intelligence hearing on isis. the former commander to the u.s. central command and the former u.s. ambassador to iraq and syria. this supreme court's new term begins in october. some of the upcoming cases include racial gerrymandering of congressional districts, whistle blower protections and the

religious freedoms of prisoners. former acting solicitor general joined a panel of law professors from the muslim center. welcome to the aba division for public education's on the docket, supreme court program posted in partnership with the woodrow wilson international center for scholars. i'm gary slayman, the chairman of the aba preview advise si board. preview is the -- for decades has been the only resource to provide detailed analysis of each case before the supreme court prior to all arguments. each preview issue highlights the main issue for the court in a way that nonlawyers and lawyers alike can understand. the preview board is delighted

to welcome you to on the docket, to the annual supreme court panel. we're excited to be hosting this program once again in partnership with the woodrow wilson center. today we have assembled a great panel to help us understand the 2014 term and give us an inkling of how the upcoming term will play out. our moderator will introduce each of our panels, and i would like to say something our moderator myself. john beluski was a great friend of this broadcast to many years, he has extensive experience as a moderator, interviewer, anchor, producer and reporter. he is currently the director of digital programming for the woodrow wilson center for scholars. john, thanks for your support of us here at the woodrow wilson center.

>> thanks to everyone for joining us. let me welcome you to the woodrow wilson center for scholars. this is the nation's official and living memorial to it's 28th president woodrow wilson who had something very unique about him that no other president can claim, no, not that he was a lawyer, a lot of presidents are lawyers. anyone know what it is? yes, he was a phd. yes, ma'am, he was the only -- imagine that, the only u.s. president to be a phd. so welcome to the wailson cente for the annual on the docket program. you'll see in a moment, they always do an exceptional job of bringing an a-list guest list to the event. you'll know a lot more about the upcoming supreme court term when you leave here, i can guarantee that. you all picked up one of these

when you came in. previews, it's a terrific resource. it has detailed bios of our panel, but i'm going to give you the short version, particularly for those who are joining us via the webcast or cspan 2 or who are unable to pick up a copy of this book. let me introduce you from right to left. neil pacow, who has articled 21 cases before the supreme court. 21 and counting, because more this year on the way. previously he served as acting solicitor general of the united states and also served as a law professor for 15 years at georgetown university law center. and that was all before the age of 21. also with us, leslie kendrick, she's a junior at the-university of law. she'll be talking about some supreme court cases tonight. she clerked for u.s. supreme

court justice david suitor. and also jenae wilson, she's director of counsel for the naacp preview defense and council fund. she was the associate director of the ronald h. brown civil economic development at st. john's university of law. steven is a fellow of law and government at the american university washington college of law. he is co-author of a biography of justice brennan, a columnist and previously served as continue for "the wall street journal." please welcome our panel for today's discussion. let me tell you a bit the format, we have asked each of our panelists to provide briefings, something they're very good at on a variety of upcoming cases, in some cases by category, in others a little more free form. so when each panelist does that presentation, then we'll engage him or her in some discussion of

the cases, then eventually we'll turn it to u you and we'll ask for your questions and comments. but first, let me begin with a general question about the state of the court. is the court currently either more political than its ever been or less political than its ever been or somewhere around the average? let's begin in the order of introduction. neil? >> i have some pretty strong views on this and wrote about it in an op-ed for the "new york times" in june. if you look at the cases before the supreme court, it's very striking, it's never happened, in most of our lifetimes it hasn't happened that the court agreed unanimously in roughly 2/3 of the cases it heard. indpeed there were object 25 decisions that it decided last year that were not anonymous. you would have to go back to 1940 to find another supreme court term like that. so when you read the newspapers and the supreme court bitterly divided and partisan, there's certainly some of that, but i do

think one thing we're seeing with the roberts court, is a real striking emphasis on unanimity. and i think it's fitting that we're talking got it here at the wilson center, which is of course devoted to kind of nonpartisan true engagement of ideas, i think the court is looking over and seeing something a little bit dysfunctional in folks that can't get anything done, and can't agree on anything, they're fighting about the small things. and i think the roberts court is saying, look, we're certainly going to have our disagreements in the hot button cases, but can we find common ground? >> so in a way the court is looking to congress for inspiration of a sort? leslie? >> well, you know, i think these comparisons are really hard to go. and to neil's point about the amount of unanimity. i don't think it takes that many

hot button case where is people see a really divided court for that to be the impression that people take away, i remember when i was clerking, one of the parties involved was john r. sands and gravel, and i thought a surprising amount of the supreme court court's docket is sand and gravel. there's not many cases that are interesting to people, not many cases that really need an answer and they provide that, and they do that extremely well. but it doesn't take many cases that contain fireworks for people to -- very easy to say this is more political than the court's been in the past, when, you know, we don't have the sense of just how much fire works has happened in the past, because those are subtle questions for us now. it's hard to make the comparison. >> jenae? >> i think it's very difficult to con tech chulize it. and i apologize inned a slangs for my voice. i think we have to take into

consideration the number of cases the supreme court has taken, tipping significantly every time, every time the court opens for a new time, you see a shrinking docket. so therefore the number of unanimous decisions that chief roberts has been able to collect from the justices is impressive, but there are a much smaller number of cases. >> do les cases equal more agreement historically speaking? >> i have to agree, some of them are the mundane, run of the mill sort of circumstances that need some sort of resolution, but are not creating law that is jaw dropping and others are the big jaw dropping cases and i think the cell phone case is a good one to point to where you see unanimity, and i do wonder, what are we losing with that unanimity, to say whether it's more or less political, you have to think about what's being cut out of the edges to create a more consensus opinion and that

in and of itself could be political. >> like a family having a rule never to discuss religion and politics at the dinner table, so we can all get along. steve? >> i would make two points, i think there is a lot of unanimity, but i think some of the yuunanimity is elew si. i think the court did a good job of their rowing an issue to something all nine of them can agree on. but it's not the last cell phone case we're going to see, and the next time it won't be unanimous, because they masked some of the disagreements and i think they did that in some other cases too. to their credit for trying to find common ground, but don't make a mistake in thinking that it's necessarily, that all issues are being resolved in that way. the other thing i would say is, and i agree with neil that i think the court is very cognizant of congress being dysfunctional. but i think one of the offshoots of congress being dysfunctional

