speech but conscience is something internal to their head? the court will decided that by the end of this year. the other issue that is still in the lower courts is a competent question about whether there can be subsidies for people who purchase insurance on the federal exchange and states over the states have not put out the exchanges. gethe texas, if you want to , purchase insurance, you have to go to the federal exchange. that itute is written provides subsidies to people who .uy them all state exchanges it is not clear it will provide subsidies to people who buy them on the federal exchanges. there is litigation about that going on in the lower court. on the latter when i would expect it eventually the federal

changes will get the subsidies as well. host: victor is next on the line for democrats. good morning. caller: good morning. merry christmas. i have two questions. is the -- the one that -- [indiscernible] me, it says that corporations being a person is an instrument by attorneys and makes them dots basically.- gods i do know that there has been a case or situation and the supreme court with a person with

the oldest or the longest on the in the courts automatically placed -- [indiscernible] and "-- opened up -- [indiscernible] guest: on the first question is important to emphasize that asking the question, are corporations people or persons is probably not the right way to frame the question. i want to emphasize from a constitutional lore yours point of view. there are prosecutions for engaging. -- constitutional lawyer's point of view. rightsve constitutional

to a fair trial whether prosecuted for unlawful pollution. the real question is, do corporations have constitutional force in a specific setting? and the contraceptive mandate, the issue is does a corporation have a right of freedom of conscience? was doesn'the issue have a right to free -- does it have a right to free speech? the answer will vary. underlyingn what the constitutional issue is. i should say that -- i have a chapter on united in the book as well and i say the bro problem is not as the corporation are persons part, straightforward to explain why corporations

actually do have rights of freedom of expression. rather than the supreme court doctrine that makes it extremely hard to limit the expenditures by anybody. if you're concerned about campaigns, the finance issues, that is the place to focus not on corporations. the court doctrine saying that again, it is really hard to justify restrictions on campaign expenditures. on seniority issue, the chief justice as nominated for the particular position. not to the seniormost member of the court. there are constitutional courts around the world that the chief justice is basically the most senior justice. therestem is one in which is a difference between the age of the chief justice and the most senior justice on the court.

host: you talk about how justice roberts was originally going to be nominated with the intent of moving into the chief justice spot. if you do talk about the history. guest: what happened was chief rehnquist was quite ill, had a certain kind of throat cancer. knew he was going to leave the court relatively soon. court.ed to stay on the justice o'connor had a husband who was quite ill and she wanted to leave the court, so that she could be with him and take care of him. she went to chief justice rehnquist and asked -- none of wanted to be two vacancies at the same time. they try to tame and dash time

of their departures -- time their departures. she asked if he planned to retire in in the coming year. he said, no, he planned to stay on. she announced her retirement. justice roberts was the on the court of appeals and was nominated initially to fill justice o'connor's position. justiceat, chief rehnquist passed away from his illness. that left two vacancies. been whenad always chief rehnquist left, roberts promotionme chief by or as it turned out directly. his nomination for her seat was withdrawn and resubmitted for

the seat of the chief justice. justice alito was nominated to fill the vacant o'connor seat. host: some discussion on twitter on the subject of the cameras in the court. video coverage would expose the justices and their questions and competence to being judged of by the public and they do not want to that. we have time for one more question. vida is waiting. you are on with mark tushnet author of the book "in the balance." guest: yes, good morning. what a wonderful time for me to say the decision by john roberts absolutely floored me. i never thought he was fitted to be a supreme court justice at all.

to think you can tax the american people and to let the like bk gp --e on the kgb, i no longer have faith in the court. this the absolute worst thing that is ever occurred. i saw earlier something on their that somebody sent in on twitter. or one of those. was justice roberts threatened? i have wondered that exact same thing. we have lost faith. anyone could make that type of decision and think it is ok. millions of people are against it. we wanted it repealed. that comes from a person who comes left or right. right now, i am leaning up. i do not know which way.

think the only thing we can say in response to that , thevation is that constitutional issues which is all i am concerned about about whether congress can impose a tax this year is like $95 on people who do not purchase issue --surance, that that constitution issue is relatively straightforward. judgmentters from that , they did not express a view on the constitutional question. what they said was that it was unreasonable to interpret the statute to impose a tax rather than be a regulatory mandate which is punished by failure to mandate is a

punished by a financial exaction. chief justice roberts had a view about interpreting statutes to make, constitutional. said, you can. he said it not the most natural reason statute. if you look at it carefully and , it has a lot of the characteristics of things we call it taxes. the statute does impose a tax and once you are over that hurdle from a constitutional lawyer point of view, imposing a is of not doing something fine. there are taxes -- there used to be, there was a court case about

of peoplethe statues who do not register as gamblers or register as people who sell unlawful drugs. they do not register. and the supreme court said that is fine. course, there is substantial disagreement with the affordable care act. we will see how it is working out as a matter of politics which is basically the way i system ought to work anyway. host: if you want to read more on his views, you could pick up the book that is "in the balance ."

