common core standards. then later a hero foundation forum on immigration. the supreme court's new term begins in three weeks, up next, a look at some of the key issues and cases the justices will consider, from the smithsonian institution, this is two hours.

if you can hold your questions to the end, if you want to sit up straight and smile, you want to sit up straight in case you're in the picture. i have given you a handout with the speaker's bios in order to leave them with as much time as possible to discuss the cases and to allow time at fend for your questions. but i do want to welcome them today. our panel includes, ken snannagan, willie jay, who is a partner in the litigation

department and co-chair of its active litigation process. john biscubic, editor in charge at reuters. general donald varelli who represents the united states before the supreme court. and lori alveno mcgill who is a partner at burk hard and sullivan and was law clerk to justice ruth bader ginsberg, please join me in welcoming them and enjoy the program. >> great, well, thank you very much, and as we said, my name is cannon shannagan, i specialize in litigation here in washington. it's my great pleasure to moderate today's program. i'm going to try to speak as little as possible during today's program so you can hear

from this really fabulous group of panelists we have put together to talk about the upcoming supreme court term. and while we have advertised this as a preview of the upcoming supreme court term. i think quite frankly that that was false advertising to some extent, because we're going to talks more broadly about the supreme court. and in particular, i think we're going to start by talking about the roberts court, because as hard as it is to believe. we're about to start the tenth year of the roberts court, of the supreme court under the chief justiceship of john roberts. i suspect for many of you, at least of a certain generation, you remember where you were when president kennedy was shot, i think for many of us who are supreme court lawyers, we remember where we were when we heard the very sad news that william rehnquist, the previous chief justice of the united states had passed away, i was actually watching college football at my parents house

when they broke into the football game with the news that the chief justice had passed away, and for all of us, in many ways it feels like it was just yesterday and yet it was now more than nine years ago. john roberts had of course already been nominated to join the supreme court as a replacement for sandra day o'connor who had retired but president bush promptly turned afternoon a around and renominated him to become the chief justice. i thought we would start with some observations about the roberts supreme court, we'll talk about the term that ended in june before we transition into what will be the upcoming supreme court term. i want to start by talking about the inspector general, who really needs no further sbro destruction, don varelli, the solace ter general of the united states. certainly the government's chief lawyer in the supreme court.

and don, i think in many ways, you have a unique perspective, not just because you're the inspector general, i'm going to admit that i did a little bit of googling, you're almost the same age as the chief justice, you distinguish yourself in private practice as the head of jenner and box, so of course you've known the chief justice for many years, first as lawyers in private practice, and now of course with a perhaps somewhat different relationship as the solicit for general to his chief justice. so i would really like to get any thoughts you might have from having now argued in front of the supreme court, the rockets court, both as solicitor general in private practice and also having known the chief justice for many years before that. >> i would like to start off with a couple of observations,

one being that, i guess i would say there are two ways in which the court, the roberts court does reflect something fundamental about the chief justice himself. and one is, i get to see this because in my job i am at the court for just about every oral argument session, whether i'm arguing or not, usually somebody from my office is arguing. we're up there for about 80% of the cases and i go when our folks are arguing. so i'm in there just about every day, just about ever argument. one thing i find remarkable about that experience is to observe how extraordinarily well prepared and extraordinarily engaged all the members of the court are in the process of deciding the cases. i mean, it really is astounding, you think about the big cases, but even on highly technical cases of statutory construction, that frankly most of you aren't going to be paying awhole lot of

attention to, they are really drilling down, thinking very carefully, incredibly well prepared and i do think that the court throughout my time in practice, i think has been a very engaged and well prepared court, but i do feel like it's at another level now, and in some respects, that's reflective in the way the chief justice himself approaches the law and the task of judging. and the other thing i think that's emblematic of this court and i don't know how much of this is just circumstance and how much of this is predisposition of the chief justice and the other members of the court. but from where i sit, they are not afraid to tackle big issues. if you think about the last several years, the roberts court has taken on a lot of very, very consequence shall issues in the law and for the country. and that doesn't show any signs of abating either. so i guess, to start us off, i think those are the two things that stand out to me.

>> is there anything in particular that you can attribute that to, don? do you think that's just institutional confidence? >> it seems like a psychological disposition that this is their job and they're not going to shirk from it. they don't look to avoid the tough issues, they may get themselves into the tough issues and rule narrowly, but that court and the justice, they understand or they feel a responsibility to take on the big issues. >> it makes sense to get a perspective from someone who covers the court and we have one of the best here and joeng biscubic has been covering the court for 25 years, who i also known from google is roughly a contemporary of the chief justice, i don't way anything more than that without seeming ungentlemanly, joan is currentlily essentially the leg

editor for reuters and has previously covered the court for many years among other publications of the "washington post" and usa today and of course because joan has been covering the court now for a quarter of a century, she has covered not only the roberts court, but also the court in prior incarnations. and so, joan, i really want to have embarrassed you and you can return the favor in ample measure i'm sure, give your sense of how the roberts court differs from previous predecessors and how it differs from rehnquist's both in style and substance. >> it's one of the few institutions you can cover and still feel pretty young, until here. so it's great. but i am glad that you first brought us all back to that september 3rd, i believe when the chief justice died.

i of course remember where i was, i had prewritten the story and it was right during the hurricane katrina episode. >> of course the chief justice had been sick. he had had cancer. >> he had been very sick with thyroid cancer. and actually during that prior term had not been able to be in very much. but i remember getting the call, and it was late on saturday night when you were at a ball game and i was probably working at the computer. but the funny thing about the hurricane katrina angle is i remember one of our reporters being down there in new orleans and coming across a man who said we haven't had any news for days, did the chief justice really die? so he was a very different kind of man than john roberts, although john roberts was a protege of his, john roberts had clerked for the chief when he was an associate justice. he had done the lower court

clerk ship and i have to say i agree with much of what general verilli has said about the assessment of him. but i also would say, i think he's playing a much longer game that if he doesn't have to go broad he won't. i think we have seen that in many of the rulings where they will just bite off something incrementally. in this most recent turn, i saw him making a few more turns to the center in a way we would have expected from anthony kennedy. i think in the abortion case, where he would join with more liberal members on the legal rationale on abortion buffer zones out of massachusetts. but he -- and what most people will remember him for to far is his key vote in the obama sponsored health care law when he swing over with more liberal justices to uphold that in 2012, our good buddy don varelli.

