109,000. since the debate we've gained almost 900,000. we are 3.8 million right now. >> do you know that compares to other candidates? >> is three times more than hillary. 15 times more than jeb bush, and we will be above donald trump who are committed is after three years on the apprentice, we will go past him this week. >> so how to take advantage of that? >> i think one way to take advantage of it is working candidates on the republican side, comment on the democratic side is not clear yet, plus all their superbikes compose on the outside money. if you count on winning the election from television advertising in des moines in january, you are probably not going to do that. so we built a lot of these networks around talk to the voters, 70,000 people in iowa that i want to talk to through social media.

through google and search optimization all these tools, because content is king. if you can talk to them effectively in a way that the want to be talked to through social media, you can do it and push a button. he blew out his candles on his birthday cake on friday, and he said what his wish was. i wish i could say what it was but i don't know off the top of my head, i do know that 19 million people at the post come and 5.5 million watched the entire thing on television that would've cost a lot of money spirit so i hear you saying that if you happen to be a candidate for the good in corporate boardrooms and has raised $125 million for your superpower, we won't name anyone, but that is an asset that may not be as powerful as it was in the past? >> we know already that issue advertising rates are 10 times more than campaign rates right now in iowa and in new hampshire.

to 100 million instantly turns into 10. i've already raised, we've already raised over $30 million. we are going to define and will have a super pac that you will find it as well a television is not going to be the breakthrough medium with picking candidates in the race, or 14 candidates in the race that you could count on previously. >> are you basing that money through phones, direct mail, e-mail? >> yes. carwashes, bake sales. >> overwhelming small donors to? >> fifty dollars is the average donation. we got 530,000 donations as of this morning. >> is our domestic and come back again and again and again because they're not going to tapout spent islets in e-mails and watching the dashboard. >> to talk to a little bit about the actual organization of the campaign. because i do know what it was a couple months ago or several weeks ago there was a story

about -- >> disarray. >> is red, meltdown. choose your word. >> this all happened because the campaign chairman, terry giles, one of the people who hired me, who ben announced that the announcement was leaving to go do other things, left, and like three weeks later sudden illness a news story. we have 80 some people on staff today. we have all the early states well staffed. we have regional people, finance people. we have our campaign bus tour in america. >> social media named. spent on not on facebook enough, clearly. spirit check the list and make sure you're on there. we are doing great spent apocalyptic about iowa specifically ask the typical action, do you have to win there? and checking around in iowa a couple weeks ago and one thing i

was surprised to learn given to multiple people, ben carson has a real organization here. he has i believe an organizer or chip in all 99 counties. how are you in terms of infrastructure in iowa and how important is this state? >> we think this state is very important to typically three tickets out of iowa. i want one of those tickets. we are going to get one. in a data driven campaign world that we live in, there were 13,000 people in the month of august that attended one of our events. surprising thing was 29% of them were not republicans. they were independents or democrats. so i think the caucus will be expanding this year, and, or at least that's what were going to try to do. typically maybe 25,000 votes would win the caucus. we've targeted 70,000 people and hope to get at least half of the amount. >> so when the people come to an

event, how are you establishing the connection with them that you will maintain over time parks are you getting phone numbers, e-mails? >> e-mails, phone numbers, text messages. text numbers are so much better than e-mails. we start talking to them. the computer starts talking to them. we warmed up. to find out what motivates them. little things like, okay, to lease a campaign bus released my angelo's old boss, good karma. >> my angelo's had advised? >> afraid to fly. not afraid of anything else but afraid to fly. it costs 130,000 to lease the bus for 10 months. so i said what if we put, whatever that people put their kids names on the bus with so when dr. carson got on everyday you can see the reason he's running, these kids names. 8000 people, they feel they. we paid for the bus in about three hours.

graphically we took all those things at a cricket pitch of chilled on the bottom of the bus. it's great. south carolina filing fee. i'm like why should i pay for that out of the general treasury account with let's ask the people of south philly each the deacon $40. raise 120 grand. there's a real grassroots energy out of there. >> i will be summarily rejected from the journalistic fraternity would talk about muslims here today. >> why did they? >> didn't dr. carson will believe that is just a theoretically possible not to any muslim who is capable of believing enough in the american creed to be president of the united states? >> no. what he said was that they asked him if and islam in the constitution could be put together. he said it can also rent for president he couldn't advocate for them until he knew whether or not they supported the

central tenets of islam or not. do they support religious freedom? do they support all these things that are not in the central tenets of islam, as we know them. if they're willing to, you know, not support all those kind of silly things, that would be fi fine. >> so do the doctors plan, or the way he's addressed the 11 million illegal immigrants who are already here is to say perhaps many of them can become guest workers put in my mind it's just another version of amnesty. am i wrong speak with i believe so. because he's no path to citizenship. the problem with reporting everybody, as donald trump support, first we probably should start with deporting congress can write? for 30 years they haven't fixed the border. maybe we should start there. but if you're going to deport them, one, you've got to find them and then you got to like

against waterboarding to find out where they're from. they will have to waterboarded nations are from to get them to accept them into web two fly them -- nihcm it's incredibly impractical and incredibly expensive. if they come out of the dark and pay their taxes, pay their taxes going forward, then we can get give them some kind of worker visa and you can go about their lives. but the get to vote and they don't get to become citizens. >> so do you care whether trump in place, deflates it does not matter to you because you guys are destroyed your own path? you had your unique appeal with this candidate? >> i think there's certainly some commonalities in our supporters, but i think donald trump is our best contrast. we would just let him continue to contrast. >> i desperately want this and ask you as well. what is the moment during this campaign that any other campaign has had or any candidate has had we thought that was we should

come that was willie smart? and what is the most endearing quality of this endearing and tn ben carson that we may not be aware of as outsiders? >> i think that, i'll take the latter first dr. carson is, he's incredibly humble. i've not seen him raise his voice, get angry or anything else. he is, if i call them and i said hey, maybe we can talk about this in a slightly different way, he's like that's a good point, that's a good point. >> and that's unusual for a politician? >> i'm not overly proud of everybody i've ever worked for, by very proud to be associated with trembling it as one of the campaigns have done that i thought was brilliant -- >> come on back on the you can think of something. >> i thought ted cruz announcement at liberty was a

pretty good idea. build an audience. spent we are going to speak the next month, but i thought it was, it was certainly a lot cheaper than what i paid to put together, something that's already put together. >> great. barry, thanks very much. really appreciate your time. [applause] >> thank you, rich. i want to complicatcomplicat ed teatheme manager who's listenedo two hours a strategy can we probably needed pocket, write? please join us outside for cocktails. thanks everyone. thanks, rich. >> the pope's visit to the u.s. c-span as live coverage washington, d.c. the first stop on the pope's tour today on c-span, c-span rated at c-span.org. amassing canonization at the basilica of the national shrine of the immaculate conception. thursday morning at 8:30 a.m., coverage begins some capitol

hill. friday morning at 10 live coverage from new york as the pope speaks to united nations general assembly on c-span3, c-span radio and c-span.org. said at 1130 and the pot of gold and multi-religious service at the 9/11 memorial and museum world trade center. >> later toda today see spend ro the white house 2016 coverage continued with remarks from republican presidential candidate donald trump who will speak with cologne -- with reporters in columbia, south carolina. >> today i'm a reporter for nbc.