[captions performed by national captioning institute] [captions copyright national cable satellite corp. 2014] poverty. at the war on congressman james jones will join us. we'll take your phone calls, and tweets beginning live at 7:00 a.m. eastern tomorrow. in orlando ruled that drug testing welfare recipients is unconstitutional. morning on c-span's facebook page, we asked -- let you think.t facebook/cspan. next, a look at d.n.a. testing by the ninth court of appeals. they heard arguments in haskell harris. this is just over an hour.

>> good afternoon, the court of appeals for the ninth circuit is now in session. good afternoon. please be seated. we're here for the argument of haskell versus harris. judge gould is appearing by video. good afternoon judge gould, can you hear me? >> good afternoon. >> you are coming through loud and clear. are we coming through? >> great. i can hear you fine. >> okay, counsel ready? you may proceed. >> good afternoon. michaelerisher for the appealants.nd i'd ask to reserve five minutes for the rebuttal. >> you have the clock. you'll have what is left over. >> may it please the court, this case is fundamentally different from king because california's law applies fully to people who

are never charged with an offense and those who are want of probable cause under mcclough lin and gerstein. interests that king identifies can justify taking d.n.a. from these individuals prosecuted being because all of king's interests relate to tracking and monitoring people as they the criminalugh trial. system up to >> counsel, i respect the sincerity of your view, but the reality is. the supreme court said in king that d.n.a. was like fingerprinting. if all of the things that you say about your particular clients are true, they would still nonetheless be fingerprinted and their fingerprints retained in a national data base just like the d.n.a. how do you distinguish that? the court made it very clear several times that d.n.a. and fingerprints are of the same,

ilk constitutionally, the only one a more modern technology. >> that is not how i read the case. fingerprints are different than d.n.a. fingerprints tell us nothing about ourselves. d.n.a. is our genetic blueprint. fingerprints have a history of being used to, in the narrow sense of the term, identify people. they do an excellent job of that. people who are arrested can be identified, again, a narrow sense of the term, within using their fingerprints. none of this is true with respect to d.n.a. and if the court had simply wanted to say there is no problem using d.n.a. anytime our system wants to use fingerprints whether it's in the criminal justice system, whether it's in license,for a driver's whether it's applying to be a member of the bar, it could so.ly have said instead king as required by other cases engages in a new totality of the circumstances balancing test and only after

doing that decides that d.n.a. can be appropriately used in certain circumstances. >> counsel, are you challenging the initial taking of the d.n.a. or the subsequent use? it seems to me that on page 21 of the supreme court's opinion, the court wrote the additional intrusion upon the arrestee's privacy beyond that associated with fingerprinting is not significant and d.n.a. is a markedly more accurate form of identifying arrestees. i read that to mean that it is okay to take the d.n.a. at the time of arrest which is what happened to mr. king as part of the booking process. so isn't your argument really what the police do subsequent to the taking of the sample? >> yes. under king, the government may take d.n.a. at arrest for people it has arrested for serious crimes. however, it cannot analyze or otherwise use that d.n.a. unless formal charges are filed and

there is a judicial finding of probable cause to believe that the defendant is in fact guilty of a serious offense. >> you say that it has to be a serious crime, but the examples that justice kennedy used were making the point about utility of d.n.a. was the 9/11 terrorists and timothy mcveigh, both of whom were arrested or picked up, stopped on very minor charges. seems the thrust of the majority opinion is that d.n.a., no matter how it comes into the possession of the government in terms of an arrest, is an incredibly valuable tool. i know they use the term serious offense, but it's a little hard to understand rationale of the majority opinion being limited to just serious offenses when they make the point using two

examples of non-serious offenses. >> they do. but of course the reference to mcveigh comes from a quote from florence v. board of chosen freeholders. i think the significance to that the policeat, yes, may be dealing with serious criminals even if they're only them in a traffic stop. but i don't think king can be read to allow the police to take d.n.a. from every jaywalker or speeder. >> that's not what justice scalia says, he's the dissent, of course. he says, ateads it, page 1989 -- when there comes before us the taking of d.n.a. from an arrestee from a traffic violation, the court will predictably and quite rightly say we can find no difference between this case and king. make no mistake about it as a