is when the court strikes down federal statutes, we presume that congress can correct the mistakes in those statutes if they want to. and a disfunctional congress can't do that. >> you're not painting a picture of a highly partisan court, but if you hear some critics of the court, particularly around citizens united or mccutchen, you would get a very different picture. >> there are certain hot button cases, gun rights is an example. and perhaps some of the cases that may come to the court this term, same-sex marriage and abortion, you know, maybe other ones in which you are going to have that amount of disagreement. but having said that, striking agreement on things like cell phone privacy, which is a sweeping holding, this is not narrow, this is a holding that affects you and me as broad as i think they could have possibly done, saying that what the

government is doing is against the general warrants of the founding, it is one of the most significant rulings of the supreme court in its lifetime. and there are other things that have been fully unanimous, things like patenting human genome. certainly there are political decisions that, you know, or things that have political consequences that the court's engaged in, but i do think this court has done something really interesting and trying to find common ground. >> any other thoughts on this before we move on to another topic? what about, let's look back at the last term once before we turn our attention forward to the coming term. is there anything that you would list as the most surprising thing about the court's performance during the last term? >> there's a predictability on these hot button issues that often have broken 5-4. neil has revealed a specific

strategy on a record setting amount of cases in 70 years, at least in the last 70 years, so is there anything that surprises you or are we talking about a highly predictable court? >> i don't want to speak to neil, i think the cell phone decision was probably a surprise, especially the unanimity of it. and the recess appointments you unanimous unanimity, we know that justice roberts says he wants to find common ground on which all nine can agree. but that doesn't mean that they're all the going to be able to find it. so sometimes when they do, it does kind of catch you off guard. >> jenae, what surprises you, if anything 123. >> i think the unanimity on the decisions was surprising and chief justice roberts seems to be getting better and better at creating that coalition, or either the members of the court are getting to know each other,

and the newest members seem to be, as kagan and sotomayer seem to be really jibing with the group and there does seem to be a greater cohesion, but i don't know if there's any surprises, maybe this is part of my cynicism about there being some politics on the court. some of these cases are rather predictable. i think there are certain areas where u you do find more predictability and so i wasn't terribly surprised. i do think those are two o outliars of the unanimous nice decisions. >> do your co-workers love or -- >> i tend to not have any expectations about the supreme court. they're going to do what they're going to do. and often you can predict where the battle lines are going to be drawn, but how exactly they're going to come down, trying to gauge that can be kind of a fool's errand.

so there were some cases that i think were big cases, hobby lobby is a big, big case, it could have gone one way or the other based on what a couple justices felt about privately held corporations. and is the result surprising? no, but it's momentous, but i think that's probably more important. >> to me the pose surprising things about the court is not actually something that happened at the court, but the lawyers who are arguing before the court. it's not surprising that the last 10 do 15 years we have seen a kind of emergence of a court bar, 75% of the arguments were done by someone who had already done fife or more arguments. here's a sad fact, last year 15% of the people who argued at the supreme court were women. 15% in the year 2014. that to me is a strikingly dismal figure. i would have thought by this point in time we would see different numbers and it's something that i think we all

need to think about and certainly those of us in the appellate portlaworld need to t about it in our hiring and our mentoring. >> this would be high priced briefings, these are billable hours, jenae, we're going to begin with you, and we have about 10 minutes for this segment. but jenae is going to talk to us about voting right s cases. >> i'm glad you said voting rights cases plural. i'm talking about a consolidated case, alabama consolidated conference versus alabama. those two cases were consolidated and this will be the first time that the court has dealt with a voting rights act case since shelby kelly versus holder, which was the term before last, where the court dealt what i would say is a devastating blow to the voting

rights act of 1965. so this case is momentous for a number of different reasons and so far, in looking at the petitions that the court has granted, this is going to be the case of the term unless one of the voting id cases makes its way to the supreme court and certainly wisconsin is vying for that honor, so we'll see what happens there. otherwise i think this will be the election law case of this term. and as you could hear from the age of the parties, there are partisans dimensions to this case and there is also the main issue on the table which is the racial concern. so the alabama democratic conference is in fact a african-american political action committee. on the one hand. the other case, the alabama black legislative caucus consists of african-american legislators representatives in the state of alabama and both

parties are suing based on a republican-led state redistricting map that came out of the 2010 census. so every ten years, as you probably know, our states go through this phenomenal process called redistricting where they redraw the legislative districts for state legislators, for local commissions and even congressional redistricting. this is challenging the state legislative map. and as i said, this is a republican legislature, and the concern in this case is the way in which they configure the district, particularly how they included minorities in the district violated the equal protection clause, no matter what level of scrutiny you applied to it, but especially if you apply strict scrutiny which you would whenever there's an allegation that race played a

predominant role in the redistricting. so in a nutshell, 2000, 10 years before the 2010 census, in 2000, this plan was drawn up creating the majority minority districts, it was litigated, it was preserved in the voting rights act and a certain number of the majority black districts were created. when the legislature tried to update that plan following the 2010 census, it continued to keep the same percentages of black persons in these majority/minority districts as they had in 2000. now on its face, that doesn't sound like a preposterous idea or anything that's problematic. but if you know about the standard by which we judge the legality of majority/minority districts, you understand that cookie cutting an image doesn't necessarily yield a plan that's constitutional or one that's

consistent with the voting rights act. so the voting rights act requires, i'm talking about section 5 in particular, any voting change including the letting tiff map must not put minority voters in a worse position, it must not have the intent to do that and it can't have the effect of doing that. and we call that process or that measure of determining whether minorities are put in a worse position, we call that retro aggression, the plan cannot retro gress minoritying rights. so in this particular case, by including the same percentages of black population in the newer districts, the legislature did not take account of the fact that minority voting rights had actually evolved in ten years and that the same 77% black district that may have existed in 2000 didn't need to exist with such high concentrations of black voters in 2010. and that's really the crux of the concern there.

