such an underappreciated part of the supreme court docket. i think that partly people don't put all of the preemption cases together because they arise under so many different statutory schemes as so many different subject matters areas, but it's a hugely important question of who gets to decide questions come at the state or federal government and everything from the liability to the energy regulations are doing lots and lots of preemption cases and it's important to keep an eye on. >> we have time for plenty more questions. it is nearly six:17 and i know that he has a pressing engagement to believe for so if you see him get up and leave in the next three or four minutes, it's not anything you said.

thank you. we will probably be in some discussion. [applause] >> i have a quick question all of us us appear either have to teach or have taught. steve has students in the audience. could you identify yourself if you are a part of his class? some students are from my penn state class. let's get a look at you as well. we are penn state. it's not a competition. a former student, okay. and the teacher evaluation forms will be available in the program. >> okay. who is next? the woman here has disappeared strangely enough. we will go to you. >> i'm an attorney at the department of justice and the civil rights division. i'm interested in the pregnancy discrimination act case if you have a prediction for the outcome given that the solicitor

general did say that they think all of the circuits got it wrong and whether the supreme court who will address whether the amendment act does affect pregnant women. >> if i have to guess where the court is going to go with this if it looks like the court here and the other -- this is the fourth the fourth circuit but other courts that have wrestled with this are getting it wrong and this is not consistent with what congress intended when they passed the pregnancy discrimination act and a lease to the extent that the amendments to the americans with disabilities act should have at least boosted that argument that doesn't seem to be helping either so i would guess if i were going to predict that the court will rule against the united parcel service.

>> i'm with abc news. >> can you stand so we can get a better look at you. we want to make sure who we are talking to. >> i just have a question i had to be looking at facebook and i think that i have no idea, i looked up and i saw that there was the same name with a posting so i want you to talk sort of big picture. either way the court rules, what is the impact on the average person who posts on facebook, what is the sort of big picture impact of the case? >> you are talking about current posts? >> i can't say for sure but i thought it was interesting. >> wordy over-the-top? the >> i think the law professor in me resists the idea that what the case is about and what we should think it is about is the wall of face that. there is a kind of risk of

creating what we like to call the law of the horse, the wall the law of dan and anna object or particular meeting or something like that. and in the first amendment area by and large, the supreme court has resisted giving that. they want the rules here that are all purpose that apply to people who were speaking face-to-face publishing a newspaper, publishing on facebook, whatever. that doesn't mean they are not sensitive to the fact that the media change and that this is probably not a standard that is going to get played out through the facts very much. it's going to get played out on facebook and put her and other things that they want something that isn't medium sensitive that applies across all of the media. and i think whether they are thinking of facebook or whether they are just thinking about people speaking or whatever, partly they will be concerned about the question of is our standard something that is going

to show people who engage in a speech that the speech that is borderline but is ultimately protected cut is by tuesday by and large historically the first amendment they worry about the impact of the rule for the unprotected speech have on protected speech. the question is what kind of rule that you need to have two make sure you feel comfortable posting on facebook to make sure people for comfortable engaging face-to-face. by the way that isn't the only thing that we could be worried about here but it's the type of thing that your question raises and it's one thing they could be concerned about. how could we decided to sort all of that out, i don't know. but what they will not be trying to do is make the wall of facebook. >> i don't know if you would agree, that if they opt for an intent requirement if it is in the statute or the first amendment requires it, then i think that gives you a lot more leeway in all of the rounds of

speech. you can say things that if the requisite intended is not there and you probably can continue to say. if i post on facebook and say if you don't take that picture of me down i'm coming after your family, if it is a reasonable person standard, then i may be more in trouble in that post and if it is an intent requirement. it would be clear you can't tell that i really intended to make a threat in those circumstances. but a reasonable person might have helped prevent in the circumstances. that is a sort of simple version of the difference between the two standards. >> sorry. but i think that -- that is exactly right and people proceed on the understanding that a subjective intent requirement would be protective of them are speech and harder to prove that someone had the requisite intent

to say that the speech is unprotected but it is a tricky thing and ultimately in many cases to juries are going to be deciding authority is going to come down to the evidence you're a question about what do we read and what gets what and by the let in by the judge and, you know, contradicting the assessment of what someone's intent is is kind of a hard thing to do. so, it is -- it depends on how to implement that. if it is a question for the judges, type of evidence is relevant. >> and if this gets a new trial the intent is required i'm not sure that he wins. >> that's right. >> it's interesting because they could get those outcomes. they could use this as an example where the language is so strong that you can invert the intent that it doesn't set the broad precedent. >> thanks. who is next.

>> i am a politics policy scholar at american university. and a general question what is the court's recent decision in american express versus the future of the class action lawsuit and do you see these types of lawsuits administering a number in the future of the position? >> are you one of the professors students? extra credit if you are. [laughter] >> we will find out who that professor is. [laughter] >> i'm not a civil procedure expert. the court has been really hostile to the class actions in recent years and there have already been a significant reduction in the number of class actions in the court and the requirement by the court into the commonality of interest of the parties in the class has to be much more rigorous than

before the rulings of the last few years i think i've made a class-action more difficult. >> that is absolutely right that makes it difficult to bring the class-action lawsuits which a few years ago that also narrowed it down and coming you know, preceding that there had been a huge attack on the ability of the lawyers in these specific cases. but i think that we often ignore is how we proceed to the rules how they have an impact on the vindicating of rights. so when we talk about the substantive case is quite a bit and the rights are at stake but they are only enabled by these procedural rules and so they are as consequential in many ways as the substance is delivered to the substance if you don't have the right to procedural entrée so i'm glad you raised that question. i don't know of any cases on the docket this term that are

pending. but who knows. >> i think that we have time for one more question if someone has one. guess right in the middle. >> i am an attorney on capitol hill. just had a question about the alabama redistricting case and whether it is the section to ball in play. >> that is a great question. >> can you explain what that is? >> i talked about section five already and that is a part of the voting rights act limited to the specific jurisdiction that was limited until shelby county they basically put that on hold. again, it prohibits any voting practice procedure or policy that has a discriminatory impact on the community and that lesson in any way the ability of the communities or the voters to

elect a candidate of choice to exercise the voting power. so section two was raised in the case and it hasn't been the focal point. the defense was compliant with section five. section two had been left to develop. of course we are concerned that the court may decide to reach into section number two. there may be arguments about the constitutionality. i don't think that this is the case that his team that up squarely so i don't think the court is going to reach that far to get to it but that is always a concern because that really is at this point the last piece of the voting rights act that is in effect to really provide the broad protections against the racial discrimination into the political process they are still

unresolved i want to say a couple of words of thanks to our friends from the american bar association and mark cohen in dc and kathy back in chicago that couldn't be here. also, if you want any more information from the wilson center or the division for public education, please check our website. that's where people are joining over webcast or c-span can get a copy of this really useful publication. i want to thank all of you and the audience here in the room, the audience in the overflow room and the audience watching on c-span and also on the wilson center webcast and then i want to ask all of you to join me with one final bit of business which is thinking of the outstanding panel. [applause] >> thanks for coming and thanks for watching. [applause]

>> we are expecting an announcement that eric holder is resigning as the attorney general. president obama is speaking from the white house this afternoon at 430 eastern and we plan to carry his remarks live on the companion network c-span. white house officials told the associated press that the attorney general will remain at the justice department until his successor is in place. the first black attorney general eric holder served since the beginning of president obama's first term and was previously a federal prosecutor in a judge for the superior court of the district of columbia. we want your reaction to the attorney general's resignation. join the conversation at facebook.com/c-span or hash tag c-span chat.

the supreme court begins hearing oral arguments in early october. some of the cases involve the role of race and a drawing congressional districts, protections for whistleblowers and the religious rights of prisoners. "new york times" supreme court reporter adam liptak moderated about the upcoming cases. this is 90 minutes.