is this marion barry's place? he comes in all that i. that's a seat. i went back to the office and called them up and i said mr. mayor, i've just been to club 55. i mean, don't you realize people are watching what you do come where you go? bases that all the time and watch dancing with the there's a pause on the phone and he says it's nice, isn't? >> washington reporter tom sherwood on the political corruption in d.c., maryland and virginia. >> i think 44 attorneys general from around the country signed a letter saying they agreed with governor mcdonald that what he did was politics, not bribery. these gives, he should've reported that yes, that might be a crime but he did report that gives. $15,000 for child's wedding, 50,000, $70,000 loans. the problem was he was considered a potential vice presidential candidate, was in over his head. this is not the case where

you're a public figure and to let your messy private life combined together. >> sunday night at eight eastern and pacific on c-span's q&a. >> up next on c-span2 a discussion on this year's supreme court term and what cases to look out for including once on redistricting, abortion across the states, government employees and the case for mandatory union dues. held by georgetown law school this is about two and half hou hours. >> i'm irv gornstein, professor at georgetown and executive director of our supreme court institute. thanks for coming. to discuss this terms of excuses we have a stellar panel. marty lederman who is seated the most left is a professor of constitutional law at

georgetown. hashim mooppan is a folder where he focuses on the supreme court and appellate litigation. erin murphy is a partner at bancroft where she also focuses on supreme court and appellate litigation. and david cole is another constitutional law professor at georgetown. before i turn things over to the panel, let me give you a very brief introduction to the term until you about the format for today's program. the story of last term event, the left side of the court did a lot of winning. that happen not only in the two momentous cases involving same-sex marriage and the availability of subsidies on the federal health care exchange, but in almost every big case decided last term. justice kennedy was the justice who usually joined the left side of the court in those cases, but

the chief justice and even justice thomas occasionally either acted to or provided the margin of victory. this term i would expect a return to the norm. in which the right side of the court wins the majority, but by no means all of the big cases, with justice kennedy idea and a key vote in most of the big cases. ..

to do so before inviting questions from the press. i will invite press questions right after the case is presented both encourage any panel member that wishes to do so to reply to the questions. we are going to start with abbott. >> this is a case that involved the one person one vote doctrine and it's a pretty interesting case because it raises fairly fundamental questions about the scope of the doctrine one would

think would have been decided quite a long time ago and that have fairly major implications for how elections are run in this country so it could be a significant case. the basic one person one vote doctrine as everybody is aware is that during the court, the supreme court held that when the states are drawn in the districts and giving up the legislative body into the district's and putting people into the district for voting the state has to basically have a fair amount of equality between the districts. you can't have certain districts without much greater populations than other districts. that is the districts with smaller amounts of people with greater voting power. what the courts never really grappled with in most of the cases is what exactly you're

trying to utilize. are you trying to equalize on the one hand the total number of people in each district were the total number of eligible voters in each district? the court throughout the cases has largely been agnostic about this and to use language that sometimes suggests that you have to be equalizing the voters in the district as the one person one vote would sort of suggested that other conduct suggest you should equalize the total population. part of the reason is in the 60s and for a good long while afterwards it isn't clear what theoretical difference made much of a practical difference because if the people who can vote in the state are sort of evenly distributed across the state than equalizing the total

population and equalizing the voter population ends up being roughly the same thing. but today it is no longer the case in some states primarily because of the large populations of illegal aliens in certain states that are not qualified to vote and there is other types of populations also for example that felons in franchise and things like that where you have populations that can vote and are not necessarily distributed across the state that might be located in certain parts more than others. so if you draw the districts where it is a disproportionate number of people in one district and you equalize the total population, there will be more voters in certain districts than others even though there is an equal population totally. and you will then you will have different amounts of people in the district.

the total population or some type of a voter population. the case arises out of texas like most states that choose to equalize the population in the districts and so they'll shoot to have roughly the same amount of total populations in each district they took all as a result in a state like texas there are certain districts that have many more registered voters were eligible voters in certain districts than others and so even though the populations are roughly equal based on the total population, the populations are very disparate in terms of the actual voters in the districts. and so the plaintiffs are arguing that should violate the one person one vote doctrine because the voters in the districts where there are the voters in the districts where there's fewer -- sorry it gets a

little confusing. the voters in the districts where there are a few were eligible voters have disproportionate voting power us. let me using examples of this will be clearer. you have the districts that but each of thousand people and one district has 800 eligible voters and 201 eligible and the other district has 400 eligible voters in the 600 non- eligible voters, then the district with 400 legible voters it is basically worth twice as much as the voter in the 800 person district into there are 400 people elected in the one district and 800 people electing in the other district. such a sort of summarize the argument that the society is making, the plaintiffs are arguing that you should be equalizing the total number of the voters of each district. the whole point of the one person, one vote is to ensure that the letter e. quality and

avoid the dilution. make sure that each person's vote counts equally. the way you do that is by making sure the total number of the voters in each district is the same and it doesn't matter as much how many total people are in the district. people that are not eligible to vote don't matter when you are actually helping helping the votes and figuring out who is going to have to voting power so that is the basic argument in fairly straightforward in the conceptual matter. as i said before the case law in this area it isn't going to be all that dispositive because there are languages going each way largely in part because it didn't matter a lot at the time a lot of the cases were written. in response to this argument they try to argue that states should have choices about which population base to equalize. it doesn't say that you have to do the total population or you have to do the voter population it says that they should be given discretion as to which

population base to equalize. one is an argument about what function voting serbs and they argue that this is also pressed by a lot of subordinate voting isn't just about serving the people that are eligible voters. ones that have any elected official representing 31 in their district and so there is a representation that it's important that the equal numbers of the total pp ration type invasion of each district because otherwise you'll have, for example one state official that represents a district with a thousand people and another district represents a district with 2,000 so you can view that is the form of inequality even if the total number of the voters in the district are the same.

within the culture is burdened. some intentionally distance react by the state so that the state argues is the choice between population bases is intentionally trying to dilute anything. and it's a necessary effect of that but if you pick one population base that would be of the other. so it's not an intentionally arbitrary decision. and so as a result there shouldn't be a violation of equal protection clause and therefore the state should have two choose between the two. the other -- there's one other or to other issues that are worth talking about on the merits before doing the prognosticating.

one is that it would be very hard logistically to equalize. it's done at a very specific level down to the block level so we have good data where everyone lets you control the districts that tries to equalize the total population but there's much less good data on how many eligible voters there are in the state and exactly where it is the live. the census doesn't ask those questions to the same level of detail and so it would be difficult to actually try to equalize the voter population. and then the one other argument of texas makes that will get a fair amount of play is to point

out that in the constitution and the constitution determines how many congressmen each state gets, which is the sort of apportionment of the cross state that they expressly say that you determine each state total congressional representation based on the total population. so the states with large total populations get more and it doesn't matter whether they have different amounts of eligible voters. so they argue by analogy that it should be acceptable for the states to do the same when drawing the districts within their states and how to allocate within the states. in terms of predicting how the case will come out, and the relative merits of the case, i think there's a couple things.

it's an interesting case because if you think about the conceptual theory behind one person and one but i think that there's a lot of intrinsic merit to the plaintiffs are giving that the case is seen to be equalizing the voter strength and so naturally you would want to equalize voters that there is a lot for some people on the court and the notion that you shouldn't be doing that in the circumstance that you have massive disparities in the total population into the districts where essentially you are in some sense not full members of the community people that are not eligible voters and i think that i will have a lot of residents especially with some of the justices. the other thing that makes a competitive case is the one person one vote doctrine is a landmark doctrine at this point but it's also a doctrine that doesn't add a whole lot of

footing the constitution so the conservative justices might be somewhat skeptical about it and want the plaintiffs are asking for is a fairly significant expansion of the doctrine by naomi requiring the equalization of the voters populations but having the very specific definition of the population base has to be equalized and for some of the conservatives might be more inclined in the notions of federal based on the skepticism of the doctrine of raw. they will make it such that texas is putting the victory here to peel off some of the liberal justices on the representational argument on the administer ability.

