interpreted by the court and looked to a pair of decisions principally for the authority for its ruling from one from 1969 and one from 1982 in which the supreme court had struck down local or state ordinances that made it especially hard to pass anti-discrimination laws. there had been certain measures that city council can pass any kind of law it wants. they went out of their way to deprive minority groups that might benefit from an ordinance the ability to get them enacted. the 60 circuit court used that same reason and said this is the same thing, any other type of person, an alumni child or athlete has in m ways to try and get a presemption from the university of michigan or michigan state or other state

colleges. they can ask the board of trustees. they can ask the admissions office. they can go to the legislature or seek a constitutional amendment. but minority groups, the only way they can get a preference enacted is to teamed state's constitution and that violates this by depriving them of the same way to influence state policy that other groups have. when that case -- so the case is

not one that i -- it deals with affirmative action and whether a state can abolish affirmative action on a statewide basis. it's interesting in a number of ways because it says that a measure that on its face is completely race neutral. it says no one should receive any preference or detriment based on race is unconstitutional because it prohibits some people from seeking a preference based on race. and again, as allison said, we can't ever be sure what the supreme court is going to do but it seems that the opponents of proposal two, in other words the coalition of affirmative action has an uphill climb to persuade this court to enact a state constitutional amendment that says nobody can be treated different based on race. and that we argued on october 15 at 1:00 if you are free. >> one thing that is noteworthy about this is the way in which the supreme court did tackle a

similar issue in earlier generations. and we think of there being a lot of stability in the american law and supreme court decisions because of the value of press sent dent. but on these really hard questions like affirmative action, race, each new successful supreme court majority feels some flexibility to correct the errors of its predecessors. and so too with the majority view of the grapt case, the decisions up holding the ability to have some form of preference. and so too on these questions of whether local bans on affirmative action type programs are unconstitutional. so let's continue with our forward march through the upcoming cases. that being the first one we talked about. in the next 45 minutes we are going to go through nine cases. so we are going to stick to five minutes a case. which i think will be no problem at all. given that we only took 20 minutes a case for the first

five. so this very simple and easy to understand recess appoint. >> this say case called national labor relations, it's a case about how they allocate power between the president and the senate. and article two of the constitution gives the president the power to appoint federal officers subject to the advice and consent of the senate. there is another provision i'm going to read you and listen carefully because the language going to matter. >> the president shall have power to fill up all vacancy that is may happen during the recess of the senate by granting the commissions which shall expire at the end of the next session. so if the senate is in recess, the constitution gives the president the authority to make appointments that he would otherwise need the senate's advice and consent to make. and what this case is about is the meaning of that clause. now here is what happened to give rise to the case. the national labor relations board enforces federal labor law.

it's a five member board and you need at least three members to have a quorum so the board can operate. there have been vacancies on the board for some time. been two of them but they had three but the term of one of the three was getting ready to expire and then they would have only had two and couldn't operate. president nominated two people to fill the vacancies in the board, the two vacancies. the senate did not confirm their

nominations so the board was in this position where it was about to go out of business. in december of 2011 the senate decided that it was going to take a break from mid december until january 23rd. but they didn't just declare they were going to go out an a recess, instead they provided that they would have a pro forma session every three days during that period in which one member of the senate would be there and would call the senate into session and in 30 seconds or less bring down the gavel and call the senate out of session. and the resolution that set this up provided that members of the senate didn't need to be there for these sessions and that no business would be transacted. why did the senate do this? they did it because by accepted practice a break of that short of time of three days doesn't count as a recess that triggers

the president's power to make recess appointments. so this happens at the end of 2011. the president decides that actually the senate is in recess despite these pro forma sessions because those sessions don't make the senate available to provide advice and consent which is what it has the obligation to do and if they are not around then the president says they are in recess. since this recess is long enough and there won't be a quorum unless i get people on there. so he appoints two people. so the board with these two recess appoint tees on it renders a bunch of decision. in one decision it's enforcing

labor laws against the company brings a challenge in court and says this was an action that was without authority because the board actually lacked a quorum because the people who were sitting on the board who voted to enforce the law against me were unconstitutionally appointed. and that's how the case shaped up. and it was in the court of appeals here in the district of columbia. and there was a big fight between the board and the united states government representing the board arguing these were valid recess appointments because the senate really was in recess despite the pro forma sessions. and the company said the pro forma sessions count.