i think he's moving slowly. he's only, let's see, since you mention it, he was born in january 1955. so he's 59. so he's got many, many years, the last chief died i believe 80, 81. so he's got a lot of years ahead of him and unlike justice sca a scalia, who sort of like barn stormed everything like he did since 1986. the chief doesn't go at it very forcefully, he is a very forceful man, but he doesn't go forcefully above the law. when he is on the right wing, which happens a lot in the most consequence shall cases is we have seen something really emerge from his partner from the george w. bush appointment years and that's samuel al lito. justice alito took the lead in two very important cases in the last week of the term. the hobby lobby case, the

contraceptive mandate one, and the union piece case. it occurs to me if you're the chief, and you're looking for a conservative ruling and you want to hold that coalition together, who are you going to go to? are you going to go to antonin scal scalia? or are you going to go to kennedy who looks like he's going to skew too far left of your case. that's the observation that i would make about the court with the george w. bush appointments. it is a dynamic that the chief is part of and that's justice sotomayer breaking out in the michigan affirmative action case with her dissent in the case known as shootie, where she and the chief actually got into it a little bit because she was dissenting from the ruling that upheld this michigan ban on affirmative action practices, including in higher education, and the chief felt that she was airing too much of the strins

behind the scenes in her dissent and i think we're going to see her using her first latina justice voice and i'm not sure how well that's going to sit with the chief either. >> that gives me an opportunity to atone for embarrassing joan to point out that joan is about to public a book on justice sotomayer. which i believe is going to be coming out afternoon the first week of the supreme court term. >> the first monday is for oral arl arguments and the second -- it does raise a far out west which is to the extent that we think about the roberts court, we also think about john roberts, we have four new members on the court. including justice sotomayor and jue justice kagan. to what extent, when you think about the roberts court, is it really about the new justices more generally and not jiflt

about john roberts? >> and i think justice kagan is especially one to watch. she's our yingest justice, she was born in april of 1960 she . she's been quite strategic, unlike justice sew toe may more who's breaking off from the -- i find her to be quite a active participant during oral arguments and so piercing with those questions. she's got a way, even though she's on the far end of the bench of being able to zip right into the conversation, i would think that it's -- >> sometimes it's great, sometimes it's not so pleasant. >> she is very effective and she's a very effective stylist of the rank of certainly of the chief justice who's an excellent

rhetoric igs, and the two of them go off a lot on majority and disseptembering opinions. >> let me just ask you one other follow-up question, joan, you refer to the fact that the chief justice is playing the long game and that's kind of one of these bogus washington phrases. i think the first time i came across it was actually in your book on justice scalia whoempb you talk about how justice scalia early in his career had to play the long game. what do you think that means with regard to the chief justice? because after all, one thing it might mean is that he is moving along incrementally. he has no guarantee of what the makeup of that court is going to be, and whether he's going to finding himself in the majority or potentially in dissent. how do you think that that factors into the psyche of the chief justice. >> i'll give you two examples, but it's an excellent point you raise, this is all very unpredictable. the chief justice was in his 80s.

he had been very sick, so his death was predictable. but strange things can happen to all of us in our lives and nobody can be guaranteed of this makeup of this court or about the composition of the u.s. senate after november or who will be in the who is. and i think where the kind of increme mental approach of chief john roberts will manifest itself, where we saw in 2009, where there was sort of a warning shot fired by the chief in terms of intense scrutiny for the federal government's voting rights poll so i, in terms of federal authorities having to clear any kind of electoral changes in jurisdictions that have had a record of past discrimination, the chief and frankly the majority was on board with him on this, said be careful how this is used, we're not sure whether this is still going to be constitutional into the 2000s and sure enough, last

year in 2013, in the case of shelby county versus holder, the chief got a five justice majority to effectively gut this key provision known as section 5 on the affirmative action and higher education case, i think they punted in some regards in the university of texas case we saw up there last year also, i think people like the chief and anthony kennedy who took a more modest step in that decision, no, another one might be coming down the pike at some point. so even though they -- he can't think, oh, in another ten years when i'm not even 70 yet, i'll be able to do some things. the way the cycle of cases is coming toward the court, it can at least wait two or three years. >> right, well, with that and at the risk of seeming obsessed with age, i want to come to too the youngest members of the panel who happen to be two of the real up and coming stars of the supreme court bar, willie

jay who is the co-head of the supreme court and lori mcgill who is a partner specializing in supreme court and appellate litigation at the clint emanuel firm. as it happens, willie and loir clerked at the supreme court really right around the time of the transition from chief justice rehnquist to chief justice roberts. really in the last year of the rehnquist court, lori clerked in the first year of the roberts court and willie and lori in their careers as supreme court litigators have like me, sort of grown up with primarily the roberts court. so i think i'll just throe the floor open and ask for thoughts on what you just said and any additional thoughts you have on the roberts court. i'll start with willie andive you have any thoughts about arguing in front of the roberts court that would be of particular interest. >> one change that we see today

has almost nothing to do with the chief justice himself. but it's equally significant to some of the developments that joan mentioned. and that is the retirement of justice stevens in particular. and so, you know, what struck me was joan mentioning that we have four new justices, in some ways, we almost have five because justice ginsberg today plays a real very different than what she played when she pittsburgh came on the court and when i was a law court and when i first started arguing before the court. but justice stevens was very much a leader on the court of justices, not always the same justices, but the justices who agreed with him on particular issues. and he too was as tablctically savvy as the justices have ever been. and i think for a time, after he stepped down, there was a lot of

press coverage about whether justice ginsberg would be able to step up and fill that role. i don't see a lot of news articles speculating about that anymore. but it has been interesting to see who -- what she would do with dissenting opinions, would she assign them to herself, would she assign them to other members of the dissenting group? i think we have seen her write more impassioned dissents, deliver more of her dissents from the bench as a sign this is something she feels really passionate about and she knows that when she does that, it gets more attention than if it's just filed in writing. but that's been one of the most interesting developments. another development and then i'll pass it off to lori has been the addition to the court of a number of justices, with experience standing at the lectern and arguing before the court. justice kagan, don's immediate