predictable consequence of today's decision your d.n.a. can be taken and entered into a national d.n.a. data base if you are ever arrested rightly or wrongly and for whatever reason. he was in the conference and heard what the majority decided, and that's how he reads it. how can we read it otherwise? >> i think it's fair to say that majoritycalia and the read the fourth amendment and the interests involved in the differently. >> i agree. but the reality is justice scalia was interpreting the majority opinion which is what controls us here as what he said. and if he is correct in his construction, then you are out of luck, are you not? >> no, because the fundamental distinction between this case and king goes not to the seriousness of the offense. the fundamental distinction here is that california is taking d.n.a. from people who are never charged with a crime or

who are discharged for lack of probable cause. >> he says it doesn't matter if they are ever arrested. he says if you are arrested rightly or wrongly and for whatever reason. so i would respectfully suggest that i don't see how you can justify your point. i get your other point about what is done with it afterwards, but i don't about the seriousness of the offense or anything of that nature because justice scalia makes it very very clear about what the majority meant and it's not what you mean. >> could you clarify one thing? >> yes. >> in king, i understood the situation to be that they could only collect the sample after the individual had been charged as opposed to simply just arrested, is that right? >> that's an ambiguity in king. yes, king repeatedly says that, presented,e question people arrested and charged. >> if you go to the regulations that the state attorney general

issued in king justice department, they talk about charged and they defined charge as the filing of a ticket like issuing a ticket or a complaint or an information or something. draw ay do seem to distinction. in california, as i understand it, your d.n.a. can be taken if you are simply taken down to the station, booked, and kicked out the door because they determine no crime was committed. is that right? >> that's how it happens in california. king is ambiguous because they talk about people formally charged but they also talk about d.n.a. taken at booking. i believe that under king, be taken fromonly those people who are actually charged with an offense, those the only people who will progress through the criminal system. but i do appreciate that the government does have some interest in taking d.n.a. before then, even if they can't use it

in case the person fails to appear. i don't think those interest are weighty enough to justify taking it at booking and then using it. >> i thought the distinction was being correct that it's part of the booking process. but i thought maryland wouldn't process it until charged. >> correct. >> so there is the taking of the sample and then there is the profiling that comes by going after the limited identifiers, the junk d.n.a. aspect, that would be a distinction from california because california processes it right away. is that correct? >> not right away. >> in other words, they don't wait for a charge. >> correct, and that is the fundamental distinction. >> may i ask you about that distinction though? and this may be because the supreme court wasn't clairvoyant in looking at the situation we have in front of us. but if you go to the end of the

opinion of the court, actually the court on page 23 of its slip opinion, it keeps talking about in sum there is little reason to question a legitimate reason of -- interest of the government about "thealking identity of the person arrested" and then it goes on later to about the identification of arrestees. what do we make of that language as you fold it into the california statute? >> well, the first time the court talks about the identification of arrestees, it's a quote from florence or hibble where it says in every criminal case it's necessary to know who has been arrested and who is being tried. when we talk about identifying arrestees, it's talking about arrestees who are being prosecuted. because everyone in maryland who was giving a d.n.a. sample was necessarily being prosecuted. and in california it's important to remember that for the population that i'm most

with, those who will not be prosecuted at all, that beenion, they have unconditionally released from criminal justice system within 48 hours, within 72 working days. two that is long before the samples would even get to the lab. they are mailed to the laboratory. >> what they are talking about abouthey're talking arrestees, is they're saying, as i read the supreme court, you knowing, forest in example, if they're wanted elsewhere. so if you have an arrestee who ultimately is not charged -- but isn't there an intervening interest of knowing if that individual is wanted elsewhere having been arrested? >> no, i think once the person -- once the decision is made not to prosecute, once the person is unconditionally released as was respect to three of our plaintiffs, that interest is no longer there.

>> even before being released, the court seems to knowledge that there is a government interest in knowing if that person is wanted elsewhere. isn't that inconsistent with argument? >> i don't think so. first of all, fingerprints is how that determination is made. somebody is wanted is not done with d.n.a. whether someone might be implicated in a different crime is something that can be done with d.n.a. but not just with withurrent technology but california's current infrastructure and perhaps most with the current codeus protections for privacy, determination cannot be made in time to be meaningful for people who are arrested and then released before or at arraignment. >> that was in king, too, wasn't it? >> well, no. >> everything you say as was true in king and as judge smith pointed out and justice scalia

pointed out in dissent. so where are we? you started by saying this case is different and all the interests, many of the interests in king don't apply here. justice kennedy conveniently lists them by number in the opinion. and i wonder if you could go down the list one by one and tell us which ones apply there that don't apply here. it starts on page 11 of the 569 reports,'s page 11 of the opinion, it says goes on and lists them. can we go down quickly one by one and see which ones don't apply? the first one says, there is a need to know that this is the right guy, this is the right person. that applies just as well here as it did in maryland, right? >> no, i don't think so. because it starts off in every criminal case.