and everyone anticipated there would be a decision by the d.c. circuit on the question of whether this pro formas are enough of a session to present the conclusion that there is a recess that allow it is president to make these appointments. the decision comes out and the court goes way beyond the question. in fact, doesn't even address that question. it addresses two much more fundamental questions about the scope of this power that has been around since the beginning of the republic. and the first is what does the recess mean. remember i said vacancies that may happen during the recess. the court said the recess that's phrased in the singular so must apply to only one recess and if there is only one it can apply to, it must be the recess between the sessions of congress. the recess between the first session and second session. you know congress is broken into

one-year sessions. so it must be the intersession recesses. you know when congress takes august off and goes on recess that is not middle of the year. it has to be a intersession recess and these appointments came in january after congress reconvened on january 3. it was within the new session and therefore wasn't an intersession recess and therefore it wasn't the recess and therefore it was invalid for that reason. but that's not the only problem the court said. the other problem the court said was the constitution says the president can fill up all vacancy that is may happen during the recess. so that means that the vacancy has to arise during the recess. the vacancy cannot exist before the recess. if it did it didn't happen during the recess. and therefore there are two fundamental problems with these

appointments. so by virtue of that decision the d.c. circuit took what was already a quite important question of the separation of powers and the proper allocation of authority between the senate of the united states and turned it to a huge question about the separation of powers between the senate and the united states. and part of the reason for that is that if one goes back through american history as one will see in the brief we file tomorrow in this case, there are hundreds and hundreds and hundreds of recess appointments that were either intrasession, in other words not during the break at the end of a session or to fill vacancy that is arose before the senate went into recess. and including just to highlight one example the appointment of dwight eisenhower as commander of the european forces in the summer of 1943. of course, the language i think is capable of being read to support the historical practice with respect to inter and intrasession and when the

vacancies arise. and then you have this quite historical practice and there is something interesting about that which is it accelerated over time. you can see examples going back to george washington of appointments that wouldn't qualify under the court of appeals ruling. but as time has gone on there have been more of them. how do you get the history, how do you interpret the language. so i think it's going to be an interesting case to follow. >> one tiny little point. >> let me make one point. >> a lot or most of the work done on the question of intrasession and when the recess has to occur was actually done by democrats including me, i represented senator kennedy challenging recess judicial appointments of president bush.

and we hp to get a lot of republican judges all of which rejecting our arguments and all the arguments have been reversed and the same arguments are being used against president obama. >> i wonder if you have an opinion or if your brief addresses if the court agrees with the d.c. circuit then what is the effect ongoing backwards? i think one of the appointments challenged by senator kennedy was a judge sitting on the 11th circuit so would the 2-1 decision where he was in the majority now be questioned? obviously the answer -- >> the answer is that's actually not an issue that the case presents so it's not an issue we'll get to. if the court rules that way, then it will have to be confronted but i don't think it

will be wrestled with in this case. >> the treaty power. >> the next case asks what the limits are on congress's power to implement treaties. some are self-executing and others require the congress after the senate has approved a treaty requires congress to pass a statute to implement its provision. most courts have read a case from 1920 to hold that in a statute is implementing a valid treaty then this statute is necessarily valid.

bomb versus united states concerns a statute that implements the 1993 convention on the prohibition of the development production stock piling and use of chemical weapons and on their destruction. it's a treaty concerned with terrorists and rogue states. the case also concerns the meaning of this 1920 case missouri versus holland and depending on the court's reading may be another one of the instances where this court overrules a prior decision. these completion constitutional legal issues arose from a domestic dispute. carroll found out that her best friend was pregnant and her husband it was father. she slipped -- >> you're not supposed to do that, right? >> she decided to make her friend's life a living hell and she was a micro biologist and so naturally she decided to do this using some chemicals. she took some from her place of work and she ordered some on amazon that is used in a dark room. and she put the chemicals on the friend's car and doorknob and mailbox and took mail from her friend's mailbox.

and she wasn't really a friend at this point. >> more an acquaintance. >> so her friend suffered a minor rash. apparently these chemicals were bright orange and easy to see and wipe off but her friend got a rash on her thumb. and she intended to cause irritation and discomfort but she did not intend serious harm. the friend enlisted the -- she asked local police. they didn't know what to do. the mail was being taken so she asked the post office to set up surveillance and found out carroll bond was behind this. at this point you might expect the local police to take over but instead federal prosecutors got involved.