predecessor as solicitor general had done that. but justice alito served in the chief justice's office and the chief justice had been the number two person before he became the number two member of the private bar. that's not just how they treat county skill, and their expectations of council, which are very, very high, especially for those who wear the tail coat, the lawyers in the soli t solicitor general's office, by also the cases they take and to just put one example on it, i think you see a lot fewer run of the mill death penalty cases, if it's fair to call it a death penalty case, a run of the mill case rpgs when the court takes a death penalty case now versus the case it took in the rehnquist court, often it is to eliminate an entire category of potential defendants from the reach of the death penalty,

rather than reverse an out of control lower court that has said aside a death sentence. that's not true all the time. but the court takes more business cases, fewer death penalty cases, fewer search and seizure cases. and lyori would you agree with that? >> i wanted to get the thoughts of someone who clerked for justice ginsberg, and this summer, she's given quite a few interviews in which she's talked quite candidly about her role on the court. >> not to bring this back to age again. but she's been asked ad nauseam, whether she has plans to retire, given her age and some of the well publicized, you know, health problems that she's had, and i think it's fair to say that in a series of speeches, maybe going back almost two years now, she has at every opportunity definitively refuted

any suggestion that she is looking at retiring any time soon. so i think it's fair to say, that she kind of developed a stronger voice, kind of came into her own a little bit more, if that even makes sense, given what her position was at the time, but starting around 2006, 2007, when she started reading those dissents from the bench, the lily led bettbetter case, a companion case, i think they were just within days of each other and it was big news that any justice, and let alone the same justice would read a dissent from the bench, you know, just days apart. i think that she has made clear that she feels like she has taken on that role, not just of the justice stephen son room,

but the elder woman in the room and i think she feels like she still has work to do. i wanted to touch on something that we have been talking about, we have been talking about the transition between the rehnquist court and the rockberts court, d the one thing i observed, actually i was in the sg's office when willie was clerking, that last year of the rehnquist regime, so i witnessed a lot of oral arguments that year, and then i went to clerk and then it was the new chief. and watching him sort of navigate how he was going to run the courtroom was interesting. he's definitely made some decisions to run things a little bit differently than his predecess predecessor, and one of the things that you pick up on almost immediately, probably has to do with his history as having been behind the lectern and that is when your time expires, the chief will not stare at you and, you know, tell you to sit down, council.

if you dare to go past the red light. he will let you finish your thought and sometimes will even let a colleague finish a question and let you answer it. and that's something that's very different. and i wondered as i was silting there this term and which case it was escapes me, but i wondered whether he's ever regretted kind of the loosening of the normal rules or formality around argument protocol. because you do see on occasion, this dynamic in particularly with justice sotomayer, where you can see the chief visibly getting upset that someone is either talking over another question, or sort of overstepping in some way. and there was at least one occasion this past term where i felt like he visibly shut it down, in a way where he was kind

of trying to restore order and i wonder if we'll see, you know, this term, everyone on a little bit better behavior. >> so one thing i just interject on that related point to that, one thing that this chief justice has done that chief justice rehnquist did, only very rarely, and this chief justice is doing it more. is allocating more than the normal amount of time for oral arguments, usually the 30 minutes per side. but in a significant number of cases this year, and a couple the prior year, the chief has, i assume it was the chief, but the court has provided for 35 or 60 minute aside rather than 30. from my experience this makes a huge difference. because this is a very active bench. and they all have their questions. and they kind of compete for air time in a 30-minute argument. they're both hovering waiting to get their questions in and their questions aren't necessarily related to the other justice's

questions that have just been asked. and so what i found is when the decisions are made to extend the oral argument time to 45 or 60 minutes, the arguments just go a little better. the justices are more relaxed, the articles get a little better chance to elaborate on their points. that probably does come from his experience as an advocate, realizing that it's not every case by any means, but there are going to be situations in which it just makes sense and the oral argument will go better if you take a little pressure off it by just adding some 250i8. >> and the chief justice has even done that on the fly on a couple of occasions. >> those are harder because he didn't say, hasn't said i'm going to give you five more minutes. he has said you can keep going. and that's hard when you're at the podium, because you don't know when he's going to say, okay, stop now. it's hard to figure out, well, do i hold this point back or

should i get it out now? but in general, he has been much more comfortable about letting the arguments stretch on. >> willie? >> one thing i think is a point of commonality in the two observations between lori and from don. i think in general this is a court that values oral argument as a way, both to getting to the heart of what the case is about, which is not always as perfectly clear from the briefs as we until bar might like it to be. and it's our fault. but also, as a way of communicating with each other, in a way that they don't do before cases. it seems that they do not walk down the hall and say, so that case is going to be argued next week, what are you thinking? and the first opportunity for many of them really is in the context of oral argument. not all of the questions that you hear are purely, i don't know the answer to this and will you please tell me what page it's on? some of it is more pointed, more

aimed at the weakness in this case that we are hearing is x, what is your response? and i think a lot of the justices have begun to use oral argument to kind of probe. >> the conventional wisdom, and the supreme court bar that oral argument only rarely alters the actual outcome of the case. >> that's something people say to make the advocate feel better. >> i heard that a lot in my last case. >> tell me whether you disagree with that and if you don't disagree with that, i would be interested in how you would reconcile that with what you just said, willie about how the court does seem to be more solicitous in oral argument. >> it may not flip a lot of clients a lotle of time. but there's no doubt that it is incredibly useful in figuring out the weaknesses in the case

how the things that make the justices tick intersect with the things that the cases are about. and sometimes the justices, i think, find in the course of an oral argument that the case is about something, perhaps a little bit different than they had thought coming in. i do think it's pretty rare that a justice marches in thinking i'm a solid vote to afirm and marks it out thinking, boy, thanks to oral argument, i'm now a solid vote to reverse and no oral advocate wants to have been the person who changed that mind. >> don, you don't have to identify particular cases, but as you're standing up there as the solicitor general of the united states, are you standing up there thinking, boy, i have an instinct about how this case is going to come out or are you thinking this case is generally really hard to come by? >> i think much more the former than the latter. but i think that is a part of the function of the kinds of cases that an sg argues, which

tend to be the big cases and they tend to be the cases in which the justices put in the most work and the most thought, and probably in many instances have the most well developed sense of where they think the law is and should be. but i will say on the oral argument point, one of the benefits of getting to go every day and see the arguments, is that i do think there are other cases that lawyers in my office have argued that may not be the superhigh profile cases, it may be a supertechnical case about the meaning of the statute or how one statute intersects with another statute. it seems like the judgings aren't buying what we're selling, they seem kind of hostile. but it's because they don't really understand the way the statutes work and the lawyer in our office is going to work through how the statute actually operates and how it fits together with another statute. although you never know for sure, there's two or three

