[inaudible conversations] good afternoon. in a short 24 hours a lot has changed this is not the context of which i have hoped to greet you but yet here we are together after a very long week and the beginning of a very tough fight. for those of you who don't know me i am the president of the american constitution society and i would like to welcome you to our annual supreme court review. i do think that you know that just in case we are a national network of lawyers and law students, judges and policymakers who believe the law should be to improve people's lives.

something we have to keep repeating. after a rather slow start and a late sprint we finally got to the end of this year's term. some of us may say it was a rather terrible ruling on muslim man and reproductive health and part of the gerrymandering or religious exemptions now we are at a pivotal moment for our country and moment amply looking back at this term of what is to occur on -- to come. to acknowledge already conservative with rulings to undermine the right to vote and to be free from discrimination. how will another pick

development the law especially with the litmus test to overturn long-held rulings like roe v wade? so now we can all be clear on what is the potential impact on our legal system. many believe the supreme court is the last hope for those seeking justice against powerful special interest and indeed president chuck promised voters he would stand up for the forgotten in our country. will his nominee do the same? but his past is prologue we must look back to see and understand what might be coming before us. so with that in mind, we will lead us through the review today with a distinguished panel we are so glad to have when our nation's most

experienced practitioners. tom is no stranger to this crowd serving as counsel to the petitioner and roughly 10% of all courts merit cases for the past 15 years more than 100 total and personally arguing 41. that is an outrageous number but in addition tom has taught supreme court litigation at harvard law school since 2004 previously taught at stanford for nearly a decade also the cofounder of the only weblog ever to receive the peabody award and has been named by one of the most 40 influential

lawyers of the decade. now we have an expert and wonderful colleague with this discussion so please join me to welcome tom goldstein. [applause] >> thank you on behalf of my colleagues and the panel so as the term wraps up, we actually know almost everyone here is looking to hear one thing that this is a simulation into the real world. [laughter] so that the sixth port appointee will be as follows but in terms of what will be talked about to reorient a little bit with major developments over the past term and talk about the

implications of the kennedy environment for each of those areas of the law and in addition to allocate more time for questions so we can cover those issues so we will start off with the major cases of the term and the travel ban three-point oh and the director for the center of immigrants at the law school. >> thank you for the introduction i am is in state college at penn state university park a double milk into the alarm and i am deeply honored to and quite frankly

because of the immigration statute. i am here to talk about the travel plan and hopefully will and with some good news. so on june 26 the supreme court had the opinion that chief justice roberts wrote . . . . . . why less than linear litigation and then were appealed and then to make that decision and then to issue the order in the entirety of the travel ban 3.0 and tell a decision is made in the high

court we already know how that plays out on the grounds affect families and communities each and every day. and those of the executive order as a proclamation. ben saks. that immigration was passed by congress in 1952 it was second in complication there are two factions in the statute that are relevant against a wider first in 1182f to offer 2f to offer eyes the president of any alien or passive alien that the entry would be detrimental to the united states the second statutory section is 1152 a created by

congress in 1865 the same year that the quotas were dismantled. there shall be no preference based on rights -- race or someone based on the immigrant visa. and with those statutory argument, first the suspension clause is super broad for the president's authority anything with a proclamation just looking at 1182f it is perfectly fine for the president with the immigration statute so the counterargument from my view is he thought

with his authority under 1182 as they were far more catered it does supplant the ina with the labyrinth of the immigration statute have a network for the counselor officers every single day so those individuals decide is this person admissible? so to exclude nationals from all countries based solely over the air from to me is supplanting the ina. the other thing that justice roberts found is that the proclamation is not hampered by the nondiscrimination clause of t3 i was actually struck by how little time and

attention this analysis in the opinion because to me it is strong and important analysis. first looking at the legislative history behind getting rid of national origin quotas so we have to look at the statute as a whole to have some type of principal idea to look at one section to harmonize with another. in between 1182f and the proclamation as well as 1152 a. that there that there is no conflict and here is why. with that nondiscrimination clause it is very different whether someone can suspend entry so that is the analysis of the majority court but my own opinion that the

distinction was no different in fact administration actually said anybody covered by the proclamation we will use the visa that is what is happening anybody is excluded from the country they are denied the vis visa. so i was heartbroken with the statutory analysis and the way that it came through quite frankly the way those amendments were rejected. there was analysis around the constitutional argument that even on those grounds could prevail. and with those novel principles with the case of the rational basis to find it had a legitimate national charity contact and it was to

show that to dan and chad were taken off the list but then with the proclamation there are waivers embedded and this was example justice roberts use. he was willing to admit the evidence also known as the president statement has a proclamation plus the authority to bring that to a conclusion. there were two concurrent thoughts that i believe in deference so justice thomas also issued concurring and by way we don't even need 1182 after is the inherent authority the president has

two issued a proclamation like the one before us. justice breyer focused on the waivers and was pretty thoughtful in how he carried out his argument and said if these assumptions and waivers are working then this could be a lawful proclamation but on the other hand if there is evidence that the exemption and the waivers are not working the matters when it sounds like a muslim band. so now as well as the example during oral arguments. so the one who had terrible policy and was denied the what i'm talking about when i talk about waivers is that if you are covered by the ban or not exempting me demonstrate your

ability for the waiver to still be admitted on the visa if you are denied entry and that there is no national security. that is the criteria. i have to say that those will will be with the immigration statute more of what we would look like statutorily to create a new standard that applies to people that are covered. and with the media airtime and as a violation of the establishment clause she gave a lot more airtime to the speakers to the speakers and was a little critical leading

up to one bad decision with another and in this case it was hawaii. what do we do now? the only thing as practitioners is to have a meaningful waiver program to ensure that it is actually working in that we have accurate information about what is contained in the proclamation so the next order of business will be community forums and information sessions and this ban is personal this is something i have been working on since january 27, 2017 when we got the very first band this is exhausting but it is a very long road and the supreme court failed us that now this

road is even longer than we imagined. so i'm usually a very optimistic person but i want to share what other cases got very little attention but actually there was a positive case in the immigration space i do love that statute so i can talk about that again but it was a decision issued eight/one majority. and the premise of that case if there is a notice to appear that lacks a date or time is insufficient for me for purposes of cancellation form in full? that is a lot of terminology. notice to appear. this is a document that immigration uses to put somebody into the system.

and with that notice to appear one-sided expires immigration court full or the proceedings are triggered but the notice to appear is not a document but it is very important to include information like you are from not from this country injured at this date and time you are deported for the following reasons come to the immigration court at 8:30 a.m. my 20th. so what happens when the notice to appear lacks a time? the justice wrote the majority opinion inside a notice to appear that lack the time or date is not a notice to appear so really it does put the agency on notice to stop issuing these notices to

appear. it made it so obvious to any of us that think about the basic procedural due process that here there is an awakening in the immigration state because they have been doing this for many years now it is getting the limelight and attention that it deserves so why does it matter to the immigrant? cancellation of removal is one way but if you have acquired the criteria then you have the protection called cancellation if you are certain notice to appear based on your physical residence then stop that is to say that that notice to appear does not count my time is up i am not a justice kennedy expert but he actually criticize the court for being

reflexive on the chevron deference so really a tale of two concurrences if you look at those cases one is the im not appear deference matters and be nice and the otherwise you really need to pay attention to our intentionality and our process as it were with the chevron analysis and truly finally because another area of research is around the role of discretion of immigration we a lot of credit and leadership to justice kennedy of his own opinion arizona versus united states because as an initial matter the federal agency has to make a decision whether to pursue removal at all.