i assume that's because the post office thing. so mrs. bond did not engage in activity in violation of the chemical weapons treaty. her actions didn't involve chemical warfare or stock piling of chemical weapons. but the prosecutors charged her with using unconventional weapons in violation of the statute that congress passed to implement the treaty. so she moved to dismiss. she argued as applied to her conduct the statute exceeds congress's constitutional powers in article 1, section 8 and reserved powers to the state in the 10th amendment. she called it a massive and unjustified expansion of law enforce.

the court of appeals rejected her argument and said that the missouri versus holland, the 1920 case means that if congress implemented a statute to enact a valid treaty then it was acting within its authority. so before the supreme court she reiterates the argument that the statute is unconstitutional fits applied to such a local crime. she argue that is the power to enact a statute to implement a treaty can't bring wit the power to enact a law with disregard to other constitutional limitations. and because she says the government could not have a federal law that criminalized her conduct in the absence of

the treaty, the federal government can't criminalize her conduct under a statute implementing the treaty. she argue it is statute can be read not to cover her crime at all and if the supreme court read it that way it would have to reach the constitutional issue. the government counters her conduct falls under the scope of the statute. that the statute is constitutional because it is necessarily constitutional even if it covers some local subject matters that it wouldn't otherwise address because otherwise the government says the u.s. would be hand strung in negotiating treaties and the confidence of other countries in the united states is a global partner would be undermined. >> a red line, if you will. >> no comment. >> the government also makes an argument now that it didn't make at the trial level, it did make in the court of appeals which said that it had been waived.

the argument is this provision statute is valid under congress's commerce clause power, that is the power to enact law that is regulate the flow of goods among the states and chemicals are sold in interstate commerce like these which are not -- these aren't illegal weapons so they are sold legally in states. on bomb side this argument wasn't addressed in its opening brief because i said the position is it's been waived. so i gave a bear bone description of the facts but the government portrays the case differently. they claim the two chemicals used have rare ability to cause harm to individuals and that one half of a teaspoon of one of them could be lethal while a few

ingested crystals could kill a child. they say she attempted to poison the friend 24 times over the course of several months, spread the substance on the mailbox and car and door of her home in sufficient quantities to be lethal. so do these additional details affect the answer to the constitutional question? they were a scene

file. it is scheduled for november 5. click in terms of the of treaties, a lot would have another power that would along congress to implement them. could.hority i will talk about a case involving the clean air act. it'll keep us on time and it is impossibly complicated. there are two cases. they involve the trends for rule. it involves downstream air pollution.

particularly in the northern part of the country where there is heavy industrialization. there may be industrial plants. canssion -- omissions travel within that state to other states as well. the clean air act addresses many things including that. trying to figure out how to regulate the emissions that go from one state to another. a state is unlikely to regulate itself to protect another state. they put a series of restrictions on these upwind states on the amount of pollution that could leave it into another state. s of challenges to those regulations issued by the epa. in general, it deals with the question of whether the epa can

set the rules or the states themselves are going to set the rules and some technical questions about whether these claims were brought in time in the first instance. beyond the clean air act, there is one other feature of this case. you will have heard about whether we will appoint new judges and additional judges to the d.c. circuit and the question of whether it needs new judges or not. there is also the notion that the d.c. circuit is the second most important court in the country not because it sits in a hierarchy of the judiciary. it is that these hugely consequential cases involving the federal government are brought in that court. the recess appointment court

went there, the epa case. you can see why it is there are such political struggles over the appointment to that court. let's turn to fair housing. >> very well, if you followed an earlier season of the supreme court, you know there was an exciting episode that took place in burlington county, new jersey. tom here was involved arguing that case involving the strip search of a prisoner in burlington county. this is a different type of issue coming from the same location, the county seat of burlington county, called mount holly and it involves an urban renewal type program. the town of mount holly wants to has begun to bulldoze a neighborhood called the mount holly gardens and build new housing there. they feel the area is blighted and there is a lot of crime there. they want it improved. mount holly gardens neighborhood is also the one part of town

which is a minority neighborhood. under a federal fair housing laws, one cannot discriminate against people based on race. how do you determine when the protections of those fair housing laws go into effect? a number of residents of the mount holly gardens neighborhood in that town sued to stop this redevelopment project from going forward. they argued that it violated fair housing laws because the people who were bearing the impact of this development were disproportionately minorities. under the way the fair housing law and other antidiscrimination laws have developed over the decades, there are different ways you can see whether their