there are a few interesting points about this case, first as i mentioned, this is going to be the first time that the court opines on the voting rights act since shelby versus holder and in that case the court did not strike down section 5 of the act, which i just explained, but instead struck down section 4 of the voting rights act which creates a trigger for which jurisdictions would be covered bicekation 5. so basically it was the formula for deciding which districts would be subject to this retrogression standard. the court left section 5 intact. but we don't know if we're able to create a new section 5 or section 4, what the court would do with it. how well it would protect it and i think everyone is going to be looking at this case to read the

tea leaves on this question. it's the first time the court will be dealing with a race based gerrymander, which was a texas revisibilitying case in hunt versus crow marty, it's been quite some time since the court has dug into these political issues on the issue of racial gerrymandering. the second reason that this case is particularly important is because we are going to understand where the court places the value of compliance with section 5, the republican-led legislature, as i mentioned, created the majority/minority districts and said section 5 made me do it. the only reason we passed black voter into these districts at such high rates because the rates are roughly 65% to 77% in certain districts, the only reason why we did this is

because we had to comply with section 5 of the voting rights act. certainly what the legal defense fund is saying, with the brief that we filed. section 5 requires a much more nuanced analysis, it requires a district by district analysis of voting -- played into the legislative redistricting process, how much did race play a predominant factor, all of those particular questions need to be dealt with on a district by district basis. the -- so we're really looking at the contours of the anti-retrogression standards, and effectively what we're saying is that majority/minority districts can come in all shapes and sizes. it depends on the voters in that community, the communities of interest, general standards like continuity, general redistricting criteria, all of

that must play into what is a constitutional viable majority/minority district. another interesting tidbit about this case, is that the majority/minority districts that were created in the 2000 plan that i mentioned were challenged by republicans in 2000 when those districts came to pass. and now again fast forward, 10, 12 years later, and those same districts are being protected by the republican-led legislature and claimed as part of their effort to comply with section 5. the naacp legal defense fund where i work, we are a nonpartisan group, we are focused only on the ability of minority voters to elect candidates of choice and we submit that certainly by having a high concentration of black voters in these districts, minority voters are in fact

losing their ability to let candidate ca elect candidates of choice the way they could have years ago. how are we doing on time? >> we have a little bit more. >> let me just cut to what i think would be the most problematic decision the court can make. well, one the court has a few different options, it could simply remand and say, yes, the lower court brings this panel that dealt with this case in alabama could now revisit this issue in an appropriate constitutional standards. it doesn't need to actually decide this issue on it's face. i doubt the court will actually decide this on standing grounds, but that's also an avenue. what the court should not do is create a bright line rule as to what is the appropriate percentage for any majority/minority district, this is a fact intensive inquiry that requires a great deal of subtle analysis and that is what we think the court should order and

remand to the district court or deal with the constitutionality of these districts out right and not meet any racial quota. >> your comment about the republicans feelings about this then and now, i think it's at least politically, it seems like the problem with gerrymandering isn't gerrymandering, it's who's doing the gerrymandering is where it becomes consensus. we have about two minutes left in this segment, i want to give your colleagues a chance to comment or ask a quick question, if anybody has anything they would like to add to this segment before we move on. okay, thorough, that was a terrific briefing. anything that you would like to pick up on, please, we'll invite you to do that, or any cases that we don't flag for you, if there's something else you would like to discuss. next up, we have asked neil to talk to us about same-sex marriages, something that is

bound to be another contentious issue in this court and the court seems eager to weigh in. >> i do think that this set of issues is basically the greatest civil rights issue of our time. and the court has pending before it seven different petitions raising these questions about the constitutionality of same-sex marriage restrictions. the cases, there's three of them from virginia, there's one from utah, there's one from oklahoma, one from wisconsin and one from indiana. the court is going to consider whether to hear any of these cases at all on september 29, at their first conference. the justices have a nice long summer break, kind of like school children. they get a long break, they're actually working quite hard during that break, but they don't actually announce any new cases that they will hear. so september 29 is the first day when they will take up this enormously interesting set of questions. the first case was filed by the

state of utah at the u.s. supreme court and just by way of disclosure, i'm one of the lawyers along with an amazing team of folks across the country on the utah case, so i'm going to stick to really the public filings on this case and tell you what it's about. basically, utah has an nd 3 to it's constitution, which does a few things, it restricts marriage to that between a man and a woman, and that if you had a same-sex marriage in some other state and then you move to utah, they won't recognize that, it bans all benefits and things like that for folks who have same-sex marriages or who have civil unions. they say that also, we're not going to give any such benefits so. the plaintiffs, three different coupleless challenged that saying essentially this is unconstitutional, it's a denial

of equality. and they won in the district court. and indeed, i think there have been 31 or so cases across the country in the last two years and the challenges of 130 of those 31, those numbers might will slightly long, but the laws, the restrictions have only been upheld by one district in louisiana and about 30 courts say no, that violates equality. when any law gets struck down, that's a big deal for a court. chief justice roberts says that's the most solemn duty of the court is to strike down a law as unconstitutional. because what that means is even if the american public wants that law, they can't have it, it's off the table, even though 99.9% of people want the same-sex restrictions, it's off the table. it's something that's done really wearily, because it's an awesome power given to an

unelected federal court. the plaintiffs here were able to convince the district court judge that it was unconstitutional, utah restrictions. it then went up to the 10th circuit court of appeals which also found it unconstitutional. and now the state of utah have asked to the supreme court to come in and say we have a right to pass the laws that we want. it's our political process. marriage is traditionally a state responsibility, it should not be up to unelected federal courts to decide who should get married and how. and they have some -- they have some fairly strong arguments. they point out for example that the equal protection clause was passed in 1868 and nobody in 1868 would have thought that it would be something that would prohibit states from banning gay marriage. of course, the challengers say,

well, that's not the right way to look at it, because those folks in 1868, also didn't believe in desegregated schools, they didn't believe in striking down interracial marriage. but of course the supreme court unanimously did that in 1967. so the equal protection clause has some of all of these elements. the challengers also say, well, what's the reason for the law? sure, states, you have prerogatives in general to regulate marriages as you see fit. but you have to articulate some reason for doing so. and the state's reasons, they find lacking and this is one in which the states in general have had some difficulties coming up with reasons. some of the old reasons like procreation and stuff has been pretty discredited by the social science editor, so that's one of the interesting facets about these cases. when the 10th circuit ruled and struck down utah, they put their decision on hold, on ice and said supreme court, we're going

to wait for u you, so that's where the law stands in utah right now. as as the challengers actually did something rather unusual. as i say, the governor came in and said, we want supreme court to hear this case. even though we had won this case in the court of appeals, we told the supreme court the same thing, we said, supreme court we won, and we're confident we can win again before you, give us a hearing, grant this case. and let us have our shot in court and win a nationwide ruling, because right now it's an intolerable situation, if folks are in utah, they can't have their marriages recognized, even if they have lived in another state, had to move to utah for work or something like that. and so you had a path work from state to state and no one has certainty, so the idea behind acquiescing in the documents that the utah government decides is to say let's just resolve in thing once and for all.