>> [inaudible conversations] good afternoon and welcome. it is the season of the supreme court preview. and this is the federalist society version and it is a very good one. this is also the season where you have two kinds of cases before the supreme court. they've granted perhaps 40 cases, some of them quite interesting and you will hear about them today mostly. also on on verizon there are some real blockbusters that could really transform american life including seven petitions the justices will continue at the first conference of the new term on september 29 concerning a question of the constitutional

right to same-sex marriage and not far behind that, a challenge to another aspect of the affordable care act and perhaps also on the rise and, conceivably disturb affirmative action and abortion. so, you have two things going on at once as it is so often is so often the case with the court. we have today with us a very distinguished panel. i've never been to a panel that was not introduced as a very distinguished panel, but this one authentically set the mark. with us today teacher at george washington. quite plausibly to say the nation's leading expert on the fourth amendment and it is a pleasure to have him here. he is a clerk to justice kennedy. well a partner at the firm and a clerk to justice thomas. virginia was recently gone back

to her practice in austin after serving as assistant attorney general in the office of the legal counsel at the doj and she was a clerk to justice brennan, adam white, counsel at the grant associates and well-known to a lot of us as they frequent contributor legal matters to the weekly standard of wall street journal and other publications. the policy director of the judicial crisis network and also a voice in the media and she clerked for justice thomas and i should introduce myself. i'm adam liptak and i cover this up in court in "the new york times." what we are going to do is set up a dozen different cases mostly granted a couple on the horizon moving from panelist panelist with maybe a little bit of exchange between us if

somebody has an insight of dissenting view to add a brief discussion among ourselves and then we will turn to your questions. thanks for the invitation here. i'm going to run through three cases in five minutes so it's going to be really, really fast. just introducing the three cases and then of course we can come back to them later if you would like. so, one of the cases in the term, raising the question which i know is on everybody's mind which is our red grouper fish tangible objects under the sarbanes-oxley law this is a case involving the accountable statute that makes it a crime to knowingly destroy, alter or mutilate any delete any record, document or tangible object. the question in the case is whether the tangible object means a storage device for some sort of record or document or whether it means just anything that is an object that is

tangible. the fact of the cases drawing a lot of attention and i think properly so. it's involving an individual who allegedly was convicted of ordering his employees on a fishing boat to throw back red grouper that were undersized facing an investigation of several violations of harvesting fish that were too small. the question is whether the fish are tangible objects. it is a statutory construction case involving how broadly to construe the sarbanes-oxley law, and i should also add that i joined the amicus brief on the defensive side arguing that the statute should be narrowly construed under the rule. so that is gaetz versus the united states. the face of threats case involving a question of how to construe the interstate statute

section 875 involving punishing the transmitting of threats it involves an individual who posted on his facebook status update involving what could be construed as threats against his wife come at one point he threatened to go to an amusement park or go to a school and commit a violent act in the school he argued that it was simply he was joking around and he's an aspiring rap artist and he is talking about true threat jurisprudence and it is a sort of odd situation and what is the true threats about what is the true threat. the first issue in the case is whether there is a subject. based on what a reasonable person would think or of the

individual subjectively believes it is a big line because if you read something online and you don't know what the person was thinking how are they really intending that is a threat it would be hard to tell from the context and then if the court construed the statute not requiring the subject of the intent requirement, the next question is whether the first amendment allows that and whether it is the first amendment prohibits a negligent statute effectively. as as the mother is a statutory question and then also the first amendment question of the court does not resolve the case of the statutory grounds. and then i should add that i gave a small amount of assistance on the defense side for that case. the last case i want to talk about is north carolina the fourth amendment case involving reasonable suspicion the north

carolina traffic law, the individual in the car was stopped because they have a tail light out and the officer pulls over the car and finds drugs in the car. the north carolina court of appeals construed the statute as requiring a stop lamp area that is you only need one operating tail light. this is a traffic law that was drafted a long time ago. and so, the court says well, there was no violation actually totally lawful in north carolina to drive the one tail light out. news you can use. the question in the case is whether you can have reasonable debate could suspicion to stop someone under the amendments based on a mistake of the law that is a reasonable mistake that you think that it is not unlawful or whether you have to hold the government to the law as it is actually construed by the court even if that construction happens later and

is a kind of counterintuitive. so that is a question in the fourth amendment about how you interpret the reasonable clause if there is a counterintuitive reading of the law that happens later, do you hold the officer to that interpretation or not so that is a quick run through of the case. >> you are one of the rare panelists was told to spend five minutes and spend even fewer than five minutes. let me ask you a question about this last case and in general, you have avoided giving a kind of take on the right answer, or a prediction about what the court might view. i wouldn't mind each but let me ask you this on the tail light case in my right in thinking there would be a gap on the criminal defendant who as i understand from all of the cop shows that i've seen can't say i didn't know that was the law therefore i get off and pick off saying i didn't know that yet i can search your car.

>> i think -- my own view is the defense should win in the case. it's easy for the government and in a traffic context it is hard to drive without violating the traffic law. and that was a was convoluted 1 mile an hour over the speed limit. so, it's not like the executive branch of a state or federal government lacked the power to go to the legislature and say okay. we should have a wall that makes it unlawful to drive with a broken tail light for this is something that is easily fixed by the legislature and ultimately if the court was right, then it is the construction of the statute but i think you have to assume they were. the individual that is driving is doing absolutely nothing wrong and shouldn't people over for it. >> and what do you suppose that the court will do? >> it's hard to know.

what makes the court a little bit tricky is that you can interpret this in two ways. it isn't handling the remedy aspect of the case. so you could say that it is an unlawful violation but there is no exclusionary rule and it's the same results if result if you said that it is an awful. i suspect that if the court that the exclusionary ethics of the two they would say that to the exclusionary rule doesn't apply and so they may say it doesn't -- it may be a case that ultimately makes no difference and conceptually interesting but it may not have a whole lot of ramifications. >> i have two cases to cover. the first one in the one sense it comes off as a very straightforward question of federal law under the religious land use and institutionalized persons act of 2000. this statute grants religious freedom to people incarcerated in state prisons when the state prisons accept federal funds.

arkansas does accept federal funds and they restricted an inmate who for religious reasons wanted to grow a half inch beard to a quarter inch beard. the question presented here is was the least restrictive means available to advance what the institution claimed was a compelling government interest? there was an extensive hearing in the district court. the present one largely based on the difference to the administrators. before the last term, you might have thought that is likely how the case was to come out. i think what has happened in the interim is hobby lobby. i think a lot of people are seeing this as a direct follow-on. there was a different federal statute but they are seen as companion statutes and interpreted the same and i think that the harder question now is given but the court did not case why doesn't the inmate have broad religious freedom here and what you're going to see in this case is a tension between the

courts historic deference to court historic deference to the prison administrators on how to run a prison. there is a lot of evidence in the state's brief, which demonstrates and illustrates some of the things that can be hidden in a beard. weapons, contraband, you know more than you might think in a half inch beard. at the same time, there were lots of alternatives offered as to a way to accommodate the interest and also meets the safety needs which the eighth circuit rejected and so here you are dealing with a situation of the inmate having a very strong case in terms of the rights to religious freedom and the right to practice it as he sees fit. the second case involving alabama redistricting and one brought by the alabama democratic conference and another brought by.

we are going to walk through the various issues going on. essentially what happened is after 2010 alabama faced a problem and the problem was they had a majority minority district that was underpopulated and so, when you cut through all of the legal jargon but you get down to is the fundamental question that you have to move people into those districts. are you going to move the minority citizens into the districts or are you going to move white citizens into the district's? alabama was facing four different legal regimes that they had to navigate in order to decide that question. number one, they have to had to meet one person and one vote which means roughly equal population of every district. second, they had to deal with section number five of the voting rights act which says you cannot retrogressive minority voting power so if they move in oregon at which a belief that if they moved people into those districts that would reduce the minority voting strength in the

districts. however if they move the minority citizens into the districts they run into an equal protection problem because and passing the districts to create safe minority districts and then undermined undermine the broader representation will write another districts and that would violate the 14th amendment and then finally they had to deal with section number two which creates arguments both along the equal protection and section five grounds so what alabama did his focus on one person and one vote and in their arguments to the exclusion of the other issues they wanted for the special three-judge panel and the dissenting judge said it didn't have strong enough argument that they were packing and that that is the way that the court has accepted the review. >> i welcome comments from the other panelists but let me ask a question about each of the cases. do you think it makes a difference in the prisoner case that wants to grow to half inch