instances where it seems like minds were changed by that process of education and argument. i don't know if that's true, and it doesn't tend to happen in the really high profile cases. but it wouldn't surprise me at all if some of those outcomes change in those kinds of cases. >> well, i'm the one person who hasn't worked behind the scenes as a clerk but i have been able to interview the various justices over the years for books an other projects and they do say what they think matters. they have a hard time quantifying it because it is an elew sifz factor. they will use oral arguments to telegraph to each other what their positions are or where they see are holes in a competing position. and we have seen a little bit of what don was referring to in the cell phone case in the most recent term where they seemed quite hostile to the idea that police wouldn't be able to search the contents of a cell phone. but by the end, you were a

little bit uncertain about how they would come out, and then they were unanimous about putting a requirement to police for cell phone soifts r searches. it is part of the w40e8 process. they do not actually talk in any formal way, i think you're right, willie. even informally before oral arguments on the case, the conference ask typically at the end of the week, they have a wednesday conference on the early week ones and a conference on friday for the later oral arguments. but i think from everything you all say who work behind the scenes and what ahave heard from them is that the conversation actually begins way before they get to the conference and part of it is in oral arguments. which is why it becomes so crucial for all of you who get the argue these cases. >> you have given me the perfect opening to start talking about last term, since you mentioned the case on cell phone searches,

riley versus southern california. would you describe that as the most consequence shall decision from last term? are there other decisions that you think will have long-term consequences? >> politically, any time we have any kind of ruling involveding the kbaum sponsored health care law, that's a big deal. and we're still seeing how issues of the contraceptive mandate are playing out. we had the union fees case that could be more consequential down the road for other labor disputes, but i do think for all of us regular folks out there the cell phone case might have been the most important. >> can you provide a little bit of background? >> of course. the issue was when you're stopped, when all of you are stopped and arrested, as a matter of course. >> this doesn't look like a particularly felonious crowd. >> it doesn't. do police need to get a warrant to search the con tengts of your cell phone. a smart phone essentially.

and, you know, with the police argued, it was a pair of cases that they shouldn't have to quickly get a warrant as a general rule because somebody could tampaer with the contents there's a lot of issues that would lead to the destruction of it and it would lead to a routine cursory look anyway. but the justices by a 9-0 vote said no, you do need, in usual circumstances, unless there's some sort of danger or some sort of chance that the contents would be destroyed immediately, you do need to get a warrant. and the interesting thing about oral arguments then, you felt like the justices might not be aware of smart phones. there was a moment when the chief justice himself suggested at least who would carry two cell phones unless he was a drug dealer. and we know for a fact, at least i know for a fact that justice -- yes.

justice kagan, justice ginsberg even carries two. justice kagan and justice sotomayer have two cell phones on them at any given moment. he got set straight probably in the roving room. >> someone sent him a text? >> yeah. and justice kenby, who's our key voter who we're always watching, many of his questions from the bench were all about police and police concerns and he seemed to be very much taking the point of view of law enforcement. so that was a really interesting ruling. so what it means is when we all leave here today, if we get stopped for any reason and our smart phones are confiscated, they would need a warrant to search. >> other cases that were of significant from last term that people want to comment on? >> well, we saw a split the

baby, 9-0, but a split in the rationale decision about recess appointments. that's another case i think of when i think of long-term imp indication force the future. any time you have the judiciary talking about the limits of executive power, it's a big deal. evening though it was kind of a compromise decision that allows recessed appointments in a narrow window of time. it's the sort of thing that can have, you know, long-term implications and end up in the common law case book. >> that must have been a particularly interesting case to argue because as an advocate it was something that the sprblt had never spoken about. >> it was literally, this was the provision, and we talked got it here on this forum here last year, before the argument, that it gives the president the authority to make a appointments that would otherwise require

confirmation of the senate, if the vacancy shall happen during the recess of the senate, and the question was -- there were three questions in the case and one was, does the recess mean only the recess at the end of win session of congress and the beginning of the next and between those two points or can it be any recess during the session of congress and the second being does the vacancy have to arise during the recess or can i arise before the recess. and what about these pro forma sessions of the senate. and really, the case turned so much on the historical practice, precisely because there really wasn't any precedent from the supreme court in all of our country's history resovm kwhag

the scope of this power was, and they said well yes, a president can make appointments for any recess of ten days or longer and the president can even make appointments if the vacancy arose before the recess, but know the president has to respect the senate's assertion that it's actually in session for these 32nd sessions and the court's not going to look behind that. to as lori said, it was some sort of a split decision and this may be looking at the world with rose-colored glasses, but i think from the perspective of, from where i sit, representing the interests of the executive branch of the government, actually there was a lock that wasn't very positive about that decision, because for the first time in our country's history the court said that the president does have the authority in these circumstances and the exercise of these authority by presidents going back a very long time has been validated and that will be there and be solid going forward so

future presidents will know what the scholarship of their authority is. so that was quite an interesting case. >> you talked a little bit about the constitutional cases that the court decided last year. but willie, in terms of cases of interest for friends of the business community, one thing that came through loud and clear last year is that this is a court that is very interested in resolving issues concerning intellectual problem in particularly patent rights. could you skmencomment on that? and we'll be commenting on cases of that variety as well. >> last term, the court took six patent cases, two copyright cases, one very cutting edge and significant. and two trademark or false advertising cases, it was an absurdly high slice of intellectual property on the court's docket, the kind of things during the rehnquist court you would have seen, all of those would have been replaced by cases involving an

officer searching a car somewhere in california. one thing that's significant about the patent cases in particular, but i think also about the copy right case that took the streaming of live tv over the internet, involving a start up called aero. is that in some of these cases, the supreme court doesn't have the traditional guidance for which cases to take. usually in a -- you know, the simplest version of criteria the court has for what cases to hear t court looks to see if this appeals kurt has decided the same issue one way and that appeals court has decided it another way. all of the patent cases go to the same jurisdiction over patents. it's harder to figure out what the federal circuit, which is what that court is called is not despiting in a way that the supreme court ask comfortable with.

