it. i think membsomebody has to get there and clean house at the >> thank you. senator coburn? >> thank you, mr. chairman. appreciate having the opportunity to serve with each of you on this conference committee. i'm finishing my 16th year in congress, and i've seen this story before. and michal leng to ea-- my chal each of us is to fix the symptoms. i want to share with you a couple statistics from the president's 2015 budget submission. current estimate for spashpaties

16,500, 12,000 nurses and pas. the figure is out to 287 unique visitors per provider per year. think about that. double it. say it's 500. the average private care physician this country sees, five times that. so when i hear that we need more providers and more money, i just go nuts. because what we need is exactly what you said, representative coffman, we need leadership. and we need what the ranking member from the house said. we need the ability to control those that manage. and if you don't fix the real problems, you'll be back here again and the commitment to our veterans will be wasted, and the most important thing is we will have wasted an opportunity to actually make a difference in their lives, which is our commitment to them. so i look forward to working -- i'm involved. i issued a report today, and mr. chairman, i would like a copy of that report to be placed as part

of the minutes. >> without objection. >> it paints a dismal picture of the va, and it's not just in health care. and if you take the time to read it, you will become incensed. and we have lots of great va hospitals. we're better in certain areas than anybody in the world, but we've heard the statement several times today, the va care is good. well, if you put the books on appointments, you have no idea whether the va care is good. so we don't know that it's bad, but we don't know that it's good because there's no true transparency in terms of quality outcomes in the va. there's nothing to compare it to. so if you really want to fix the va, you have to make it totally transparent, you have to give the management the capability to truly hold itself accountable, and if they do that, we'll live up to the commitment that abraham lincoln promised them. >> thank you. congresswoman brown.

>> ranking member for opening for the veterans conference report. i've been on the va committee for 22 years, and let me just say that the va is one of the best systems in the united states of america as far as veterans' health care is concerned. now, i want to start out with that. i sent a letter to my colleagues for their suggestion as to how we can improve the system. but i want to be clear that i am not going to be a part of dismantling the system. yes, the system has problems. but i've been on this committee long enough to know that for the

first time in a number of years, we built any va hospitals, 15 years we had built not a single one. in fact, the vietnam veterans, when they came back, each one had to prove their illness. now we've opened up the system and we've let thousands of veterans come in. so we certainly have to have accountability with the system. but i will not be a part of a dismantling system. the veterans are satisfied with the system. yes, there are problems with the system, but it's not just the va. it could be the va, it could be the department of defense, it could be all of the other stakeholders. we haven't built a va hospital in the system in 15 years. i've been working to get one built in the orlando area.

well, it's not just the va. it is the contractors, it's the stakeholders, so it's a team effort. and i'm hoping that we can work together to improve the system. but i will not be a part of dismantling a system. recently, in the house of representatives, we passed a bill saying that in those states that marijuana is legal, the va doctors cannot write prescriptions. explain that to me. if they have pain and the doctor feels it's necessary, then why can't they write the prescriptions? so there are a lot of things that we need to do. when you look at the educational system, one of the best that this new g.i. bill. what's wrong with it? i saw them on television talking about it.

well, we weren't with stakeholders. the institutions had to verify that they were a student and that they were registered, and now all of them get transportation. they get their tuition paid. they get daycare. but it has to be verified with the universities. so it's not just the va. it's a team effort. the army motto is one team, one fight. and i'm hoping that we're here to make sure that we improve the system. and i repeat, i will be not a part of dismantling the va system. for many, many years the va was not receiving the funds that they needed. and don't sit here and tell me, well, it's not like the system in the streaks. well, the system in the streaks is not working, either, so we need to look at the entire

health care system in this country. but the veterans are satisfied with their system once they get into the system. and i am here to make sure that their voices are heard. and i've asked my colleagues, any input, any comments that you want to make, how can we work together to make it better? i really do believe to whom god has given much, much is expected. and they expect us, like the first president said, whether or not people go and join wars, we always want to send them off to fight. well, let's make sure when they come back, we take care of them. that's my position and i stand by it. thank you, mr. chairman. >> thank you. senator rubio? >> thank you, chairman sanders and chairman miller for the work you've done on this legislation. i'm grateful for the opportunity to be part of this conference committee. i'm pleased both the house and the senate have been able to act on legislation to inform the va

and bring us to this point of ironing out the differences between the two proposals, and hopefully the president will have a final va reform bill that he can sign into law. let me explain my interest in the conference committee is twofold. first, i represent the state of florida which is home to almost 2 million veterans. we have numerous va medical centers and facilities all over the state. recently we've seen some major problems uncovered at some of these va facilities. six of them are now among the 112 that are being investigated nationwide for potentially manipulating patients' schedules in order to conceal long wait periods for veterans seeking care. seeing these va scandals around florida and the country have disgusted me as i know it's disgusted many of you, and we owe our veterans way better than this. way better. our veterans deserve timely care in a dignified manner, and this hasn't been happening, but in this committee i hope we make a

final process and make some meaningful reforms to correct a sad state of affairs in the va system. my second major point in this committee is that they've passed bills to varying different degrees, a measure chairman miller and i offered earlier this year. it's called the accountability act of 2015. i know the congress has passed this, and the bill with proposed is pretty simple. it says the va secretary should have the authority to fire or demote va executive service or equivalent employees based on their performance. if va officials are not doing their job and if they are deliberately trying to conceal how poorly they're doing their jobs, they should be fired. as i've talked to people about this bill in recent months, most were surprised it needed a law to make this possible. because it's common sense in practically every other workplace in america. it sends a terrible message to our veterans, to american taxpayers and to the vast majority of va employees who are doing a good job to let

incompetent officials get away with poor performance. worst of all, poor performance at the va doesn't just hurt employee morale, it actually endangers the lives of veterans. so i'm hoping with all the issues we'll be dealing with in this committee, i hope this particular measure won't be a sticking point and i hope the final bill ultimately ensures that going forward in confidence that the va will be dealt with fairly but swiftly. in closing, let me just say american veterans deserve our admiration and appreciation for all they've done to defend our country and our interests abroad. the most tangible way that we can do this is by ensuring their medical needs are met with timely, high quality and dignified health care. reforming the va is long overdue. the truth is that it shouldn't have taken all these problems reaching the scandalous levels for washington to finally wake up and act. but we're here now with an opportunity to act, so let's do it. our veterans have waited long

enough. thank you. >> thank you. congressman walsh? >> thank you, senator, and thank you, chairman miller, and ranking members for your leadership. thank you to my colleagues who are here. you came to congress and chose to serve on this committee and serve veterans, and that says much about your character, and i'm grateful for that. as so many people have said, the tragedy is spelling itself out, and there are no adjectives that can describe the disgust the american people have with this. don't underestimate the american public's willingness to get this right. and, again, i would ask each of you to understand each of us will be judged by the product that we produce, as we should be, for veterans, and like so many of my colleagues, this is an opportunity to think big. i think senator coburn was getting at and speaking like a physician. you have to diagnose first before you can prescribe cures, and we need to know what's there, we need to know what can

be there and be willing to get it out there. coming from a family -- a son of a korean air veteran and myself, my entire adult life in uniform, i can tell you restoring the faith of veterans is critical to what we do here. and the executives sitting here listening here today, it matters that we get them back on board, it matters that they're listening, it matters that their point of view is heard. they've seen this movie before. they see the yellow magnets that are now faded and lots of folks want to stand in front of veterans. who wants to stand behind them? more importantly, who wants to stand beside them? let's triage and get the care done right now, but there are issues here that we can set a legacy, we can change the culture, we can change the trajectory, and i would put out there that we do need to have the details. there are grander things that need to be addressed, there are physician shortages, there are accountability.

those things will be handled. i think the thing that's missing here, i've never quite understood that, again, 24 years in uniform and eight years having the honor to serve on this committee, why is there no overarcing strategy on veterans? why is there no review on veterans? why is that not charged to the veterans when the need is there? we wouldn't accept that in the d.o.d. and we accept it here. i would argue that would set the stage for the accountability. it would put where it should be back in our constitutional authority and congress to make sure this is happening instead of having committee after committee and i.g. and then the frustration of some mid-level manager thwarting what we think. when i asked yesterday senior va officials what our strategy was, they said the timely care of veterans. that's a goal, not a strategy. and you can't get there unless you have that. so i'm encouraged by the folks who showed up here. it's obvious this is serious. and we have the american public's attention, and they're busy. they have lives. they're working, they're doing

all that. now is the time. let's not miss the opportunity to get this right. and i'm confident that the folks here possess that ability. with that i yield back. >> thank you very much. senator blumenthal. >> thank you, mr. chairman. i want to thank both you and chairman mill as well as ranking members for your leadership, and to all my colleagues here today for this very bipartisan and cooperative approach, which is quite remarkable to me as a veteran of all three and a half years in the united states senate, and i hope it bodes well for how we will work together on the challenges that continue to face us. i've been doing a lot of listening to veterans over the three and a half years, over the 20 years i've served as attorney general. especially the 683 veterans in connecticut who are waiting more than three months to see a doctor, and veterans coming back

from afghanistan who have to wait 18 days or three weeks for a mental health appointment. many of them have come to me. and what i'm hearing from them is that we really face an emergency, a crisis. in fact, it is an emergency that gives new meaning to that word. i'm hoping that we can honor both the commitment of our veterans to our nation and our obligation to keep faith with them regarding it as an emergency and a crisis and treating it that way as a matter of funding. time is not on our side. this tragedy is a growing, unfolding, best of your knowledge -- burgeoning one. we're learning every day about its new dimensions. the office of the medical inspe inspector and the department of medical affairs is releasing real medical concerns about not

impacting veteran health and those concerns. the story about whistle blowers. for me as shocking as cooking the books and covering it up is retaliation against our whistle blowers. they are the ones who are telling truth to power. and i know, as a former prosecutor, you can't make cases, you can't reform the system if whistle blowers are victims of revenge and retaliation and lose faith in the system. and so i would invite members of this committee to join senator mccain and i and others of our colleagues in asking for the department of justice to investigate not only the reports of fraud and destruction of documents and obstruction of justice, but also retaliation against whistle blowers. i would predict, mr. chairman, that we're going to see this tragedy continue to unfold, particularly as concerns are female veterans.