beard but four states and the government seemed seem to think there's no security problem? >> i do think that made a difference and i think it will bear on the outcome of the case. we are seeing a variety of criminal cases particularly in the area that we've seen where the court does care about the other states and the issues of prison security. >> on the voting rights case without getting too much into the weeds, do you all recall that in 2013 the court effectively struck down the key feature of the voting rights act section five which required the states with a history of discrimination to obtain the so-called preclearance to get the permission of the federal government either the justice department or the court in washington before it could make changes to its voting procedures and section five was the reason offered by the alabama officials to do what the plaintiffs say was packing. now that section five has gone

the way away does that change the contours of the case? it is a competitive issue. i think the answer yes i was one of the lawyers on the legal team and it is a very strange place. if the court were to find if they do work at the general's office which is vacated the decision below and send it back for a better analysis you're going to be vacating the case on the ground about no longer may have any pertinent to the case. how much capital was the court going to want to invest in interpreting the substantive standard but it's that it no longer applies and it's been in the briefing. that is a case that involves a conflict between the president and the congress into a very

controversial difficult setting of middle east domestic and international politics. of the foreign relations authorization act directs the secretary of state on the request to record the birth country of the american citizen born in jerusalem and israel on the person's u.s. passport. president bush signed the law but said this requirement is not consistent with the president's constitutional authority to conduct foreign affairs and more specifically with the president recognition power if it in fact requires the domination and. the state department has since the passage of the statute in 2002 refused to enforce the law as part of either palestine or israel. they were the u.s. parents living in jerusalem when their baby was born in this case

arises from the state department's denial of their request that the request that his passport indicates that he was born in israel. his child was born in 2002 civic demonstrates that it's been controversial since the beginning, and in fact this is only one of the sword of possession of the statutory provisions that create conflict between the executive branch and congress pushing towards the u.s. policy towards the recognition of the israeli sovereignty over jerusalem. so the supreme court has seen his case before and a couple of years ago the dc circuit has held that it was the case the conflict about whether it was a statute that have to be observed or whether the state department could rightly be assessed with a political question. and that if she went up to this banquet and they said no its not a political question and so now they are going to reap what they have so much as they have to decide the question about whether the president indeed have exclusive recognition authority or whether what the

congress has done is within its control over passport and over the regulation of immigration. and so it isn't really a significant infringement and doesn't amount to an official recognition and so i think the court is going to find itself in a very difficult question having to resolve this power question between the executive branch and congress. the dc circuit held that the president's authority was exquisite and plenary and in fact that this requirement the congressman posed would infringe on the recognition power. in part i think the statute itself creates a problem here. the statute itself says that it is the policy of the united states that jerusalem is the capital of israel so this is one of the things that creates a significant infringement upon the president recognition authority opening up somebody's passport and seeing the word israel ends of the word

jerusalem but it doesn't change the sort of practical reality of the situation from the point of view of the state department which i think is that if the supreme court were to reverse and say the statute has to be forced there would be a perception in the state department in the middle east that the united states had retreated from its long-established policy of neutrality on the status of jerusalem. so there is a sort of practical problem of perception presented to the supreme court in the case as well as the sort of difficult constitutional introverted questions about whether the president recognition authority is exclusive as it has been fought since the time of george washington and whether this particular statute is a infringement on the exclusive recognition authority. is it extremely difficult and important case that creates theoretical and practical difficulties for the court. >> in a much more normal area

which is the labor employment while the court at this point ran it by its leader and limit cases and four of them involved two additional issues of statutory interpretation. the question whether certain thing is kind of double the question of interpretation of title vii. a very important case of the pregnancy discrimination act about exactly how the prohibition on pregnancy discrimination should be interpreted. but i'm not going to talk about any of those cases. i'm going to talk about the labor case that was granted that involved the case and it seems notable to me because for ten years people have been petitioning the court to grant this issue and it is very difficult to see why now after ten years of conflict among the 63rd ave. seventh circuit about the issue they would all of a sudden grand mal so the question is way back the unions routinely negotiate for healthcare benefits, retirees and the union

as well as active employees. it's been going on for decades. i used to represent the steelworker contracts and negotiated provisions for health care for retirees. a couple decades ago as healthcare costs started to accelerate substantially, employers were operating under increasing burdens of healthcare cost and started to think about things like using hmo instead of other kind of planned thinking about cost contributions, copayments and as they were changing the plans but why did the retirees they would sue and it's a buy health care benefits were vested. i acquired a vested right to lifetime benefits and under this collective bargaining agreement. the sixth circuit in the case said yes when you think about what retirees must have presumed that the point at which they'd retired almost any language in the collective bargaining agreement that talks about duration should be interpreted

with a thumb on the scale towards the belief that retirees had lifetime tested benefits. fast-forward a couple of years and healthcare costs continue to accelerate and it gets to the issue that says no if there isn't a clear statement that the benefits and/or beyond the duration of the collective bargaining agreement, then the benefits are not vested for life. the seventh circuit ended up coming down somewhere in the middle saying we need some language that is indicative of the continuations, to define the lifetime benefits, but we don't require a statement the way that the third circuit does. there have been three since the conflict stabilized. i've been racking my brain thinking why it would be this year above all others and i think some of the explanation is in the sword of increased public attention to the availability of healthcare to increase the public interest in what kinds of

where and how you obtained the legal right with certain kinds of healthcare coverage. but that is pure speculation on my part. it's been a long-established conflict and a very important area to the employees that retire on the fact that they have healthcare coverage for life and for employers to face increasing healthcare costs that they simply don't know how to manage as they negotiate new contracts with their unions. very important case i think even though it is not on the -- it isn't a case that is going to get the most public notice. >> let me take you back for a second in the case. i'm scratching my head and i see a reference to the president's power or duty or obligation to receive the ambassadors but where else in the text of the constitution is this recognition that you speak of? >> i think the source of the recognition power is in the president's authority as with the what the court has long held as the sole instrument of u.s.

diplomacy or international relations. back in combination with the receipt of the ambassadors provision and the fact that since the time of george george washington president has acted unilaterally in connection with recognition, it is what i believe the government will rely on to say it is plenary and exclusive authority. >> adam? >> i'm going to talk about two cases that discuss the relationship between congress and the courts and the administrative state. these are both cases the supreme court has agreed to hear and furthermore they are both cases in which my firm is filing amicus briefs. the first case has to do with the department of transportation against the association of american railroads. the basic issue is in 2008, congress and the president passed a law instructing amtrak jointly with the federal railroad administration to promulgate new regulations

regarding the standards for the performance of the trains on the tax. the catch is that amtrak is basically a competitor with the other trains that are going to be regulated by these rules. they have passengers. the other trains are mostly great but they are competing for scarce time on the tracks kerry is so needless to say the freight rails were none too happy about suddenly being regulated by one of the competitors. after amtrak promulgated regulations, the trade rail suit in the district court saying that the statute violates the non- delegation doctrine. now for the common law or administrative law when you hear nondelegation docket you might think of the so-called intelligible principle that the congress has to specify for agencies to administer. this is a slight variation. in 1936 the court decided a case called carter that set up a world that rule that congress can't delegate rulemaking power to private entities. the challenges in the case say

that it is a direct application of the case. amtrak is private and therefore it can't exercise rulemaking power. that's pretty straightforward but it leads us to the second issue in a case namely is amtrak private or is it government? a good friend of mine when he heard about the case he said to me if you have any doubt that amtrak is government, just try the food. [laughter] is a little more nuanced and it says amtrak is not a department or agency or instrumentality of the federal government rather it is to be operated as a for-profit corporation so there is going to be a big fight in the indicates over whether amtrak is public or private. the second case i am going to discuss is called perez. this is a case about in what circumstances does an agency have to go through noticing the comment rulemaking before it changes its interpretation of its regulations?