sometimes they ask vsg to weigh in on is this a patent case they should take on. i think one of those patent cases got there because you asked them to take it. but others did not. and the supreme court reversed the federal circuit in every single one of those cases. they generally don't take pat tent cases because they're happy with what the lower court has done chx there's been a lot of reversals. in the case that is don't take, they're just fine with what the lower court is doing. it's still fine for them to take and engage with a bunch of -- patent lawyers often think of as quite settled. nec term there's more on that subject. the copyright case, where there is no circuit split at all, but the court thought it was time to jump into this fairly hot, fairly legal interesting issue. but both justices asked the

court to jump in and settle it. they could have said this is a preliminary case, it's still being lilt gaited. go work it out in that lower court. >> i have actually argued a patent case as sg in each of my three terms. i have not gone back to research this. i have been told by many people that i'm the only sg to have argued even one case much les three, so i think that's a sign about willie's point that the intellectual property docket is becoming increasingly important to the court. >> you know, what this reminds me of, do you remember the letter that ken starr wrote to the wall street journal about business and intellectual property in the early '90s? >> no. >> ken starr was -- everybody remembers them with monica lewinsky and president clinton.

after he left the sg's aifs early in the '90s, he happened to write two pieces about how the court was not hearing the right business cases, he didn't say as willie say, you keep hearing these search cases from california, can you take some business cases. and he actually said that some of the clerks weren't quite up to spooeed. and john roberts who once was a clerk certainly is up to paid on intellectual property and the high-tech business cases. i won't, it's been such a transition from the rehnquist years to now, but that was something that the bar had been pointing to and the problems. the court of course is a court of discretionary jurisdiction, the court only hears around 75 cases a year so it has the great luxury of deciding which cases to hear. i'm just curious of whether

anybody on this panel has any thoughts about whether there's a particular category of cases that the judges should take more of, or the category of cases that the court's taking too many of? everybody on this panel who's a practicing lawyer is going to stay they don't take enough of my cases. >> intellectual property has become such an important driving force in the economy, that it's not such a surprise that the court's taking so many cases. it's as though you go back to the late 19th century, there were a lot of railroad cases on the docket and that makes sense due to the nature of the economy. >> let's say the one issue that seems to have fallen off the agenda a little bit in the roberts court are cases that involve federalism. >> uh-huh and cases involving claims by states.

and that was an area that was obviously of great interest to chief justice rehnquist. that seems to be a little less of a priority in terms of the court's docket with this court. >> and of course we lost our true westerner in sandra day o'connor and the federalism issue, the state authority in the case of some sort of mandate from washington was a big deal to her also. so both she and the chief, chief rehnquist made better priority especially in the 90s. >> but it is interesting because justice kennedy also seems very interested in federalism, but he seems unable to do what the other two were able to do, which is get other people interested enough to grant, you know, in these cases. >> yeah, let's talk about the cases that the court actually has granted review in in the coming term so as to avoid that lawsuit for false advertising for this program, let's talk about the upcoming spring term.

we're really talking about half of the upcoming supreme court term because the court has filled a little less than half of its calendar for the upcoming year, the court will continue to grant review to fill out it's calendar for the upcoming year. is cases that are on the court's docket for october, november and december. i want to start with, the solicitor general, and as we were sort of talking about cases we were going to discuss today, we came up with, you know, probably about 10 or 12 cases and the common thread of the cases you're going to talk about don, is they are cases that seem to involve the separation of powers, and the relationship between branchs of the government. so i know you're going talk about a couple of cases, but the first case you're going to talk about you have tried already. i think the secretary of state has changed since the last case you argued as well.

>> yeah, this is as ken said, this case is back for the second time in my tenure, it is a case, separation of powers case, the recess appointments case that we talked about earlier was a separation of powers case, in allocating the authority under our constitution between the president and the executive branch versus the congress. it involves a clash between the congress and the president over who has the authority under the constitution to decide whether to recognize and how to recognize a foreign country as sovereign. it's really quite an interesting case and it arises out of a statute that was passed in 2002 statutes title was the following -- the title of the statute is united states policy with respect to jerusalem as the capital of israel. it has four sections. the first urges the president to

relocate the u.s. embassy from tel aviv to jerusalem. the second one says the united states funds can't be used to fund u.s. con sell in jerusalem. the third says, any document like a map has to list jerusalem as the capital of israel and the fourth says that any american citizen born in jerusalem has the right to have israel listed as the country of birth on his or her passport. that statute was enacted in 2002 when president bush signed it into law. it was part of a big statute. but when he did, he said the executive branch and in particular the state department which issues passports was not going to follow the fourth of those provisions. it wasn't going to allow citizens to have israel listed as their country of birth if they were born in jerusalem. the reason for that is that going back to 1948 when

president truman first recognized israel, the united states has not recognized the sovereignty of any nation over jerusalem. it has said that until the parties in the region work out among themselves who will be sovereign over jerusalem, the united states will remain agnostic about that question. and the concern about issuing passports to people born in jerusalem, listing israel the country of birth would be that it would in effect be a statement of the branch of united states that jerusalem is indeed a part of israel and president bush said he wasn't going to enforce that provision because it infringed on the president's exclusive authority to decide what countries to recognize and what borders to recognize in countries. and president obama has continued with the same policy president bush had of not enforcing that statute. now, someone brought a lawsuit

under the statute saying, hey, this statute says i have a right to have israel listed as my country of birth because i was born in jerusalem and state department has to be ordered to give it to me and they're refusing to give it to me. that made its way through the federal courts of appeals and one of the arguments the government made, hey, that's a political question. this is something the court shouldn't get involve nchd you ought to fight it out between the president and the congress using the usual tools that each branch has to bash the other branch with. and the court shouldn't get involved. now, the court rejected that in a decision back in 2012 saying, no, no, this is the kind of question the court should answer under our system because it involves the constitutionality of the statute and send it back to the lower courts and that case is now back in front of supreme court to decide the constitutionality of this statute. and the question i said is

whether that statute infringes on the president's exclusive authority under the constitution to recognize foreign sovereigns in which case the president wouldn't have to follow it. or whether it doesn't and it's a valid exercise of congress's powers under article one. now, the problem with this case and one thing that makes it really interesting is that the text of the constitution does not, at least in so many words, assign to either the president or to congress the power to recognize foreign sompbs. on the president's side, it gives the president powers to receive ambassadors. and starting with george washington, presidents have said, well, in order to receive an ambassador i have to recognize the legit masy of the country from which the ambassador hails and therefore, i, the president have the power. and then the congress says -- in more generally the president of