in those acts of prosecutorial discretion that will now be reinforced. thank you for your time and look forward to your questions. [applause] >> before we move on i would love to get your reaction to the question what does a tweet by the president actually mean in terms of executive action? can he say whatever he wants in the white house counsel office and they can lawyer up and write something? is that the courts decision we never pay attention to that? or in the context of national security what is the relationship between messiah president says and what administration does looking at motivation or religious animus ? >> i agree with the ruling but disagree with the troubled man simply because it is different

from carrera or other cases with deference over national security versus domestic affairs but to your question tom, roberts and his majority opinion went through the case and said it is not good but in the day because there are other reasons and countries only had 8% of the muslim population with the waiver program and the rest that is only 3.0 so nothing is properly lawyered up but given the strong deference use that as a national basis which in national security security space with another discussion. it isn't complete deference but it is a smell test and

when they lineup with something when the president isn't so biased. >> this is 3.0 not the first version. >> that they are all the same thing. they're all the same thing, right? if i get ios 3.0, it's still for my iphone. i just wonder if, like, at what point do you think what the supreme court is saying, enough time, this thing gets through or we fundamentally believe something different is going on. >> well, i mean, if he stuck to the countries obama identified as national security risks, they're palshy by the courts, including the supreme court, and partially through the 2.0 and 3.0 process. there are exemptions for people with green cards and familial ties. i wonder how the court's

litigation and political discourse would have gone if they had forgotten the steve miller stuff and went straight to the process and the lawyering up we hadn't seen a proclamation until several months into the administration. i think the course of litigation would have been different. we might have had more kagan/breyer type of opinions rather than the judicial opposition. >> a brief response to that. i think this case should have been rejected on the statute. and i think there are a number of very clear arguments to support that. with respect to the waiver since i reached my ten minutes, those are problematic for a few reasons. first, we already have a statute that includes waivers and we already have framework for our immigration law that congress wrote in 1952. and to the waivers and justice breyer brought this up both in

his oral argument during the oral argument as well as in his dissent, there's very little evidence to show they're actually working. so even one sworn affidavit by an officer cited by justice breyer called the waiver process window dressing and that the consulate officers don't have discretion. to the extent that exemptions and waivers were relied upon by the majority to support the legality of this proclamation, i think that alone is problematic. >> well, one of the good things about the term is we had another opportunity in the form of another case to look at how much scrutiny the court was going to give to allegations of improper motive when it came to religion. we had a not entirely dissimilar case. and maybe you can talktu to us about that.

>> thank you, tom, and i'm glad you made that comparison so explicitly. that saves me 30 seconds out of my ten minutes not to draw the comparison. folks know by now the court ruled in favor of a bakery that had refused to save a cake to dave mullens and charlie craig for their wedding reception simply because they're a same-sex couple. and they did so because of the history of the way the civil rights commission had handled this complaint. at the offset, pete williams characterized this as a ticket good for one ride only, and that's a helpful way of understanding how narrow the ruling it is. in the process of doing this, the court has concerns about what the man did, but it said as a general matter, with an objective, it doesn't me you can violate it, and that's true in the context of antidiscrimination laws and that's true in the context of

antidiscrimination laws of people who protect people who are lgbt. they still have to follow the norm that a business open to the public has to serve everyone. this really is a ticket for one complaint only. so what was the problem in the process? this is where i think many commentators have drawn comparisons to the court's opinion and muslim ban case because essentially the core piece of evidence the court relied on was a statement by one of the commissioners that essentially said it is saying religious retahetoric has been d through time to support holocaust and atrocities. in many way, it up holds the dignity of faith. i think putting that comment in

perspective makes a comparison between the muslim ban even more stark. when it comes to the muslim ban, we're talking about tweets and statements from the person who was the sole decider. in the case of the civil rights commission, not only was the commissioner one of a seven-member commission, but her comments came so late in the process, it couldn't have affected the process. it was investigated by the state civil rights division, which found probable cause to proceed. it was adjudicated by the alj. it was then appealed to the full seven-member commission, which affirmed after a public hearing, and it was in the context of the bakery's motion to stay, the remedial order which required them to treat everyone equally, this comment was made. clearly the comment is made after the decision had been made. in a context where all of the substantive decision making had happened in public, so there's

no chance, as people have suggested to me after the fact, this might have infected an earlier part of the decision making process and there may have been secret deliberations. we have a transcript, and we know this is the first time that anything that troubled the court was said. that step in the process contrasts in a very dramatic way the court's willingness to overlook explicit statements of anti-religious biass by the person in fact who was the decider. all of this means the ruling itself is quite narrow, but the decision, of course, is going to reverberate both for what it says and also for what it does not say. one of the most interesting things about the opinion is that at the start of the term, this case had been expected to be a blockbuster decision, whatever the outcome. many folks thought that would be how it would be decided because the ba bakery said it is artist.

but because it's artistic, and art is protected by the first amendment, that means free speech somehow justifies its decision to turn away same-sex couples. and that actually is a claim that the trump administration weighed in in favor of. the general file amicus brief in support of the bakery, not even touching the free exercise question. it also was a signal or some indication of the weakness the administration saw in the free exercise claim after smith. it's hard to see how you get out of complying with an antidiscrimination law, particularly because the court had already rejected requests for rejections in race discrimination and sex discrimination as well. unless you're willing to say there's something different about sexual discrimination. justice kennedy is disturbed by an amendment that creates a

second class citizenship. the court does sort of lay out two guide posts that i think are helpful in thinking about speech, and both of which, by the way, i agree with. one is simply that the refusal to sell any cake at all is not protected by the first amendment. because it has nothing to do with artistry. and of course, that's the fact of this case. dave and charlie walked into the store, were turned away, no discussion of what cake they might have wanted and in the record, we had evidence the bakery refused to sell even cupcakes for a lesbian couple. there is no dispute this was not about artistry. if the commission had required them to write a specific inscription on the cake, that might have raised issues. the antidiscrimination act is not about words, it's about people. if they said all bakers must produce cakes that say this, we see a target of expression, and this law did no such thing.