there are reports that women veterans are far more likely to be dumped into the va's electronic waiting list for an appointment. 140 community-based clinics serving veterans in rural areas do not have a designated women's health care provider despite the goal that every clinic would have one. and only one in four va hospitals has -- only three in four have a full-time gynecologist, one in four does not. so we're lacking not just in terms of delays but the quality and the availability of health care to our veterans, and although, again, it's not addressed in this bill, employment opportunities, skill training for me, one of the most outrageous statistics in society today is the unemployment rate among our young veterans, particularly as compared to

their contemporaries who did not serve. so i think that we have a lot of work ahead of us. i'm very, very encouraged by the way this committee is so thoughtfully and seriously addressing these issues. we know that america's longest war is going to continue to cast a shadow across our nation for years, maybe decades to come, and we face that emergency and crisis that truly needs to be addressed, and i hope we'll continue to do it in this serious and thoughtful way. thank you, mr. chairman. >> thank you very much. congressman wenchgull. >> thank you, mr. chairman and ranking members. our world is going through a lot and so is our country. the world is changing fast and i encourage everybody to face this

problem. as a physician, i practiced for 26 years before coming here last year. i served in the army and continue to serve in the reserve, and i was in iraq for a year at a support hospital in '05-'06. also like many docs throughout the united states, i trained at a va. through that experience i've been able to see the inefficiencies and bureaucratic barriers that exist within the va system. and we can't ignore them. i've seen the difference between a va system and a private system. it's been pointed out several times today. there are some issues that i think are treated much better within the walls of the va because they're troop-specific. and i think that they can be handled better, by and large. in the va, i know we have tremendous caregivers. we do, we have a lot of great caregivers. but what we're lacking in the va is efficiency.

and we're lacking, seemingly, administrators who have scruples. so there were bipartisan people wanting to take action against the va. we know because we've been in private practice and there is a difference. it's a shame it's taken a lack of virtue from administrators and a disregard for our veterans as patients to really bring this to the forefront. because the inefficiency has been there a long time. in my own practice, two of our orthopedic surgeons, they go to the va once or twice a month because they want to take care of veterans. and they will tell you, i can do two cases all day. and in private practice i'm doing eight to ten of similar type procedures. as we move forward, we have to have the input of the practicing physicians. not physicians who have never seen patients, not physicians who have been in academia and administration.

they're not the ones who know how to get it done inside the clinics. our administrators, they have to know what it means to be a provider, and i will tell you that just building buildings does not provide access to care. that's what we have to address. when we have a system when a patient becomes a liability to the system, that's a problem. patients need to be seen as an asset to the system. and that's what we have to create within the va. the stakes are too high. they're too high for those that have sacrificed so much for our country. these are people that at a moment's notice said, i will go, and i will take action on behalf of our country, and now it's our turn to do that for them. they responded in a moment's notice, now we need to. our work here will reflect who we are as a people and who we are as a nation. i'm honored to serve on this committee. it's a very important task for all of us. let's go to work and make our nation proud. let's go to work and make our veterans proud.

let's go to work and make abraham lincoln proud who tasked us with the responsibility to care for him who shall have borne the battle. thank you and i yield back. >> thank you. senator harona. >> thank you to our co-chair, senator sanders and representative miller for holding today's conference. millions of veterans are counting on us to get this right, so this conference committee has an important task in the coming days ahead. and that is to finalize legislation that, in my view, should focus on three things. first, we have to directly address the emergency circumstances that have been uncovered at the veterans administration. two, ensure that all of our veterans receive access to the care that they deserve. three, begin the longer term work of restoring veterans' trust not only in the va but in congress' ability to effectively oversee the va and provide the resources needed to care for our

veterans. and listening to my fellow colleagues and conferees today, i believe we can come to an agreement on this bill. chairman sand erers, you got it exactly right when you said the system at the va is an emergency. and senator mccain today also described the situation as an emergency. a recent audit of the va in hawaii found that veterans are waiting over 140 days to receive care, the longest in the country. a more recent update found that while progress is being made, that number is still over 100 days. nationwide, nearly 60,000 veterans are waiting simply to get an appointment. of course, that is unacceptable to all of us. nearly the entire senate agrees that this is an emergency and that congress has to act to provide the resources necessary to provide care immediately. and i'm hopeful that we can all agree on that point. however, while i hope we all

agree that this is an emergency and that we will provide the resources necessary as a result, i hope that this committee will not ignore the task of addressing the va's long-term needs. veterans generally approve the quality of care they receive from the va when they receive it. i hopewell include provisions in the senate-passed legislation that provide for 26 major medical facility leases and provide for the resources and authority to expedite hiring of va doctors and nurses. in addition, while i agree that accountability of executives is needed, we should avoid politicizing the civil process and allow due process for va employees even as appropriate disciplinary actions are taken. our veterans rely on the services of qualified professionals at the va and we should do more to attract these

people, particularly people who have used service as a career path and not a stopover to something else. i hope this committee will recognize the long-term benefits of providing high quality work force to va and that we can improve accountability in a carefully balanced way. a quality work force and quality facilities are long-term investments in our veterans, investments that we need to make to ensure that all veterans have access to high-quality va care. investment in the va is an essential step towards building back the trust of our veterans. and i recognize that expanding access to non-va providers is needed to immediately address this emergency, and with this expansion, we must ensure every veteran in our country, whether rural or urban, can easily get the care they need if the va is not available. for hawaii veterans, that should include being able to get care from community health centers, department of defense facilities

or from the native hawaiian health care system. but that doesn't mean they're getting care outside of the system is the long-term solution. i do not support an approach that will lead to atrophy of the va, i do not support debaucherrizing the va. i do support leadership, action that supports the va, they get the care that they deserve so the va can effectively address long-term needs. thank you. i yield the remainder of my time. >> congresswoman walorski. >> thank you, mr. chairman. it's an honor for me as well to be here to start the process of finalizing legislation that will help our veterans. we owe it to the men and women who served our country to get this right. i'm grateful this has not been a partisan issue. all of us are affected by the wait lists, negligence and deaths. many of us here today have

constituents who are directly impacted. there is a wrongful death case in my state of indiana right now that's being investigated. we have to get this right and fix it in a timely manner. attempts to reform before often were met with stories in here, deception, whistle blowers, retaliation. now we're hearing in addition to wait times, the phoenix center has also been altering the records of veterans who died while waiting for care. while these people at the medical centers put their own careers ahead of veterans, we turned a blind eye by rewarding them with promotions and bonuses. there will never be an incentive to change if people aren't held accountable for their actions. we need to get the care veterans need and fast. there is no question we must get veterans the care they deserve,

whether the care comes from inside or outside the va. the challenge before us today is to do so in a responsible fashion. i agree with what senator coburn was saying. the need for the legislation is great. however, simply providing a financial boost to an agency that has repeatedly demonstrated awful management practices is not going to solve this problem. there is no point to spending an additional $50 billion a year in non-va care if we don't do this right. my commitment as we work on this legislation is to make sure bad actors can be fired, to make sure we do whatever we need to to pay for this legislation to make reforms. now more than ever it's important to pay for this reform. getting to the bottom of this has been like peeling apart an onion piece by piece. however, i'm confident that the house and senate proposals are positive steps in the right direction. i look forward to meeting with all of you on both sides of the aisle as we hammer out

legislation that addresses responses to care. i thank you for holding this hearing on such an important issue facing our nation's veterans and i yield back my time. >> thank you very much. as a former member of the house, i do note that members of the house speak more briefly than members of the senate. and i thank you for that. there is a vote going on in the senate right now, so some of us are going to have to leave. but i just wanted to thank all of the members. i thought this was a very constructive discussion. i think there is a strong desire to rise above partisanship and to address the very, very serious issues facing the va. and i know there is a commitment on the part of every member in this room to doing everything that we can to protect those who have protected us. so i just want to thank you all. we've got a lot of work to do, and i hope we'll do it as rapidly as we possibly can. thank you. >> and i will say this. i appreciate everybody being here today. i tried to get chairman sanders to go on to the vote, told him the house would be more than willing to put the conference

report together and prepare it for his signature, but he denied that opportunity. thank you very much. we have a lot of work to do and not much time to do it. we cannot fail. by waithe way, the presiden meets with the veteran actor of affairs, sloan gibson, this afternoon. we are live at the national press club where constitution law attorneys will review the supreme court term discussing the big cases the justice has decided, including campaign finance, cell phone searches and the presidential research appointment powers case. it's a discussion hosted by the american constitution society for law and policy. the court has two cases

remaining to decide, the hobby lobby case on the contraceptive mandate in the health care law, and another on employee unions. decisions on those two cases are likely on monday, the final day of the court's term. we are live on c-span3. the discussion should get under way shortly.