we all know how an ability comes to law and we all know how when we promulgated regulations for the most part we go through the notice of the comment rulemaking but what happens when an agency changes its interpretation of the rulemaking and the labor department has in the past interpreted regulations regarding overtime pay for administrative employees. the question was are the mortgage loan officers administrative employees who are exempt from the overtime rules? originally were in the past in 2006 the labor department said yes they are exempt from the overtime rules and in 2010 the department renewed debate to reduce to the regulation instead of know they are entitled to overtime pay. so the mortgage bankers association challenged the rule saying that because the labor department made a significant change to its definitive or authoritative interpretation of the rule is needed to go through the notice and comment rulemaking before making that

change but here's the catch under the administrative procedure act basically sets the standard for the administrative procedure, there is a black letter rule and interpreted rule in the policy statement and guidance exempt from the notice in the combat requirement that in the dc circuit has a couple of precedence which say that when an agency makes a so-called significant change to the past authoritative or definitive interpretation, they do have to go through the notice and comment rulemaking because it is more than interpretation. they are in effect changing the rule. now the dc circuit decision sparked as no small outcry among the administrative professors 70 of them i think filed amicus briefs urging the court to hear the case saying that the dc circuit standard is just completely wrong and is at odds with the administrative procedure act and they compared it to the cinema beneath the seminal which the court said the appeal cannot add on to the standards already set forth in

the administrative procedure act. so it is an interesting case. cases like this might seem like they are very narrow issues. but in the last few years, there has been an interesting series of cases in the supreme court about the relationship between the courts and congress and the agencies. a few years ago justices only yesterday did to question the amount of deference deference for the court deference that the court should give agencies and interpreting their own regulations. recently there was a case called the city of arlington about the course of the first to the agencies interpretation of the road jurisdiction. there was a case called the regulatory group about the extent it was a statutory tradition case and at the heart of it was that epa efforts to sort out substantially interpret some would say to rewrite the straightforward numerical standards of the clean air act and i think that the healthcare exchange act case is in a cell

or vein. what is the theme that runs to the cases and and doesn't divide them ideologically? >> in terms of the divide it actually cuts across the justices. the administrative cases cut across in different ways. we see this especially with justice scalia who on the one hand people, a lot of conservatives cheer him on when he started to question the deference to the interpretation of the rules. but then in the city of arlington casey writes the courts opinion saying that the court will continue to divert the agency interpretations of the agencies and jurisdictions. so the justices line up to justice breyer, justice thomas is a interesting things in the case and chief justice roberts as well. in terms of the theme maybe i'm over thinking this and maybe the

justices take the the cases one at a time and and they really stand on their own merits. there isn't a connection. but with me i do think that there is a sort of broad, not broad rethinking, but there's much more thoughtful reconsideration of the relationship between the courts and the agencies in terms of deference and in terms of congress. the president and the agency and in terms of the separation of power. stacks of you giving you a nice overview on the docket already and you can judge for yourself how good they are. i would suggest that at the end of june they are not going to be on the front page of the newspaper. but a couple we are going to discuss that might well be. >> i have a challenging job which is to look at what is coming up and if the court is sitting at the long conference where it considers a huge number of grants may be the cases i'm talking about be considered them so much of what i'm saying could be moved within a week or we will see what happens.

at any rate, at the bottom all the issues that i'm discussing even if they are not considered by the court this term are something that the court will decide at the end of the day if not this term next terms with it turns out they don't take the cases, i would've exactly the same talk next year. the first case that atom even get to is how big are the cases. these are the next big challenges to the obamacare regime. this one actually is interesting because the challenge is actually trying to get the text of the affordable care act enforced literally according to how it was done. so it's not trying to overturn the portable care act of destroying to enforce it against an irs regulations. in the act is a provision that the subsidies provided for the available plan to purchase and the quote is an exchange

established. so the irs in the face of a unexpected 34 states that did not establish an exchange act wanted to make sure the subsidies were in fact available nationwide and not in the minority of the state so they interpreted it as a going back so going back to the question of the agency's interpreting the statutes and what the leeway they have been doing that is the interpreted it in a way that had been called the somewhat of a mismatch with the statute. they said an exchange established should also include exchanges established by the federal government because of the cases where they did not established the exchange they did so instead we have a group of individuals and in that case a group of individuals and employers who sued arguing that this was in violation of the law

and that the agency may have the right to interpret the statute but they do not have the right to rewrite the statute. that is for the congress to do. and in this case, it is the implications are not only that the people in those states would not get the subsidies, but also that millions of people in the state who are also not subject to the individual and the employer mandates as a result of the subsidies being unavailable. so, the numbers i've seen are about 5 million people that would come if the irs is incorrect, if the text sort of agrees that the plaintext getting about 5 million people would therefore not at subsidies but another 8.3 million wouldn't be subject to the individual mandate and 57 million would not be subject to the employer mandate. so, there is huge implications for a lot of people obviously the majority of the states are involved. that are involved. what we saw in the two cases basically the morning of july 22 at the dc circuit held that this

was an improper interpretation by the irs. normally the number one thing that does that the same court is looking for in granting the case of the circuit split the plaintiffs that have lost wasted no time filing of the amicus instead of the normal 90 days they turn it around in nine days and then it could have almost been practically considered by this first conference because the government was given a 30 day extension in october possibly early november by the court. is there a possibility that the court has now composed of 87-for majority of the appointees that if they vote as many as have predicted as a partyline they

would overturn the decision of the panel and will erase the circuit split for the question is whether the court would even take the case given the fact that the split is in question. i think there is a lot of argument as to why they could, could the court considered the cases that are major questions when there is not a circuit split i think there's also a good or demented even if there is a circuit split at the time that case is argued, there is a good chance there will be a circuit split sometime down the road. ..

>> of course, it may be a tax, it y not be a tax. so whether you feel like it's a tax or not might fit into that question. whether the statute is, in fact, ambiguous and whether that interpretation is reasonable. so there's that. and i think it also fits really well into the theme of the growth of federal government, the growth of the administrative state and the pushback on some of these constitutional limits on government. and particularly on the constitutional -- the issues we've had with this president, i think, having less respect for the separation of powers and the limits on his own authority by the constitution as long as he's got his phone and his pen. he seems to take a less serious view of his constitutional obligations than maybe some

people would think he should, and i think the court has definitely pushed back on that historically in the last couple terms. we've seen the solicitor general's office has had a pretty dismal success rate, and i think some of the aggressive positions of the administration may play into that. the second set of cases is the marriage cases, and this is even harder because there's a slew of circuits that are, have petitions already on monday's conference. the fourth circuit, the seventh circuit and the tenth circuit all have multiple cases that have petitions out there. there's also decisions that are, could come down at any point in the sixth circuit and in the fifth circuit and in the ninth circuit. one challenge is there's not actually a split right now. in those cases there's a split, but it may go away. in these cases there's not a split yet. all the circuits that have considered the issue have looked at it the same way. they have all overturned various state laws and constitutional amendments that limit marriage to a man and a woman. and the laws that have defined

it that way going back to statehood, in many cases. how the court will take the cases is hard to predict. we had justice ginsburg just a week or so ago commenting at the university of minnesota law school that we have to kind of wait for the sixth circuit to find out what they do to figure out whether there's going to be a split. so she seemed to be suggesting why rush into these cases, there's no split yet, we'll wait until one occurs. i think it's reasonable to believe there may be one, the sixth circuit oral arguments in which they considered four different state laws -- michigan, ohio, kentucky and tennessee -- seemed to lean in favor of upholding those laws, and that would create the first split in this issue. there's also the fifth circuit which is seen as one, depending on the panel, that has a decent chance of upholding the state laws, and that has a case that has not yet been scheduled for oral argument out of texas and recently had one in louisiana that was one of the rare district court cases that also upheld the state law.