those, of course, become highly relevant because this is not the only context in which our opposition is seeking exemptions from antidiscrimination laws and the same lawyer s representing the bakery represented a flower shop in washington state. but all the represented employers who allege it is entitled to fire a woman because she's transgender, because of religious beliefs, they're also using exemptions with an attempt to exclude transgender people from public places like restrooms and locker rooms. this is not about wedding-related services. this is about relegating people to second-class status. that's something that is rejected. that will be cited more for going forward. when we look at the court's lgbt docket in the coming term, the court granted, remanded and vacated in the case which was essentially identical to the bakery shop cake, except there

is no hostility by the state. it's something, it's there. there's no there there in arlene's flowers. unless the court is willing to say that the washington state court somehow demonstrated hostility to religion, at face what you have is the argument that the decision to enforce the civil rights law against someone who has chosen to violate it because of their religious beliefs is showing hostility to religion. i don't see a lot of appetite in the court to overrule that. of course, justice kennedy has been a tremendous champion of lgbt equality. he has been at the forefront of the court's trajectory in recognizing the equal dignity and really the common humanity of what it means to be lgbt. and of course, from that

perspective, it's devastating to lose him on the court. i think his journey reflects the journey that our nation has made in the past several years and perhaps decades towards recognizing what it means to be lgbt, what it means to be gay and lesbian and transgender, and those advances are not released by his departure from the court. in some sense, in the very next term, the thing the next issue will not be one of constitutional, but in the establishatory context, and that's the federal government and 60% of states still don't have laws that expressly prohibit discrimination based on sexual discrimination and gender identity the way colorado does. what we have are laws that discriminate based on sex. there's been a growing consensus that sex discrimination includes discrimination against somebody because of their sexual orientation and gender identity. it comes up in employment

discrimination and also title x ix. so there are at least two or three petitions, two have already been filed in the title vii context. one finding title vii does cover sexual discrimination orientation, and one saying it doesn't cover it. those petitions are now being briefed and presumably will be so over the summer. we're also expecting a petition filed in our case, euc versus harris funeral home where we represent the complainants who was fired for being transgender. they combined these issues and said both transgender people like everyone are protected from sex discrimination vii, and it doesn't provide a defense to the antidiscrimination defense. and when it comes to the

interpretation of title vii, i don't know justice kennedy was differently situated from other justices and unanimous court with an opinion from scalia finding that the sex discrimination provision in title vii prohibits sex discrimination. and that, of course, is one of the key decisions that lower courts have aligned on in finding sexual orientation and gender identity are encompasses. and there's a growing consensus not really from liberal justices that discrimination is prohibited. >> thank you. so the discussion of discrimination against transgender individuals in employment is a natural transition to labor and employment decisions and how they focus on these sorts of

issues. you had two major cases you may want to talk about those issues coming up. >> yeah, so i'm also an optimistic person. by nature, but if you had to imagine a way of dismantling the ability of working people to demand and exercise rights, you might imagine a case called ethic systems and one called n janus, and we had both. ethics systems is about arbitration. and the question is whether an employer can require employees as a condition of employment to resolve all claims against their employer. one through arbitration and two as an individual. and what the court says, using what had been a relatively obscure statute that was meant to deal with arbitration between

two businesses, what the court says is yes, employers can require employees, a condition of employment, to do that. if there's a contract to that effect, it has to be enforced. given the small dollar value of many workplace claims, this means that workers will just have no way of enforcing many employment rights unless something changes. the specific legal issue in epic systems was whether such a contract requiring individual arbitration was inconsistent with the national labor relations act, which is our federal labor law. why might it be inconsistent? federal labor law says everybody has the right to engage in concerted activity for mutual aid and protection. that concerted activity includes traditional union organizing and collective bargaining, but it also involves what the statute

called other concerted activity for other mutual aid and protection. and the national labor relations board and the united states supreme court had long understood other concerted activities for mutual aid and protection to include concerted legal action. and so if you have a contract that says to workers, you have to pursue every legal claim against me the employer as an individual, that's asking the employee to waive their national labor relations act right to engage in concerted activity. and even the federal arbitration act says we don't enforce arbitration agreements that are themselves illegal. so the national labor relations board had said, this kind of contract is like what used to be called a yellow-dog contract, which was a contract that said i agree as a condition of employment never to join a union. those are illegal contracts. and because the right to engage in concerted legal action had the same footing as the right to join a union, these arbitration clauses were illegal and

nonenforceable even under the terms of the act. the supreme court, of course, rejected that. and it did so in a way that is exceedingly damaging. i'll say two things about that. one, the bear holding. so the holding says that now not only can class action waivers and arbitration agreements be enforced in the consumer context, which we know from italian color and conception, they can also be enforced in the employment context. and we're seeing an explosion of these things. already. they were on the rise. now they're exploding. and so most workers, i think, very soon will be subject to individual arbitration whenever they want to pursue any claim against their employer. that's horrific. from the perspective of workers rights. the other thing that ethics systems does that's very

damaging is less prominent. but important. what the court, the way the court reaches its holding is to say there's no national labor relations act problem with a class action waiver in a mandatory arbitration agreement in an employment contract. there's no national labor relations act problem because the national labor relations act doesn't in fact protect your right to engage in concerted legal activity. what the national labor relations act is about, says the epic systems court, is traditional union organizing and collective bargaining. now, why is that a problem? that's a problem because a lot of workers today don't have the opportunity to engage in traditional union organizing and collective bargaining. the hope for the labor movement is in this other concerted activity stuff. right? online organizing, facebook

organizing, workers centers, novel forms of collective activity. and what the court is doing, although it hasn't gotten there yet, but what the court is doing in epic systems is laying the groundwork for a move in the direction of saying that the federal labor law only protects traditional labor organizing and collective bargaining. it only protects the thing you can't do anymore. the thing you're trying to do, right, that's not protected. okay. so that's epic systems. then on the last day of the term, we have janus versus acme. there's everybody knows what this case is about. the question is, can public sector unions require employees who are covered by a collective bargaining agreement to pay a fair share fee for the representation they receive from the union. why is this important?

unions as a matter of law must represent every worker in a bargaining unit equally, whether or not that worker decides to become a member of the union. so when the union negotiates pay increases or benefits increases or just cause dismissal policies, when the union does grievance representation or arbitration representation, the union has to provide those services to workers irrespective of whether the worker joins the union as a member. unless there's some way for the union to require workers to pay for that, we have what justice kagan calls a collective action problem of nightmarish proportions. okay. imagine as an analogy the u.s. government decides that taxes are voluntary. okay. so now you know as a citizen that whether or not you pay a dollar in taxes, you get the

same roads. the same schools, the same police and fire protection. the same military. right? and it's just up to you. pay or not. now, i don't know what anyone in particular in this room would do, but i hazard to say that fewer people would pay their taxes. that's the situation that's now been foisted onto public sector unions by the supreme court. everybody, every public sector worker represented by a union has the right to receive every ounce of union representation and to do that without paying a single penny. that's very difficult to sustain. and i think that we're in for a period of severe challenge for public sector unions. and therefore for public sector employees.

and haven't mentioned much about the doctrine. i'm not sure this case is about doctrine, to be perfectly honest. i liked president trump's tweet about janus, the moment it was decided. he said this will be tough on the democratic party's coffers. that, of course, is true. public sector unions are a way for working people to aggregate their political voice, and they have done so. and now they're going to have a much more difficult time doing that. i said if i was an optimist, i know i'm out of time, there is a bill in congress that would help deal with epic systems. it would make illegal the kinds of class-action waivers and employment arbitration agreements that are so damaging to the employee's ability to assert their rights. what do we do about janus? the good news -- the bad news is it's a constitutional holding.