good morning, everyone. thank you all for coming. my name is jesse gralman. i am in constitution for law and policy. it's my pleasure to welcome you all for the supreme court review for the 2013-2014 term. acs was founded in 2001 and is a national network of lawyers and law students, politicians and policymakers who believe that the law should be enforced to improve the lives of all people. acs works for positive change by shaping debate on critical and constitutional legal questions, such as those we'll be hearing about today.

the decisions the supreme court has issued this term and those they have yet to issue cover a wide variety of areas touching numerous aspects on american life, from our money on elections to executive rights to the scope of executive power to organized labor, to digital privacy and many other issues. we look forward to hearing the insights of a sensational panel of experts this morning. before i turn it over to our panel, i invite you all to go to our website, www.acslaw.org. it also includes acs's issue briefs. we have some sample issue briefs here today, though i understand they've all been taken. they include one on religious exemptions for corporations, which is one of the issues in the supreme court's hobby lobby case you'll be hearing about, one on the constitutionality on the voting rights of which a senate was heard this week, one

on the association rights of employees and the knox and harris cases, as well as a brief studying the behavior of supreme court justices' most critical cases. since the paper copies are all gone today, feel free to visit our website, acslaw.org, and download those and many others. it's my pleasure to introduce our moderator, tom goldstein. tom is a partner at the firm of goldstein & russell, and he has served as counsel to the petitioner or respondent in about 10% of all the court's merit cases in the past 15 years, permanently arguing 51 of those cases. tom sauis also the cofounder of blog to ever receive the peabody award. yesterday during the court's release of opinions starting at 10:00 a.m., there was nearly 20,000 people following the live blog, including me and many of you as well.

tom has taught at harvard law school since 2004 and he previously taught the same subject at stanford law school for nearly a decade. please join me in welcoming tom goldstein. [ cheers and applause ] >> thank you very much. it's wonderful to be with you on an almost court term. i know i speak for all the panelists who were incredibly grateful to each of you to take time out of your day to come and visit with us and have a conversation about the court's term, obviously a shared subject of interest to everybody in this room and to c-span and the audience that's watching there. the format is as follows. i'm going to give just a touch of background about the term to give some context of other things that are going on. then we're going to turn to the big cases of the term, including the two cases left to be decided. we're going to really assume a fair amount of knowledge on your part, because this is a self-selected group of folks

whon a lot about the court, so we're not interested in telling you here are the facts of the case, but we want this group of experts, who we're so lucky to have here, to talk about the implications of the case, what might come next, what the surprises are, to delve into analysis. we're going to go through probably the top eight cases of the term. we're going to stop about 20 minutes before the end of our time here, we have an hour and a half in total, to answer your questions. just a touch of background. there is a term that's gotten a lot of notoriety not only for some of the big cases, though we don't have same-sex marriages or obamacare, but there are certain issues we're going to talk about. also the anonymity of the term in the court. but it is striking there is going to be the lowest number of 5-4 decisions in the court's history. i think there will be somewhere between eight and ten. that's less than half the number the last term.

the idealogical lines drawn by those decisions are not classically the 5-4 ones, but right now there are two with justice kennedy and a majority with the left and the right. justice kennedy has been in the majority of all of them and he probably will be in the majority and opinions that come down on monday as well. though court has fewer dissenting opinions than any time in its modern history this term, there seems to be something afoot, an effort by the court to try and come together, even if it's just nominally in the result and not in the reasoning. so it shouldn't hide the fact there is still significant disagreements on the court. with that, just a little context for the term. let's turn to the big cases and let's start with privacy. elizabeth widra is chief counsel of the constitutional ability center which has emerged as an incredibly important voice in the court on structural constitutional questions, really major constitutional issues of the day.

the raleigh and worry cases about cell phone privacy involved two different cell phones. one a one was a flip phone and one was a smartphone, and the question was, when these people were arrested, did the police have the rights to search the phones incident to arrest without going and getting a warrant? >> thank you, tom. it's great to be here with you and this great panel and with all of you here today and watching on c-span. you know, it was a really interesting decision, and i will say that it was a truly unanimous decision. it wasn't one of these phonanimous decisions we're going to talk about later. what was really interesting about it was the court issued a very broad and sweeping ruling in favor of fourth amendment protection, in favor of the privacy of the information that people keep on their cell phones. for those of us who are at oral argument, it seemed as if the justices were playing around with having a possible middle

ground. so you have the concerns of law enforcement which went to look through your cell phones, your smartphones, and go through that incredible cache of information and try to find evidence of a crime, and at the same time the interests that american people, that the individuals who live in this country have in protecting those vast stores of information. as the chief justice noted in his opinion for the court yesterday, the information that we keep on our phones is quanti quantitatively different, of course. we have the ability to keep vast amounts of information. in the past you would have to lug around a trunk with you if you wanted to keep a portion of the records that we can now keep in our pockets. it's also qualitatively different. you can get a much broader picture of a person's life, their private information from all this information we keep on our phones. so the justice has played around

oral argument with sort of middle grounds of balancing those interests. whether it would apply to -- whether you could have exemptions for the police to look through a phone if someone was arrested for a very serious crime as opposed to not wearing your seat belt. and what was interesting about the decision yesterday was that the court unanimously rejected all of those middle ground positions and went for a very broad ruling that says that even if you are arrested, which reduces your privacy interests a little bit according to court precedent, even if you're arrested, if the police want to look through your phone, they have to get a warrant. and the only exemptions are these very limited sort of emergency exemptions. so, for example, if the police have reason to believe that you might use your phone to detonate a bomb remotely or something like that, these emergency exemptions. so it was a very broad ruling and that was surprising. and it was unanimous. justice leto wrote separately

just to emphasize the fact that what the court was essentially saying -- and this is one of the important parts of this ruling to keep in mind -- was that the digital age changes the way that the fourth amendment applies to certain devices. and essentially, what the ruling yesterday said is that computers and computer-like storage devices are different. and i think we'll see the fourth amendment applying differently to those sorts of devices. and that was why justice aleto wrote this specifically, saying that there could be anomalies that result. in the past if you had a wallet in your pocket that had some of the analogous things to what you might find on a phone, photographs, maybe a note from your spouse or something like that in your wallet, the police could look through it. but now if something in your pocket is your smartphone or if you have a laptop in your

backpack, then the fourth amendment might apply differently. you might have greater privacy protection because of the types and the amount of information that we keep on those sorts of devices. so i think the broadness of the ruling was something that was surprising and is really important. the recognition that in the digital age the fourth amendment might apply differently to certain methods of storing information than we've seen in the past. that is another, i think, really interesting point from the ruling. and i think in terms of implications, one of the things that will be interesting to see is whether the government, both federal and state, step back from some of these more agressive positions that they've taken with respect to being able to access information stored electronically. i wouldn't really expect to see them walking back. i think maybe there will have to be several more cases in which the supreme court says that the fourth amendment applies

robustly to digitally stored information. but this did seem to be a clear signal from a unanimous group of the justices saying that the fourth amendment replies robustly to this sort of information, whether it's stored on the cloud, in the cloud, whether it's stored on your phone, on your computer, your ipad. i think the implications is the fourth amendment will apply very strongly in that case. and i think there is one other point that i want to make with respect to this case, which is there's been a lot of talk, especially in progressive circles, about how you want to avoid taking cases to this particular supreme court because it's difficult to win progressive victories. in one of the areas in which we've seen the roberts court taking what might be called somewhat liberal positions are areas in which there is sort of a liberal libertarian alliance. so we saw in the defensive marriage act case, the court striking down that provision. and in this case as well, both my organization, the

constitutional accountability session and the cato institute were on the same side of this case. similar to the merit quality case, we were on the same side. i think one of the ways you can see progressive outcomes in this court is in these sort of libertarian types of cases where you're talking about individual liberty. so that's interesting. and then sort of the last point i would make on the case is that i personally was really interested to see chief justice roberts and his opinion sort of analogize the privacy interests that we have and the desire to keep private the information on our smartphones to the founders' opposition to the british use of general warrants, which this way they could break into your house and go on a searching expedition for incriminating information.