protections are triggered. in american history, it stopped being fashionable to say we just like discrimination. we are in favor of segregation and will adopt rules that discriminate against people of color. that stopped being the thing that politicians could announce. for a long time, it was the kind of thing that helped politicians win elections. since officials who make these decisions no longer are outwardly declaring that is what they want to do, how do you find out if that is what is really going on? the doctrine that has been developed is known as disparate impact. if the policy that the agency is undertaking has a disparate impact on a protected class of people, often minority groups, then it may be illegal for them to proceed. the way this works in practice is an agency wants to do

something like a redevelopment of this neighborhood, residents sue and they say it is a violation of fair housing and has a disparate impact on us and we are minorities and we are getting shafted again. if they can demonstrate there is a disparate impact, it does not mean the project cannot go forward. it means the city in this case has to show that it wants to do a legitimate goal similar to compelling goals in the affirmative action context and it has to show that there is not way to get to the same result without having a similar kind of impact on this protected group. that is similar to the narrow tailoring of remedies. once the city raises that defense and says this is why we have to do it this way, there is no disparate impact on the no

way to get to the same legitimate all without having it, then the burden shifts back to the other side. the residents would then have to say you are wrong because there are other ways that you can get where you want to go without bulldozing our houses. that is what the third circuit court of appeals said has to happen before mount holly can go ahead and complete this redevelopment project. this disparate impact type of process of hitting the ball from one side to the other depending on what each side can prove has to be examined by the trial court before the city can go ahead with this project. the city has appealed to the supreme court and they argue that no, this third circuit court of appeals and other federal appeals court have applied similar rules to this type of situation and have gotten it wrong.

there does a not have to be a disparate impact type of analysis before we can go forward. we cannot have intentional discrimination and we are not intending to target people because of their race but this type of burden you are placing on us is not required by the federal housing law or by the constitution, and you cannot make us jump through these hoops before we complete the redevelopment of this neighborhood. the court will look at that and it has implications not only for housing law but also for other areas of antidiscrimination law, possibly including employment discrimination. the same type of test often arises when you have an employment discrimination lawsuit. it is hard to prove that someone is intentionally discriminating.

the jargon that part uses of disparate impact smokes out impermissible discriminatory actions. it could have implications even beyond housing into employment and other areas of public policy. >> one little vignette about this question is that they have been concerned about cases getting to the court that might produce rulings they don't favor. in this context, they have worked very hard behind the scenes to get the cases to go away. even after the supreme court agrees to hear a case, it can be settled or withdrawn up to the day they decide the case. there was a predecessor case to this one that i represented the disparate plaintiffs in with the possible involvement of the federal government. it became controversial and that case was settled after the court agreed to hear it and they have taken this follow-up case. there is a lot of pressure on the parties to this case to

settle it before the justices can decide it as well. >> the settlement in this case would probably mean a payout to the residents to move. >> the next case is called mccutchen vs federal election commission. my office filed an amicus briefing supporting the government in the case. as in citizens united, the petitioners in mccutchen are urging the court to overrule a prior court decision in the area of campaign finance. the prior case was buckley vs

vallejo, a 1976 decision in which the court upheld congress authority to up hold aggregate limits on individuals contributions to prevent circumvention of the limits on donations to individual candidates. the aggregate limit today is about $125,000 on contributions to individuals during an election cycle. an individual can contribute to parties, pac's, or individuals. there is a $74,600 two-year ceiling to contributions and a $48,600 limit to candidate organizations.

the individual position or the case is sean mccutchen. he is a wealthy man who gave a lot of money to individuals and parties during the last election cycle but he wanted to give more and had he given more, he would have exceeded the limit. he challenged the federal election campaign act arguing along with co-petitioners, the republican national committee, that the aggregate limits violate their first amendment rights and should be eliminated because the resulting contributions will not be large enough to cause any concern. that is the issue before the court -- whether the aggregate limits, not the individual limits, but the aggregate limits violate the first amendment. the concern is that the elimination of the cap would allow candidates and party officials to solicit and accept large donations to be shared among the major parties, various candidates, and committees. the supreme court has held that limits on large donations create a bulwark against certain corruption. in the area of campaign finance, some members of the court disagreed openly with that precedent and the court has shown itself quite willing to overturn precedent in this area. the prior cases make tell us what the outcome should be. they don't tell us what the outcome will be.