it's a first amendment holding so there's nothing directly that congress or state governments can do about the holding. but there are ways that states and i would be happy to talk about this more, ways states can amend their public sector labor laws that would enable unions to find other ways of financing themselves. on justice kennedy, justice kennedy has not been as good a friend of workers and unions as he has been of the lgbt movement and community. i don't think that means that things won't get worse. and i think that just to take janus and the union context, there are more steps that i think we need to be concerned about. janus is a holding that fair share fees are compelled speech that is unconstitutional under the first amendment. there are cases now pending all

over the place that challenge the very idea of exclusive representation as compelled association unconstitutional under the first amendment. so exclusive representation is just a system of union bargaining that we have had since 1935. it means if 51% or more of workers in a unit or for a union, everybody is covered by the union and by the contract. okay. that is now susceptible to attack under the first amendment. another problem. >> can i just ask, is that true both in the public and private context, or is that still very much focused on the public? >> great. another problem is janus applies to the public sector because it's a constitutional holding. i think there will be an effort to export janus to the private sector. that will happen through in congress, but it will also

happen in the courts. and you might think that's crazy because we had something called the state action requirement and there's no state action when a private sector union and a private sector employer decide to negotiate a collective bargaining agreement. i'm more worried about the prospect for erosion of the state action doctrine exclusively in the union context with a fifth justice who replaces justice kennedy. so we may see a constitutional attack on exclusive representation and exporting of both the agency fee and the exclusive representation rule from the public to the private sector. and then, in some ways, more narrow, but also terribly devastating, there are bread crumbs in the janus opinion about what you might think of as a retroactive problem. justice alito has a number of lines in which he talks about

how many -- i think he uses the phrase billions of dollars, in agency fees, have been extraktded from members unconstitutionally over the last number of years. i don't know why that's in there. but justice alito set up janus in a case called knox, where he very skillfully plants seeds that he then harvests years later. and i think what's happening in janus potentially is a signal that unions should be on the hook for fees that have been paid, and of course, spent over the last handful of years. and my sense is these kind of more ambitious jurisprudential rules might be more comfortable

for the justice that replaces kennedy than they would have been for kennedy himself. >> thanks so much. so ilya shapiro is a veteran of cato. you have thoughts on this? >> i sort of feel like whatever the opposite of a skunk at a garden party is, a cheshire cat at a wake. the only major case i agree with is wayfair, the internet sales tax, physical property taxation case. we can talk about that if you want. i'm a fan of the dormant commerce clause, the only think in which i disagree with justice gorsuch, but regardless, on janus, i think to understand this case, we have to differentiate and understand the difference between workers and unions and the public versus the private sector. which is why i think we'll agree as advocates if this is exported to the private sector. first of all, this case was not

brought by the chamber of commerce or a collection of companies or anyone standing in for those kind of interests. it was brought by a worker. a previous one years ago that deadlocked was brought by a teacher in the public sector. claiming two things. first, i don't like what this union is collective bargaining for me. forget free riding. i'm a forced rider. i'm forced to pay for merit to pay rather than seniority protections or vice versa. i don't want this. as justice alito correctly pointed out, we can't even compel private sector organizations. unions are supposed to be not the government. even in the public sector, i know it's legal, especially in places like california who try to have union state collusion very closely. but we don't allow compulsion of people to pay for stuff they don't want. other than taxes because that's the government acting directly. that's a different case, but unions can't do that. so even if we agree that would

be a problem. moreover, the broader problem in the private sector, is inherently, everything the union does, including the collective bargaining component, has sail ynls in public policy. not just the electioneering, but also state budgets and education policy, transportation policy, contracting. everything that the union does in the public sector has public policy salience. that's why this is very different, and in the interest of labor peace, there are more narrow ways of achieving that. you don't need to compel these fees. we have seen that in the 28 states that don't have these kinds of agency fee arrangements. there, unions haven't completely disappeared. but they have been forced to become efficient and effective and actually responsive to worker concerns rather than getting involved in larger national issues that are unrelated to employer/employee

relationships. so while it's absolutely true that this will be detrimental to union coffers and democratic party coffers, that's, as justice alito pointed out in replying to justice kagan's dissent, is not a useful for the purpose of looking at stare decis decisis. it's more important from a legal perspective for getting the practical side as anything else. just like john roberts' decision in united focused on stare decisis as a key part of that decision. that's, i guess, what i want to say about janus. >> can i stop you? stare decisis now takes on an even greater role as we think about where the court might go from here. what do you take away from janus about the court's -- the current court majority's willingness to revisit kind of war on court era, early court decisions that are treated by some as kind of

bedrocks of several liberties, the rights of criminal defends, thinks like that? >> i think we have to cat roe v. wade as its own category. when we talk about more run of the mill precedents, it depends. is it working. what is the quality of the reasoning? is it made up of thin air or follow from the way the law had been developing. is there legal reliance. have people structured their businesses, their lives, what have you, around the rules that the court established in the same way that chief justice rehnquist declined to overturn miranda. chief justice roberts is very much into not making waves unless that's absolutely necessary. so i would like the court to overturn more bad precedence. i have sided more with thomas on certain things in that regard. i wouldn't worry about the

quote/unquote super duper precedence, but we could see reconsideration of wayfair that was also a big deal. setting aside the huge culture war sort of thing, you know, maybe we'll see. >> and i interrupted you. there was something you were going to say. >> a case i don't know if anyone else is going to mention, murphy v.ncaa. you bet this is going to have major ramifications, about sports betting and about federalism more than that. the point here was congress was trying to use the states to regulate sports gambling, and going back to an area of lieu that the court hadn't seen in 20 years, the court majority seven justices said no, you can't do that. the two others didn't say yes you can. they said we could have interpreted the statute in a way to avoid the problem. that's a problem. i'm sure folks in the room are increasingly becoming fans of federalism, that's a healthy

thing. the only way we can diffuse tensions in washington is to push down decision making as much as possible. >> do you want to explain exactly what the statute did? >> sure, congress said that states cannot facilitate gambling, sports gambling. and new jersey wanted to repeal its restrictions and impose certain regulations to create a market to allow for sports gambling. there was a bigger issue debate about this, and -- the court said look, we leave it as an open question about whether congress itself could regulate or criminalize gambling in the states, that's an open commerce clause question, i suppose, but congress can't work around and use the state to do what it wants to accomplish. i doubt there's much appetite in congress to pass a broad new criminalization or what have you. much as in wayfair has opened up

opportunities for states to have different taxation regimes, i think we'll see different experiments with different states opening up sports gambling in various ways. there will be litigation over what happens if you're placing bets on an out of state team versus an in-state team or these cross border sort of things, but it's not very often than the court legalizes something that has been closed off. so we're sort of a bit in the true laboratories of democracy in this area. and hopefully that will spill over into these other fights over drugs and immigration and guns and whatever else. >> tremendous. thank you so much. >> can i say something about kennedy? >> please. >> so kennedy is -- he's a justice i probably most agreed with in results. but was still infuriating in terms of how he got there.