they sort of get that these private issues such as on phones we carry oraround in our pocket every day shows they were with it both technologically and spiritually with the american people. >> i was just going to say one of the themes of the term that these cases fit into involves the court struggling with technology and computers. we're not going to talk in depth about it today, but the big patent case involving abstract ideas being turned into computer programs. you saw the court being very nervous about not sure they understood the technology and afraid they might do something to interfere with the technology. of course, in the fourth amendment case by saying these devices are protected, they didn't have to worry about causing any harm to the technological involvement. the court will have to face new technology every term, i think. >> i think one of the themes we're going to see throughout this morning is that where the

justices are familiar with something, they are more likely to have a view of it that is different than when they are not familiar with it. there is a lot of legal jargon in this case, a lot of technical fourth amendment analysis, but the l the bottom line is all nine justices have cell phones, all nine justices understand the privacy on the cell phones and all nine don't want anyone to search their cell phones. >> i think elizabeth made a great point -- what is the phrase you used liberal libertarian? i think one of the most interesting phenomenons i think we've seen in the court in the last 30 or 40 years is what i call the evolution of conservative instinct. if you go back 30 years, the conservative judicial instinct was largely a status instinct, a thumb on the scale of government instinct. we saw that in its rulings up holding statutes, we saw that

most prominently in the criminal sphere. i don't know if i call it a sea change but a dramatic change in the modern conservative judicial instinct which is much more of a libertarian instinct. we, again, see that in the criminal sphere in cases like this, we see it in a judicial mindset that is much more likely to strike down laws seen as overreach. remember, 30, 40 years ago, many conservative jurists didn't believe that conservative speech was protected by the fourth amendment, that was largely advocated by the liberal wing of the supreme court. today we've seen almost a flip-flop where the conservatives are almost the most robust embracers of that kind of speech protection. >> just to put two points together, it is a little hard to look at the chief justice's opinion is think about things they see in the newspaper, are very familiar with and not hear

echoes of the discussion of the msa data program and the collection and migration of that program. so it will be interesting to see the impact of that decision when it eventually comes up. noah francisco is head of the practice and also a supreme court litigator which made for the perfect combination in dealing with a historic case about the relationship among the branches of government, the nocannon case which he argued and won successfully yesterday. with a few seconds of backdrop, the president, during a recess informed by only pro forma sessions, the nrb was requested to give a quorum. that was an expansion of historic practice of making recess appointments under the president's recess power and

spoi appointment constitution. the supreme court asked for briefing yet on another ground and had a very significant decision on the scope of the recess appointments power. >> sure, and if you'll forgive me, i'll do a little bit of chest thumping because we're very proud of the result we achieved in that case, and this was a resounding 9-0. there was difference in reasoning but a 9-0 rejection of what we considered to be a very abusive reach of the recess appointment power. and i think it underscores what in my mind is the important role that courts play particularly when it comes to separation of powers, and another trend that i think we've seen in this context over the last ten years or so where the court is much more willing, across party lines, to restrain excesses in executive power. we found it in the context of the war on power. we've seen it carry through to president obama's power, albeit

in a domestic context. one of the problems you have in the political process when it comes to assertions of executive power is that you always have a president that is interested in expanding executive doesn't matter the president is a democrat, a republican. that president is always interested in expanding executive power. on the congressional side, you always have a constituency that supports the president because the president's party generally is supportive of the president's assertions of executive power, even if it's a different party president making the same assertions. those members of congress will be taking a different position. so what you have is a dynamic that leads to an ever-increasing expansion of executive power because you have a president that always wants to expand it and a congress that is kind of wishy washy on it. some of them are favor of it and some of them against it. that's why it's so important to

bring the judicial branch into the fray whenever possible because it's the only neutral arbitor to enforce the lines of the constitution draws. brings us to the noel canning case and exemplifies this expansion. in my view, justice scalia's concurring opinion was correct on the original understanding of the clause, but more importantly it reflects over time we have seen the president gradually expand the recess appointment power. the first expansion was early on to any vacancy opposed to those vacancies arising during the recess. early presidents rejected that. shortly thereafter, other presidents embraced that power. the senate essentially, you know, there was some back and forth. but as the court found, the senate didn't vigorously oppose and maybe acquiesed but there's another limit. only exercised in between sessions, so-called intersession recesses. that gets us to around 1921

where we then see the executive branch jetison that limit and make rejess appointments in that period, as well. we saw another dramatic expansion of the power. but even then as we saw at the end of the bush administration, they saw control over the process and so it could still prevent recess appointments if it actually convened sessions every three days and doesn't take any break during which a recess appointment is made and then finally we saw president obama with these recess appointments jetison even that limit, essentially asserting the power to make a recess appointment any time to any vacancy and when the senate was convening sessions. short ones and ones that were likely designed for the primary purpose of preventing recess appointments but they nonetheless were sessions. when it gets to courts, i think what we saw was a resounding rejection of that assertion and

expansion of executive power, not really that different from what we've seen in context like the war on terror. there is a difference of approach that the majority took and that the concurring opinions took. the majority took what it would characterize as a much more pragmatic approach and going to tolerate these first two expansions. these two historical expansions, too much water under the bridge at this point. to overturn that. but we're going to recognize that the senate has control over its own calendar and if the senate says it is in session and capable of conducting business during those sessions as it was here that's the end of the game. it was in session. no recess appointments. the concurring justices studied the text and original understanding of the constitution came to a different conclusion on the first two historical questions but i think the point i want to leave you with is in my view the debate of the majority and concurring justices is largely an academic

one. it largely goes to how many past recess appointments are going to be called into question. going forward, i think any of the -- either the majority's rule or the concurring justice's rule largely returns the power to where it belonged in the first place. that is, the power of advice an consent to the senate because even under the majority's rule the senate or the house, as well, has the authority to -- has the ability to prevent recess appointments if it wants to. the president is allowed to make the recess appointments if the house and senate actually agree and allow him to do that by not convening these so-called proforma sessions so while there's a huge difference between the majority and the concurring justices in terms of their approach to the law, in terms of reasoning and bottom line rule they adopt, i don't think there's a lot of difference in terms of the practical impact that the rules -- that the different sides advocated would have going

forward. >> yeah, so, you know, i guess i don't want to rain on noel's parade at all. i want to throw my own mini parade is what i'm saying. so my reaction to the ruling was that it was not as bad as it could have been for those of us that supported the constitutionality of president obama's recess appointments in this case and that's because of this difference between the justice breyer opinion and the opinion that would have been controlling if the more conservative justices had held the day. and i think that what's important about the difference between those opinions that it does preserve a core aspect of the recess appointments power and the court refused to go down the road that the d.c. circuit took, a much more radical interpretation of the recess appointments clause preventing presidents from making appointments during intrasession recesses and for vacancies that

arose prior to that recess. and so, i think the fact the court didn't go down that road is a really aspect of the decision that sort of has been not focused on as much and instead seen -- the decision has been seen as sort of a rebuke to the obama administration and point out that this is not something that the obama administration invented as has been noted. presidents from both parties used the power though i'm sure that noel would say in use of the power is a step more than -- >> but i would say what president obama did invent was the use of recess appointments to circumvent so-called proforma sessions. the senate convened under majority leader reid proforma sessions in the bush administration for the express purpose preventing president bush from making recess appointments. president bush whether he agreed or disagreed, i don't know, with what the senate was doing but honored and never attempted to make a recess appointment while the senate was convening proforma sessions.

president obama jetisonned the one last limit and that was the principle argument we advanced in the d.c. circuit. the proforma session issue and we were the ones that asked the court to add the proforma session question to the petition when the government tried to take it up without that issue in it. we've always believed that what was particularly wrong here was the context in which these recess appointments were exercised and the unprecedented nature of it. in our case, focused on that nature. that's why i really do believe that this decision was a direct rebuke to that overly zealous exertion of executive power. >> i guess one thing that stands out about this, though, is when we talk about this from the academic perspective versus practical perspective, i'm always thinking about the academic perspective and i find this decision particularly interesting in terms of, you know, what we would talk about as a formalist perspective

versus a functionalist perspective but looking at the function of this decision going forward, there's a question of whether speaking practically of a president in one political party and a senate majority in another party what the future of recess appointments are. >> or a house majority of the other political party. >> yes. >> because the house likewise can refuse to allow the senate to adjourn more than three days and hence requiring proforma sessions. >> right. >> that's why i think the practical distinction between the rules is not all that great. whenever one party controls the presidency and other party controls either house of congress, that other party has the ability to trigger proforma sessions and prevent recess appointments. the only time you wouldn't have that dynamic is when one party controlled all three branches, both houses of the congress and the presidency. but that's precisely when you don't need recess appointments. >> right. >> particularly now that there's no filibuster for presidential

appoint appointees. >> yeah. >> a comment about justice scalia. may not be the last one today. his excessive rhetoric in his concurrent/dissent in this case, which is typical of his excessive rhetoric in separation of powers and federalism cases generally, is, i think, really ironic because he uses -- he ignores 150 years of tradition, however you count it. he ignores that. he'll not ignore that in the prayer case, for example. but here's the thing. justice scalia's approach to constitutional law in separation of powers and federalism cases is completely different than his approach to individual rights cases. and if he were here he would be yelling about law, law, law. but the difference between his separation of powers perspective and his individual rights perspective is one of values and experience and living his life not law. and i think i would love to ask him that question, why he treats

separation of powers cases so differently than individual rights cases. >> tom, only because i clerk for justice scalia and i love the man, i have to step in and defend him. i don't think there's any difference. if you look across the areas of law, he is very much a strict originalist and sometimes views align to his views and sometimes contrary to his views like the right to burn a flag in texas against johnson. that is not consistent with the political views. but whatever -- wherever he lands i can guarantee you he lands there passionately. you can find cases in the most mundane areas and we can -- where he is in dissent and you may think the world is ending because the majority went the other way. that's his personality but i don't think it reflects any difference or any inconsistency in how he approaches different legal issues. >> one response. his ralph kramden approach to