course is in charge under our constitutional system of di blomsy and those are the constitutional arguments on the president's side. congress said, no, well we have enumerated powers in article 1 section 8 to regulate foreign commerce to regulate naturization and we have a power to declare war. and sometimes nonrecognition of countries is bound up to declare war and it's long recognized that congress can pass laws using these powers to regulate the contents of passports and that's all we've done here. so, you look at -- this is a case a little bit like the recess in appointments case that very, very little law and there's actually no law addressing the question of where the recognition power resides as between the president and the congress. history will tell you that there's a very, very long history of presidents exercising the recognition power and no history of congress actually

exercising the recognition power but actually there are numerous instances of congress tangling with the president over the recognition power, enough of them at least so that the thing is not entirely clear cut. you know, as a structural matter, you know, what the folks favoring the constitutionality of the statute will say is that most presidential powers are subject to a check in the congress. the president can negotiate treaty but it has to be ratified by the senate, for example. and it would be odd that this power isn't subject to a check and so the congress should have a role. on the other side of the coin, one of the things that we'll argue on behalf of the executive branch is that as a functional matter, just can't work to have the recognition power reside in the congress because sometimes that power has to be exercised instantaneously. for example, president truman recognized israel 12 minutes after israel declared its independence. sometimes there's very sensitive

reasons why you may want to delay exercise of the recognition power. of course, going back to the founding era, congress wasn't around for about half the year, at least. so it would be hard to exercise the recognition power under those circumstances. so, it's going to be actually quite an interesting case and somewhat like the recess appointments case i think that you'll have to really dig down deep to the first principles of our constitution structure and function and look very hard at the history and see what you can learn from it in order to resolve the case. >> and i think the other case you were going to talk about involved not the allegedly improper exercise of the legislative power by delegation. >> allegedly improper casting off of legislative power. this is a case called department of transportation versus the association of american railroads. it's a case about the powers available to congress under the constitution, but it's a different kind of question in this case, particular it's a question about whether congress can delegate any of the

government's decision making authority, the federal government's decision making authority to a private entity. it arises out of a statute that congress passed in 2008 to try to improve the on time performance of am-track. you laugh. >> seems to have worked. >> it's doing much better as a result of this statute it's doing much better. outside the northeast corridor, am-track runs on tracks that are owned and maintained by freight railroads. and by law, the freight railroads have to let am-track have the right of way on the tracks and they have to give am-track a preference so it can increase its on-time performance. but before 2008, on-time performance was pretty abysmal and by lots of calculations was costing the government a lot of money because the am-track is not profitable, the government has to subsidize it. and so congress passed a statute in 2008 to improve on-time performance.

one of the things the statute did is say, am-track and the federal railroad administration should get together and jointly set metrics for performance for am-track. and that if they agreed, great, those would be the metrics that govern am-track's performance. if they disagreed, then the statute provided for the appointment of an arbitrator to make a decision. so am-track and the federal railroad administration got together and agreed on metrics. they accomplished them as proposed rules and the freight railroads, whose freights am-track runs over and they challenged them. and they challenged them on the ground that congress has imper misly delegated to a private entity. you're asking who the private entity is, well, am-track is the private entity because although am-track is heavily subsidized by the government and has numerous other features which may play into the case that make it seem like a government

entity, when congress created am-track to try to preserve passenger rail service in this country, some 40-some odd years ago, one thing the statute said is this is a private company, it's not a government entity. and then why do the freight railroads care about this? why do they challenge this? well, it's because if am-track is falling short of these metrics on the freight railroads' lines and am-track can show the department of transportation that it's the freight railroads' fault that am-track is late, then the freight railroads have to pay damages. and so the freight railroads were complaining about that. now, this case went first to the d.c. circuit court of appeals here in washington. and the d.c. circuit struck the case down under our constitution the congress cannot delegate a right to a private entity and that's what happened here in this case. that was quite a remarkable thing in the sense that a ruling

like that, a ruling saying that congress had imper misbli delegated its authority to private actors had not occurred in this country since the early days of the new deal. one of the things that happened in the early days of the new deal and one of the more famous cases carter, versus carter cole was a case in which before the switch in time, let's say of '09, supreme court had held that one of the key provisions of fdr's first new deal the nra was unconstitutional because it delegated in the case of carter cole to a consortium of private entities, the coal miners coal company officials and private citizens the power to set terms of competition and set wages and set working conditions, et cetera, essentially a delegated governmental functions to a private entity and that violated

the constitution. that was one of the real major flash points of the new deal controversial between fdr and the supreme court back in the 1930s and since then there hadn't been another case holding that delegation was constitutional, but we have one now and it's on the docket and, you know, i've given you a feel, i think, for what the challengers have said and will say in the supreme court. i'll give you a little bit of a feel for how we're defending that statute. we're trying to defend this by narrowing the scope of the issue really in saying, look, the reality here is that it isn't right to think about this statute as a delegation to a private entity because at the end of the day am-track doesn't have any final decisional authority if the federal railroad administration and am-track together agree then the federal government has agreed to the metrics. and if the federal government and am-track disagree then an

arbitrator gets appointed and you can construe the statute to require that the arbitrator be a government official, and so a federal government official can have the last word and therefore the private entity doesn't have the last word and therefore there's no -- am-track is a federal government isn't a private entity. the reasons why we think am-track is the government that eight of its nine members of its board are appointed by the president and the ninth is the ceo of the company who is appointed by the other eight and the supreme court has held that am-track is the government for certain purposes under the constitution like the first amendment and therefore you ought to consider it the government here to. so i don't think this is a case raises quite a serious an issue of separations of powers or governmental power as this other case does or as the nole canning case did but it's an interesting case. >> i want to put a proposition to the panel and maybe, jen,

i'll start with you. the proposition is this, this supreme court is not at all shy about refereeing disputes between the two political branchs. i want to know whether you agree with that and if you agree with it, i want to get your speculation as to why that's true. >> well, i think they aren't shy about it but then you have to watch about how they rule. the separation of powers is a very important topic to the chief and it was always a topic to our most senior conservative anthony skoe leah who you clerked for. he also said that would capture more of his imagination than due process and equal protection kind of issues. but it seems like just hearing as you describe, you're giving on both of these the court a way to go narrow, not to do anything too dramatic and that's exactly what happened in knoll canning. it rolled back the d.c. circuits