if there were a black box, very good on the first amendment, probably the biggest defender of the freedom of speech that probably we have ever had. but was a bit of a philosopher king in the sense that, you know, he struggled with every case. not that he was swinging back and forth at random. but did not fit into conventional jurisprudential modes. i think that's problematic for the rule of law because you want consistency. you don't want everyone just aiming their argument to try to fit into the equal dignity clause or whatever the latest wroiting that he might have done. and you can't even make blanket statements that he was great on constitutional structure or individual liberty or something like that, things like that. sure, he had that great concurrence from my perspective on the commerce clause in a case like lopez, and in bond about federalism and individual rights

and structured federalism protects liberty, but also, he, i guess because drug users shouldn't be as respected as the lgbt community, i don't know why, said you can't regulate plants you grow in your backyard, and said property rights aren't as important as other kinds of fundamental rights. you know, i liked him a lot for many things. i didn't like him for other things. he was frustrating. going forward, i will adopt the line jan crawford used at cbs news, that it was the democrats' biggest blunder to use the block against gorsuch because now they can't use it where it matters. now it's moving the court more to the right. one thing we do know is we're not going to get a trumpy judge, meaning i don't think we're going to have chris christie or rudy giuliani, judge judy, who

knows, jeanine pirro. who knows. he's going to go from the list. and that list would have been no different if ted cruz had been president or anyone else. so i'll be looking for different things than y'all are. i differentiate the various people on the list of 25, but i'm optimistic about that, but it's going to be a very, very different court, not just in terms of left/right, but in terms of the chief justice being the median justice. we haven't had that in a long time. >> i didn't really have the understanding that you did that the filibuster accomplished a lot. but rick, do you want to take us into another area that we had thought of as justice kennedy as being incredibly important. rick is at uc irvine and one of the nation's leading experts on voting, campaign finance, and the like. >> i'm a pessimist by nature, but i have become much more

pessimistic in the last term and the last few days. i was going to say there are three significant election laws of the term, two were victories and one was a punt. now we have three conservative victories. the most important of the cases by far was gill v. wickford which was out of wisconsin, a second case that was granted. a case out of maryland, which involved democrats engaged in partisan gerrymandering. but the main action was the gill case. the question was whether or not there were judicially management limits to separate permissible from impermissible qualities. it sometimes says gerrymandering has become so effective that legislators choose their voters rather than the other way around. and we go back 14 years to a case called zeke where the

supreme court addressed this issue in the most significant way, and there the court divided 4-1-4, four justices led by justice scalia who said this is none of the court's business. this is a political question, there are no standards. then four liberal justices who said there are standards and in fact came up with four different standards as a way of doing beauty pageant for the justice in the middle, who was justice kennedy. justice kennedy said i agree with the liberals. let's keep it open. i agree with the conservatives, all the standards are bad. keep trying, people. try the first amendment. try looking at history. try looking at computers, and so for the last 14 years, there have been cases that have been trying to please justice kennedy and deal with the case because here, there was a somewhat new standard for measuring the amount of asymmetry and partisanship in redistricting plans, what was added by taking the maryland case is it raised justice kennedy's favorite

theory in this area, which is that maybe rather than thinking of these as equal protection cases, they're really better thought of as first amendment cases where someone is being penalized based just on who they are and what they believe, like in the patronage case where a janitor is fired by a governor because he's a democrat rartthe than a republican. everybody would see that and deal with the huge punt where the courts came up with an opinion by chief justice roberts that was a punt that decided in very strange ways on standing grounds that rather than addressing the entire state districting plan in wisconsin, which was alleged to be a republican gerrymander, you have to go district by district. as a matter of standing law, it was odd. what's even odder about it is that chief justice roberts said pay no attention to what's going on in justice kagan's concurrence, and it was basely the road map, here's how you bring the first amendment claim that justice kennedy loves and

isn't it wonderful? and justice kennedy was silent. and you know, looking back now, and especially in light of what justice kennedy said in his separate concurrence in the travel ban case, which was everyone -- the government has an oath to uphold the constitution, be that kennedy's party message, it seems to apply in the partisan gerrymandering case too where he was not willing to take a side. he left the stage without making his determination. this means the next justice to come in is very much likely to be in the scalia mold. and we know what scalia and gorsuch and thomas and likely alito and roberts will be, which are these cases are seen as nonjus titianal. that means the next case, the court could take that to next term. it didn't take it. that's the case where north carolina, 50/50 state after

their lines were found to be a racial gerrymander. they drew the lines again. they made 10 of 13 congressional districts majority republican. when the legislative leader was asked how he did that, he said he couldn't figure out how to draw an 11th district. that's one of the three cases, the punt. that's not even the loss. the losses came in one case out of ohio involving voter purges. a case and a case out of texas called harris v. abbot. both of these cases featured a 5-4 conservative/liberal. they featured a nasty back and forth between aloeto and sotomayor, who are now taking the leads in these areas. both of these cases are cases where you see the conservative majority pulling back on voting rights.

the case is technical involving how to read a certain provision of the national voter registration act of 1993, but the message seems to be give states their breathing room to pass laws that might make it harder to register and the vote. and in the texas redistricting case which i didn't expect was going to be a big deal, half of the opinions were spent on whether or not there was even an issue before the court because no injunction had been issued by the court. it was odd procedurally, but when they got to the merits, the court shut down a path that the supreme court in the selby case five years ago, exactly five years ago from the day that opinion came out, promised, well, if there are bad actors, those bad actors like texas could be put back under federal supervision for up to ten years. to do that, you have to show intentional racial discrimination in voting. what justice alito's opinion did in the texas redicting case was to say no. there's not enough proof of

intentional race, in a way that will make it difficult to prove in any case. you must presume the good faith of the state when it passes laws. this is what we're looking at. okay, after kennedy, now i think the three worst election law opinions that the supreme court has issued in two generations, two were written by justice kennedy, and one was a majority, that is shelby county, citizens united, and bush v. gore. i'm lamenting the day that justice kennedy retires because partisan gerrymandering will likely be nonjust titianal. and justice thomas is and probably where justice gorsuch is, it will be left to die a death by 1,000 cuts. that was the message from the texas case. it's going to be the court steppistep ishing away from trying to

police voter i.d., where they're trying to take a middle path. they're going to be much more likely to go in the scalia path. if they don't burden most people, does it matter they burden some people? i think we'll see contribution limitations in campaign finance struck down. the other part of the mcconnell case, the part that the court didn't strike down in citizens united, the other half will fall, and i expect we'll see more partisanship on the court, and it's clear now that we not only have a court divided conservative versus liberal. we have a court that is divided republican appointed versus democrat appointed. it's going to be more common to talk about what the republican justices did and what the democratic justices did and this is going to further undermine people's faith in the process especially when opinions will come out written by republican appointed justices that are going to favor the republican party when it comes to issues about voting and democracy. i hope that cheered you all up.