passion i agree with. i don't -- listen. affirmative action, takings, 11th amendment, all areas -- and shelby county, adopted a completely unoriginalist approach to constitutional law so this american myth -- >> that's the longest sentence. >> yeah. >> like semicolons and dashes and few ellipses. two things on the table and then move on. they point in opinion zit direction. does the recess appointment power matter after the muk clear option? if you have the president in the same party as the senate majority, well then the nominees will get confirmed f. the senate is not in the same party as the president, then the nominee's going to be rejected anyway and it has been the case that presidents haven't made resez appointments for nominees rejected. that could change. so it may be that noel canning, though a principle may not have a ton of practical impact. the second is nile noel thinks and also eric thinks that the

difference between the majority and the concurrence is not a big deal, i have written today i think that's wrong. and that the art of justice brey breyer's opinion on purpose or not the president can evade the restriction in the majority opinion because it depends on the idea that no senator will object to the existence of a quorum. we don't have to debate the her its of it. there's an open question about the consequence. okay. a professor at my law school, washington college of law and an expert in constitutional law and many other things. runs the sjd program there and an expert in issues related to race and the supreme court. we did have one really important race related case this term that's kind of gotten buried and lost in the shuffle. maybe decided earlier. but it tells us a fair amount i think about where the court is at on the questions and relates to other cases that you can

discuss, i'm sure. the schutte case, the voters of michigan announced they were going to change the constitution to forbid affirmative action, including particularly race-based affirmative in higher education and some other things and had the consequence of overruling a prior question saying the michigan law school could take race into account for admissions. and so, the court was presented with a question of whether the state's voters could essentially ban affirmative action in that fashion. >> uh-huh. and so, you're exactly right that this is sort of following up from the opinion 11 years ago, the gruder decision up holding the constitutional of race conscious admissions at the university of michigan. what's important to keep in mind is that it is technically not an opinion that's about affirmative action in education across the board. so, it does nothing to alter the constitutionality across the board of those kinds of policies

so it hasn't changed the holding of the gruder decision 11 years ago. it said that under the equal protection clause colleges and universities could create narrowly tailored race relations programs and also the probably opinion that got maybe more publicity last year, fischer versus university of texas because it was decided at the very end of the term. that was looking at the constitutionality of the university of texas's admissions policy which included a race conscious component. this is an opinion and a case that's really more about an issue that relates to civic participation. so it's about access to self government and this particular proposal, proposal 2, in the state of michigan, is a voter initiative that does have the effect of eliminating the affirmative action program at the university of michigan. this is a 6-2 decision. just kagan recused herself.

you could look at it in a variety of different ways. the types of initiatives, one of the big questions and something that was actually very eloquently discussed in justice sotomayor's lengthy dissenting opinion is what it means to ensure meaningful political participation and whether it means that one need only remove formal barriers to participation or whether it includes a responsibility to vigilantly police the political process to ensure that all minority groups have equal access to participate. on the ground, proposal 2, a ballot initiative and a constitutional amendment like the one in michigan effectively means there's a higher burden placed for those to advocate for having a race-conscious admissions policy so if one in favor of race being one of a number of factors that are considered in admissions policies, one would need to basically overturn a state constitutional amendment to do so.

very, very high burden. if, however, you are a major donor to a university and you want to give a thumb on the scale to your kids, an alum, if you're an athletic officer and want to spend time promoting star student athletes to go to public universities in the state of michigan you could continue to do so. other forms of affirmative action still stand. the one removed and singled out is consideration of race. and i think what one can think about with respect to what that means long term, again, it does not touches the merits, the constitutionality of race conscious admissions policies across the country but raised to the national level, a spotlight on this and because those who advocated for this type of ballot initiative in michigan were successful, i think that it does signal and can signal to voters across the country if there are others and other states and there have been who

would like to push for similar measures as the one in michigan, the supreme court decision has given them really sort of more fuel to their fire to be able to do so. so i think that's one of the long term consequences of something like this. another thing to keep in mind is that there have been instances in which the supreme court in decades past has examined similar types of ballot initiatives that would single out particular minority groups to make civic participation in certain areas more difficult and in those instances the supreme court has struck those down so there are ones relating to, for instance, in seattle and 1970s around bussing. in the city of akron. one that's a very common one that all of -- almost all constitutional law professors teach rumors versus evans with an amendment to the colorado constitution that had singled out gays and lesbians and said that under the colorado constitution, no state

jurisdiction could create any policy that would protect gays and lesbians from discrimination and the supreme court held that you cannot single out a particular group based on animus and make it more difficult for them to participate in the political process so there were some who believed this was very much akin to that kind of reasoning and therefore should be struck down. it was struck down at the lower court but the supreme court reversed that. and so for those who would be in favor of the ability to continue these kinds of programs in a state like michigan, there have been those who look to justice sotomayor's opinion as very interesting in terms of having a voice, a minority voice. well, no pun intended both a racial minority on the court but also obvious lay dissenting opinion opposed to a majority that spoke very frankly and passionately about the role of race in the united states and the important role that the supreme court plays in needing to take account of it.

so she actually referenced chief justice robert's opinion in a voluntary integration race case with elementary and secondary schools came out seven years where he said that the way to essentially end race discrimination in america was to stop talking about race and sotomayor said the way to address racial discrimination in america is to speak openly and candidly about the role of race, about continued barriers to opportunity so that we can move forward. >> slight tweak on what the chief justice said. i think he said end racial discrimination by the end of stop discriminating not stopping to talk about race. i think. i don't think he ever suggested we don't need to talk about the issue. >> i would actually beg to differ with that piece of it. i think you're right -- i apologize. he said to end discrimination and wrapped up in that is a desire to stop talking about race. >> maybe. but on that case in particular,

though, i kind of go back to -- i think the 9th circuit addressed this issue or similar issue 20 years ago and one of the lines that always stuck with me from that opinion was the constitution does not require what it barely permits. we have had a very heated debate over whether racial considerations can be taken into account and to -- i apologize for this. >> very relaxing. no problem. >> we have had a very -- >> roberts court. >> i thought i turned this off. but i guess i didn't. we have had a very heated debate in this country over whether race can be taken into account in school admissions and other areas and the supreme court has resolved it narrowly but it's a whole huge knnother step to say you're required to take the factors into account. that to me at least is an extraordinary proposition and why i think you saw that decision not being one of these

strict 5-4 decisions but even justice breyer coming across to acknowledge that basic principle that -- at that level. once you get to the level to take into account rather than whether you can take into account, that is really a decision that should be left to the political process. >> well, can i just clarify one point there. you said whether they should be required to take race into account and that's not what the opinion is about, not what the case is about or proposal 2. it's -- it's a proposal that eliminates the ability to do so. but it's not -- the question was never should they be required to take race into account. >> yeah. perhaps. but i actually think, though, that it really does boil down to that. can you say you're not allowed to not take into account because the political process decided it didn't want it to be taken into account. >> all right. so let's turn to religion. something less controversial.

eric segall is a prolific author and expert on the court having published all over the place on major constitutional questions that the court is confronting and also working now as a co-author on path breaking book on supreme court transparency. and is going to talk about religion for us. the first of the religion cases, the town of greece in which the greeks, the gree shans, the folks in that town started their town council meetings with an invocation which they thought was akin to a legislative prayer. it was overwhelmingly a christian prayer based on who it is they happen to invite and there was a constitutional challenge that that was an establishment of religion. >> elizabeth said that progressives are in favor of obama's recess appointments and noel canning case and didn't lose as badly as you thought you might. people who are in favor of separation of church and state lost as badly as they could have.

no greater loss we could have suffered than this case. eight years in a row prior to 1999, the town of greece, new york, started its very small town council meetings where you would go if you want a zoning variance or if you want to argue about the local cable access channel, you have to conduct your business there. this is not a big state legislature. this is not the congress. this is a small town council and prior to 1999, they began their meetings with what i think is an incredibly appropriate way to start the meetings, a moment of silence. prayer or not pray and reflect. for eight consecutive years and sometimes prone to hyper bole but in this situation, i'm not. eight consecutive years 100% christian prayers. no exceptions. for eight years. and two thirds of those prayers referred exples sitly to a number -- to different kinds of

eli jous similar m boss and in many cases the chaplain of the month, what it was called, yes, the chaplain of the month would ask the audience to stand up or bow their heads in prayer to jesus. as a thought experiment i thought if i asked you to do that what the reaction would be and this is not a government meeting but in any event. the supreme court said that was not an establishment of religion, 5-4. partisan divide. justice kennedy and when i say flip flopping, on this one, he did about 17 flips. given that he is the author of two opinions that say that prayers in public school classrooms -- i'm sorry prayers at high school graduation ceremonies and prayers at high school football games are unconstitutional. i want to make just three points. first, eight years in a row of exclusively christian prayers, this is a situation where the

supreme court upheld a clear preference of the government of a religion over all others. i don't think there's any other establishment clause case the supreme court has done that. there's aid ace cases and neutral statutes has a disproportionately benefit of catholic or jewish schools but neutral practices with disproportionate effects. for the court and even justice rehnquist, before he left us, said that the core command of the establishment clause is the government cannot treat one religion over another. and that's exactly what the town of greece, new york, did. so that that's very significant i think in terms of doctrine. even more importantly, whether you look at justice kennedy's opinion for justice roberts and aly to or aly to's supreme court opinion or scalia and thomas, all of them read the establishment clause out of the constitution when it comes to