the second case comes from oklahoma. that's a case also coming from the 10th circuit. the issue here however is only one thing instead of two, it's only whether oklahoma can prohibit same-sex marriage, it doesn't have the recognition issue, the issue of say someone being married in california and moving to oklahoma. for that reason the challengers have suggested their case ask even better than the u utah case, because it's a little cleaner, it's only one issue instead of two, and they're represented by the ygentleman wo won that cell phone case, whi. the third, fourth and fifth cases are the trio of virginia cases. these are all cases brought by the clerks in the state of virginia that said, look, virginia law restricts marriage to that between a man and a woman, and we don't want to give these licenses to same-sex couples. the virginia attorney general,

because of a election flip has refused to actually defend virginia's law saying it's unkojsal. so it's the clerks that are defending the law and they are before the court also saying take our cases, the fourth circuit court of appeals, which is virginia, maryland, north and south carolina and west virginia, they should, that fourth circuit decision struck down the virginia law, they're saying the fourth circuit decision is wrong and the court should hear that set of cases. there you also have two remarkable lawyers, first ted olson, who was president bush's attorney general, for the last couple of years has taken up this cause saying marriage equality is his battle and the battle of the country, you also have paul smith who is a lawyer in private practice who argued the texas case a few years ago which struck down bans on sod my, struck down fans on sodomy and as unconstitutional.

again, enormously talented legal team there, finally two cases from indiana and wisconsin, these are cases very similar to those before in which you have both marriage restrictions as well as the recognition of people moving into those states and whether those are recognized. the interesting thing about the wisconsin and indiana cases is that opinion author for the court of appeals to strike down these prohibitions in wisconsin and indiana was judge richard pose never, appointed by president reagan, consider quite a conservative jurist, a libertarian but conservative jurist, he just made mincemeat of the argument the state was putting forth. both in his oral arguments and in his written opinion. that will give some ammunition to the challengers of these bans. so we should know pretty soon

what the court's going to do. the court has justice ginsberg who made some public statements last week, saying, suggesting maybe that the court might want to wait for another court of appeals, the fifth circuit, which has a case from michigan before it, before the u.s. supreme court gets involved. they don't have to take anything. one of the greatest powers of the supreme court is the power not to decide. so you come in and you heard before, points about how the court has a diminishing docket. last year they decided 6 cases, 20 years ago they decided 150 cases, they get 10,000 cases a year, so it's really hard to get your case heard by the supreme court and they're always looking for reasons not to hear it. so they might say, you know, let's wait, let's wait a little longer. but there's a pretty good argument that at this point in time, the patch work is such that people living in an intolerable state of legal limbo, that why you have that

remarkable agreement by the two warren camps, but the states and the governors who are against same-sex marriage, and owl of these challengers bringing these cases saying here's one point, here's another point, supreme court hear the case. >> neil, about 31 states or so still have bans s that right? >> i don't think it's that high. i think it's less than that. >> what are the chances that a ruling is made in any of these cases that wipes that away, that ends any discussion that decides this definitively? >> i think if the supreme court gets involved in the case and grants the case, they're going to grant any of these seven, they're taking it to resolve the issue, so the issue, 100%, if it is one of the cases granted, that it will be resolved. the court two years ago granted a case from california, there was some wiggle room there, they exercised their wiggle room so we didn't get a decision. but at this point in time, the

moment they take one of these, it's game over for one side of the other. >> any quick thoughts or questions? >> the day that the court decided the windsor defense of marriage act, you might have read the windsor opinion and said this is really just about the federal government having to respect the choices of the states, but now you have judge after judge after judge saying windsor made me do it, and striking down the state laws, isn't that sort of surprising? >> it's an unprecedented number of state laws that have been struck down in the last two years. i can't think of anything in our lifetime, perhaps ever in the history of this country that you have had state law after state law after state law struck down so quickly. you're right, it's one thing as in brown versuses board of

education -- windsor didn't quite do that, you had to interpret windsor, and you're absolutely right, judges from all parties across the country are interpreting it in one way. >> another terrific briefing and leslie kendrick is up next, and leslie is going to be talking to us about first amendment cases. >> thank you, john, i want to thank everybody at the aba and the wilson center for putting on this event. i want to talk about the -- the supreme court is considering it's first amendment fatal attraction. we heard about their diminishing docket and actually i think on the first amendment side, the supreme court sometimes grants cases where it's not very clear why they're taking it. they're not apparently, given the is outcome, they're not taking it in order to overturn a judgment from a lower court,

there's no clear split. sometimes all of the lower courts have been agreed in the proposition that the supreme court ultimately endorses. it seems like the roberts court has never met a first amendment case it didn't like, and it's rarely met a first amendment plaintiff it didn't like. but this term is like actually taking a couple of cases where a clear answer is needed. they're doing some hard work here, i think cleaning out some cluttered closets of the first amendment. place where is lower courts are in disagreement and everyone's a little bit at sea. so the first of these is a case called alonis versus united states. this is a case involving so-called true threats doctrine. so a little primmer on first amendment law. there's a lot of speech that's protected by the first amendment. there's a lot of speech that's not protected by the first amendment. and this is a question of when

is threatening language protected and when is it unprotected? and here's the question. in order to be unprotected, in order for the speech not to be protected by the first amendment, does the speaker have to have intended to threaten someone? or is it enough if a reasonable person would think that this is threatening language? so if you have a subjective intent standard, where you ask about the state of mind of the speaker or two you ask about what an objectionable speaker would take away. you have to have intended to make someone feel threatened. so this case involves a man, mr. alonis, and i should say the university of virginia where i work, their supreme court litigation clinic is representing mr. alonis in this litigation. i'm not involved in that litigation. i'm not here on behalf of mr.