>> let me just ask about the contributions question. and so we saw in the context of janus the implication it would be development of constitution law that could have partisan political implications. i wonder what in the tea leaves makes you think this kind of really bright line that has existed in campaign finance law for a while between expenditures going out and buying an ad, which are obviously very significant, and actually contributing to candidates. your view is that the supreme court in the next couple years is going to say, you have a constitutional right to give an unlimited amount to candidates for office? >> i won't predict it 100%, but i think that's the most likely place to go. just like we heard about seeds being planted, the seeds were planted in the mccutchen case, and i would point you to a case that's coming up out of the ninth circuit which no one is paying attention to. lair v. modell, which is a case

involving montana's contribution limits. the amount of consideration by the ninth circuit with a strong dissent from denial by judge akuta, well respected judge. this will get a lot of attention. the judge said ninth district is applying the wrong standard. you have to come up with actual evidence of corruption, actual corruption to justify any contribution limits. that would be a way to basically strike down contribution limits without striking them all down. to say we're going to send it back for the gement of evidence. if it doesn't happen, this particular contribution will be struck down. again, death by 1,000 cuts seems to be the justice roberts favored mode of proceeding in these cases. they're very much in danger. >> thank you so much. we saved good news for last. so lenese herbert is a professor

at howard and an expert in criminal law and criminal justice and one of the major cases of the term involved the fourth amendment. >> it did. and thank you for having me. thank you all for coming. the carp ntder case. the carpenter case is commonly known as the gps cell tower, cell phone case. and i say gps specifically because we are in this post-jones, post-riley era of this metadata being collected by sort of these third parties. and the introduction of this era of law came via the jones case and riley. although we talk about seeds planted. everyone talking about that. notion of seeds planted and teeing up cases to come. i remember seeing something like this way back in kwan. and since i'm speaking in front of this group, i'll do what we all do.

i want to blame scalia for all this. back in kwan, scalia basically, and the concur nls that would sound like a dissent at some points, he chastised his colleagues for not taking on the technology of the day. and sort of deciding each case on the very narrow specific basises without thinking of the strong constitutional jurisprudence and the law going forward, but it's funny when the court finally decided to take on this sort of post-internet, this post-internet era case of jones, jones being the gps case. not even five minutes, i went back and looked at the timer. not even five minutes into the oral argument, what does scalia do? he basically says, listen, i know i'm supposed to be talking, but i'm really going to talk

about cats. he said i think this is wrongly decided. but it's okay. don't worry about it. we're not going to overrule it today. however. and that struck me, particularly because it seemed to be out of nowhere, this attack. >> you want to give 30 seconds on what part of the holding you're talking about? >> so the understanding that we sort of operate under in the fourth amendment with respect to katz is this concept of what does the fourth amendment protect? what happened in carpenter alarms me a bit. i should be optimistic about it, but i was alarmed by the dissent, and even a little bit of roberts' writing. the notion the fourth amendment is based on the understanding of privacy and protection is based on the fourth amendment protection from unreasonable governmental intrusion via search and seizure.

what it did was some say augments, some say added, some say inappropriately expanded some of the traditional notions of privacy. katz added a test that basically came from the concurring opinions of justice harlen, which says we have a two-prong assessment we're going to make with respect to the fourth amendment protection. the first prong is it's objective manifestation of the expectation of privacy, and will society accept it as reasonable. the question is this notion of, this expectation of privacy that it seems that some of the dissenting justices in carpenter and some of the justices critical of katz, they seemed to have problems with this concept of this reasonable expectation of privacy that's not tied to some common law understanding of

property law and property rights. and so to the extent that scalia seemed troubled by katz, he said, i'm troubled by it. i think it was wrongly decided, but we're not going to think i but we will not overturn it today. he said it at the end of the oral argument in general. so in carpenter, we sort of get -- there's jones. and jones, of course, gives us this understanding of who we are in this modern digital age, this notion that the -- and this is not the language the court is using. i'll use the language the court uses, which is essentially you do have a reasonable expectation of privacy in the entirety of one's movement, in the entirety of the whole of one's sort of location, physical location and to the extent that the government is, in fact, trying to collect or obtain information about your location, particularly in the case of

jones. this is about 28 days of data that was being sought. then the government is, in fact, conducting -- is acting under the fourth amendment and certainly to the extent the government needs a warrant, the government needs a warrant and should in fact have a warrant when engaging. i hesitate to say what the holdings were because there was not one particular understanding. there was a majority of five that believes there was a fourth amendment interest in one's entirety of movements. but they came down in spaces and places under the fourth amendment. you see this rearing its head in carpenter but not so much. some of the justices believe by the virtue of attaching a gps on the vehicle of jones that there

was a trespass committed and under tradition common law property notions was sufficiently problematic for the government. they trespassed this information. others, though, went along with more of the katz notions. there has been discussion in the literature, online, in conferences about this concept of do you have a reasonable expectation of privacy in your movements, in your location? is that something society is prepared to accept as reasonable given that we all are giving our information to the cell phone providers and internet providers. and, so, this brings us up to the carpenter decision. and carpenter is particularly interesting because it basically meets us at this intersection of this notion of having some reasonable expectation of privacy in one's movements. but also it butts up against the concept of disclosing one's

information, march particularly location information, to some third party. that would be the cell providers. there is a doctrine that basically says you disclosure information to a third party in the fourth amendment, you don't have a fourth amendment interest in it. alongside that, and this is the miller-smith combination of cases, to the extent that one seeks to claim some sort of fourth amendment interest in another entity's business records, here would be the cell provider's records, you don't have a fourth amendment interest in the business records of the cell providers. so getting back to carpenter because this, to me, was almost a set up and it seemed to -- i know we're in the world cup times, so i will keep using the term set piece here, but i don't know enough about soccer to do it correctly. this case involved the fbi requesting four months' worth of location information, cell site

location information from carpenters cell providers, mobile pcs and sprint. and this was done because the fbi had encountered a cooperating, confessing, coconspirator of carpenters because they were investigating a string of robberies across michigan and ohio. do you remember this place, radio shack and t-mobile stores. and, so, this conspirator, who was a cooperating witness, who also confessed, implicated carpenter and gave up his phone number. from this phone number information, the fbi went to the cell providers to get the information, the location data from the cell tower to sort of place carpenter on -- actually in the space and time to sort of

prove-up the opportunity for him to commit these robberies. and later, in fact, at trial there was seven other coconspirators who pointed the finger at carpenter saying he was the mastermind. and, so, the providers turned this over. this, by the way, was not done via warrant. it was done by a court order. it seems a subpoena. and we've got different standards. this is one of the discussions, by the way, in carpenter. the different justification required by a subpoena as opposed to a warrant. that became a topic of discussion. i won't waste time on it now. but carpenter moved to suppress that data before trial. the trial court denied that motion to suppress. he was convicted basically on 11 charges and sentenced to over 100 years. there was mandatory minimums involved in that. on appeal sixth circuit said you don't have any fourth amendment interest in this information, besides you turned it over