legislative prayer cases and even more scary other cases, as well, because, excuse me, justice kennedy gave examples of when legislative prayer pry investigates the establishment clause and almost all of them would violate the free exercise clause. there's -- we'll get back to this with the hobby lobby case but there's the establishment clause, the free exercise clause. one says the government can't reward religion too much. that's the establishment clause. one says the government cannot coerce or penalize religion. that's the free exercise clause. i think the balance is we want religious liberty and not religious supremacy. well, in this case, everything justice kennedy, bringing a new case challenging legislative prayer, then you have to in effect make out a free exercise clause violation, a coercive. kennedy said if the government took action against you because you refused to pray, that would

be an establishment clause violation. well no. that's a free exercise clause violation. i think doctrinally if this case extends to other cases the establishment clause is in deep trouble which is consistent with scalia and thomas' longstanding quest to end establishment clause cases altogether through the standing doctrine which they have tried to do and not justice kennedy's quest and even more ironic because in the last paragraph 069 opinion justice kennedy says children -- that kids had to go to this greece town council part of high school civics programs and kids were in the room here when this was happening. last point, i have one more minute? last point is this. we have a solution talking about affirmative action, abortion, i have opinions but they're hard questions and i don't know the answers. i have opinions. i have an answer for this. same answer for high school graduation ceremonies, football games and classrooms. have a moment of silence. i've been in football stadiums

and baseball staid yums of 60,000 people after a national tragedy and a moment of silence is a really powerful thing and it works. and it brings all the good things about prayer into the room but none of the controversial things. so if you want a prayer over a moment of silence, you are saying you want to inject religion into the government and i think that's what the establishment clause forbids. >> you know, i guess my take on that case is, i do agree that from your perspective it's a pretty resounding loss but what i call it is the triumph of originalism but good for this ride only. what you see is justice kennedy's opinion taking an originalist approach, and there i would argue that it's different from cannon because you have an unbroken understanding of the application of the establishment clause dating back to the time of the founding and after that these types of prayers were permissible, but on the other hand, the way that the court

approached it was that it was -- its holding solely based on legislative prayer and the fact there was with respect to this one type of practice a long and unbroken chain of history. so, yes. while it is a resounding loss for your side, i don't read too much into it. i don't look at it as a case where the principles are going to be translatable to other cases. from my perspective, were that it was so. >> but that rational upheld segregation and discrimination against women. we had segregation and discrimination forever and just looking about history, those two practices would have been upheld and none of us want them upheld. >> looking at how justice kennedy approaches the hot button issue, he often adopts a measure of reasoning and that is easily distinguishable in the next one and i think that's the same kind of approach you saw

him take in this case. >> we have one clue about whether or not there'll be a doctrinal leak outside to other establishment clause questions when the court was asked to consider right on the heels of this case another school case where it was a graduation ceremony held in a church and just the court declined both to take up the case and also to have the case which had struck down the practice reconsidered by the court of appeals and the justice scalia said i thought we una bunch of establishment clause jurisprudence which i was so excited about five days ago and so it was some suggestion that it isn't going to be a revolution. paul smith runs the supreme court appellate practice at jenner and black and doing supreme court cases as an acknowledged leading advocate in a number offields, first amendment we'll talk about today, voting rights, also gay

rights issues. we're going to as i said there are a couple of important first amendment cases. the mccullen abortion protesters cases where massachusetts passed a law that created a 35-foot buffer zone in front of abortion clinics and there was a constitutional challenge and a real question about the fate of an older precedent which had upheld a floating buffer zone in front of abortion clinics. >> right. this is a really interesting outcome because the court unanimously held that the buffer zone was unconstitutional. going into this case after the argument i think no one would have predicted a unanimous ruling one way or the other. hill versus colorado that allowed a floating buffer so you couldn't approach somebody without their consent more than six feet was extremely controversial on the conservative side of the court and justice scalia continues to find it so. the dissent in the case yesterday says we continue to have an entirely different dpirs amendment applicable to abortion

rights issues than anywhere else and i think there was a real scenario under which hill versus colorado would have been thrown out and the whole world of how you regulate access to abortion clinics and protect people from harassment and from overcrowding and the kinds of problems that arise in front of the clinics could have been drastically changed but instead what you see is a 6-3 and unanimous and there's a majority opinion in which the chief justice gets six justices to write an extremely narrow opinion throwing out the law. what's that? [ inaudible ] alito? thomas and scalia, right? and kennedy. there's the majority opinion? which the liberals joined with the chief justice and goes out of his way to say there is no content-based law here.

strict scrutiny doesn't apply. strong argument to any law to the abortion clinic is content based by the nature and any law to allow clinic employees to enter this zone that was -- this safe zone around the front of the clinic while not allowing other people to go there was content based because they could come out, accompany people into the clinic and say you're going to be fine. this is a good place to be. whereas the individuals challenging it couldn't do what they wanted to do and just to be clear, they didn't want to scream at people. what they wanted to do is approach people politely, engage in quiet conversation and say there are alternatives. i'd be happy to talk to you about them. the entire court was willing to say that kind of conduct on a city sidewalk is protected by the first amendment and we are not going to allow the city to fence off a large chunk of real estate on a sidewalk of people being able to walk up to people, engage them in conversation.

the floating buffer zone still exists. can exist. still the constitution. but this larger fencing off of this large area is no longer permissible and i think it's an interesting situation to see -- to wonder how this came about, you know, i think that you could easily as i said have found a decision and the usual ideological breakdown and instead clearly an effort made here to bring the court together. it is quite a remarkable difference than what we have seen in recent years with the court on these kind of hot button issues. >> thanks. >> you could call it what justice scalia called it in the concurring opinion which is an apparent and specious unanimity and were really strong words to come from especially someone concurring in the judgment in that decision. so i think it sort of fits into this theme that we are seeing with some of these cases where there is an apparent unanimity. i would leave out the specious. i'm not justice scalia with the

high rhetoric but, you know, sort of masks the heat i think of the divisions in some ways in that case is an example of it. >> interesting case that sort of fits this discussion we had before about libertarian and lots of liberals on both sides of this issue and people that the aclu, a tough time with this issue and so i mean this is not an issue, an area in which the natural breakdown occurs. if you have a libertarian instinct on the left or right you may very well agree with the court. >> paul, i was uncertain how narrow the majority's reasoning was looking at the narrow tailoring reasoning because that reasoning could apply equally to did floating bubbles. if the primary purpose is to, for example, ensure access -- >> right. >> what the court said was that you can ensure access more narrowly prohibiting obstruction. >> right. but it's important to maintain the idea of laws applicable only in the abortion clinic setting. that by itself according to the

conservative members of the court would have invalidated any law with strict scrutiny and the problem of the state allowed to address in a less restrictive way is important thing to maintain. exactly how it will play out in terms of what options are available, the majority suggests some, the -- it is true to make an argument that hill is implicitly overruled. i believe that justice scalia said that. that may or may not play out that way and much more maneuver for people trying to solve the problem to avoid harassment and get into the clinics than one might have imagined would be true looking back a few months. >> judge posner late yesterday i think posted an article in slate i hope everybody reads because he characterizes the majority opinion and whether -- the legal question is hard but the majority opinions discussion of what women are faced when they go to planned harnthood clinics

to xexercise right to choice, mild persuasion. they said it's signs of a baby killer and i would just recommend judge posner's slate article on this topic. >> one interesting argument of whether these opinions mask real problems under the surface to eventually emerge is that the majority opinion doesn't even say anything about what happens to the old hill precedent that was potentially on the chopping block. we won't talk about it! come ask us later. >> clearly strong efforts to bring everybody on the opinion and might not otherwise have been there. >> elizabeth, let's -- we're going to need to kind of do the remaining cases in relatively efficient form. but an incredibly important nonetheless campaign finance decision. mcculturen, following on a lot of attention of jurisprudence about the constitutionality of the agree gait contribution limits, not $2,000 to give in a

particular election cycle but the amount to all the federal candidates in total. >> yeah. so i think we can deal with that very quickly taking eric's suggestion for a moment of silence for reform in general. while it's ka case about the contribution limits, it seems that the roberts court has yet to meet a campaign finance regulation that it actually likes. and one of the ways that i think the case is important in general for campaign finance regulation is the way that the court in my opinion redefined the government's interest in preventing corruption in our democratic system through campaign finance regulation and in cases back to buckley versus vallajo we saw the government's interest described preventing actual corruption, a quid pro quo bribery as well as the appearance of corruption so sort of a -- any sort of influence that money and politics might have, that undermine the

public's faith in the integrity of our democratic system. and so, what i see the majority doing in the mccutchen ruling is taking out the second part of preventing corruption and really just limiting the government to campaign finance regulations that can be directly tied to the prevention of actual quid pro quo protection of money and politics. i think it's wrong and goes against the understanding of corruption dating back to the founders' understanding of what the government would have an interest in legislating when it comes to preserving the integrity of our democratic system. i think that justice breyer in his dissent did a good job of raising that. i think that if you read the brief i filed on behalf of lawrence lezig, he is's done great research showing what the founders understood corruption to mean. i think the implication is what does this mean for other