aloins. he was convicted for some very choice language on facebook about his ex-wife and some other individuals. i think in the colloquial sense, many of us would say it was possibly threatening or at least we would say it was fairly disturbing, and the question is whether legally it can be counted as a threat. all we need to know is whether an objective person would find this to be threatening language. so he sought review by the supreme court to settle a disagreement among the circuits about which of these standards is necessary. and i have got to stay, if you know anything about this area of law, you might have thought this question seems familiar. you might have thought that the supreme court actually has decided this question before in a 2003 case called virginia versus black in which it dealt with the true threat standard and said that threats by the

speaker are those where the speaker means to communication an intent to commit an act of unlawful violence. or it says that the statements must be made with the intent of the placing the victims in fear of bodily harm or death. you might have taken away the impression that this was a subjective intent test. but i'm not clear that that was actually what they were focused on in that case. that state was a statute that required -- maybe that's what they were talking about. if they did mean to make intent a requirement, a constitutional requirement, rather than something that the statute just happened to include. they didn't really tell us why intent would be a requirement. you might ask from a first amendment stand point, why do we need objective intent on the part of the speaker? you might think, otherwise it's going to chill speech that we want to protect.

you go around with speech that someone sees as a threat. maybe that chills your speech, so you're not going to be as likely to speak out. so you might wonder if intent is necessary to avoid chilling problems. knowledge is enough, maybe recklessness is enough. maybe just negligence, you should have known that people would think this was threatening. so it's not clear that you need it from a chilling effect perspective. and if it's from some other perspecti perspective, the court hasn't really made clear why or what that is. arguably, they have decide there had question before, but arguably they weren't totally focused on it when they decided it. and, hey, they're the supreme court, if they want to decide it twice, they can certainly do that. the other cases, lee versus the town of gilbert, it has a signage law, some of you may be familiar with your own city's law about sign naj, about permanent signs, how long they

can be up and where they can be up and that sort of thing. all the beauty of local government. and the town of gilbert has a law that treats different kinds of temporary signs differently. so it has one set of rules for political signs, one set of rules for it logical signs and then another set of rules for all others essentially. the good news -- they show people where to go to come to the services, you know, pull in here to go to the service. and those signs are treated differently from the political signs and from the it logical signs, they have to be different sizes and they can only be out for a set amount of time. so the supreme court has said, famously, above all else, the first amendment means that the government has no power to

restrict expression because of its message, its ideas, it's subject matter or content. and the question is, is that what's going on with this sort of sign law? so in previous cases, any type of classification based on subject matter, anything that restricts speech based on subject matter, like different treatment for political things or it logical things or other things, the supreme court has frowned upon. and by frowned upon, i mean ridiculed and ill validated. but when it comes to signage law, there's this issue because it means that probably they're not trying to discriminate against certain types of messages, probably what they want is to be able to regulate thes a threatic quality of their environment but also giving room for campaign posters and different things that the city thinks is important. so what matters is that the city

treats things differently based on their content or is there a motive behind that or that there's actually some kind of discriminatory motive behind that. >> you were very polite in not quoting directly in the of the face book posts from mr. alonis. but are any of you familiar with them? what you know then is that the language is not ambiguous or unclear, in a certain context, they can clearly be perceived to be threats and what make this is more complicated, he's claiming to be an artist. >> so he claims that these are rap lyrics, which i would think of them more as kind of free verse maybe, but whatever artistic medium he claims to be a part of, i respect that. so there is a ton of questions floating around where one way in which this type of problem could

arise is one people are involved in artistic expression, where they don't intend to convey a serious threat, what they're doing is something that's creative. so this is a particular application of this larger question of what type of -- what type of intent is necessary in order for the speech to be unprotected and although the statements themselveses are, you know, pretty disturbing, the fact that it does remind the court, any rule you make is going to implicate artistic media, that's an important aspect of this case. >> jenae, please. >> yeah, it also has implications in terms of an evidentiary standard when we're dealing with criminal defense cases and this has come up already in a nun of cases and most jurisdictions have actually held that it is admissible to bring to the record violent rap lyrics, artistic expression that

seems threatening. so this is not just deciding that issue, i think it has broader ramifications and there is a stronger argument to say that that information is not or should not be admissible in a criminal defense trial, however if it isn't, then i can actually see it going the other way and allowing more jurisdiction. >> that's a very, very interesting issue. and this is by far the closest the supreme court has ever gotten to that evidentiary question. >> also in these cases, the court seems to be playing a can you top this game. i mean the funeral protests cases would have a law professor's worst nightmare for a hypothetical, you don't want the skprkt to upreme court to bg free speech law on the horrible facts of this case. i mean this one, what's next? >> i shudder to think. >> well, next up, the indelicately in my notes -- and

thank you for a terrific briefing, by the way, welcome to the club, you're our newest panelist here on the docket series. i have listed here, steve, other cases because put these into any category but there were other cases worth highlighting and steve graciously volunteered to be the go-to guy for the grab bag. steve, you're up. >> thank you, john. the first one i want to talk about neil talked about how same sex marriage is the civil rights issue of this era or this generation. sadly one of the cases i want to talk about is the civil rights era of about 40 years ago. it's a case involving pregnancy discrimination. in 1976, the supreme court ruled that discrimination in the workplace against pregnant women would not sex discrimination and therefore was not covered by title 7 of the 1967 civil rights

act. congress amended title 7 in 1978 passing something called the pregnancy discrimination act to say -- to try to change that. and basically say that discrimination involving pregnancy should be seen as gender discrimination under title 7. fast forward not quite 40 years, peggy young works as a driver at a ups facility in maryland. her job requires her to lift packages up to 70 pounds in weight. she takes a leave in order to undergo invitro fertilization to try to become pregnant. she succeeds and becomes pregnant. and when she tries to go back to work, her doctors tell her that she cannot lift packages more than 20 pounds without risking her pregnancy.