they try to go through the narrow position. the plaintiffs have argued that that is the case. might make it easier for the plaintiffs. the disparities in texas and other states are not just a function of the fact that certain districts have larger percentages of undocumented aliens but also of documented

living in those districts who are not eligible yet to vote but will be one day. i would be very surprised if there are votes to take the position that states must draw its district on the eligible voting. i think the real question is what the court says about the discretion of the states have to deviate from total population. the reason i think that it would be surprising in addition to those offered which i think are pretty compelling about 100 would mean upsetting the practices of all 50 states for 50 years. there is almost a uniform practice. it would be eager to do and also it would seem to set up a system in which the rule the solicitor

general in the case a couple of decades ago it would be an odd result that the standards that the states have to use to distribute their congressional seats is something that's prohibitive to them when they are drawing their states. the real action i think could be whether and how the court says that it agrees with texas but the states have discretion to deviate from the population. so it will be interesting to see when they come in whether any argue that the states have to use total population as most of them have for 50 years whether that is a constitutional requirement. it's more likely that many will argue that it would be inappropriate for the court to reach that question and that they should wait until some state legislature decides to do such a thing to see what its

justification is in its evidence and the like because there's many that worry if the court were to say texas has discretion and that is totally permissible but they are free to go to the eligible voter publishing or citizenship or some other criterion for drawing the new district could be an incentive or a message to the state legislators that are predominantly in this case predominantly republican controlled to make such a move in a way that could radically affect the makeup of state legislatures and i think that the interesting question will be to what extent the court reaches out to affirm what is suggested in this case which is that the states have broad discretion in whether the court saves the question for a leader case. >> anyone ask lex

>> [inaudible] anytime the court is asked to engage in policing the electoral process, there is a risk of the results appearing to be partisan and to politicize the court and if you look at who is challenging the total population regime in arguing for the voter population regime, it's all republicans and some very conservative public-interest groups and so the rule the plaintiffs are seeking would benefit republicans and that could politicize the courts in the most controversial decisions of citizens united into the affordable care act both of which were highly partisan and we all remember bush v. gore.

so there are reasons why the court in terms of its legitimacy and the easiest way to tread softly is to use -- to leave the matter on to the discretion of the states as the court said in 1966 and then one last thing, from the standpoint of the sort of original context or list that also seems to be the result we should obtain because the constitution doesn't just say whether it should be the total population if you are an original list or contextual list the court should be left to the states. >> i just want to follow up quickly on that which is i agree

there are potential partisan implications here but i don't think that it's necessarily as clear-cut as the plaintiffs would obviously benefit. how this will shake out in any given jurisdiction depends on how total population maps into the eligible voter populations. so, for example, the way this could benefit democrats is if you have the states for example with large prison populations where for example you take large populations from the urban cities were in prison and not eligible to vote and they are in the world prison if you count those people as residents of the district, it inflates the district to the extent of the urban district and in that context it's likely would have a pro republican benefit rather than democrat. another way that this could happen by the way you could have gerrymandering. so right now the reason that

would benefit is because the districts are basically drawn such that you have situations where if you have a large population of the nonqualified voters they tend to be living near people who are qualified voters that agree with them and so you and hands there political power so in these areas the people that are near them also tend to be hispanic and tend to be democrats and so it's their vote in power but in texas, for example, try to draw the districts where you pull some of the undocumented aliens from one area into the same district with eligible voters in suburban areas you could have a very different partisan makeup and so whether this shakes out as per democrat or pro republican is partly how the districts are

drawn so right now it probably does shake out more to the benefit of the republicans into democrats but it's not strictly speaking. >> and that is what the advocates seem to think if you look at the lineup of the case it is pretty stark. >> one thing that i wonder about and i will ask about before return to the process is asked why the states have all been using total population as if the texas states all along have had the discretion to go the way and have all these political advantages to using one or the other depending on whether you are it in or republican generally speaking. does anybody have any thoughts on that? >> one of the things i want to mention is the census data allows much for specific and reliable breakdowns on the total population than the eligible voter population.

the other speaking for myself, i think most people sort of have inculcated the idea that the districts ought to represent equal numbers of people and that it would have been quite striking to striking for what is later to the wood is later to say otherwise until now and i just think that the partisan politics make what use to be off the wall now obtainable. >> let me make one thing and then i will go to the press, if the court gives a green light if you think the states have to be much thought we have to do it by population texas is very much arguing in purgatory for the green light to do it either way and if the court does say there is a green light you can do that either rate you think that that

will change the political landscape? if not as much as a victory for the plaintiffs, some way approaching it? >> i think the court has already said that there is a green light and in its 1966 case to me i think it's probably the added minister nobody that has led most states to go with the total population figures. they are there and available but i think that as technology makes it easier and easier to crunch numbers and get specific data it may well become easier to build go the voter row and people may well stay choose to go the voter row but just as the technology has made it easier and easier to do very partisan gerrymandering. we may see that. i want to be shocked if the court reaches out unnecessarily and says it has to be total population in this case. they don't need it to decide

that on this case they can leave it open if it becomes a problem they can reach out. >> questions from the press. >> they kept saying voters [inaudible] are they asking for the citizens population? >> the cameras are asking if you have a question to come to the microphone. it's not being picked up. >> i will mumble with now. [laughter] >> you kept saying voters and suggested for example the prisons in the brutal areas within to be counted because they are felons. what are they asking but are they asking for the voters that are literally eligible to vote for at the citizen each population because of the result that are different? so, the brief is a little

agnostic about it. as i read their focus on eligible voters. now, there are a lot of different metrics for how you measure eligible voters. the most common is to reference the citizen voting age population. the citizen voting isn't actually a perfect proxy for the eligible voters because there are plenty of people that are citizen voting age but nevertheless able to vote. again i think that sort of place out of the added administered ability issues in the plaintiff case. but i think they are definitely not asking for the registered voters which would be one way of solving the administered to be problems but raise a whole host of other issues given concerns about the accuracy of the registered voter rolls though it is notable that the 1966 case that was referenced earlier i believe is a multiple and had a sour sort of problem with major

discrepancies between the total population and eligible voters because of the large positions in the military and large populations and they decide to deal with that by actually using the registered voter base as the population base. people seem to think that the operating status quo has the discretion of the case has a lot of ambiguous language in it that the registered voters would be a way of solving the administered ability problems. we would have other issues with it and i don't think that the plaintiff is pushing for that. >> in texas specifically or in any other state. >> did a writer state

legislature first or did they just go to court? >> i'm not 100% sure how it worked on the effects of texas. part of this is that texas redistricting was. they initially passed a plan that was challenged in court. i don't do with actually went to the legislature and asked for it. in general i think what i would say is there are -- not every state uses total population as its base. i think that at least -- maybe i shouldn't say state but in certain levels of government, there are entities i believe that i've used population basis.

so it has been considered. >> is there any chance that this affects the congressional redistricting or is the constitution clear enough that it is good to be based on the total population regardless? >> this is another area in which i think the petitioner's brief is a little ambiguous and i think that we will know at the reply stage exactly the position on the implications for the u.s. house of representatives. but right now they said you shouldn't rely on the federal and allergy even if it did have a different population rule so that's what they are coming into the position on but they haven't actually said whether they think -- and you can correct me if they've read it differently they haven't said what kabul is for the house of representatives. you could draw a distinction based on specific text of the

constitution but the specific text of the constitution really is only telling you about how to portion the representatives among the states and not how the state should draw the line that you but you could draw the distinction based on that. but you could also just say one person, one vote is about voting the same rules apply. >> i agree with everything that you set up with one caveat which is under the current law there is a difference between how one person and one vote applies to the state as opposed to the congressional and throughout history we've been talking about equality and pe causation. but as a state level, the court has court has never actually put strict handcuffs on the exactly equal populations. they get some latitude and it's usually they talk about it as a plus or minus 5% or 10% range. so as long as the district has the most underpopulated is

within 10% of the district it's presumptively okay. but on the congressional side, the court is required pretty close to perfect a quality. because of that, it might have implications for how the that will work on the congressional side. so, for example as i mentioned before, one possible middle ground position would be to utilize both if you can. that's really only works when you have the gold room. you can't equalize both populations if you have to also hit both of them on the head. you can only do it if you have a plus or minus. so if that rule were to stick for congressional, that middle ground position might not be available on the congressional side so there are potential indications for how this would work on the congressional side but the short version is that the plaintiffs the case doesn't involve congressional and they are not taking the position on

what it is but nor does the constitution answer what to do on the districts as opposed to unique determining how many each state gets. >> let's go to the next case. we have the university of texas. >> first a couple of quick general comments. they noted last term liberals when more than conservatives in the cases. that was the first time in the history of the roberts court that happened. in the cases in the last term of the opposite, and i think that explains some of the emotion articulated in some of the dissent. they are not used to losing in these kind of cases and they were not happy with that