part of the dispute in the case is the distinction over campaign expenditures and campaign contributions. in the 1976 case, buckley held the limits on expenditures were unconstitutional because that was a direct infringement on the first amendment right of the candidate to speak and therefore subject to the highest level of first amendment scrutiny, and that the expenditure limits could not survive that level of scrutiny. the contributions were more like an association as opposed to a speech activity. it was subject to a lower level of scrutiny and the contributions and the aggregate limits survived the first amendment challenge because they prevented corruption. in mccutchen, the petitioners are asking the court to narrow if not overturn this aspect of the buckley distinction between expenditures and contributions. they say there is a distinction so that their cases just about aggregate limits and not the individual contribution limits

that applies to any specific candidate. the distinction they draw is pretty fuzzy. if they succeed in that aspect of the case, that would likely pose a significant threat to the limits on contributions of individual candidates and i expect we would promptly see some litigation in that area. the petitioners, mr. mccutchen and the rnc, also argue that they can win even under buckley just because the aggregate limits today, and given other research in campaign-finance law, are such that these particular limits are not needed to prevent corruption. the possibilities are that

buckley will be limited and at least some contribution limits will be subject to scrutiny meaning there will be no limits, and buckley will not be limited but the court will hold that these particular limits do not protect against a government interest in protecting against corruption, or that buckley will be reaffirmed in the court and that the court will hold that the limits protect against corruption. in this area, i don't think justice kennedy is a swing vote. he is very well defined with long-standing views about campaign finance. if the law is to survive, we

would probably looking to justice roberts. whichever side wins, he will be a fifth vote and it will turn on whether he thinks the limits are needed to protect against corruption. >> fantastic. can we turn to the other part of the first amendment? >> greece is the word. this is a case coming from the town of upstate new york and it deals with one of the fuzzy parts of the constitution and that is the role of religion and its relationship to government. the constitution makes no reference to god at all. it has a reference to religion in the first amendment in which the congress and by extension other branches of government may make no law respecting the establishment of religion, nor can they make a law preventing

the exercise of religious faith as well. even though the constitution itself does not talk about god and there are apparent clauses referring to some kind of arm's- length relationship between religion and government, we know the continental and the u.s. congress and many bodies of government began their sessions with invocation of prayers and prayers and references to god were made by political officials from the beginning of the country through the present day. it is not clear exactly where the line is, and the supreme court has struggled for many years to clarify that boundary. this case is one of those efforts by the court to clarify the boundary between church and state. the town of greece had a practice of beginning the meetings of the town board with a moment of silence. perhaps some people wish it was longer --

[laughter] slightly over a decade ago, they changed their practice and decided to have a verbal invocation and invite a clergymen to come and say a prayer before the town board began its weighty deliberations. the town change the practice of how exactly it would choose who would be selected and who would be invited, but eventually, they came up with a system in which someone in the town clerk's office would go through the phone book and call up the different churches in town and invite them to send someone to give an invocation for the board meeting. they only called religious

institutions that were located inside their town, and inside the town limits, virtually all the religious institutions were christian. there were a couple of synagogues, but they were just outside the town limits. there might have been a buddhist temple outside the town as well. anyway, as a result, virtually all the faith leaders who gave the invocation were christian. many of the prayers that they gave made very explicit references to jesus christ and our savior and were more than the generic types of prayers that are perhaps less sectarian. two grecians, two residents of greece, who attended a board meeting regularly found this practice of prayer is objectionable and they filed suit under the establishment clause of the first amendment

saying that the town of greece had gone too far in establishing a religion. the second court of appeals agreed with them by using -- by examining how the town went around selecting people to give the invocation and what exactly was being said in these prayers. it said that while there was not one clear bright line that was crossed by the town, if you look at the totality of the circumstances, and you see that almost all the prayers are given by christian clergy persons and many of the prayers had very explicit references to jesus and to our savior and so on and you look at that, no effort was made to bring in other religions that may be located quite close physically but are just outside the town limits -- that totality of circumstances went too far under a 1983 supreme court decision called marsh vs chambers, which looked at legislative prayer and said that legislative prayer is ok if it does not involve proselytizing and disparage other religions and does not serve to advance one religion over others.