so, she asks ups, which is covered by its own collective bargaining agreement. she asks ups for an accommodation that's called a light-duty assignment. she would continue to work but she would be in a job where she was doing a lighter job that didn't require her to put her pregnancy in jeopardy. under the collective br gaining agreement, ups said, no, you're not eligible for a light-duty assignment and since you can't perform your regular job requiring 70 pounds you basically can't come back to work until your pregnancy is over. she eventually lost her salary and medical benefits under those circumstances. so, what ups says is our policy is that we're complying with the pregnancy discrimination act. we treat everybody the same under particular work

conditions. we're not discriminating against people on the basis of pregnancy. they say, we will accommodate people with light-duty work under three circumstances -- one, is if they had been injured on the job. two, is if they've lost their department of transportation eligibility for a trucker's license. and three, is if they're required or entitled to accommodations under the american's with disabilities act, meaning they have a disability. well, ups says pregnancy is not a disability under the ada. she hasn't lost her trucker's eligibility and she's not injured on the job. so we're not discriminating against her. we're treating her the same as we would treat anybody else. she doesn't meet those qualifications. so they refused to hire her. she loses benefits. she gets permission to sue from the equal employment opportunity

commission. the case goes up on appeal to the fourth circuit and the fourth circuit upholds ups's policy that this is non-discriminatory and so she's taken her case to the supreme court. the justice department, the solicitor general was asked by the court a year ago to weigh in on this issue before the court decided whether to hear the case or not. and it's a very interesting brief by the solicitor general's office. it basically says, virtually all of the federal appeals courts that have considered cases like this have gotten it wrong, including this one. but you could -- you, the supreme court, could probably wait for another set of facts or another set of circumstances before you decide this case. you don't really necessarily have to take this case. and furthermore, congress was amending the american's with disabilities act to make it

clearer that pregnancy could be considered a disability in some circumstances and the eeoc might adopt regulations that would make this case moot and resolve the problem. well, none -- congress did amend the american's with disabilities act law but the regulations didn't seem to solve the problem, so the supreme court has agreed to hear the case. one additional note about it, there are always a couple of cases every term that make wonderfully strange bedfellows and this is one of them. there's all kinds of coalitions of civil rights' groups weighing in saying she should be titled to be treated as if sherp diskrim nalted against on the basis of gender that her treatment violated title 7. there's also a coalition of pro-life anti-abortion groups that have weighed in in her favor on the premise that

discriminating against people who are pregnant provides economic incentives for them to get abortions and therefore that's not what congress intended when it passed the pregnancy discrimination act. it intended to facilitate childbirth and pregnancy and so they've weighed in on her side as well, which makes it kind of a fascinating friend of the court briefs. my other case -- that's one called young versus united parcel service. my other case is called holt versus hobbs. also a civil rights case of sorts. gregory holt is a prison inmate in arkansas who, as an inmate, is known as abdul ma leak mohammed and says that his muslim beliefs require him to grow a beard of at least half inch in length. the arkansas department of correction says, no, thank you. they allow mustaches under their

corrections rules and they have a narrow exception for quarter-inch beards for people who have dermatology kal problems. he is allowed to have a prayer rug. he is allowed to have a copy of koran. she is allowed to have a special diet. he is allowed to observe special muslim holidays. they say that a half inch or longer beard is a security risk. you can hide drugs in the beard. you can kind contraband, weapons, razors in the beard and they make what seems like a fairly compelling security argument. the problem with their argument is that, according to the justice department and other briefs, more than 40 states have figured out how to accommodate this kind of request, as has the federal bureau of prisons. so it's a little hard for

arkansas to maintain, you know, we don't know how they do it, but we can't do it. it's too great a security risk here. they say that one of the extenuating factors is that the prison in question is a prison farm where the inmates are not in individual cells, they're in barics-like setting and that creates greater security risk and they go off the grounds to work on the prison farm, meaning it might be easier for them to bring things back in to the prison. again, one of the counterarguments raised in the briefs is they don't seem worried about the inmates smuggling things in their clothe. they just seemed worry about their inability to keep him from smuggling things in his beard as a security risk. so it seems like a kind of strange argument to be able to maintain. but -- and this is all brought under a federal statute, which i

have to say the name of just for the sake of saying the name of it. it's ak row name is religious land use and institutionalized person's act passed in 2000. the supreme court has on at least one occasion said we need to defer to the expertise of prison officials when they say they are trying to maintain security. that could be a counterweight here in the way the court looks at this case. the legal standard, and i'll stop, is under this statute, the state has to have compelling reasons for adopting a policy that burdens somebody's religious freedom. the need to maintain prison security might be considered to be compelling reasons, but the second part of the test is that the state has to do it in the narrowest possible way, the least restrictive means.

and the argument here is that the state can't possibly meet that burden, that this can't be the least restrictive means. so that case is going to be argued early in the term in october. >> when it comes to predictability of what the court might do, how does this case compared to the hobby lobby, the last religious freedom case that the court decided on? >> i think the hobby lobby raised a lot -- >> in terms of predictability? >> i don't like to make predictions, but if i had to predict, i would say it's going to be hard for arkansas to overcome the fact that 40-plus other states. >> have figured it all -- and d.c. have figured this out. >> sometimes we think of the justices has nine cloistered people who are removed from daily life. prisons is one where i actually think they're getting it. they understand that prisons right now are operating with so much discretion and getting away with so much. if they can do something,

they'll do it, whatever it is. and if you haven't been to a prison, i encourage you to go and visit it and see what it's like. justice kennedy served on the california prison commission, he cares deeply about this set of issues. i think this one is -- you know, i feel comfortable arguing almost anything but this one i would not want to argue on behalf of arkansas. >> but you would encourage people to visit the easy way, not the hard way, right? >> absolutely. want to be clear. >> with an open door. >> did you want -- >> i think it's interesting when we think about a couple of cases that we spoke about, gilbert and holt, we're looking at the degree of discretion that the court is either to afford to prison officials or to local officials about the signage that will go up in a town or the safety concerns, it will be interesting to see if there's any inconsistency in how much deference is given to any state official depending on the context and of course prisons do present something of a thornier