evidently. then the second thing how the question in this term isn't good to be conservative with a big cd or small c. i would say historically for the roberts court when it has been a question it's generally been conservative with a small c.. when it's had an option to take the sort of moderate conservative route rather than the radical conservative route that's what they've done with some notable exceptions but citizens united. but other than that, that has been the case. so, the other thing that is striking that this term is that two of the most controversial and political cases come out of texas and in both cases texas is defending the liberal position. so, fisher is a challenge to texas and universities in texas

affirmative-action plan and has been defending its mission policy since 1992 when it was first challenged. and the central question is how do you reconcile the application of strict scrutiny that requires the narrow tailoring to the compelling and and the courts holding that diversity differentially defined by the universities as a compelling and so the court, two things were clear in the affirmative-action arena, one, strict scrutiny applies and the exact same scrutiny. it applies to the disadvantaged racial minority applies to that advantage to racial minority and that requires the two it is a

compelling interest and the university's determination and needs in the critical mass in order to achieve the educational benefits is a compelling interest to which the courts differ but diversity and critical mass both dilute any specific or concrete definition so how you apply a standard that requires very narrow and specific tailoring to an end that is open-ended, indefinite and vague, and i think that is the central tension in the courts affirmative action jurisprudence which they have not resolved. this was up before the court as you know a couple of years ago and after a great deal of time

the courts eventually be mandated back to the fifth circuit. the fifth circuit had upheld the program. they were on this narrow tailoring so they sent it back through the assessment into analysis program of texas had. the program i think most people are familiar with what essentially texas adopted after was told they couldn't use reasonable by the fifth circuit in the case but adopted the top 10% plan which they guarantee the admissions to the top 10% of every graduating high school, every high school in texas because texas like so much of the rest of the united states is highly segregated. that actually achieves diversity. it's not in the missions planned any i think same missions

officer would adopt it in terms of how you evaluating persons value to the university and until the schools were forced into the position, nobody adopted such a program because it doesn't make sense. but, having adopted the program texas achieved some significant diversity about 4% african american, but about 15% making the representation. then the court and 2003 decided the university of michigan case in which it upheld the issue of race as a factor in the holistic all things considered assessment of the individual to determine and to achieve diversity. so texas is that if the university of michigan can do it, we can do it and they didn't scrap the top 10% plan but with

respect to those that haven't gotten into the top 10% plan the remainder that about 20% we will apply and do a holistically view and consider a wide range of factors to assess whether this person would add diverse value to the academic community. one of the factors the very modest factor will be race. they were challenged, and the question was whether that consideration of race and the holistic and very that is applied to the remainder after the top 10% plan filled 70 to 80% of the class is consistent with the courts of strict scrutiny requirements.

if it is difficult to define but a critical bass is and that's the end, however well do you do the narrow tailoring it to that end, and that is essentially the challenge. there is an argument that says if you have a mushy and, you cannot have been narrowly tailored means test in texas has not sufficiently demonstrated why it needs to consider race in this remainder in order to achieve its end. the problem in that argument is that the court has already confronted the document in the michigan cases. the bigger cities from the justice's opinion open-ended and ill-defined and independents to constitute a compelling state interest. but what he said in his opinion is we have rejected the challenge is argument that diversity is too open-ended and ill-defined and indefinite the compelling state interest said

it accepted this interest with full recognition that is open-ended and ill-defined and indefinite. so then how do you do the narrow tailoring and what the of what the courts have done thus far they have said what you can realistically require is no racial quotas for consideration of race neutral alternatives, a holistic consideration of each individual, no sort of satisfied categories and race being a modest factor. that is the definition and that is essentially what kennedy said in his concurrence in the michigan case. and that is essentially what texas has shown us that they

attempted race visual alternatives more than michigan did. it's only a modest factor into the doesn't add a new diversity onto that racial diversity the top 10% plan% plant reaches, so the question the fifth circuit says that is all we can require and texas has met that standard and the court is great to take that up again. i think the challenger's argument is it doesn't make sense to have a narrow requirements apply to indefinable end. you never know when do you have

critical mass. why is it different than latinos and what are the percentages that you need. those are the questions questions that texas will answer and cannot answer and that makes the application of the narrow tailoring very sticky. so you either it seems to me you have two options, you either say the most we can require is what we have required and i think that texas has met that were you can say no actually we require something more. whatever that something more is. it's not likely to be shown in the affirmative-action or threatened at the end of affirmative-action. about 12 years ago justice o'connor said we are upholding affirmative action used in this

holistic and modest way but for 25 years. it's only 12 years ago and i think that in 20 years it is greatly a very strong argument that affirmative action should be ended. so i would be surprised if it is ended now. the one possible sort of middle ground is to say when you've adopted the plan that gets you some racial proportional diversity, then you have a higher burden to demonstrate why you still need to consider race without remainder. and that wouldn't end affirmative action that would say when the states adopt a 10% plan they have a high burden so that is a kind of paradoxical result because it would say that

if you adopt a race neutral task which isn't required to be adopted, and in michigan the court rejected the notion that you have to adopt the plan you are put in a worse position than a university that applies race to every applicant and so i think it's a tough case and what is tough about it and he rides from the existing precedents that creates this tension between the requirement of the tailoring and the open ended this. ..

last year involving the fair housing act but, in this circumstance it seems pretty hard to believe that the conservatives would have pulled trigger on granting, if they didn't have the votes to reverse, at least in some aspect, whether it is narrow or broader, and i do sort of agree with david, that the two big

moves are narrow one would be just to focus on, you didn't need additional affirmative action programs over and above what you already had. the more aggressive one which i don't think would actually end affirmative action would be make it a whole lot harder justify, would say if you have diversity as compelling interest, and educational benefits you have to explain what that means. tough explain what the numbers are you're shooting for. they're not quotas but if you're saying compelling interest in having a certain amount of racial diversity tough to explain to us what that is. what figures are you looking for where you get the racial benefit, educational benefits from diversity. then we can figure out whether it is narrowly tailored. until you tell us what you're shooting for the analysis doesn't make any sense. so that i think would be -- if i recall correctly, i think the chief was pushing that line of argument pretty heavily in the oral argument the first time around. so that would be i think bolder

position that would come out of the case. >> just to echo what hashim said, it is very interesting that they granted this case because they, they clearly know what's going on and what they're getting themselves into which makes it hard to think that they didn't grant it with the idea of being able to come out and in some way that is not very good for texas but i also have a hard time seeing five justices, five justice majority ready to really go far in this area. so, all that, it leads me to think they have narrower view in mind how they will deal with this but they certainly didn't need to take the case. they seemed to struggle a bit whether to take it and they clearly know exactly what they're getting themselves into by doing it and sets up interesting dynamic what to see is going to come out here. >> so far nobody has expressly

mentioned the rationale that the court of appeals used to say why there needed to be more diversity and it seems to me what they were saying is that there needed to be some within group racial diversity. maybe there was enough of each particular group but what wasn't accomplished through the top 10% plan was within group diversity. the reason being that the 10% plan accepts people on one metric. great point and draws largely from segregated schools and that there are experiences that, at least this court of appeals thought that, and backgrounds and, that aren't captured in the 10%, kind of, you're just automatically in the 10%, that could be found in, through holistic review. so i'm just wondering how you think the court will react to

that rationale? >> i think, but it's funny, you go back to justice powell's landmark opinion in bakke. that is one of the main rationales this is not just, this whole effort is not only intended to get more students of particular races and background in there but to break down racial stereotypes. you need enough students to demonstrate not all students of color think alike or have equal, or have similar background or bring same things to a classroom. but that the whole effort to break down racial stereotypes in society and higher education in particular requires a broad range. this is response to the argument that many of these programs were admitting, higher income, very well to do african-american students. rather than those who had differences of, different backgrounds. the court, i believe justice

kennedy expressed some sympathy to this idea, part of the reason for affirmative action to have enough students of different background so people don't attribute particular views or life perspectives categorically to a particular race. so he might be a little sympathetic to this idea. >> that definitely would be the right way to spin it if you're texas and there is a lot to it. but the oddity of this is something you also flagged which is, in essence what it's saying is what we need is a lot of relatively well off minorities who wentñ to relatively good schools and weren't in the top 10%. that seems to turn a lot of people's notions of affirmative action on its head. people you're giving additional benefit to in some sense the people who in least of need it.