the supreme court has agreed to examine whether what greece is doing is within those limits. there is an interesting anomaly in the general way the supreme court has looked at these establishment of religion cases. the less serious the religious expression is, the more permissible it is under the constitution because it looks less like serious religion but it is more decorative. [laughter] i mean it. if government agencies that defend religious involvement in what they're doing tend to say it is not really serious, just sort of a cultural, traditional thing. we don't really mean it because if we mean it, we are taking a

stand on which religion is right and that would be less likely to pass constitutional muster. the other point worth noting is where the obama administration is and they are siding on the side of the town of greece, they take the view that the court should not get into examining the content of every prayer. they say it's too intrusive and there should be more breathing space for the town to decide what is an appropriate form of invocation. there is some commentary that has said the obama administration is hostile to religion. in this case, they have taken positions that are very much on the pro--religion side, even

more dramatically a couple of years ago. the administration asked the supreme court to reverse precedence make it easier for religious schools to get tax- related subsidies in arizona. at least for those of us covering the supreme court, they don't -- they have not consistently always sided against religious institutions. >> tremendous. we have three more cases to turn to before we get to your questions. i am going to talk about the trivial passing subject of abortion. [laughter] it is an area of the law that fits the bill of the theme of areas where justice kennedy was in dissent and justice o'connor was in the majority on the

court. his views have the potential to emerge as controlling. the first one is about abortion protests, which is a free-speech case of the first amendment. it is about protesters at the facilities and medical health clinics that offer surgical abortions. you have to step back to the previous precedent which was called hill versus colorado with justice kennedy in dissent and the court upheld an eight- foot floating buffer zone. that means literally, you cannot approach a person within a certain number of feet. in that case, with respect to any health facility, a person who is approaching and you wanted to say something to them, you had to stay eight feet away, and the supreme court said that was a neutral way of preventing interference with access to health services. this case comes from massachusetts.

it is a statute that is limited to abortion clinics, facilities that offer abortion, and it is a 35-foot non-floating buffer zone. within 35 feet of the entrance to the facility, a person approaching the facility, you cannot approach them to have a conversation or show them something, you have to let them proceed from that substantial difference instance into the facility. the court of appeals upheld a 35-foot zone and the supreme court has agreed to review the case. it will present a test of the expressive rights of people who want to do abortion counseling or protesting to approach a woman who was going into one of

these facilities and offer literature or show gruesome images. whether those free-speech rights are unduly infringed by making someone stand so far away that according to the protesters, they have to shout and use massive posters. the court of appeal suggested it was possible they could dress up as the grim reaper to get noticed. the second case related to abortion issues is called klein and it is a medically-induced abortion case. it is on the docket, not on the docket at the same time. the supreme court was asked to review an oklahoma statute that may prohibit the use of drugs to have a medically-induced abortion in the first month or so of a pregnancy.

that would be a significant issue whether the roe right extends to validate a restriction. the statute may say that you have to follow fda guidelines on the use of the drugs, or it may invoke the guidelines in a certain way that the drugs never actually could be used for medically-induced abortions. there is an uncertainty about what the oklahoma law does, so the supreme court invoked a relatively rare procedure where it sent to the case to the oklahoma supreme court to ask what it is this law does. if the oklahoma supreme court concludes as a matter of oklahoma law that the law prohibits the use of the drug

for medically-induced abortions, then the supreme court could pick it up and it could present the first real look at roe v. wade since the partial abortion cases. it could -- that case is on hold until we hear from the state court of appeals. a follow on to the affordable care act case that don, on behalf of the administration, may be coming to the supreme court. >> this is not an issue on the court's docket yet but it likely that it will be soon and will be decided this term. this is another affordable care act issue. most people get their health insurance through their employers. one of the things the affordable care act does is regulate the terms of those plans to ensure that the plans provide coverage for certain types of medical needs. under regulations of the department of health and human services that implement that part of the affordable care act, one of the things that employer- based health plans will provide as contraceptive coverage. the hhs regulations also give religious employers and

exemption for that. if you are a church employer or a church school employer, you have an exemption from it. they don't give anybody the ability to opt out. a number of employers around the country who are not religious- based employers in the sense that they are not churches, they are regular corporations organize under state law, have argued that they ought to be themselves able to be exempt from this requirement because