so which case might be considered, i think there's a lot of very complicating vehicle issues as we would always call it in terms of problems in the various cases. some of them like, for example, the fourth circuit case, it's virginia, a question because the attorney general isn't actively supporting the law, and so you come up with questions much like the ones that the supreme court faced in the california prop 8 case, how do you do when you have the state executives refusing to defend the law? that creates problems. who can defend it? and who -- whether they're allowed to petition or appeal when they've, in fact, lost a case that they wanted to lose. i think both the seventh circuit case and the tenth circuit out of utah have involved many of those -- solved many of those questions. we have states with governors, attorney generals and county clerks who are all interested in supporting their laws. we have an interesting combination, i think, in both of

those cases. you have both a clear case of licensing, marriage licenses within the state as well as recognition there out of the state, whether you have to recognize marriage is contracted in other states and under the seventh circuit i think they have both due process and equal protection clause challenges. that might be a chance for the supreme court to get all of the issues on the table in one fell swoop. all of these cases are, in fact, beating the pace of petitioning for cert that we saw in the king case. they, i think, were for not only the seventh circuit, for example, not only did judge posener turn around his decision a mere nine days after oral argument, but i believe it was only two days after the decision came down that they all filed for -- no, it was five days after the decision that they filed for cert, and everyone seems to want to hear these cases. and all of them, i believe, the states have responded saying we won, but please take our case

anyway. i think this is a rush to who gets to be the case that decides this, whose name is going to be on it and who's going to get to argue it before the supreme court. and i think that could also affect how the court views it as well, because everyone's making slightly different arguments, although generally along the same lines. so in terms of some of the issues, i think, will be similar in either this case or the affordable care act cases because the split is in question. it's an important issue, and it's certainly affecting a large number of people. maybe not the 57 million that are affected by the health care mandates, but there are certainly many people who want to see this solved. and if it's not solved this term, i'm sure the court will have to deal with the case eventually. >> thank you for that, carrie. and i think some of the themes you've touched on are so interesting, i'm going the ask the other panelists to chime in a little bit. but let's take them one at a time. let's talk about the housing and king cases. i don't think you said directly, but it's the undercurrent, isn't

it, that if the challenge succeeds, it's very hard for the law to be sustained, right? the law falls apart. >> i think -- yeah. it's how fast it does so is going to be a question, but having the subsidies unavailable in those states is, will be a severe, severe blow to the law. so not as severe as, like, the original commerce clause challenge to the case, but it definitely would fall under its own weight, i think. >> and if there is that fear, how likely is it understanding that the plain text, you know, is very supportive of the view that you laid out? how likely is it that congress wanted to put such a time bomb in section, you know, 11 -- 1311 sub b, sub 4? >> i think, actually, there's con them rain now evidence they did know what it was. they didn't think of it as a time bomb, because i don't think they thought the states would go

through not establishing these exchanges. i think they thought of it as forcing the states to play ball and be part of -- and get their exchanges going because they wouldn't want to lose the subsidies. but at the end of the day, what congress intended is, first of all, unknowable. you've got hundreds of individuals to look at. and i think for the same reason, isn't actually what the court should be looking at. i think we need to hold congress' feet to the fire, and their job is to write a law, and we're going to interpret the law and not have the irs going back and trying to cover their backs and not have the supreme court going back and trying to rewrite the law for them. if we're to maintain the accountability of the system, we need the congress knowing that its words actually make sense and we don't just throw something on paper and pass it and read it afterwards. you really do need to do your homework up front. >> so sticking with the aca case for a second, i'd be eager for anybody's thoughts on either that substantive point carrie

just made or the point that at least the reporters in the room are very interested in, are they likely -- is the court now that the circuit split has gone away, none the less likely to grant cert on this important question this term from the fourth circuit case? any thoughts on either of those points? you're a hell of a group. [laughter] >> no one wants to actually make a prediction, because we know it's going to 50/50 going to be wrong. >> i'd probably say something. i wrote an op-ed when the rehearing petition was pending walking through the d.c. circuit's history of rehearing and not rehearing cases, and it seemed to me that the places the d.c. circuit had been over the last 20 years indicated that it would pause before rehearing the case. obviously, i got that one wrong, so caveat emptor. but while the debate was going on about whether the d.c. circuit should rehear the case, we kept hearing this is

extraordinarily important, this case is so extraordinarily important, the d.c. circuit needs to rehear it. it's such an important case. it was a little strange b to hear the administration's supporters say that over and over again and then say to the supreme court, oh, well, it's not that important. it's important enough that the d.c. circuit needs to rehear this immediately, but it's not the sort of thing we need the supreme court justices to weigh in at this point. having seen the ferocity surrounding the debate over rehearing, you have to wonder what the justices were seeing and watching because they don't live in a vacuum. i mean, they see all this happening around them, and you have to wonder where the cacophony that surrounded the rehearing request might influence the court's eagerness to just take this case up. i mean, after all, it is extremely important, they said. >> adam, i'll bite. if i had to guess, i would take the court won't take the case at the split in part because i think in they're minds they

think, all right, they're done with the affordable care act. they had -- it was the case of the term not long ago, and it was, from what we can tell there the leaks of the case, dramatic and really a big, difficult case internally. and i suspect they wouldn't be eager to jump back into this unless there's a split which would be kind of the traditional criteria for jumping in. so i suspect they'll wait. >> so let me ask you a counter scenario which is a couple of years ago when they decided the last case, there were four justices who were pretty unhappy and pretty eager to take down this law, and it only takes four votes to grant cert, and those justices might be eager to jam up the chief justice or at least that's one way of thinking about the court. but that's probably too cynical. [laughter] >> even if that cynical view is right, which i'm not saying it is, if that view were correct, i

think that would -- if the case is seen as kind of a way of getting back at the chief justice or forcing them to take it on again, then presumably they fall in the same, along the lines they did the last time. so i think especially if you favor the challenge, it looks a lot more credible coming from a split than it does if there's no split. >> just one more thing on that. in addition to the four justices and the individual mandate case, not to drag this kicking and screaming back to administrative law, but there were five justices last year who voted against the epa's front line arguments in the clean air act case. they said, no, the clean air act applied to greenhouses gases. you can't just claim the results of a contrary interpretation are absurd and then substantially rewrite the statute in order to maintain the program. it seems to me that there are very strong echoes of that epa case in the health care

exchanges case. and there are five justices there, and, i mean, i think -- was it the other epa case last term, the cross-state air pollution rule that justice ginsburg said the job of the court isn't to promote policy they think would be best, but rather to apply the statute as written? i mean, that works in this case as well. >> that may well tell you something where they come out on the merits should they take it, but less about whether and when they will take it. other thoughts on the aca cases? so let me move to the marriage cases which are really very likely to be the centerpiece of this term and turn it into whatever else they take, whatever fish-shredding cases they've taken, whatever facebook rappleyeing cases they've taken. that's going to mark this term, that's going to be a huge case. but let me not get ahead of myself. as carrie pointed out, there is also no circuit split here. what's our thinking about whether this is the kind of case

where the court cares about a circuit split bearing in mind that it's no small thing for federal judges around the country and repeatedly to be striking down state laws and provisions of state constitutions. is that enough or should they wait for a circuit split? i'm going to start calling on people by name if you don't -- [laughter] >> i'll start. i mean, it's a very unique posture, i think for the reasons carrie said, which is they're not getting any breaches from any -- beliefs from any parties telling them not to take the case. and i think that puts the court in a difficult situation here. when you saw how the california case came out last time and the voting alignment in that case and then you see the comments justice ginsburg is making, i do think there's a hesitancy that cuts across, you know, party lines or jurisprudential lines. but at the same time, they're almost being backed into a corner, and i think the sort of upside current which may -- undercurrent is having to deal with all these stay requests which are very complicated,

which are causing, you know, real difficulty in terms of the lower courts. i think there was one judge in, i believe it was utah, i may have this wrong. who said i understand the court has been granting stays in other cases. they're not issuing opinions explaining why they're granting these stays, i'm not going to grant one. so i think it's a in terms of how many stays is the court going to deal with? >> i think the importance of this case so great that they take cases of much less weight just on importance grounds, and so i think they will take this case, one of these cases. >> i think one of the factors that got talked about a lot when the marriage cases were up a couple years ago that hasn't within brought up as much -- hasn't been brought up as much, but even justice ginsburg kept on talking about the aftermath of roe v. wade and the way the court took that case and, in her description, instead of taking a step-by-step view, went broad on that case and as a result has

spurred four years of pushback. you still have people marching on the capitol every year. totally transformed the way we look at judicial nominations, it's the litmus test. do we want marriage to be the next roe v. wade? i think that in some ways it may be the court isn't going to to be able to avoid looking at the issue, but i think that's something the court is concerned about and maybe this is part of the reason she was suggesting maybe we want to wait as long as we can before getting involved this this case. the challenge, as will pointed out, is that we do have almost, you know, a fever of lower courts that are just rushing as fast as they can to overturn every state law that they can find. and so whether the supreme court gets involved or not, you certainly have courts who have gotten involved, and so whether you still have the case of courts overriding democratically-elected positions and laws. so it may be impossible for the court to avoid the specter of a repeat on that and such a

controversial issue. >> well -- >> go ahead. >> one of of -- one wonders what justice kennedy is thinking. i mean, on the marriage cases it's especially so, right? i mean, the precedent that everybody's looking to is the windsor case, the federal defense of marriage act case that justice kennedy wrote, and he wrote about liberty, and he also wrote about state authority and federalism, and it wasn't clear really to anybody at the time where he was going with this. so what we've seen in the the aftermath is a lot of federal courts focused on their version of liberty with really much less care for state power and federalism. maybe justice kennedy's happy to watch this all play out. on the other hand, maybe he's looking for another opportunity to clarify what he previously wrote. >> so it is the case, though isn't it, that justice kennedy is the author of all three major gay rights decisions, it is likely to be his legacy.