folder idea of limits on presidential power, correct? >> uh-huh. >> so that was i think for both of these there's potential, especially given what the d.c. circuit did in the second one but i think that this court isn't afraid to take those up, but i also think this court isn't interested in dramatically scaling back anyone's role in the separation of powers. >> will, any thoughts? you clerked for justice scalia who has been the leading proponent for resolving separation of powers issues. >> yes. although also he and the chief justice both have been strong advocates of the enforcement of the limitations of constitution places on the court's ability to referee abstract disputes or disputes brought by -- brought to court by people who don't have -- >> in other words, limitations

on the courts having jurisdiction. >> right. standing is sort of the heading that a lot of these cases go under. don, do i remember correctly what the supreme court in the first case asked you to brief the merits and then didn't decide them? >> correct. yeah. >> i thought that was interesting that the court having had before it the opportunity to resolve this ultimately gulped and sent it back down to the d.c. circuit. >> it was interesting although the prior decision the d.c. circuit had been that it was a plit kl question the court shouldn't get into, when we got to the oral argument the first 15 of the 30 minutes for both parties was on the merits and both advocates had to be forced back into talking about the political question issue by the justices. >> the political question doctrine is a restriction that the court placed on itself and the strength of it has kind of

waxed and waned throughout history. used to be that reaposhsment cases the court wouldn't get into because it deemed those to be a political decision. but they changed its course in the 1960s. i do think there is generally a strong majority might shift with some members -- generally a strong majority of the court thinks that the court can resolve it. how they might resolve it is a separate question. the same sex marriage case from california being a notable exception to that where a narrow majority of the court decided that because there was not a person with standing to defend california's initiative before the sprourtd that it wouldn't take that up. >> right. but that standing ruling might have been designed merely to avoid answering the merit's question at that moment in time not because of some principle of adhering to principles of standing limits on the court's power. >> it might have been but if you

look at the alignment of the justices in that case, i don't think that you could look at it and think here are five justices afraid of who share the same view of where the court ought to come out on this case and yet there are five -- a majority agreed to dump the case. >> well, turning to something completely different, joan, i wish i could come up with a common thread for the cases you're going to discuss. >> from railroad travel to prisoner? >> yeah. and then redistricting. >> oh, yeah. >> none of which really have anything in common, so joan will talk about a case involving religious liberty in the prison context. >> right. this case will be argued on october 7th and it's holt versus hobbs. in some ways, this involves religious right for prisoner, but it does pick up a bit where we left off with the case that some of us referred to earlier the hobby lobby case involving

the contraceptive mandate of the obama health care law in which the justices narrowly ruled by 5-4 that closely held corporations operating for profit could assert religious interests to avoid abiding by the insurance provision on the contraceptives based on the beliefs of the owners. and that case came to the court under a 1993 law known as the religious freedom restoration act. in this new case comes to the court on a bit of a cousin of that law called the -- let me get it just right because it has an unusual name here. it's the religious land use and institutionalized person's act. and from the bench, i'm sure we'll here -- they will engage in these awkward acronyms. but under this case, a prisoner who is a fundamentalist muslim wants to be able to grow a beard in prison.

he's in arkansas and arkansas has a policy that says no beards allowed, not even a half inch beard and the prisoner lost in the lower courts with judges ruling that prison officials have great lee way here for how they run their prisons and that even though this law that i referred to the religious -- the religious land use and institutionalized person's act even though it says that government cannot restrict somebody's religion unless it has a compelling interest and is exercising that interest with the least restrictive means the lower courts all said, prisoner officials have much more latitude in this area than just about anyone else. and the court took the case. the prisoner then appealed to the supreme court saying that, okay, right. prison officials do tend to have great lee way in terms of how they run their institutions, there are matters of security,

public safety, but this rule doesn't even meet the most basic standard because 44 other prison systems in america do allow beards for religious systems and not long ones, as i said this one involved the half inch one. the question is how much deference to give to prison officials under this federal statute. and the prisoner' lawyer -- they raised issues all the way -- going back to 1879 case that involved a no braided hair policy that a chinese prisoner was objecting to and justice field wrote that that violated the equal protection clause because it was so severe on chinese prisoners who at the time had long braids and the prisoner's lawyer in this new case says it was as if any kind of institution in this case the city in san francisco had mandated that all prisoner confined in the county jail should be fed pork even though

they were jewish. it made no difference in the ordinance that the ordinance was written in general terms or the prison officials raised concerns of health and discipline. and that's where it comes to on this. now, this court tends to be very careful when it comes to prison issues. i think it was about four years ago we had the strip search case out of two counties in new jersey where the justices ruled that prisoner's -- people who had just been arrested, hadn't been charged with anything, could be strip searched if they were going to be put into the general population. that case was brought by a man who had been stopped in his fancy car in new jersey and suddenly put in with the general population. he was saying why should someone like me had been strip searched but the justices ruled against him saying there should be deference for prison officials. so this comes at an interesting time because obviously by different 5-4 vote just a few months ago the court really took special heed of religious rights

and religion is a tricky topic for them. we saw that in the town of greece ruling that actually didn't come up earlier, that's where the justices just last term gave city councils more latitude for prayer before legislative -- before municipal hearings. so this one -- this one will be closely watched. let's see, as i said, it comes up october 7th and a lot -- as you can imagine, a lot of prison rights groups have come on the side of the inmate here and several states have come in on the side of arkansas saying, let it be up to the states. even though 44 correction systems might believe that it's important to allow this kind of religious exemption for certain inmates, in this case muslims, that overall it should be left to the prison officials. >> i think there's something else going on october 7th, as i recall. someone has a book coming out that day. let's fast forward to november and to the completely different

context of redistricting. >> yes. >> and the supreme court is wading back into that thicket in a case from alabama. >> doesn't it recall the '90s when we had all those redistricting fights up there. right now most of you are aware of all the voter id cases that are under challenge in some lower federal courts all as we march toward the november midterms. where the supreme court left off most recently on this is with the shelby county versus holder ruling that we referred to earlier in which the justices really scaled back on the voting rights act and just protections that for individuals who might be trying to get an early challenge to elector yal challenges in states where there's been a history of discrimination and that case was from alabama and this case is also from alabama. and it's called the alabama legislative black caucus and then alabama democratic conference versus alabama.