campaign finance regulations? does it mean the end of sort of any limits on soft money? what does it mean for state campaign finance rules? could it eventually lead to striking down those most basic direct limits on giving money to candidates? you know? i think that all of those are fairly open questions at this point. you know, i think finally, one point that i think is relevant to think about when we look at the court, the roberts court in general is sort of when you contrast with this with the voting rights act last term in shelby county where the court i think limited the government's interest in protecting the right to vote and for those of us who supported the robustness of the voting rights act in that case, it was disheartening to see chief justice robert's opinion start with this ode to democracy in which he sort of laid out all the ways to participate from castinging your vote in the ballot box to contributing money

and sort of seeing the roberts court making it easier to give campaign cash but arguably harder for people to cast a free and fair vote at the ballot box. >> you know, i think that you're right. this is part of a long line -- not long but relatively recent line of cases by the roberts court. i have always thought that these are relatively simple ques. core political speech made at a single point in time most important in the midst of an election and if you can restrict core political speech at the most important time, that it is to make it is during an election and say that during these periods there are restrictions and you can only spend so much money using your voice then you really are having the federal government directly influence the political process through restrictions on free speech and the basic principle in my view has always been we're better off with more speech. let everybody scream as loud as they want at one another. spend the money as they want on

that speech and let the chips fall where they may. so, i applaud what i would consider the roberts court's approach to all these campaign finance regulations. >> let me just recommend that people look at justice breyer's dissent which i think very article tick latly tries to late out the case for the other position, the position still maintained by four justices and may some day come back around i think with so much to recommend which is, you know, what he did is he said we're going to take this corruption appearance of corruption rational upheld and i'm not going to completely reject this other idea that's been out there for all this time and can't level the playing field. he basically brought the two arguments together and said what this is really about is maintaining democracy and a government that's responsive to the people and that in a world of billionaires spending billions not a government responsive to the people and some level there's sufficient government interest to maintain some responsiveness. >> all right. so let's make sure that we cover

the two cases yet to come. but we obviously have to wait and see what the outcome will be. paul, do you want to -- paul, you argued the harris versus quinn case to frame it up for folks and the good news to expect. >> first amendment challenge to the fee charged by public employee unions against people that don't join the union and benefit from the collective bargaining and from the grievance procedures and started as a challenge to a specific kind of unionization which is home care workers who work individual homes and paid by medicaid to do that. the state of illinois allowed them to be unionized by majority vote. as a result they got much better benefits and training and health care than they had before and some of the people who were in that bargaining union decision agreed with being unionized and paying the agency fee and the national right to work committee brought it as a challenge and morphed into a much broader challenge to the whole aed into line of cases saying there's

nothing unconstitutionally about requiring people to pay money to the union for core union services. not for other things they do and say but the services. it was in the knox case and find out on monday, tommy announced on the blog yesterday we're not going to win. we'll see if tommy knows. but this is one of those counting justices opinions from january exercises. i have other theories but we'll see. >> who's the -- >> justice alito who wrote the opinion in knox. >> he is not what we're counting on in the case. >> well, he could just write a kind of sarcastic majority opinion saying that he was wrong. eric, the important hobby lobby case? >> yeah. i'm going to cut right to the chase here. as everybody knows, hobby lobby's a nor-profit, privately held corporation and doesn't want to comply with the requirements in the affordable care act they provide certain

types of contraception to the women through the health insurance, and this is what i want to say about it. neither the free exercise clause nor the religious freedom restoration act which is the federal law that they're suing under, this is not a constitutional case theoretically. neither one has ever been really interpreted and should not be interpreted to allow people to say, i'm not going to follow that law because it hurts my conscious to do so. that is not what those provisions are about. the government should not get in between you and your religious practice. going to church, wearing a yam ka using peito and the government interferes with the practices then the government should have a compelling interest, at least under rifra. it's there. i accept that. that's not this case. the owners of hobby lobby are not doing anything in their religious capacity that the government is interfering with.

hobby lobby does not have prayer meetings. that's not what this is about. they don't want to comply with a valid secular law applicable to everybody because it offends their conscious. and if we live in a country where people cannot follow law because their conscious is offended, then we're going to have a whole lot of chaos and other than one evenly divided summary affirmance by the skort, i don't think the skort suggested. they suggested the opposite. you don't get to follow the law skouf conscious. that's what the owners of hobby lobby want to do. personally i hope they lose. one last point about this. justice kennedy and the majority said to the people in greece, new york, if you're offended by eight years of christian prayers, get over it. that's what he said. i think what we should say to the owners of hobby lobby, we're sorry you're offended but you're

a part of civil society and you have to comply with this law. >> when maybe in strawson testified in favor of the religious freedom restoration act and a reason saying it's important is absence you could make doctors who were opposed to abortion perform abortions. doctors performing abortions are not doing that in their religious capacity. they're doing that in the capacity as doctors. so, i don't think there's any argument that the freedom restoration act protects you exercising religious things. it requires the government not to do something that the religion tells them they're not allowed to do unless it has a really, really good reason and does it in the most narrowly tailored way, subjects it to strict scrutiny. so, that's the question here. and here the owners of hobby lobby, much like many christian

or catholic owners, have a religious and moral objection to doing things that in their view facilitates access to contraception. they can't provide the insurance plan. what the court always said is if somebody tells me that their religion tells them they can't do something, you know, that's -- it's not a court's role to second guess that decision. does the law in fact tell them to do something they're not supposed to do? here it's clearly undisputed it does and then proceed to the strict scrutiny analysis. i don't think with all due respect your description is at all accurate. it is meant to protect against precisely this thing. one final point. there's no law that puts forth the mandate. the affordable health care law says something about it. that's a health and human services regulation. that regulation like all other

regulations is subordinate to the religious freedom restoration act which is a law. and the affordable health care act explicitly said nothing in the act was overriding the conscious protections that are found elsewhere in federal law. the most prominent of those protections is religious freedom restoration act so i don't think there's any argument that you're exempted from a law. in fact, you're following the law by applying the religious freedom restoration act. >> the text of the act is not referred to conscious. it refers to the free exercise of religion. >> no. it refers to a substantial burden. >> no, no. but first it has to -- the burden. the free exercise of religion and we have justice scalia in smith and the case in the 1890 s on polygamy and generations of cases saying you don't goat exempt yourself from generally applicable law because your conscious as opposed to your

practice is affected. >> the religious freedom restoration act overruled smith. >> well, but it also says it incorporates the pre-smith law. the purpose is to bring in the pre-smith law and no supreme court case to suggest -- >> when mr. smith was hammering out tank tur rets, not giving unemployment benefits because he objected to hammering out tank turrets, was he exercising the religion? of course he was. that's something that the religious beliefs forbade. that's what's going on in the hobby lobby case. >> important to note is that while i have no doubt that the green family and the hahn families have that objection, the law doesn't place burdens on the people as an individual but an obligation on the corporate entity hobby lobby or con stow yeah wood to offer health plans

and must provide the full range of fda contraception and the individuals don't have a claim to bring and i think that the corporate entity upon which there is actually the requirement doesn't have a claim to bring because never in the history of free exercise law has a secular for-profit commercial entity been understood to share the -- >> preventing unintended pregnancy is a compelling interest. >> all right. fantastic. now that we're all -- now that we all agree -- >> just so we're clear. the answer to that one is no. >> correct. let's be sure to take time for questions which we think are very important. so we'll start with folks, in case any of the folks of the press have questions and someone will bring a microphone to you. and if you'll identify yourself and then direct your questions to whomever. >> mike doyle to the panel. could you return to the

smartphone search case? there was brief reference made to the potential implications for challenges to met data collection. would you walk through the challenges in light of riley will now play out? >> well, i think that, you know, first of all, riley shows that there is -- that there is a different approach that might be taken to electronically stored information. i think, also -- and so in that respect, i think that's important, the majority noted that in response to some debate at oral argument that protections would probably also apply to information that is stored in the cloud and not just physically on your phone. so that i think is an important aspect of the ruling. also, there was a yes, sir which you are made to sort of what people call the mosaic theory under the fourth amendment that when you aggregate information,

when you have, you know, so this came up a little bit in the gps case, jones from a few years ago, that there's sort of something different about agree gaiting massive amounts of data that gives fuller picture of someone's activities and someone's life than just sort of picking out -- so, for example, the gps case, there's the court found there to be -- didn't find there to be. there was a difference to be sort of a detective following someone and getting the information from a couple days opposed to the sort of information that you could get if you had a gps and could get this vast amount of information. and so while it wasn't obviously expressly decided in riley, there was a gesture to the idea that the massive amounts of information obtained on a smartphone could be qualitatively different because of the bigger picture to give about a person's activities or information so people that

support the idea that that makes a difference saw something to be hopeful for that the court might adopt a mosaic theory in future cases. >> just two quick things. that is, you know, every fourth amendment case has two parts. is there a search of something that's private? cell phone cases are about the -- is it private part. and on that score, the supreme court looks back at an old case of pen registers in the early days of phones and the court said collecting that information doesn't implicate the fourth amendment and says that precedent really doesn't apply with any substantial force in a digital era when so much information is gathered from things like phone calls but there's an important footnote in which the majority says we don't decide what constitutes a search and if the government is able to just collect information about us that's otherwise available from databases and the like it may not implicate the fourth