context, but i agree that the courts now on to the fact that our prison system is so highly dysfunctional. so, we may actually see what i would think is the right decision here. >> the inmate in this case is going to have the solicitor general's office arguing on his side, you know, the government didn't maintain -- the agency that maintains the bureau of prisons, i think that's pretty powerful. >> any other thoughts on the cases steve presented? we're going to soon come to your questions and comments, comments on the brief side, please. and even questions on the brief side. you're going to have a couple floor directors with microphones on either side will help you get a microphone and ask your questions. please don't start speaking until you have a microphone firmly in hand and hold it up close to your mouth and don't fiddle with turning it on or off, it will be on or not. before we come to that, little more discussion, i would offer the opportunity for any of you to bring up something that

either popped into your mind during this segment that you didn't get a chance to say, this might be a chance to say it. also, if there's another case you would like to briefly highlight. back to voting rights cases. if you look at the political landscape of voting rights, it seems like maybe we're into a period where we're going to be seeing a lot more cases make their way to the court. could you comment on that? is that your expectation as well? >> i think that's right. we'll see a voter id case go to the court coming out of perhaps wisconsin or texas, we're litigating a case we just finished closing arguments in challenging the voter id laws which are some of the most stringent in the country in texas today. so we'll see. i think that that's probably the next frontier redistricting is always something that makes its way to the court. i don't know how much must ground there really to tread there, something that has changed, though, is because section 5 is, you know, for all purposes defunct at the moment. we may start to see different

challenges come to the court that are now on more from the voting rights act which could also be quite troublesome. >> i wanted to say a word about -- we mentioned a case about shelby county from a couple years ago. it's a very good case to be the counterweight to what i opened up my remarks about with today about the court acting with unanimity. that was a bitterly divided 5-4 case that struck down a kind of landmark provision of the voting rights act that had been around since 1965. i argued the predecessor case four years before on which the supreme court had let that provision stand. but in 2013, they struck it down. they struck it down on this notion that something they called the equal footing doctrine that certain states are discriminated against more than others. it's basically made up. you can't find it in the constitution, can't find it in the precedent. and it's an interesting example of how, when i went to law school, it was the conservatives

who taught -- preached judicial strength. over the last 15 years we have really seen a role reversal and it's the conservatives that are flexing their muscles and using the courts to strike down a lot of legislation and shelby county is example a, a landmark statute passed, you know, 9 8-0 by the senate and 421-3 in the house reauthorized in 2006 by those numbers and yet the supreme court struck it down. >> judicial activism it depends on who is doing it. steve? >> neil made a brief reference earlier. we ought to mention that there's a good likelihood that the supreme court will get some abortion cases, one or more this term. they have not agreed to hear any abortion cases yet. there are several variations of statutes that have been ruled on or being ruled on in the federal appeals courts. i don't know whether i would say it's a certainty, but i think

there's at least a good possibility that the court will have to decide one of these abortion cases, maybe this term, maybe next term. >>lessly? >> i wanted in the spirit of looking ahead since what we have is a partial supreme court docket, there will be more things added before the term is up, so just a couple things to flag. i do think they will continue with their first aemtd fatal attraction. we might see more cases being granted that are first amendment related. one is mohana versus united states which will be looked at by the court in the september 29th conference. this is about a person who was convicted for providing material support to a terrorist organization largely on the basis of ideologic writings that he posted online which gets to a different aspect of the same question about how much can mere words constitute a crime, this is a different type of crime from the threats crime, it's not clear that they'll take it, but it's a very unusual and very

interesting case that brings up some classic first amendment precedents. there's also been a lot of stuff happening in the lower courts involving commercial speech or speech by commercial entities i think would be the better way to put it. particularly rattling around in the d.c. circuit. claims by commercial entities that various types of disclosure requirements that they're subject to such as country of origin labeling that these violate the first amendment and the d.c. circuit decided -- went on bonk this summer to decide a case of this kind for the american meat institute. it's not clear what will happen in that specific case on the supreme court level or if the supreme court will choose to look at any of this, but there's a lot happening in cases that resemble a little bit on the speech side kind of what hobby lobby was like on the free exercise side. so it's possible that we could get a very, very important type of first amendment case showing up within the next couple years on the supreme court's docket. >> we're going to come to your questions. if you want to get the

microphones in play here. i'll give you a moment to do that. go ahead. raise your hand if you have a question. give our floor directors some help here. yes, sir. someone on this side, too. we'll get to you in a minute. let me just quickly ask a question before we come to you about the court staying relevant. i remember the -- think of the technology cases like the cell phone case and now we have a facebook case of a sort even though technology is not the focus of the case. generally speaking, how is the court doing in keeping up with changes that change the way we live and perhaps the way we decide cases? >> i had the case last year which was about this company that allows you to intercept over the year television signals and watch them on the internet and so on. the justices got a fair amount of criticism after the argument for people saying they didn't understand the technology and so on. i just find that, you know, frankly wrong. i think the justices spend a lot of time trying to get the

technology right. i remember i clerked for justice briar during the first internet case, the communications decency case in 1997. i was the only one at that point who had a laptop who connected to the internet in the court. so they would come to my office and they ultimately went to the library where there are two terminal to get tu dored. they worked their tails off to understand it. it's true today. they're spending a lot of time getting the technology right. the theme in technology cases is they've often gone slow and not done too much because they know what they don't know. and it's -- technology case after technology case you see that. the big exception, of course, is is that cell phone case where they felt like no way. if you get arrested, the government can search everything on your cell phone, every picture, every medical record, every contact, every bank account, no. that's not like the old searches

incident to arrest where you have a crumbled up cigarette container and have a weapon in it. that the court said you could do but this is a roving warrant to do whatever. >> so they're keeping up to date? >> justice scalia is a big gamer. i just made that up. >> they have their law clerks to keep them up to date. >> these law clerks, i don't know. they're not too up on the technology. >> the california violent video games statue, i remember justice kagan when she was expressing concern about thebredth of the ban in the statute, she made a comment about my law clerks are back in the chambers playing some of these games now. they can get educated. >> yeah. we have mentioned that she's a fan of technology and she has more than one device that she uses and i think just having that degree of diversity on the bench and i mean technological experience diversity for once is important for the court. >> one hip and happening court. >> that's right.