and it would be a little bit surprising if he would take a turn now when polling numbers and the courts and so much of the nation is moving in one direction. or do you disagree? >> i'm not going to make any money betting on what justice kennedy's going to do in a given term, but justice kennedy's written a lot in his career about federalism, he's written a lot about individual liberty. oftentimes it seems that for him federalism is a means to the end of liberty. it's not quite clear how it's going to play out, and i think this dispute more than anything else he's dabbled in takes these two lines of justice kennedy's thought and pits one against the other. i think it's going to be fascinating. >> actually, there's a recent pew poll showing that support for same-sex marriage has dropped from the last one. whether that's a blip, i don't know. but you also could wonder if that is a little bit of the fact that i talked about when you have people who feel like the courts are jumping in and usurping territory that really should be worked out in the political and the social

spheres, maybe him making the decision almost would undermine it being viewed as a positive legacy or at least would create, you know, a deeper trench in the conflict. i don't know if justice kennedy wants to make that decision. if he wanted to make it, he probably would have done it last time. [laughter] i don't know, we'll see. >> you're quite right -- >> i don't think he'd decide it on east side or the oh -- either side or the other. >> when the core issue came before the court last year, not the doma case, not windsor, it was plain as day that justice kennedy didn't want the case before him and was delighted to see it go away. but i don't think anyone predicted that windsor would be received as it has been, everyone focusing on one of the two theories in the case, the liberty theory. and whether the court wants to or not, it does seem -- and i think this is probably something like a consensus -- that it's

going to be hard for them to avoid getting into it, whatever the result. >> that's right. >> so let me ask one more general question, then i'll turn to your questions. at the end of the last term, it was hard to write that newspaper term wrap-up story partly because reporters like conflict, and there was substantial conflict at the very end of the term in hobby lobby and harris against quinn, but it was also a term that had an extraordinary amount of unanimity. the large in the modern era, about two-thirds of the cases were decided unanimously, not all of them unanimous on the rationale. but many of them. and i'm wondering whether there are thoughts here about whether that's a blip or whether that's testimony to the court trying to get together, whether it's testimony to the chief justice playing a role in getting the court together or whether it's the nature of the docket on some of these statutory cases we've been talking about which may be

areas in which the justices are less apt to disagree. >> um, adam, i'll take the guess that it's a blip. because, first, i think we've only seen the trend over one term, and there's sort of nothing specific about the term that would have suggested an overall broader shift. the personnel at the court are going to change within a year or two probably or at least, you know, four or five years, and so my guess is that it's just a one-term event, maybe two-term event, but not something that's -- we're not going to enter a new period of unanimity at the supreme court. >> i tend to agree with one minor caveat which is i do think the chief justice's approach to constitutional avoidance in major cases has led to more unanimity than you might have otherwise seep. justice kennedy has been with him on most of those, and most

of the court has come with him. you look at bond, you look at northwest austin, you know, and other cases of that kind where the court was on the brink of making a major constitutional ruling, stepped back, and everyone coalesced around the statutory question. when you see cases like that come up, i do think that's part of what's going on here. >> and i think there's an agreement on a med of statutory presentation that will cause some convergence in some of the cases that don't press people's buttons too much, for example, the fair labor standards act case. i would predict there'd be some unanimity on the statutory question. so i think in cases that are not directly in the limelight, there's agreement now, broad agreement on the method of looking at statutes, and you might see more agreement in those areas than the hot button cases that have more interceptive play -- interpretive plays. >> but it ebbs and flows. other panelists would know these cases better than me, but in

cases involving the voting rights act and i think maybe campaign -- affirmative action or campaign finance, the court was able, chief justice roberts was able to achieve near unanimity on a statutory interpretation approach only to find the issue basically returned to the court a couple of years later at which point the court fractures deeply over the ultimate constitutional role. and i think press accounts indicated that some of the justices were much -- were not the too pleased with how things played out in the long run. i mean, the dynamic is, it changes over time. >> yeah. i think, i agree that some of the makeup of the cases also does factor in. i know people, the 13 unanimous losses by administration, but when they take extreme positions, that aids the cause of unanimity as do some of the cases they were considering. you know, the ninth circuit helps them with unanimity because they tend to be unanimously able to overturn them and stuff. sometimes if you get a good rash of serious error, the court can look more unanimous than it is.

but there certainly were cases where it is absolutely ideological divide, but they managed to come together on a result if not a reasoning. and that means that sometimes you'll get cases where that kind of unanimity can survive, but adam kind of pointed out once they are forced to look book at the case, it's going to break apart eventually. >> orin, you raised one thing i should have thought to ask about, personnel changes. what's the outlook? and assuming there were to be a resignation in this administration, what kind of chances would the president have to appoint someone -- let me ask it this way. justice ginsburg, in suggesting that she's not going anywhere, has said words to the effect of who are you going to get better than me? and i don't think that was a statement of an egomaniac. [laughter] but it was the statement, perhaps, of a political realist.

>> yeah. i mean, certainly in terms of who's likely to step down next, everybody focuses on justice ginsburg. and in part it's because there's no sign of anyone else, as far as i know, having any likelihood of that anytime soon. of course, you never, you never know what might happen. but in terms of what would happen if justice ginsburg did step down can, obviously, depends in significant part on which party controls the senate. i mean, that's going to be the big, that's going to be the big question, and we'll know more about that shortly. so it's a political process question, and it all depends on who votes for who. >> any other thoughts on that? >> yeah. i think it's 100% what happens with the senate because especially now that we've already seen the filibusters eliminated for ore judicial nominees, and while technically they're still available for supreme court nominations, i think it'd be very naive to think harry reid would not get rid of those as well if there was any pushback at all on

whoever the president nominated. so if the democrats retain control of the senate, i think the president has another wide open field and could appoint another ginsburg if he wanted. i'm not sure if he could get the 93 votes she did, but i'm sure he could get 51 is. and i'm sure that's all he'll need. >> the chief justice just a day or two ago decried the partisanship around nominations and reminded us that scalia was unanimously confirmed. and breyer and ginsburg got just a handful of votes against, and now with the last four nominations we seem to be in a very different climate. what accounts for that? >> i don't think it's just the last four nominations. you can't talk about that without going back to bork and beyond. so the whole system has really changed from one of significant deference to the president to one in which there's a lot of pushback and a lot of fights on

all of them. honestly, from my perspective i know that was clearly started by the democrats making a huge deal out of bork's nomination, out of justice thomas' nomination, and we're now, for better or worse n a world with that's how nominations are dealt with. i don't think we can step back from that now because you're not going to get both parties to unilaterally -- to disarm simultaneously on such a -- >> right. >> -- a sea change. >> although, you know, post-bork was kennedy, breyer and ginsburg, so it didn't change every single nomination. >> sure, sure. i think now we're in a new world, i don't know that anyone thinks we're still in that type of congenial thing. i'll let the other panelists see if there's hope for turning that back. >> i don't think there's any downward ratchet in this process. i think it can only get worse, and each when you think it can't get any worse, it does seem to. [laughter] >> an interesting question, too, is what happens when you have the senate in the opposite party control of the president.