amendment but actually collecting phone call information without a warrant will raise serious fourth amendment issues. >> i was going to say, it's more by analogy they're related. the issue in the meta data context is validity of the old rule that if you let information be in the hands of other third parties you don't have a fourth amendment claim when the government gets it from the third party and justice sotomayor suggested in the gps case is something we need to rethink in a world where everything we think and do is in the private third party hands and it indicates those who think it should be overruled and judge leon here have some support. >> other questions? >> mike lindenberger with the dallas morning kn ing news. you see in the politics, too,

with rand paul and war on drugs, et cetera, but i think the first amendment may be the best fulcrum to talk about that. it seems like what used to be sort of a rallying call for liberals is often now challenging liberal politics in support of the first amendment like, for instance, the abortion cases. i just wondered if you could talk about that, the shift and the new maybe newfound support of first amendment as a weapon for the right and maybe something that makes liberals less comfortable than they used to be. >> yeah. i certainly -- i'm not going to comment on whether it makes liberals less comfortable than they used to be but i think on the conservative side over the decades you have seen a much more robust embrace of first amendment principles along the libertarian lines. i spend a lot of my time in private practice litigating commercial speech cases and seen a dramatic change in the court on the approach to commercial

speech. right now, when we're looking at cases and, you know, you try to look across the country at which courts are the best to bring commercial speech cases in, frankly, the supreme court is more protective of commercial speech in my judgment than any of the lower courts in the country. >> i would suggest writing a check from a politician from alabama to california is not core political speech at all an agree with you that the right side of the court has taken the first amendment away from dissenters. i mean, really the original -- one of the major ideas of the first amendment was to protect dissent. that's gone. and when we have dissenters, in fact, the court doesn't really protect them very well. i think that's a big change. >> i think, you know, on the liberal libertarian alliance i see it less in the first amendment context and more coming to equality and liberty and as well when it comes to privacy and the fourth amendment context. there's been sort of rand paul and chris coons wrote an op-ed about the riley case together. you know, and the marriage

equality cases my organization and kato filed a joint brief together as we did in the supreme court cases from last term. i think the first amendment actually is an area in which the reports court moved the doctrine to very conservative direction by, you know, some folks have -- some comment taters called it a locknerization of the first amendment to strike down corporate and commercial regulations. >> just a brief question looking forward to the panel on death penalty and 8th amendment jurisprudence. does the panel expect anything forthcoming in the next term or is there anything percolating its way up or anything from any major circuit decisions, especially in light of the recent issues with experimental drugs for executions?

>> so, the supreme court, there's been this debate that we all know about with problems of the administration of the drug cocktails and so far it has stayed away from stepping into those cases. it has issued a stay in a case from the 8th circuit that's going to the circuit that isn't so much about the safety of the protocol that was administered but whether you could impose it on somebody with specific health conditions. and i think that the justices are hopeful that that question will go away. most of the death penalty 8th amendment action i think is instructal cases that interest justice kennedy about medical disability, about age eligibility, those sorts of things. it has tried to avoid, what they would regard i think micromanaging the precise drug cocktail because it's so up in the air and so uncertain. you know, what drugs the states can use.

oh, sorry. >> i wanted to ask. hobby more important about what the courts think of the corporation then it will be regarding a religious rights on a question. i think they are quite likely to overrule and say the corporations do have souls. but i'd invite the panel to comment on that broader general question. >> i have a colleague i'm going to shamelessly plug, dan tucker, a law professor writing about all the implications of hobby lobby for corporate law. she has written a lot -- i don't understand it all, but she is

very afraid that if hobby lobby comes out in favor of corporations having free exercise rights and not limiting it to privately held companies, that a lot of corporate ceos are going to have very difficult ethical problems going forward in what kind of decisions they make. if they have to worry about their shareholders and their employees free exercise rights. i can't go into more than that, but she is very worried about that and i think she has a right to be. >> one interesting thing about that question, i think it's an incredibly important question. i think from my perspective the most interesting part of the case. it didn't get a lot of play at oral argument, the court was much more focused on the burden, the compelling interest, tailoring. what that suggests for how the opinion is going to come out, maybe that means that wasn't controversial and there is going to be, if not unanimous then larger number of justices thinking corporations can bring

these claims. i don't know. i found it interesting. i guess disappointing that it didn't get more of an airing in oral argument. >> i think the corporation issue is a lot more nuanced than just do corporations have religious freedom rights. i think most would agree some corporations do. for example, churches are incorporated entities. churches clearly have free exercise rights. what about religious nonprofits like catholic charities? most people would agree catholic charities can exercise free exercise rights that are protected under ripper. the question is what is it about the corporate form that allows one category of corporations to exercise religious freedom rights and not another category? it can't simply be that religious freedom only attaches to individuals because we know that's not the case. rather, we need to many could up, if this is your position you need to come up with something that distinguishes a corporation

as an expressy religious purpose like catholic charities, archdiocese versus a corporation organized for a for-profit purpose is owned by deeply religious people who use the corporation to promote their own religious beliefs. >> i think the question is good when in the sense that to eric's point, it does speak to a trend in supreme court injucourt in j. if you look to a repudiation of that era and a set of cases as they are connected, there is a change that is happening. so whether you look to hobby lobbies being more nuanced, i think it's about a broader issue how this court defines the scope

of the power and rights of corporations, which is changing. >> the next big issue if hobby lobby wins is how this applies to laws that have discrimination between lgbt people. this is a big coming fight about to happen between religious freedom and discrimination protections that is already happening. that is something people are watching very carefully and worried about. >> hoping justice kennedy is watching that carefully. >> concerned about his legacy, as he is. >> yes. >> haley middleman. did you represent mr. canning because you have the same first name? >> actually it was the knowle canning company. >> i listened to the first five minutes of the oral arguments on the scour. it started out with justice ginsburg and others asking what would happen if all the nlrb decisions don't exist any more.

you haven't talked about that. what is the actual effect of the decisions? >> the decisions issued by the board with the unlawfully appointed members. the three members invalidated in the supreme court's decision. all those orders are buoyed. what it had to do in a different case called new process steel from a few years ago, where for different reasons it held the board was unlawfully constituted. what the board has to do is revisit each order and decide whether or not to readopt that position. >> can they do that in the aggregate? >> i think a new process steel they actually assigned a panel to each case. the panel reviewed it and decided up or down whether to affirm it. generally, i think they did affirm it. i don't think they did it in an aggregate order. that might raise a few issues. >> they didn't have to wait for a new case to arise. >> right.

>> i see. >> the court decided a couple of clean air act cases to gave the epa and interpreting that law. i'm curious about water thoughts what that says about how much deference they are going to give agencies going forward since regulatory issues are always a big question with the supreme court's docket? >> i think that is a great question. the epa had a really good term this year before the supreme court. the initial case you mentioned, the clean air act case, was a big victory for the epa. the court upheld a majority of opinion that included conservative justices, as well, upheld the epa's ability to regulate pollution that traveled from one state, air pollution that traveled from one state to another. that was a big victory for the

epa. the greenhouse gasses case that in some ways limited epa's ability to regulate greenhouse gasses, in one respect allowed the epa to basically, as justice scalia said when he was issuing the decision, get everything it wanted out of the case. the way i sort of described it was that it was a 97% victory for the epa. the difference between what the epa argued for entirety and what the supreme court gave it even though it limited a little bit of its authority, it was only a 3% difference in greenhouse gas emissions. it was basically a victory for the epa. it was a good term for them. going forward, if you look at president obama's promised regulations on greenhouse gas emission standards, the ruling that limited epa's ability to regulate greenhouse gasses a little bit, i don't think really will affect that provision. those upcoming standards because

it comes under a different provision of the clean air act. >> i think the jury is still out on how restrictive the greenhouse gas decision is going to be on the administration's ability to regulate greenhouse gasses. it's true that what the majority opinion holds is that 97% of the emitters of greenhouse gasses can still be or 84%, whatever the number was, can still be regulated by the epa under a different set of regulations, but the majority opinion also goes at length to say that set of regulations has a lot of restrictions in it. it remains to be seen whether any particular rule will survive those restrictions. in fact, the dissenters don't see how any rule could survive those restrictions in that regulatory regime. what the majority acknowledges maybe yes, maybe no, but at least it's there and that will play out in future cases. i don't really myself buy the narrative that this was a strong victory for the epa.

maybe yes, maybe no. i actually don't think it was necessarily that. it could turn out to be that. we have not yet seen how this, how the regulations are going to be evaluated under a regulatory regime that was not the principal regime epa was advocating in the first place. >> our last question. >> three years ago there was the schneider case where you had the picketing of the soldier at the funeral, so on. one part of the decision by justice roberts was that there was 1,000 feet away. so there was a real buffer zone. is this buffer zone idea an arg um much less relevant or not at all or does it depend on subject matter or does it depend on how you go about the protest? >> it was interesting. a lot of people pointed out the supreme court itself has a buffer zone you can't get close to the building. i think the two cases are quite

different from each other. this was a general line drawn around these buildings that you can't even enter them just to enter quiet conversation that wouldn't interfere with the operation of that clinic in any way. that involved protesting. even then upheld the first amendment challenge. i think the two cases are distinguishable. >> all right. please join me in thanking the panel, and thank you all for coming. [ applause ]