they went to better schools and better off than the 10%. >> in terms of remedial, that is sachs litly true. i'm not sure that is how justice kennedy thinks of it. >> i think there is a way texas's argument, to the extent, if it is phrased this way, sort of appears to adopt a zare yo type about the -- stereotype about the black kids from come from the top 10%. they're of a certain type and we need a different type and that itself seems to be stereotyped. there is no, there is no evidence in the record that of what, you know, sort of overall diversity of the top 10% students from segregated black and latino schools are like, versus those who are from the remainder. but i guess my sense is, that it is not so much about intraracial diversity as an end. it is about diversity as an end.

and the reason the state engages in holiestic review of why most schools engage in holiestic review of everybody and why texas engages in holiestic review of the remainder because it wants diversity, wants a trumpet player. wants the lacrosse player. it wants a person who had extraordinary challenges growing up. it wants a whole range, wants a great debater who was in the top 15%, not just the top 10%, et cetera, et cetera, right? within that set of diversity race is a legitimate consideration. i mean we shouldn't exclude it at that point but we're not, we're not just looking for well-off black kids who were in the, who were in the top 15% but not the top 10%. we're looking for a diverse student body, which includes the consideration of race as one of

the factors colors one's experience in the united states. race continues to matter and so it continues to be a relevant factor in considering diversity. and, as it is modest, which it clearly is, it ought to be permissible. >> seems to me, david has done his best to predict a win for the university of texas, you know, i just don't see it. i see this grant the same way hash does. in studying justice kennedy's opinions on affirmative action and use of race, it seems to me the overriding theme are twofold. one he really believes in integrated and value of integration. and number two, he desperately wants it to be achieved by race-neutral means. i think you see that in the fair housing act opinion and reason it came out the way it did i think, those two things are

basically true. he believes in integration and fair housing act cases can be remedied in race-neutral means simply by adopting one race-neutral method aren't the other, albeit in the interest of promoting integration. so it's really hard to figure out how for him how to strike the right balance but i think what he wants to do is drive more innovative solutions how to get to integration through race-neutral means. the way to do that, is to make universities around the country fear that their plans will be invalidated but not rule out the possibility they could be upheld. that is what is going to drive innovation. i think that, justice kennedy will write something that makes it very difficult to satisfy strict scrutiny and starts to worry people that maybe they ought to be looking for race-neutral means. i mean it is true, there has

been a lot of effort to do that, that hasn't turned out as successful as some might have hoped but i think justice kennedy thinks that the ready resort to race is the part that is allowed under the michigan decision is part of the reason why it hasn't been driven. so i do think we will see not something that eliminates affirmative action all together but picks out enough things that are wrong with the university of texas plan to give other universities enough concern they will be in the position of thinking, maybe we ought to switch to something that is race-neutral. >> with that, why don't we, questions for the press, from the press. yes? >> go back one more time -- [inaudible]. if they do rule more broadly and want a number associated with critical mass, for the layman,

how is that not rub up against the quota aspect? just don't want that. >> the way it could be, for example, the question is, if the court tries to set, holds that universities have to articulate what critical mass means in a more quantitative way, rather than sort of fuzzy qualitative way they have done thus far, how does it not inexorably lead to a quota? i think the way it could would be to say, for example you study educational policy, et cetera, et cetera, and you determine for example, i will pick numbers out of a hat, let's say 10% of minority population is sort of level where you get the educational benefits for diversity. that is what you really need to be. okay. so that's what you're shooting for. that doesn't mean that you can then go say, okay i will let in 10% minorities, nothing more. i will not let in one more or one less. that would be a quota.

having 10% for your target, acting in a race conscious way, considers all factors holistically makes race a plus factor but not dispositive reconciles the two. you could have it be a target without it being a quota. there is risk here is the number it will lead to quota. which historically people have been nervous about doing it. at least some of the conservatives will view running risk of having there be more likely a quota or having it be, universities can say we're shooting for critical mass in the air. no one idea what that means. you try to do narrow tailoring without anything to tailor to, i think some people will be interested as possibility much having real teeth into strict scrutiny. >> any other questions all right. so let's move on to our next case which is friedrich versus

california teachers association. >> erin. friedrichs should be one of the closely-watched cases at court this team. this involves a question of whether the court should overrule its 1977 decision in abooed, which is the case that held public sector employees could be required to pay union dues. there is two question in friedrichs, that kind of deal with the two issues and dichotomy abboud drew. the court said you have can compulsory dues for purposes that are germane to collective bargaining but if the union is using money for basically political reasons that aren't directly germane to collective bargaining you can't have compulsory dues. you have to give employees the opportunity to not pay those. but what the court said in abboud it is okay to give them the opportunity to opt out of

paying those dues rather than to opt into them. so this leads to the two questions that are presented in the friedrichs case. one is, should the court overrule the principle holding of abboud, that you can compel any dues, even for the germain to collective bargaining purposes. the dues for political purposes is it constitutional to have opt-out scheme or does the constitution require an opt-in scheme where employees have to affirmatively to choose to give the dues rather than raise their hand no, i want my money back because i don't want to contribute to the group's political activities. so i mean it is always interesting when the court grant as case for the question of should we overrule something and here it is particularly interesting this isn't a question, oh, does abboud apply to x, y and z, and if it does

should it be overruled? this is straight upcase teed up as presenting the question of whether abboud should be overruled in the first, i think, there would be some dispute whether abboud needs to be overruled as to the second question but it is just set up with just those questions before the court and no apparent way for the court to get around them in some narrower resolution of the case. they narrowly taken a case whether to decide to overrule one of their precedent. the cautionary tale to grant the court question to overrule one of their cases. couple cases in a row they did that and there wasn't actually a majority to overrule. so you know, i don't think it's a fair rule of thumb just because they grant on a question like that, they necessarily have the votes to go all the way. that said, i would not feel very good coming into this if i were

the respondents given what we've seen from the roberts court on this issue in the past few years. this isn't a case that comes out of a few justices offhandedly suggesting in concurrence or statement respecting denial they're open to reconsidering the question of whether abboud was right. this comes on the heels of two back-to-back, solid five justice majority opinions that basically fundamentally undermine every aspect of the reasoning in the abboud decision. first of those is the knox case from the 2011 term. the question there had to do with compulsory payment of a, what is the term? >> special assessment. >> special assessment. in resolving that question, in deciding it was unconstitutional to have compulsory payment of that. the court went out of its way first to describe the principle

holding of abboud really anomaly even though that principle holding germane to collective bargaining dues was not really at issue there but the court went out of its way to call that into question. it basically resolved the question before it by reasoning that abboud was probably wrong about the opt-out, opt-in dichotomy in the first place. so that opt-out, the opt-out requirement certainly shouldn't be extended to a new context of special assessments. so you can see the court taking the opportunity to resolve a case that it perhaps could have resolved without going out of its way to call into question abboud but instead, doing that, and you have this in a opinion fully joined by the five members of the court that made the majority. there is no separate concurrence saying oh, well i joined this, and i'm not quite sure, i have fundamental issues with the opt-in, opt-out aspect of that. so that is just what we get from knox.