whether a republican sponsored plan -- right now both the house and senate in alabama are republican majority. whether their new legislative plan that was drawn after 2010 and instituted in 2012 packed african-americans into a limited number of districts dill luting their voting power and making it harder for democrats outside those districts to win. so that's why the black caucus and democrats are bringing this case. now, this is complicated set of facts below, in fact, the plan actually was cleared by justice, right? >> that's right. >> he cleared it. it was cleared by justice, but the justice department has come in on this case saying i think taking, again, sort of a modest step, saying, okay, so the lower -- the special three judge panel by a 2-1 vote upheld this plan in the face of these challenges from the black caucus and from democratic lawmakers in alabama and what the sg is

saying it used the wrong standard under the voting rights act and equal protection guarantee. instead of looking at whether race was the predominant reason and the cause for packing blacks into these districts as a whole, the lower court actually -- lower court actually should have gone district by district to look at it, put more scrutiny on this. and the issue for this supreme court and what was below was race the predominant factor? did the lawmakers just decide, look, we're going to consolidate in a certain way that goes beyond whatever kind of mandate there might be to frankly strengthen black vote in some of these southern states but rather ended up deluting it and made sure the politicians in power could keep going. it's actually one of those cases that it will depend on how broadly the justices go, how much it matters, it is legislative -- state legislative districts at issue here, not congressional districts and it

is part of sort of a generation of cases that will probably only be incrementally ironing out things when we have some larger events frankly percolating in texas with redistricting and voter id there and big voter id case to be argued at the end of this week in the seventh circuit, but it's all part of the franchise and who gets to exercise the franchise and how much all these -- so many elections, as we know, come down to just a few votes and such a critical question of turnout and this will be important before the november elections, too. >> so, joan, i just want to ask one question again drawing an your experience covering the court, i think there was a time when everyone thought abortion the third-rail issue for the court just as it is for politics more generally, but it seems now days particularly under the roberts' court that third-rail issue is race. do you think that's a fair assessment? >> i think it is. in part because -- well, first of all, he's not sherking from it, that's for sure.

he's not afraid of it. this stems in part because of the chief's own background as many of you know, he came up through the reagan administration at a time when the reagan administration was actually fighting a lot of racial policies, thinking that the time had come to end those and that was in the '80s. so he has for a long time felt that it's important not to classify people on the basis of race even when it's to compensate and to help for past discrimination or bring about diversify for example in higher education. and even before he took the lead in the shelby county case that we've referred to, he wrote in another racially-charged case about this business -- this sorted business of di viing up people according to race. and so it's something that i think very much turns him off and turns off some of the other conservatives even though as someone like ruth baiter againstberg who decented so poignantly in the shelby county

case said it's just not time to be able to say that we don't need to take these kinds of steps. >> yeah. perhaps maybe third rail issue is the wrong term because i didn't mean to suggest that the court avoids it. when it gets into, sparks fly. >> definitely. >> it is the area of the law in which passion seems to run hottest. >> yeah, yeah. >> well, one thing you might add on this subject, why did the court have one voter id in the last decade and bunch of redistricting is because they have to. when you have a challenge to a state-wide districting plan, state legislateture or congressional districts, that's one of the very few areas left where the court has no control over its own docket. it's heard by a special three-judge panel and appeal goes straight to the supreme court. they have to either say this is so clearly right that we're not going to hear it or they have to hear it on the merits. and that campaign finances is one area and redistricting is the other where they have to

have more cases on this subject than they might like. >> i want to make sure we have a few minutes to talk about willy's and laurie's cases before we talk about what's potentially on the agenda. willy, you were going to talk about the business docket. maybe it makes sense to make general observations about those cases as well as to talk about the specifics of cases that are on the docket. >> sure. i think that the business docket is sometimes an overgeneralization, right, because there's lots of cases that some people might call a business case and other people might call for example a civil rights case. one of the cases that you've asked me to talk about this term falls into that category which is young versus ups. it's a case under the pregnancy discrimination act. the pregnancy discrimination act is one of those statutes that congress passed down to slap down the supreme court and tell them they got the law wrong. back in the late '70s the supreme court was asked whether discrimination against sbun on the basis of pregnancy in the

context of employee benefits was sex discrimination and the court said no and congress said, yes, yes it is. that is under title 7. this is a case in which a pregnant driver for ups wanted access to the same light-duty schedule that is made available to some but not all ups employees. so, for example, if you were injured on the job, then under the collective bargaining agreement ups has with its drivers you can have a light-duty schedule. if you were injured playing rugby or in your hobby of being a rodeo clown, you can't have access to the light duty schedule. so, you know, the statute says basically that women who are pregnant are to be treated without regard to pregnancy but compared to people with the same abilities and limitations. and so basically the question before the court is going to be,

is this -- if you make an accommodation available to anyone, so, for example the people who are injured on the job, must you also make the exact same accommodation available to pregnant women who want it? or is the fact that you don't make it available to everyone, you only make it available in certain categories? is that significant under the pregnancy discrimination act? the business community sees this as a business case in which it's already subject to various kinds of regulations of what accommodations to offer people on the basis of temporary and permanent disabilities in their ability to live their life. you know, i think is treating this as another case that could make it harder to run a workplace, especially a unionized workplace where this accommodation has been carefully negotiated between the employer and the union as a way of keeping people employed by ups

after long service if they're injured on the job, but title 7, you know, a landmark civil rights' statute says what it says. pregnancy discrimination will override a collective bargaining agreement if this is the right way of analyzing it. so this is one of the cases where the justices' own outlook on statute -- not just statutory interpretation but the kind of legal regulation of the workplace could have a significant difference. i think if justice o'conner were still on the court, it would be interesting to see what she would make of it, not only because she was a very pragmatic justice who could balance a lot of things easily, but, you know, one thing that we haven't said about the current makeup of the court is that while it is divided -- there are six men and three women, the three women are all on the more liberal side of the court and so -- >> only one of them has ever been pregnant, as far as we

know. i'm sure that changes perspectives, as well. i didn't mean to throw you off there. >> i'm not sure what to say in response to that. >> willy exercised the fifth amendment on that and perhaps turn to the other cases on the business docket. >> so the -- we have more intellectual property on the court's docket as well and i'm going to be somewhat turs in describing this case because i'll be litigating it, but the supreme court has agreed to take up a question that has bothered the pat tent appeals court for a long time which is basically how do you divide the work between a trial court and an appeals court in interpreting what a patent means. patents are complicated documents and if you've ever read one my condolences, i feel for you. they are written not for normal people and not for