voluntarily. third party doctrine miller-smith governs. at the supreme court, it is interesting what happened. the court seemed to -- it was fascinating in some respect. the majority opinion was 5-4. the court said essentially, listen, this is such a new phenomenon, and we are so dependant on our cell phones. justice sotomeyer has been doing this, this notion of -- and we have the doctrine of katz and trying to fit this new technology and this site location information into it. she has been saying for a long time we need these phones. we depend on them. we are attaching them. the court has likened the cell phone to an appendage. i don't know the last time i read a supreme court opinion where appendages are described the way cell phones are described like they are from the

court. it's like we can't live without them. she mentioned that she knows of -- our friend, right? she knows of young people that actually take their phones to bed with them. so this whole notion of we can't get away from these wonderful bits of technology that, by the way, are communicating with that third party cell tower, cell service internet service provider constantly without us engaging the item. and i think that was instrumental, at least for, you know, some of the rational in the distinguishing of this case in this data and this technology from the miller-smith line, the sort of dinosaur realm. and i say that because what the court said was, yeah, he did turn over this information, but there is no ability to do anything other than submit, if you will, to the board, right?

submit or perish because why? because if, in fact, we are talking about voluntarily turning over one's information to a third party, then smith and miller still live to see another day and to be precedent elsewhere. this is not the case when it comes to cell phones and cell providers. there is to extent, yeah, sure, some voluntarily disclosure of location information. the court says essentially to basically connect, to make calls, receive calls. but there is data -- the data will be collected constantly without our even engaging the phone. this is for business purposes of the cell providers for sure, their business records to see when you're roaming to see when they can charge you more. but the court is saying we can't help and we can't help ourselves and because this is where we are

now as opposed to where we were then, the court is saying this new phenomenon needs to be treated a specific way. and, so, it says a lot in the decision, but ultimately the holding really specifically speaks to the ability of the government to get this information without a warrant based on probable cause. and it almost seems like pedestrian holding, given all of what the court is saying in the decision. but the court is saying there should have been a warrant obtained, and that warrant should have in fact -- it would have covered the governmental conduct. but the warrant was not obtained. they weren't sufficient. i'm sorry. my time is up. that's one category of sort of what the court held. but what was phenomenon -- what was phenomenal to me was the understanding before this announcement by justice kennedy

that there might be a sort of conservative liberal alliance on the court when it comes to this technology. not so fast. not so fast. because when you think about -- and certainly some of the other decisions that were announced after this. justice kennedy was in the dissent here. and kennedy's dissent was -- and i couldn't understand it, again now understanding sort of how my co-panelists have characterized some of these decisions, these last decisions before the announcement. i can kind of now see this, i'm out of here. i don't care analysis in this decision. he dissented. and i think he dissented -- yeah, he dissented and thomas joined him. he focussed primarily on the smith-miller line of cases. and it's like -- it was almost stubborn with it, like you are turning this over and you are

turning this information over. and, fine, if you are turning it over, we've got doctrine for that. and so this newness and the tendency and this pervasiveness, when the court started off saying there are more cell phone accounts than people in the united states. i knew it was over then, right? and, so, the understanding that kennedy brings to this line of cases i agree it is a mixed legacy to be sure. but i would say in the context of the fourth amendment, it is a little less than mixed, particularly when it comes to some of the areas when you would expect kennedy to be more forward thinking on. he seems to be more retro and he proves that in this decision. there are points at which it seemed he was being unnecessarily dramatic. and i just, again, couldn't understand it. but now after the announcement, i'm starting to get a better

understanding of what, in fact, might have been going on. >> thank you so much. [ applause ] >> it will be really interesting to see as people try and mine roberts opinion and also justice gorsich's dissent for tea leaves for how you can attract maybe one of the conservatives in different areas of the law as they become the median justices. >> if you combine gorsich's dissent with sotomeyer's dissent, i think that's what the future is. that is an analog decision. we need some sort of other rubric for the digital age. >> with gorsich's dissent, it was mind boggling at points because essentially what you saw -- first of all, you have thomas. and there seemed to have been -- i saw this on my time line on twitter earlier today. and i thought, wow, this is a concept. this notion that if, in fact,

forgiven is occupying a so-called stolen seat, then he is joyriding in this dissent when he essentially sort of -- you know, brings up some great points about the sort of catch . he says i will keep it to myself until i decide to make it known to you. and i'm worried that moment will come with this next justice because another sentiment on the time line, justice roberts is the new swing vote. >> let me make sure we don't have questions. >> yes. >> let's do that. if you would identify yourself, if anyone has a question they want to ask and we'll start with any of the members of the press that are here. we have microphones. we're getting to someone that --

one of the other areas on the chopping block is the exclusionary rule. justice kennedy was the fifth rule and it now may get thrown out, to use a pun entirely. okay. here. hold on just a second. wait for the microphone, please. >> i was a union president in the federal sector, which could be the model. but in the federal sector, most recently, and this is the third real loss. you could argue that what trump did with three executive orders was destroy -- >> can we just focus on the question? >> yes, please. i'm sorry. we were given official time, and that's all gone and arguably a result of the travel ban decision except the court challenges will be dismissed because of the executive order and the deference to the executive. and i just wanted your comments on that. >> i'm sorry. comments on? >> on the free -- well, the

three executive orders that basically destroyed federal unionism as it relates to the potential challenges will be, which are now in court, will be arguably dismissed or a result of the deference in the travel ban case. >> do you have a sense of kind of where litigation goes from here? >> i mean, it sounds like the question is really about deference to the executive under the travel ban case. is that -- if i understand, it's less a labor law question. >> well, where do you see -- in terms of, for example, public sector unions. >> yeah. >> and their abilities to survive, do you think that there is going to be a wider range of challenges beyond the aboud question to just the notion of collective action? >> yes. i think we're going to see a challenge to, and we're seeing, a challenge to the exclusive representation under the

constitution. and i think that's likely the next step in the attack on public sectors. >> and do you think there will be a carry over? i take this to be the question. from the travel ban connect where they simply say the executive branch gets enormous deference. do you think that will play out across other areas of the law? so for example if they would defer to executive orders with respect to organizing? >> potentially. i'm not sure they were going to need it. yeah. >> okay, great. >> after janice, do you think a union now has a first amendment right to say we're not going to represent non-union members in grievances and arbitrations. >> yeah. if -- and this is part of the hold holding. if everything a public sector

union does is political speech, that would seem to imply a more robust set of protections for public sector unions. you know, what comes up more directly in the opinions is the idea of more robust protection for individual public sector employees or in justice kagan's or ti articulation, what if they engage in a protest activity to raise their wages. that ought to be protected now by the constitution. the tooruth is we have a union specific set of doctrines. and that -- the rule is that the union loses. and that will -- that will be the case. so in theory should public sector unions now have more constitutional protections, yes. will they, in fact, secure them? no. >> let me make sure we do take