then a couple of years later we have the harris v. quinn case which involved whether abboud should apply to home health care workers. again there, you have a case where arguably the court could have really just focused its analysis on distinguishing home health care workers and the from the public employees at issue in abboud. instead the court decides to resolve the case in engaging in real detailed lengthy discussion why the foundations of abboud are both questionable as a legal matter and as an empirical matter. engaging in what reads heck of a lot like a stare decisis discussion how abboud has proven unworkable, basically saying it is not only wrong but doesn't keep sense having it around. going through all of this in an opinion sure reads like it will end by overturning abboud but ultimately concludes saying we don't need to go that far

because once again this decision is so wrong we'll not extend it to the new circumstances before us and we'll leave it at that. again you have that opinion joined by five members, with none of them saying separately, i don't think we need to go quite that far or this could be done distinguishing facts of this case from abboud. so there is nothing kind of there give me comfort there is some justice a bill bit uncertain about signing on to all this. another factor of harris v. quinn, petitioners here, does a very nice job of pointing out, the dissent in hair voice v. quinn taking issue that the court seemed to go out of the its way to call into question abboud, doesn't defend abboud the actual reasoning that the abboud

decision employed. the court in abboud said we accept that all of this is a an imposition, infringement on first amendment rights even when we're talking about compulsory payment of fees germane to collective bargaining but we consider the first amendment rights outweighed by concerns about free riders, people not having to pay their fair share for what they're getting out of the union. that is really not, resuscitate abboud in the dissent in harris v. quinn that is not even the grounds which the dissent tries to resuscitate it. they call into the question the whole premise there is really serious first amendment decision at stake here. you're left with a decision even as to the justices who still wanted to remain the law, they're not even necessarily seemingly convinced that it got there for the right reasons which is understandable when you can where harris v. quinn

abboud had slipshod analysis and cases already resolved before it when they hadn't infact done so. when you look in context it is hard to see aboard surviving in freed distribution. aboard. compulsory services for collective bargaining, there would be still five votes you can't have an opt-out scheme. there this is fundamental constitutional right people retain and they have to opt in into a regime they decide to give their money to support the political speech here. they can't be forced to take the

affirmative action of opting out of that regime. so i think you would arrive at compromised result is not a result that would obviate the need to answer the first question. the court is not going to get around what it took this case to do and the signals here all to me point in the direction they took this case to overrule abood on both of these issues. >> anybody else have -- >> i'm afraid erin's prognostication is probably correct. i would think though there would be two emphasize sees in the side briefs or at least one i want to suggest might be possible for peeling off of a fifth vote going the other way. and the first and obvious one, i think this appears pretty prominently in justice kagan's dissent in the previous case,

try to appeal to justice scalia that these are public employees after all and he long-held first amendment rights of public employees are quite diminished when the state has interest in efficiency in the work place. you should be able to control the first amendment activities of one's employees. i think the prospect of getting his vote on that theory dee dee spends on this, the case to be made, these agency fee arrangements are intended to make the work place more efficient. they're used in certain labor contexts for many years. the big three, buildings trades and the like and employers there tend to think this is good for business and i think that is probably the somewhat long shot but who knows where he would be on that. i think that will be the focus of the brief. i can't help but mention a second i'm not sure anyone is going to brief which is i long

thought abood ought to be overruled and overruled in the other direction. the court never really explained including recent cases what is justification it is for the basic rule when state takes money from you gives it to certain private party in certain context to allow the private party to speak in a way you disapprove of that implicates your free speech rights. obviously the state taxes you all the time uses your money to engage in the government's own speech without any first amendment problems. even sometimes in the case like southworth, that was the student activity fee case in wisconsin, to promote a wide array of private speech much of which you might disagree with. abood never really explained why there is first amendment problem here. i don't think there is one. there may be policy reasons why a state ought not to do that but don't implicate one's speech but i doubt this will be a primary topic of the briefing, but, but

if there are any sincere principled originalists on the court they might consider whether abood wasn't wrong to begin with going the other direction. >> so i just want to add one thing about the justifications that you're apt to see from the bottom side briefs. i acree with marty's first one i don't think the bottom side briefs will be taking marty's second point but the second point that is there is one that is borrowed was in the dissent of justice kagan's and borrowed from justice scalia's opinion. >> first one, right? >> no, the second one, that i'm about to say. which is that what distinguishes this situation over many others of compelled assessments is that the union has a duty under state law to bargain for everyone else

in the union and that is different than a situation where you have compelled assessments. now the one thing about the harris decision is that, i would say that justice alito's opinion tread pretty softly on that ground. i mean, he perhaps called it into question a little bit but as not so much, my speculation justice scalia may have not been ready to ditch it 100% and therefore it, it is definitely worth bringing up on the bottom side briefs. i tend to agree that the odds are that we'll see abood overruled but i do think there is some possibility that one or two justices will get cold feet and hash has offered them a landing spot. now i can see why you presented the second question but it's

there and so people can think that, well, abood has been around a long time, the world hasn't come apart but will the second part of abood we'll switch over which is that for these that can not be coerced, non-bargaining fees we'll require opt-in rather than opt-out so i think that is the modest, the best, i would suspect that the bottom side can do in this case but i do think it's a real possibility still. >> just to echo, underscore what irv's point, this argument that scalia has made before, because public sector unions have a statutory duty to represent non-members, the state has a legitimate interest in requiring those non-members to pay for that service. it would require scalia to admit he was wrong and i have never

seen scalia admit he is wrong. that is on the side of not entirely overturning abood. on the other side i think, this is a case that really pits an individualistic, libertarian claim against collective responsibility, not unlike you can't require me to buy health insurance to support my fellow americans. you can't require me to pay for my public sector union dues. historically individualistic libertarian arguments win out over collective responsibility arguments. aca case notwithstanding. >> before i turn to the press, what about the impact of this case, assuming abood is overruled? what, is the fate of unions really up in the air here? unions are obviously on the decline but they're still strong in the public sector this case

is really about public sector unions. what do you see as impact? >> i think there is a decent argument of, look at the core level of whether you can have unions still and they're going to function, there is plenty of evidence that they can function without compulsory dues, in the public sector. while they have, the same money and the same power and the in the states where they had dues coming in, if they don't have them, absolutely not. but you know, i think, it is kind of a question where on the scale. i don't think it would be the destruction of public sector union representation although i'm sure we'll see a little bit stronger view on that question from the respondents when the brief comes? >> i think public sector unions take a very different view and have long seen this as a real threat to their continued effective existence. as we know unions are on the decline generally. scott walker has stepped out of

the race. the supreme court may step in. >> i will note that the federal government doesn't have compulsory union dues for its public sector unions. in addition scott walker a lot of states don't. so i, erin's right, of course it will be a shift from union power but i think suggestion it would be the denies -- demise of public sector union is given fairly overblown and given half of the country and federal government operate under that regime right now. >> press questions? all right. contraception and religious accommodation, marty. >> three cases we discussed so far, friedrichs, fisher, even will all be arguablied in december. one of them might get kicked to january but probably be. the two irv and i will discuss next are not even on the docket yet. they're only at the cert stage. most of us both of them are

likely to be granted at some point in this term. i'm talking about the hobby lobby follow-up contraception. irv will talk a little bit about the abortion case out of texas. i'm going to assume some knowledge at least part of the press core of hobby lobby which was decided two terms ago and apparent win-win solution justice kennedy thought to have engineered in that case. as you know the affordable care act requires that all health care firms in the united states provide certain forms of preventative care in order to both advance of americans and women in particular and also make health care more affordable by preventing high cost health care needs before they, before they occur. and the government has determined that in particular, all health care plans news provide cost-free coverage of 18 of the 20 fda required, fda

approved forms of contraception. and certain entities, both for-profit and non-profit object to having those forms of contraception coverage in their health care plan for their employees and a handful of student plans as well with respect to colleges and universities. hobby lobby was a case involving several for-profit entities and as most of you may recall under the religious freedom restoration act, or rfra, it is a general cross-cutting statute says with respect to virtually every federal law, if the application of that law to a particular individual or organization imposes a substantial burden on their exercise of religion, then the government is required to grant them an exemption from the application of that law unless the government can show that the denial of the exemption will be the least restrictive means of advancing a compelling governmental interest.