so at least up till now the last few dominations you've had the senate controlled by the same party as the president, and so if everybody's voting on party lines, the nominee nonetheless will squeak by. it won't be pretty, but they'll squeak by. things get much more complicated if the other party's controlling the senate because then, of course, if everybody shot votes on party lines, they reject the nominee, the president comes back with another nominee, you keep having party line rejections over time, and does the president then move towards, more towards the center in terms of a nominee or say, okay, if you're going to reject my nominee, i'm just going to get more ideologically towards my end every time, and we'll just keep playing this game out. so that's the reset button question, and nobody knows how that's going to play out, but that's the one to watch. >> we've seep that before, right? that was 1968 -- seen that before, right? that was johnson not being able to get any of his nominees through under a republican conference. it's messy, but we survive. i mean, in terms of the fights

over confirmations, i think it's important to separate two things. we can all be against character assassination of judicial nominees, right? but to say we shouldn't engage in character assassination is not to say we shouldn't is have very strong, fierce political and intellectual debates over supreme court nominees. washington was a more peaceful town back when the republican republicans -- orrin hatch would get together with bill clinton, say let's go with ginsburg and breyer, right? or went louis powell or scalia would get through very easily. but what we lost in those debates was real, thoughtful discussion ahead of time about what the american people want the court to look like, what our elected officials ooh want the court to look like and to at least have their say at the beginning of the process because, lord knows, we don't get a say after the process. >> yeah. that's a good point. and also it's not irrational. i mean, as more social policy

has moved over to the court and out of the democratic institutions, i think you're seeing more invested in making sure that the bench is filled with people who share their approach to law and society. i don't think it's an kept. >> and then -- an dent. >> and then there really is no hope because we're so divided on the proper outcome of that philosophical, political debate that really, you know, there can't be anything but this kind of harshness, and it's, you know, winner takes all and loser goes home til the next time when they win. i mean, i just don't see any end to the process playing out the way it is now. >> with but not to keep jumping in here, but isn't justice ginsburg's whole critique of roe v. wade is officials stepped in too early, thought they could end the political debate once and for all, and what we saw is the debate bubbles up in other ways? political debates don't end. i think bill buckley said there are no eternal victories or losses. these things continue on and on,

and that's probably the way it should be. >> so decide for yourself whether the situation is hopeless or just really bad. [laughter] i'm going to stand up here where i can see you better, and we'll move to your questions. who would like to go first? or would you like to follow the panel in it muted discretion? yes, ken. >> [inaudible] >> there's a microphone for you. >> [inaudible] okay. so character -- carrie severino seemed to treat the statutory question to aca cases as cut and dried. but the fourth circuit reasoned that references to such exchanges included federal exchanges and, therefore, that the statute construed in toto,

supported the irs' interpretation, and i wonder what you and others might make of the viability of that argument with the nine justices, all of whom say plain text important, also the whole statute is important? ..

and so a lot of it may get determined by this earlier procedural point of view we have to give deference to the irs interpretation, so if the court decides yes we have to give deference we might not think that is a great interpretation to go with and if they decide they don't want to comment than then i think there is a lot of room but it simply doesn't say that. if the detective is clear enough to easily sustain saying this is an unambiguous text and here it is. but that obviously can differ. >> other thoughts on that? >> it's so quiet in here.

yes. >> so it doesn't seem quite as fair to me that the court settled on an approach to statute as it is being suggested. i think it is clear in ordinary cases but for example i think that is a pretty good argument there is no statutory interpretation. if they had reached the case then they would have had to try to get the constitutional question and we don't want to do that. so, i guess i would worry if i were, you know, thinking about what's going to happen in the statutory approach that the

statute holds up it is going to be under a lot of pressure and i wonder about that as a possible way of understanding the situation. it tells more about the interpretation. i think that it's clear in that opinion it's driven by the effort to avoid this item very hard whether you agree or disagree. it doesn't raise that issue of the constitutional pressure but at the same time i filed a brief in the supporting challenge and i do think that the administration's position is

fairly complicated because sometimes we are arguing this is an intentional gap in the statute and in other times they are saying no, it was an accident. well it wasn't both. and so, i think they are trying to figure out which argument is going to be received better but they haven't quite chosen which one they like better. >> will this issue, but again basically in the case because there is a very strong statement from congress that the united states policy on jerusalem is this. the remedies that would against pass in the case they are just asking for the passport marked israel. isn't there a way i thought of the case quite a bit i think it does pose a very tough challenge between the congress and the president and other powers. but at the end of the day the family just wants a passport and at the end of the day the president can say we are issuing this passport but the u.s.

policy remains unchanged and at the end of the day if the court can construe the statute narrowly to sort of size the question of the u.s. policy and gets to the question about what somebody says on a passport maybe it is another case the court will try to go for the minimal answer because when i look at the case i sort of step back and it's hard for me to see what the real substantial infringement of the president's recognition power is. nobody is actually saying that the u.s. policy on the statute says this but in this case i don't think anybody is saying that u.s. policy is different. it's what is written in the passport which is then different that it doesn't dictate the u.s. policy. >> that is severing the statement about what the u.s. policy will be and that is then reflected in this ability to have something in the passport ... that end and of judgment of this administration and previous administrations actually would have a damaging effect on the president ability to control and

the decision not to recognize any sovereignty with respect to jerusalem so you have to both reject the presidents of judgment and have to sever the statutory statement about what this means u.s. policy is from the passport and those are big things to do and it would be if the court is willing to say we are going to discount the president's judgment and not just this president but previous and we are going to ignore what the language says this means i think that is a dramatic step for the court to take. >> in terms of who's judgment, there's the judgment of what everything should stay in the statute. earlier you referred to the line in of the foreign affairs he is drawing from back when marshall was was still in the congress or something like that so if you look back at where the line originally comes from, i think that marshall is saying is that once the policy is defined by

congress the president is the president is the sole organ and carrying that out. i like what you said earlier it didn't organ or an instrument. that's true, but it actually doesn't play itself. somebody has to decide the instrument is going to play so maybe the senate and the congress should have a say what is in the passport otherwise we're just we are just going to comfort of the president's judgment of what will and will not affect foreign policy. >> the other thing that is interesting here is its holding which is that long standing institutional judgments acquiesced by congress over the long term like the unilateral recognition enabled instances by the president should give some deference. so i think it is an interesting and difficult case. i think that there are very powerful argument that the president has that his judgment that this would be very damaging. as previous presidents have also judged should be resected here. it's been mac that does make the intuitive point it seems kind of trivial and who is going to get

upset and they they guarded the turkish border. >> the judgment of the number of secretaries admit that's wrong it's not trivial and it will be read in a particular way and the foreign relations setting and the question is do you just give that to the back of your hand and brisk having this effect on international relations were not and i don't know if the court is going to be willing to give at the it the back of it and i think it is a difficult question to >> when president bush signed the statute he attached a statement saying i'm not going to treat this as mandatory and going to treat this as advisory and that is when they were a big deal and everybody seemed to be complaining about them. back in 2008 he was giving his famous interview where he says i'm not going to use the statement to nullify or undermine congressional instructions as an act into law and i understand he was a senator than in the president now and his views have changed but it really seems like a display and maybe somebody needs

to remind everybody about where we've been on these issues. >> it sounds like in this particular case saving instruction and constitutional avoidance move might be right. >> at the end of the day i'm just very curious why we can't avoid a bigger policy issue and just decided narrowly on the basis of what's written in our passport. >> in terms of temperature like the border and the agents agents were there ranchers are collecting people what do you think the temperature will be for these cases. like football players have pink day for susan koman. >> keep the microphone because i'm not sure that we fully have the question yet. my question is how are these issues going to affect the citizenship and there will be

more violence, more lobbying, more riots in the street. >> i think the facebook case will probably not result in any significant backlash. but let me ask the question in the most salient way. assuming the court establishes the right to same-sex marriage, which i think is more likely than not in this coming june how do you think the country reacts to that? >> what makes the question difficult i think if there is the sense of the attitudes are shifting so quickly that it's -- i think we could have answered that ten years ago in five years ago and maybe even last cheer but there is at least a sense that the attitudes are changing quickly enough that it's hard to venture the prediction. it might make a difference whether it comes down a year from now or two years from now it's just hard to know. >> particularly if may have the

effect of the lines that they are now or deepening in some cases because the feeling of this is not the result i would have come to. it will affect how the shift go. it could mean everyone just jumped on the bandwagon and says this must be the direction everyone is going or people could backlash and say i don't think that -- i think the court is stepping out of line this isn't a constitutional question. it's something that should be decided democratically. it's really hard to predict and it would be different if the court decided this year versus next year. >> how much do you think the court does or should care about the blows to its reputation authority prestige to much should they care about backlash? >> a little bit. [laughter] i think it's human nature for them to be -- to care about her