>> they watch disney hd or whatever it's called. let's go to this gentlemen right here the first question or comment. if you would introduce yourself, tell us if you have any affiliation and ask your question. >> thank you. my name is evert bellmy, i'm anned a junket professor at georgetown, university law center. i would like to ask professor kendrick, could you please tell us how alone is got to the supreme court? what's the procedural history of that case? >> so this is a case that arose in the third circuit. mr. alonis, he was in the process of splitting up with his wife or moving out from the family home and he made some threatening statements on facebook about a co-worker and got fired for that and was continuing to make more threatening statements online, most of this is through his facebook account. so he eventually is charged mostly it's about the statements about his wife, although there

are some other statements -- there's one about how much -- how many kindergartens are nearby and now i'm getting into the statements, right? and with one weapon, how much damage you could do at a kindergarten, the only question is which one, these sorts of things. >> the fbi agent, too. >> yes. >> he mentioned the fbi agent on facebook. >> yes. as people began to investigate him, he began to pile on a bit and find some new targets in the speech. so, eventually he is arrested and he's brought to trial. it's a pennsylvania case. and the instruction that's given at trial is the standard that i was mentioning about -- the reasonable person, would a reasonable person think that these were threatening statements. and that standard was upheld by the third circuit on appeal. and now what we have is in his

seekinger is sh rory to the supreme court, it seems likely, of course the court doesn't disclose what his reasons are, the fact that there is likely a pretty established agreement on what the standard is probably had a lot to do with their granting the case. they recently looked at and passed on another case the same issue. perhaps they thought that case had issues that would stop them from getting to the substantive question. that's how we wound up where we are today. >> was he arrested and in jail and charged with a crime and fined or what? >> yes. there's a federal statute under which he was charged which is a federal threat statute and he was arrested and charged under that statute. and it's also not clear from that statute what state of mind you need which is part of why this whole thing has become a first amendment issue because there's not a lot of clear direction from the statute about what's necessary. but, yes, there's a federal

threat statute under which he was charged. >> as our first questioner graciously common stratded, i ask you to stand when you ask your question if you're able to stand. it just gives the camera a better opportunity to find you. did someone begin to say something and i stepped on you? i'm sorry. i'm hearing skroiss. this gentleman with the microphone is next. yes, sir. >> gabriel hopkins, i'm a lawyer here in d.c. at public justice. i have a question -- lot of top ticks that the panel has covered are kind of hot-button issues. i'm wondering if there are any sort of sleeper cases out there that may seem very dry on their surface, procedure issues or financial issues -- >> you have some boring cases. >> that might have some larger impacts that people might not be anticipating. >> sure. thanks. anything that comes to mind? >> well, i've got a bunch of those. so, i think -- >> i was afraid of that. >> i think the one that probably

will have the most significance for the nation's economy is a case called leer jet which is basically about whether states can regulate the energy markets or whether or not it's only federal law that controls stake are many billions of dollars. the question in the case is can states protect consumers with federal anti-trust laws or do they preempt sweep away all the state laws. article 4 of the constitution has a supremacy law in it. the federal government, congress has regulated the energy markets for a long period of time. the question now is, had v they occupied the field basically, have they pushed away any state regulation or can states regulate? the energy companies say if states can regulate, then we have to play by the lowest common denominator and operate to whatever the most restrictive state is where as if it's a national rule, we have more

certainty and predictability. kind of dry but something that will matter to everyone's energy bills each month. >> there's another case jesinoski. it is relevant if we think about the economic crisis and the number of homes that were lost through foreclosure. this case comes out of the eighth circuit and it asks whether a home own ener who has a mortgage and wants to rescind that mortgage within the statutory period can do it by contacting the mortgage lender in writing or must the homeowner initiate a suit to officially rescind the mortgage. obviously the higher the bar, the more difficult it is for recisions, the more likely you're going to find folks finding themselves facing foreclosure so the economic impact of that case is something that we should probably pay some attention to. >> i wanted to follow up on one thing that neil said, just generally speaking, you know, when you asked the question,

what are the boring cases -- what's the standing gravel -- >> boring wasn't your word. >> i'm sorry. the sleeper cases is the better way to put it. and, you know, neil immediately brings up a preexemption case. i just think preemption generally is an underappreciated part of the supreme court's docket. i think partly people don't put all the preemption cases together because they arise under so many different statutory schemes and so many different subject matter areas, but it's hugely important question of who gets to decide questions the states or federal government and everything from products liability to energy regulation they're doing lots and lots of preemption cases and it's important to keep an eye on them. >> we have time for plenty more questions, but i have to do a little business here. neil, it's 6:17. neil has a pressing engagement he needs to leave for, so if you see him get up and leave in the next two, three minutes, it's not anything you said. >> thank you. >> and so, neil, thank you. let me thank you you now because

we'll be into some discussion. thank you for coming with us. [ applause ]. >> as we continue, i just have a quick question. all of us up here have either currently teach or have taught, steve has some students in the audience. could you identify yourself if you're part of steve's class? there we go. okay. some students here from my penn state class. let's get a look at you as well. there we go. we are penn state all that stuff. it's not a competition, steve. >> former student here. >> a former student here. we're honest. >> former student. and the teacher evaluation forms will be available after the program. okay. who is next? i had -- well, the woman here has disappeared strangely enough. i think she followed neil. we'll go to you. hi. >> hi. megan shuler, i'm an attorney at the department of justice in the civil rights division. i'm interested on the pregnancy discrimination act case if you have a prediction for the outcome given that the solicitor general did say they think the

all the circuits gott wrong and whether the supreme court will address it all or ada amendments act does, in fact, protect pregnant woman? >> as i said, i hate to make predictions but if i had to guess where the court is going to go with this, it looks to me like the court here and the other -- this is the fourth circuit, but other courts that have wrestled with this are getting it wrong. this is not consistent with what congress intended when they passed the pregnancy discrimination act and at least to the extent that the 2008 amendments to the american's with disabilities act should have at least boosted that argument that that doesn't seem to be helping either. so, i would guess, if i were going to predict, that the court will rule against united parcel service and for peggy young. >> thanks.