the 5-4 majority in hobby lobby suggested that hobby lobby's claims that contraceptive care requirement be included in its health care plan did probably impose a substantial burden on its religious exercise because of its view of its complicity in the employee's use of contraception if the health care plan in question were to give them cost-free coverage for that, for that contraception. notwithstanding the fact that they could just not have a health care plan at all. because if they continue their health care plan they would be subject to pretty extensive fines for not including that or any other form of preventative coverage that the law requires. so such as immunization or the like. the court ruled 5-4 that was a substantial burden. it then moved to the compelling governmental interest test in which justice alito's majority

opinion seemed to be skeptical of the government's compelling interest but justice kennedy's concurrence, the court didn't really resolve that question and justice kennedy's concurrence seemed to send pretty strong signals there was compelling interest making sure all female employees do have access to cost-free contraceptive coverage. so then the question sort of reduced to, is this the least restrictive way of guaranteeing that cost-free coverage? justice kennedy and majority opinion ultimately rested on that justice kennedy emphasized that the government itself, departments of labor and health and human services had come up with an accommodation for non-profit entities that would appear to be a so-called win-win. a situation under which they would not be responsible for paying for or facilitating or administering the contraception coverage for their plans for their students or their employees.

but the at the same time their employees and students would get cost-free coverage. how? how does this accommodation work? it works in the following way. if the organization, if employer opts out of coverage, the government then requires its insurer, i'll break that down a little bit in a second, to itself pay for the coverage, rather than the employer. the employer at that point, according to government, has nothing more to do with the provision of the contraception. sort of go around them to the insurance companies such as aetna or blue cross that they have hired to administer their plan. it that's entity, rather than the employer that both administers and in the first instance pays for the coverage. and hobby lobby, and erin, representing hobby hobby lobby seemed to suggest without quite

saying so that would not violate their religious obligations or at least not in the same way. the court said that seems to solve the problem we have in hobby lobby. let's see if this solution that can be applied to everyone. the government went back and now extended come mow dyings not only to for-profit employers and continue to do so with respect to non-profit employers and changed regulation a little bit in ways that are not worth getting into here underries is a. now all that one is required to do send notice to the department of health and human services you're opting out. that point the department of labor reaches out to your insurer, now you're on the hook for this cost-free coverage. here i'm afraid i will have to very briefly break down, this will be a little harder than it was in hobby lobby to understand but bears on how they resolved case. court in two principles and three types of insurance plans that they used and accommodation

applies to each of them. so, under so-called insured plans insurer you hire such as aetna, is responsible for paying out the claims that your employees submit or your students submit. in a self, so-called self-insured plan, the employer itself ordinarily makes the payments but it hires an insurance company to be the administrator of the plan but the money is coming from the employer. the accommodation that hhs has offered applies to both sorts of plans. there are about 100 non-profit organization in the united states and hhs expects about 100 for-profit employers who continue to object even to this accommodation and to seek a rfra exemption for it. so the accommodation has mollified or satisfied the great majority of employers that used

to be object or be uneasy about this but there are still a couple hundred that don't on both the profit and non-profit side. the case the court likely will grant involves non-profits where most of the actions has been in the lower court. i believe eights of court of appeals ruled on non-profit cases. until last week all seven of them ruled in the government's favor. all seven of them had held that there was no substantial burden because the employer had been taken out of the loop and the obligations were therefore imposed only on the third parties at this point. one of those courts, d.c. circuit, went on to say even if that weren't the case, there is compelling governmental interest in having making sure that all employees or students could get access to coverage n that case, judge cavanagh in particular said that the government may continue to require the religious organizations insurers

themselves to provide contraceptive coverage to the employees. pretty striking thing. others conservative judges such as judge smith in the fifth circuit agreed on the substantial burden but several conservative judges did not. a panel of the 8th circuit disagreed making it very, very likely the court will grant one of many petitions currently pending before it to hear these cases. there are a bunch of petitions from the d.c. circuit, the fifth circuit, third circuit and 10th circuit. several of them were scheduled to be on a lon conference but the court put those off. i expect they're waiting for all the briefing to be done in currently pending cases. the government's final brief in the 10th circuit will be due tomorrow. as soon as they get that case i expect them to put them all on one conference and decide them early in the term. i publicly predicted the court

is very likely to grant is one even the government believes is the best vehicle which is the d.c. circuit case. if i'm right about that, jones days case, hash. >> thank you very much. >> erin has wonderful petitions from the fifth and 10th circuits but i'm sorry to say, erin, i think in this case jones day, the court will probably grant the d.c. circuit case because it involves every different kind of plan, student and employer and all three different kinds of plans underries is a. if i'm right, a bishop of washington, d.c. very burwell which is pretty dramatic.

archdiocese of d.c. does not have to provide coverage you but they're in the case for a particular reason because their plan is used by other employers. i don't think their claim is particularly strong. that clays involves other employers. particular catholic university and thomas aquinas college which one has an insured plan. the other which has a self-insured plan. and jones day has at this point figured out what the strongest arguments are for why that, why this accommodation might impose a substantial burden. i think most of the arguments most of the plaintiffs have made can be met and have been met successfully by the government with the objection they're made on mistakes of fact or law on series of how the system works under the law and the facts. but lately jones day focused particularly one argument that doesn't seem subject to that objection. the theory is something like the

following. yes, to be sure we're not responsible anymore for our employees use of contraception, we're not but for cause of it, they would get cost-free coverage for it any way, but we're responsible for the fact that the particular insurance company will be one providing them with cost-free coverage. we hired these employees. we contracted with this insurance company. we contracted with aetna rather than blue cross. so we are responsible for putting aetna together with these employees for this coverage and we consider it a violation of our religious obligations to be a matchmaker of that sort, right? to matched up a particular insurance company with particular employees. the government can't second-guess our religious explanation of complicity. we think we are complicit because of that matchmaking function and therefore we should get to the compelling interest and narrow tailoring side of things. on narrow tailoring and

compelling interest it is notable i think even judge cavanagh thought the government ought to require these insurers provide cost-free coverage to these employees. he did object however to one small aspect of the scheme where said the government could not justify one small aspect of the scheme. which is requirement you identify who your insurer is, right? if you opt out, i have hired aetna. now in 90% of the cases that doesn't matter because the employers acknowledge publicly who the insurers are. not obvious this matters to any of the petitioners but it is something that judge cavanagh pointed out. so, i don't think it's a very strong argument that the government has. to the extent there is a petitioner out there who really cares about having to identify their employer for the government and thereby help the government with this scheme, i'm pretty sure the justices will say the government doesn't have

justification for requiring that identification. but that just sort of punts the case to the bigger questions which are number un, is there a substantial burden. if so, if the government can identify itself that it is aetna or blue cross, can it require that entity to provide the cost-free coverage to employees? we can talk, if you're interested about how that scheme works and that in most cases it is either benefit to the insurer or government reimburses third party administrators for their costs but i don't want to get too deep into the weeds because i want to hear what my fellow panelists think. i will not make a prediction about the merits. i have written enough about this that i think government ought to win under rfra. justice kennedy is becoming a theme. it is not entirely, i think he wants to provide universal coverage for employees of this cost-free contraception. i think his vote will depend largely on extent to which he

thinks the government has, sort of like affirmative action of the has other options available to it that would be enable it to provide this cost-free coverage in a reasonable way without using these insurance companies to do so. >> anybody else? >> sure. we represent several of the petitioners in these cases. i take issue with about 890% of what marty said. i will keep it to a few. >> that is generous characterization. >> we represent some universities in texas and some in the fifth circuit case and represent the little sisters of the poor in the 10th circuit case. just one kind of procedural observation about all this. i don't know what cases the court is going to grant here but if it were really as anxious as it seems to defer to the government's suggestion about what is the best petition in

which to resolve the case then i'm not sure why they decided to pull the d.c. circuit cases from the conference which they did before the split developed from the 8th circuit. they had already decided to pull that from the long conference and reschedule all the cases until what it looks like they're doing is waiting for the little sisters and other petition out of the 10th circuit to be fully briefed which i think the government got an extension and won't actually be briefed for a few more weeks at this point. but to me that suggests that they are not at all committed at this point to taking any particular case or deferring to the government's view of vehicle which the court would resolve a case before the government. i think it es open question what they end up taking of the other argument being offered for taking third circuit cases which offers all of the plans which is different argument because nobody in the any of the cases thinks the analysis is any