of the decisions are being received in terms of effect as of the other branches and it's critical they not pay too much attention. we wouldn't want a supreme court that's following whatever is popular and not paying attention to the history and the traditional legal sources. so probably they pay a little bit of attention and that is probably roughly correct. >> it's good that the justices are insulated in the cliché that if it is true, but this gets back to the earlier discussion about the judicial nominations and confirmations. if the justices, no matter which way they go on this case and no matter which way they do what is going to fiercely energized some corners of the political world. we are going to feel this effect in the future judicial nomination. no matter which way the court goes it is good to be controversial and those are the reasons why i sort of find it hard to take serious the complaints about should the

public be fighting over, you know, confirmations as they do. they fight over these because the issues are important and the court ultimately makes the difficult decisions with, you know, for which the public only gets a voice after the fact. >> let me answer the question in a different way. one of the issues of how the court is going to approach the interpretation that's come up it's interesting in the criminal context in particular both raise issues of how broadly to construe to be construe the statute and the court will be construing the statute in the context of criminal justice system that's going through some interesting changes so we have lower crime rates than we have had recently been dropping had a drop in the crime rate over the last 35 years or so. i think attorney general eric holder recently announced that the size of the federal prison population is dropping this year for the first time since 1980

and then also if you look at the fact of the cases and the facebook threats case there is an aspect of facts which are almost comical being perhaps the lead example sarbanes oxley through some fish into the water it just is such an audit context a compelling government interest is absent in the case into the interesting question is whether it is the fact of the case or the primaries and general changing or had some influence on the scope of the statutory interpretation and the data plane could be the 1980s when crime was very much a pressing the political questions, crime rates were high and you have politicians talk about crime a lot and in that window of time you have a series of cases construing especially in the white-collar context construing the criminal law very broadly

basically saying this is up to the justice department to exercise prosecutorial discretion and the court almost kind of got out of the interpretation constrained the statutes very broadly and i wonder if we are seeing now a shift towards narrow statutory interpretation whether that is reflecting the crime rate or some other shift it's an interesting trend to watch. >> let me ask one that occurred to me as we were talking. the court seems to think and i don't know if this is right but the public is going to accept the unanimous decision more easily than the closely divided one which is why earl warren worked so hard to make brown v. board of education a unanimous case. does that actually work on the ground? do people actually care whether

hobby lobby was five go for antiabortion protest case last year was unanimous? do people care about the marriage case likely to be fight through go for his unanimous come into the differences the court seems to care about making difference on the ground? >> i think to some it does because those that follow closely are using certain justices both as a proxy for what is right and what is wrong. so for example if you're on the conservative side you might say i'm going to follow justice scalia and justice thomas and whatever they do is not where i would come out or fewer in the liberal side you might say justice of the sotomayor. you might say well it must not be that problematic where they write about this and that sort of is a stirring and you think of the scully had to send on the other side that's something that can influence people but i

suspect it influences the 35 legal setting around the room -- >> many of them here. >> that is the sort of inside crowd that has the sense of i like this justice and i suspect the public isn't really influenced by any of that because there is a debate out there but they are not reading the opinions themselves. >> i think the question is who are we talking about. i think for the general public know and how the case interacts with their own life is what matters to them and we often see that in cases that are less talked about here. some of the other cases are interesting. i do think as it was pointed out institutionally among the people involved in the court some of these decisions in the administration do matter and it

talks about the appointments clause challenge fact that there was a unanimity that does matter in terms of when they come back to the court in the future cases how to better position themselves. i think to illustrate that it's not always perceived they affect the main reasoning so people have a perception everyone sees it like this is a huge dividing line. >> there's two parts to the decision so anyway there're certain controversial issues but when you have the case at least it does diffuse to certain extent when you have for example the justice sotomayor on the

same side it makes it hard to make it an ideological argument and you can still say this is a wrong resource that makes it a little harder. >> keep in mind that the people who have to -- the businesses and the people that end up being governed and they have to advise their clients. the decision doesn't say much at all and a sort of sidestepped the questions through minimalist decisions there's a lot of virtue to that but for the people that have to comply with the law whereas a they fight through before decision might cause a political uproar, but at least everybody knows where the court probably stands on a broad principle than just a very narrow decision. so it cuts both ways. >> we have run out of questions have we then i think we will call it a day. [applause]

we are expecting an announcement today that eric holder is resigning as attorney general. president obama speaking from the white house this afternoon at 4:30 eastern and we plan to carry his remarks live on the companion network c-span. white house officials told the associated press the attorney general will remain at the justice department until his successor is in place. we want your reaction to the attorney general's resignation. join the conversation of facebook.com/c-span or hash tag c-span chat. reaction from congress to the attorney general eric holder's resignation and senate judiciary

patrick leahy said in a statement under his leadership the department has added remarkable success in convicting terrorists and disrupting threats to national security while upholding the department's mission by keeping the community safe. considering running for president in 2016 was asked about it during q-and-a in the national press club after the speech after focusing on the economy and national security. >> good afternoon and welcome. i'm an adjunct professor at the george washington university school of media publicaffairs

and the chief with the associated press and the 107th president of the national press club. the national press club is the world's leading professional organization for journalists committed to the profession's future through the programming with events such as this while fostering a free press worldwide. for more information about the national press club, please visit our website at press.org. on behalf of the members worldwide, i would like to welcome the speaker and those of you attending today's event. the head table includes guests of the speaker as well as working journalists who are club members. and so the applause in the audience i would note the members of the general public are attending and so it is not necessarily evidence of a lack of journalism objectivity. i would also like to welcome our c-span public radio audiences. you can follow the action on twitter using the hash tag npc

lunch. after the guest speech concludes we will have a question and answer period and i will ask as many questions as time permits. now it's time to introduce the head table guests and i would like each of you to stand briefly as your name is announced. john, reporter for w. and e. w.. jill lawrence, syndicated columnist. eleanor clift, washington correspondent for the daily beast and mclaughlin panelist. the son of the speaker. mark shields, political analyst for pbs news hour. wife of the speaker. jerry, buffalo news washington bureau chief on a chair man of the npc speakers committee and former president of the national press club. angela king white house correspondent for bloomberg news and former president of the national press club, amy webb,

daughter of the speaker, rachel executive editor cnn politics digital, columnist for military.com known throughout the country as the sergeant. [applause] mike principle partner publicaffairs round of applause for the head table. [applause] here's what we know about our speaker today. he's a former one term democratic senator from virginia and a decorated marine who served in the mom and in the reagan administration and the emmy award-winning journalist. but we don't do with whether he will be a candidate on the democratic nomination but there have been some hints.

web visited iowa last month and is planning a trip to new hampshire. while not everyone that goes to iowa and new hampshire becomes a presidential contender, no one who hopes to be in the race ignores those early primary states. as he told of the labor audience in iowa, quote i'm comfortable to say i'm the only senator elect to do with the union card, three tattoos and two purple hearts. [applause] while she served on the foreign relations armed services that are in affairs and the joint economic committee is coming as legislation, the post-9/11 g.i. bill is the most significant veterans legislation since world war ii. [applause]

as the chairman of the foreign relations committee asia-pacific subcommittee, whether called for the u.s. to reengage to become the first american leader to visit in ten years. though the trip was criticized by some in the pro-democracy movement, subsequently relations between the two countries were resumed. webb graduated from the naval academy in 1968 and when he returned from vietnam he got a lot of grief from georgetown. he was a staffer in the house veteran affairs committee before being appointed an assistant secretary for the defense and then the secretary of the navy. in addition to the public service, web has a very career as a journalist winning an emmy for his pbs coverage of the u.s. marines in beirut in 1983. he wrote the original story and was executive producer of the film rules of engagement.

the books included history of the irish culture in novel set in the vietnam war and i hurt my country calling. a memoir of his early life published this year. he's been to the national press club on several previous occasions and we are very happy to welcome him back to the national press club. [applause] >> thank you very much and i appreciate all of you coming today to be with us and i've noticed that the outset that george has enough questions i think to last for about an hour and a half and i hope that you will be kind in the questions that he chooses once i am done

first let me say how proud i am that the three of my family members are with me today appear at the head table. my oldest daughter amy who as a small child used to ride on the laps of some of my disabled friends from vietnam as they did wheelies in their wheelchair races in the hospitals and i think she found her calling at a very young age and now works with the disabled american veterans. [applause] ..