one bigger step back with respect to the impending confirmation fight in the last few minutes we have. i will ask a lightening round set of questions. do any of the panelists believe there is a realistic prospect that a nominee who -- assume nothing crazy is discovered about the nominee beyond ideology. any kind of personal craziness is discovered. does anyone see a path by which democrats in the senate or otherwise politically have any chance of it blocking the nominee. >> i think that's a very long shot. i wrote about this last night, that all the efforts are going to have to be on collins and rakouski and abortion and women's rights. and so try to peel off a justice or two. >> senator. >> a senator or two. but that of course depends on democratic senators like donly

and mansion and mckaskel not folding and democratic senators running for re-election in trump's state. >> doesn't it depend on the administration nominating something who has said something about abortion? because isn't the other view that you could persuade -- >> yeah, exactly. assuming that they don't do that, the strategy is simply get a republican senator to say that a republican president can appoint anybody to the supreme court. >> well, so the question is how opaque the abortion issue or other issues might be to people. i said, in order to put pressure on someone like collins, you actually have to have massive street protests. i think that's going to come. i think it is going to come after scalia 3 is appointed to the court and after we get some of these opinions that do the things that everyone besides

ilia on the panel is afraid of. >> what about timing? does everyone believe the hearings would go past the mid-term elections. but by the time we get to the fall we will have somebody on the supreme court? >> i get jonah that there will be a justice by the start of the term. >> i assumed alcohol would be involved. so essentially a lock no matter who it is and they will be on the court by the time the next term starts in october at which point all of these new challenges begin. the next question i have is how aggressive do you think the court's conservative wills be, business groups will be, libertarian organizations would be, kato being an example in starting to push a new generation to the court, a tax on affirmative action, that sort of thing. do you feel gearing up these new

issues, you know, strapping rockets to them and headed to the supreme court. or is there still a delay because you want to see what the new justice will do? >> for me, it seemed as if the chief justice was courting a katz challenge in the fourth amendment content. we're not asking to overturn katz today in this case and throughout the opinion there seemed to be some sort of courting of that case. i imagine that's coming. >> i was going to say, i think the answer is not right away. i think it is yesterday. i think in the challenges are already there. they have been planted around the country. we all knew this day would come. so we see, for example, master p's shop where they walked into a shop they were referred to by their event planner with a photo

of cakes and are turned away and experience that very real harm. our opposition has filed cases that have never been approached but same sex couples, but are seeking to turn them away. clearly, teeing up this issue to get to the the court in a way they can control because they can't control when a couple may happen into a shop. the same thing with students that are transgender. and our opposition has filed cases on behalf of students that say wait a minute my school is violating my rights by allowing them to use the same bathrooms as everyone else. so these issues are not coming up just in instances where it is lgbt people. we are seeing a push to go out there and look at these

challenges. i think it is unquestionable, the goal is to have a number of vehicles ready to the moment when the next justice is confirmed. >> she said janice was brought by an individual worker. that's of course formally true, but there's been a lot of great reporting on the funding of these cases and the legal representation is all consolidated and there is numerous cases all around the country just waiting to come up on this. but i also want to highlight something rick said, which is it would be terrible if we all left this room thinking this was over and done. mobilization changes political facts. and it is on all of us to -- to, you know, hit the streets as it were and put pressure on the senate to do the right thing here and not to -- not to assume that we can decide today that it's over [ applause ] >> yeah. on criminal procedure, it really depends. if it's another gorsich then i

think we're fine because even more than scalia, gorsich is a big friend of constitutional protections for criminal defense. look at his opinion here where he was the only conservative joining the liberals in striking down a vague catch-all provision. he's very much of that mold. but not everyone on the list is. so on the -- on trump's list there are some who are like gorsich and scalia with respect to criminal procedure issues that are very much civil liberty oriented and some more law and order and deference to law enforcement. so that's definitely a difference that tees out. until we know who the nominee is, we can't say for sure which way the criminal procedure wind will blow. >> when it comes to rowe, we don't need to wait and see who.

it will happen automatically. i think our run take away is that the president does what he says he's going to do. he promised a total and complete shut down of muslims entering the united states and that is what he did. it would be foolish to wait for the particular name. we know what the president's attempt is with respect to rowe, and we can stop that now. >> you said about waiting to see what the next justice is like. i would say the question is not what the next justice is like. the question is how john roberts want to move. we spent the last 11 years asking what kennedy had for breakfast. it is a slightly different menu. >> our time has expired, but join me, please, in thanking the panelists, and thank you. today the inter-american dialogue hosts a discussion on legal challenges facing immigrants through the u.s.

live coverage begins at 12:00 p.m. eastern on c-span 3. you can also watch on cspan.org or listen on our radio app. >> and later today, more analysis from the recent supreme court term. we will have live coverage from the washington council of lawyers on c-span. as well as cspan.org and the c-span radio app. today, a conversation with the chief justice of the united states, john roberts, from the judicial conference of the fourth circuit live today at 3:30 p.m. eastern on c-span, cspan.org or listen on the free c-span radio app. the c-span bus is traveling across the country on our 50 capitals tour. the bus stopped in fairbanks,

alaska, asking folks, what is the most important issue in alaska. >> i believe the most important issue to me is the walls that our society seems to be building up. i think that for a nation built on immigrants and diversity we are finding it hard to embrace our differences as a good thing and that's creating great divides and greater conflicts than we really need at the moment. we should be focussing our problem solving skills on something more important, not how we are different because it's our differences that make us great. >> and the most important issue to me is our policy, particularly in the united states.

we have a misconception amongst a lot of the public we're falling behind. but that's not simply the case. and it is important for me to thank -- for the public to understand and for our federal government to actually work harder on making arctic policy a bigger issue than it is currently perceived. >> i'm a dentist here in fairbanks. i have been here since 1976. i came up here from michigan where i went to school at university of michigan. dental health is of course a very, very important issue here in this state, whether it's in the cities, in the small rural communities or especially out in the bush where there is no access to many care facilities. so the dentists in this state have volunteered. we just finished a mission of mercy where we treated thousands of people free of charge for two days. i think it was our second mission of mercy here in fairbanks. the private sector, of course,

bears the biggest burden. a lot of the treatment here is donated by the local dentists and of course the government facilities, public health offers a great treatment out in the bush areas where there is no private practice. so anyway, i encourage everybody to remember their dental hygiene. yeah. >> i'm a 32-year residence of fairbanks, alaska. the most important issue to me currently is our political divide. i was raised a moderate republican and i just -- i worry about the future of our country because it just seems like there is no room for moderation anymore and what we have is conflict and nothing really gets done in our political parties and i like to see some changes in that respect. i also worry about our worldwide

standing. i think historically we have been looked at problem solvers and the deliverer of good. and i think that's changing and not for the better. it is a very big concern for me. so those are my issues. >> be sure to join us july 21st and 22nd when we'll feature our visit to alaska. watch on c-span, cspan.org or listen on the c-span radio app. >> a hearing on sexual misconduct in federal courts with the chair of the federal judiciary workplace conduct working group created by supreme court chief justice john roberts following the resignation of a federal judge for multiple xu