the religious scruples of the owners of the company are such that they believe that their religious beliefs would be violated if they were required to provide contraceptive coverage as part of their health insurance. the principal argument they make is under a statute called the religious freedom restoration act, which congress passed some years ago based on its view that the supreme court was not interpreting the free exercise clause of the first amendment and a robust enough way to give people protection when they had religious objections to being subjected to the requirements of a general law like the affordable care act law here. you have to listen carefully to the words on the statute. it says that the government shall not substantially burden a person's exercise of religion unless the government has a compelling interest and the burden imposed is the least restrictive means of achieving that interest. the courts of appeals have been wrestling with this and some have said that yes, actually,

under those provisions of the program -- religious freedom restoration act, any corporation should be entitled to an exemption on the contraceptive coverage requirements. others have come to the opposite conclusion. the case presents a number of potentially interesting issues. one issue is a corporation, is it a person who can exercise religion? [laughter] another one is the contraceptive coverage requirement -- is it a substantial burden? is it a burden on the employer, or is it really taking something away from the employees who might not share the religious belief of the employer? does the government then have a compelling interest in opposing that obligation, and is this the least restrictive means of doing so? that is something to look out for and a case may pop up on the court dockets in the next session. >> we have finished precisely when we promised. [applause] we are getting ready for your questions. you did not applaud any of the cases. only our timeliness. [laughter] your side of the bargain is that we get to hear your fantastic

questions. >> i was going to suggest that in the interest of everyone hearing everything, we have two microphones on either side. if you would not mind lining up at the microphones, it will make it easier for everyone to hear. >> yes, sir. >> [inaudible] does the fact of working and playing well together with other justices result in decisions for the particular cases fall short of logic and consistency to reach the magic number of five? >> one justice historically was famous for talking about the rule of five, and that was the justice brennan. perhaps don could answer that. >> not a chance. [laughter] thanks for suggesting it. >> when the chief justice roberts famously talked about the need for the court to provide clarity and come together, you can look at that in one of two ways.

there is the need to have broad majorities, so we talked about decisions that were surprisingly 8-1, and the other is the bare fact of getting five people to agree to something so people know what the law is. if the supreme court is divided, we used to have a committee that would say the chief justice delivered the opinion for the plurality of the court. justice o'connor joined one part of the law and it would be very difficult for people trying to apply the court's decision to know what the rules are. i think in any collective body, including the supreme court,

there are compromises that are made in order to have some kind of rule that people can follow. >> you don't have to think about that as being politicizing. they do have different judicial philosophies, but there is a real imperative to come together with one rule if they can do it. that seems to me a perfectly legitimate impulse to accomplish

that is much better for the country if there is a clear rule that comes out of a case. >> if i could add what could have been on big cases -- justice ginsburg more recently indicated she was not going to be drawn into that again. she was the one dissent in the affirmative action case in june. sometimes there is a compromise to get more people to sign on, but there are sentences in there that up the analysis for a future case in ways that make some people unhappy. in the voting rights case, the one a few years ago, it was 8-1,

but it set up the overturning of an incredibly important part of the voting rights act and she indicated she was not going to concur or join the opinion of the affirmative action case this year because she did not to go in that direction. >> don has the responsibility to argue the most important cases in america. you should come to my cases. [laughter] >> you and i argue against each other sometimes. >> if you are not going to get in line for the fate of obamacare or abortion, on the first day of the term, i will argue about whether the securities litigation uniform standards act prevents people from filing suit under state law in texas and louisiana law to try and bring claims arising from the stanford ponzi scheme, he sold about seven billion dollars of certificates but was buying polo ponies in antigua. it is whether you can bring a lawsuit about that. that is a technical question of law but that is an illustration of the fact that nine cases of the supreme court out of 10 present relatively ordinary

questions of federal law. we have these disagreements over the contraception mandate, and that is the supreme court's job principally. there will be these conflicts in the court of appeals and the supreme court says we have to have one rule for the whole country and they will take the case. that can be a fantastically boring question. it may not be a hugely important question, but i would say that nine times out of 10, you can go and see a relatively technical case that will not have lines going out the door. in favor of the argument for cameras in the courtroom, for having c-span, which is here with us today, there are not many seats. there can be as few as 100 public seats on a given day. if people are coming from out of town, they should write to the court to get a reserved seat. it is tough and it is the view of most people that if you go see your supreme court in action, you will be proud of them. they are working hard on these

tough questions. >> you can look on tom's website with a list of cases they are deciding and what the questions are. >> there seems to be an polarization of the court. not because of the position but withse of the clamoring some airwave or some tweet or something like that. they may be able to answer this. the parent polarization of what we have seen, historically.