different from what every plan you have. government thinks it is perfectly lawful whatever plan you have. objectors don't think it is unlawful under rfra no matter what plan you have. there is a couple of courts that suggested, dissenting opinion in one that concluded it made a difference but it is not something any of the, the parties think. there is also an interesting aspect, little sisters petition also presents a separate question whether this is unconstitutional even if it doesn't violate rfra, not just a straight up religious freedom exercise. actually a question about whether the government's decision to discriminate essentially among religious employers and completely allow churches to opt out while not allowing other, basically entity ies not officially associated with church or house of worship to opt out is itself

unconstitutional because the government shouldn't be drawing lines which religious objections it will accommodate and which it is not. that is another aspect here. that has not been issue gotten principle attention in the courts below. but it is an issue gotten a lot of attention from amici suggested in a lot of briefings. it is possible that the court will decide they want to add that question into the mix here. we'll see but i expect rfra to be the main issue, and i think everybody now that there is a explain expects at some point the court will take a case here. i will just say one or two things about the merits of the issue because i feel duty-bound to set the record straight a little bit on behalf of the challengers here. and i think that marty's analysis glosses over the principle problem that is really the source of the objection here which is that the government is not only using the plans of the

employers, which it concedes, in its most recent brief in the hobby lobby case, the government conceded at least in one of the contexts it is actually using the employer's own plan to provide the insurance but also that the government is requiring the employ earlier affirmatively assist the government to achieve that end. it is not simply matter of opting out. you just don't sign a form that i have a religious objection. you have to sign something tell the government, here is my tpa, third party administrator, here is how to contact them so you go get them to provide insurance i find objectionable. the government acknowledge that in the brief and say, we need that assistance from the employers because they actually con side that they can't get that information in the employers don't help them get it. at that point it is very hard

for me to understand how people can say the employ hears no involvement in any of this when by the government's own telling its saying no, we need them. we need them to give us this information because if they don't give us this information we can't then use their plans to provide the coverage that we want to provide. now you can still have the debate about whether that is the least restrictive means of doing all of this, but i don't really see how you can have a debate at that point whether there is substantial burden on religion. because you're compelling people to do something they consider to be facilitating sin. you're telling them if they don't do it they have to pay millions of dollars in penalties. that said, every court below that has gone the other way remarkably managed to resolve this on substantial burden analysis. i'm not sure the government's going to fare nearly as well in front of the supreme court on

that case but we'll see. >> for once, irrin, i'm agreeing with you guys, to the extent this turns on providing information to the government, that the government won't provide that is substantial burden. i don't think the case turns on that. >> government says differently in its own brief. >> well. >> anybody else have a comment on this case? so i will turn to the press questions. yeah. >> microphone. >> will the atmospherics on kim davis affect the justice's thoughts on this? >> i think, the broad issues, the kim davis is raising as some of you may know, a claim under the kentucky state rfra. and her case is obviously a little different because she is a public official. but, yes, the general, everyone knows that as we move towards more controversial social norms

that had not been accepted with same-sex marriage and contraception there will be religious objections from some folks and where rfra is available they will seek exemptions from being required to do what in their view makes them complicit in that allegedly sinful conduct. so i don't know that kim davis itself will affect the justices at all. but everyone knows this is just representative of a broader problem that will be that the courts have to confront in the same-sex marriage context as well as things like contraception. >> anybody else? question. >> two quick questions. one is, how big a deal is the outcome of this case if there is finding that it is a substantial burden but that it is the least restrictive means? so you get some, government gets

some? the second question is, assuming for a second that the justices may not be as eager as you think to take on this case, what are the prospects of waiting for the government's brief in out of the eighth circuit would which have effect of pushing the case back a term? >> just to answer your first question, if the government wins, loses substantial burden but wins on compelling interest test, that is a huge win for the government. >> on the second question, i mean, my expectation is that when the government files its reply briefs in the pending 10th circuit cases they will tell the court they either plan to file a petition in the eighth circuit case or they don't. to tell the course what they think it makes sense to do in light of that kind of development. i can't, it's hard to see the court deciding the right thing to do is to deny all these

petitions that will leave religious employers who lost in the position of having to comply with the accommodation, if the court intends to later take up the question. so, it seems to me that even if they wanted to give the government an opportunity to have its own petition which there is no obvious need for them to do that, they would hold on to the petitions and deal with it all at once still, rather than denying cases in which the religious employers lost when there is a decent chance that majority of court those came out the wrong way. >> i agree. >> tack on to that also, congress, for the similar reasons it seems unlikely this is sort of case they try to push a term because you have important status quo interests on both sides. religious organizations violating religion for extra year or injunctions in place, employees will not get

contraception for extra year while possible that the government might ultimately win. i don't think it is in anyone's interest to kick this for another year. i still think the case is so controversial they would want to push it another term just for delay sake. >> if the government files in the 10th circuit tomorrow, i don't know if they got another extension, if they do, i agree with erin, they will either say we think the d.c. circuit case remains the breast case to take now there is a split, you should take it. or if they have some reason for thinking eighth circuit case is better vehicle, wait for our petition but off the top of my head it is not obvious why that could be a better vehicle. >> they would be topside. >> if there is petition or they file the reply brief, which is not the court cares about or something the government might care about. >> you don't care about it? >> you can agree to give them the reply brief? >> fair enough. >> i will say the government will not file a brief tomorrow,

saying take the eighth circuit case so we get a reply brief. any other questions? if not, then we'll turn to the last of the big five. holman's health versus cole. the court has not heard a abortion case since 2007. a number of states tested the limits of their authority to regulate or restrict abortions. some of those have been struck down by lower courts. others have been upheld. so far the supreme court stayed out of it. this year seems likely to me the court will return to the subject of abortion in this case. this case involves two requirements that are imposed on abortion providers. admitting privileges requirement provides that a physician who performs an abortion has to have admitting privileges at a hospital that is within 30 miles of where the abortion is

performed. and the ambulatory surgical center requirements or asc, provide that abortion providers must comply with certain minimal, minimum physical plant requirements that apply to all ambulatory or most ambulatory surgical centers. its claim that the two requirements together would result in closing of0% of the abortion facilities in texas, leaving approximately 10 that are concentrated in the urban centers of on dallas, houston and san antonio. the closures would result from the fact that some of the facilities have doctors who can't gain admitting privileges to nearby hospitals for reasons that have nothing to do with their qualifications as doctors. and from the fact that it would be prohibitively expensive for many facilities to reconstruct their centers to comply with the physical plant requirements. so a group of abortion providers

have challenged these requirements under the undue burden test of, that was set forth in the casey decision which reaffirmed roe in part but modified it significantly. they allege that neither requirement advances the state's interest in the health of a woman seeking an abortion and that both create serious obstacles to obtaining an abortion, particularly for women in the southern and western parts of the states. who would have long travel distances to the nearest abortion facility should their nearest ones be closed. the district court invalidated requirements but the court of appeals for the fifth circuit reversed except with respect to one facility. that court read casey and subsequent cases to establish two requirements for analyzing

abortion restrictions. first, does the challenge requirement satisfy the most lenient form of rational basis review, which can you conceive any state of facts possible that would justify the restriction? second, does the requirement substantially burden a woman's access to abortion. the court rejected, at approach of the 7th circuit in an opinion authored by judge pozner, who said that abortion-related statutes ought to be justified on medical grounds, not only need evidence that the medical grounds are legitimate, but also that the strength of the government's interest outweighs that of the, the burden. so under that approach even a very slight burden on abortion access would be undue if the justification for this restriction was weak. and applying that approach, the

7th circuit invalidated or actually prelim narrowly enjoined the admitting privileges requirement. now the fifth circuit applied two-part test. found there was a rational basis for each requirement. it thought that continuity of care was a rational reason to require admitting privileges in those cases which complications necessitate emergency treatment. . .