if there is no prosecution there is no criminal case. if you have someone who was arrested once but now is unconditionally released the government doesn't have that same interest. >> but that was true in king too. that was true and nevertheless they said they could take it. so it says, this is on page 12, an individual's identity is more than just his name and social and the number government's interest in identification goes beyond ensuring the proper name is typed on the indictment. true here, right? so then we've got second on page 13. law enforcement officials bear responsibility for ensuring that the custody of an arrestee does not create intolerable risk to staff and so on. equally true here as in king. >> not with respect to the people that i'm talking about specifically. because by the time -- mr. king was in custody long after d.n.a.

had connected him to this rape. by the time d.n.a. results could help law enforcement in california know what someone has done in the past, whether this person might be dangerous, the people i'm talking about are not in custody, there is no need to make bail determinations. they've been unconditionally released. they are free people. lilly haskell was in six days of being arrested issued a certificate saying no charges are being filed. her d.n.a. being tested 31 days later did not help the jail deal with security issues -- she was not in jail. >> but this raises the question. the fascial challenge and -- fascia challenge and now you're defining the challenge in light of people in the class? >> in light of king, yes >> so define for us what is the class or how do you define the

people to who this lawsuit applies? class is -- >> it hasn't been certified, right? >> it has been certified january 2010. >> so that class is gone, right? that class encompasses everyone who is arrested? >> everybody who is arrested and is required to give a d.n.a. sample purely because of the law before the court. >> so you have to talk about everybody and that brings to us just like king. you can no longer talk about your people, your particular name plaintiff. you have to talk about the class. the class applies to everyone to whom the statute applies. in that respect the second thing here, the second interest is just like in king, right? >> well, there can be subclasses and judge breyer did keep open possibility of creating subclasses. but the fact there is a class that includes everyone does not mean everyone in the class is entitled to relief. whatever rule -- here is the rule i'm asking for.

california can take d.n.a. from people it arrests for serious offense. it cannot do anything with that d.n.a. unless there is a prosecution and a judicial cause. of probable absent one of those or if charges are dismissed, it should destroy the sample and expunge the profile. but counselor, you've made that point in your brief. this case is unusual in this respect. you and your co-counsel filed a brief with the supreme court in which you actually argued haskell to the supreme court -- 12 different points including the ones you make to us today. what impact, if any, does that have in our analysis of whether the supreme court heard your argument and what they said, how that applies? for example, in the fingerprint analogy. everything you said about your plaintiffs would likewise be true of fingerprints. they get fingerprinted, those

fingerprints stay in the database. whether or not they are charged or released and as justice out, in a traffic accident, whether or not people were charged. i'm having difficulty understanding how you can carve out from what the supreme court said, your particular people, particularly when you have literally argued haskell v. harris to the supreme court in maryland versus king, you made those arguments. >> the supreme court never mentioned haskell. >> they never mention our cases unless they are reversing it. >> they did mention other cases that it upheld or struck down d.n.a. testing of arrestees. i don't think that article iii courts secretly reach out to decide other cases and i don't think you can judge that based on -- i'm not simply citing this. i'm simply saying they heard your argument, the very ones you are making to us today, despite your desire that they would go in a different direction,

justice kennedy's opinion, which the chief has just mentioned and points,going down those and scalia's interpretation of that, it seems to me that this making on anou're as applied basis can't possibly hold water. this is like finger printing. your people don't get removed from the fingerprint base. they don't get removed from the d.n.a. base. >> i don't know that the supreme court addressed the issue you are presenting here because in this case california does not automatically destroy the samples if no charges are filed. so at least that part of the process is different. could you address that? you mentioned that was what your concern was. >> it is very different because in maryland, as soon as charges were dismissed or if there was

no judicial finding of probable cause, the sample would destroyed and not analyzed. in california it is different. is nof a judge says there probable cause to think this person committed an offense. >> that is another case for another day. if somebody comes in and says i've been acquitted, my d.n.a. is still in the database, i would like to bring an action on behalf of myself and all similarly situated to have that information expunged, then we'll take that up. that will be a case, that will an interesting case, which i'm sure -- i don't know what that will be. why is that something you decide now in a preconviction case with a class that you've practically admitted is too broad? why isn't the right thing to do here, if not affirm, but at the very least why don't we need to send it back to reform the class?

>> because there's no need to reformulate the class. >> you do concede there are some people in your class that are just like king in every way. >> yes. >> and they lose. >> yes. >> how can we have a relief that is afforded to a class when you admit some of the people in your class don't get the relief? we are not a district court. we can't reshape classes. >> what this court can do is announce the correct rule of law and the district court can apply that. the entire class is important because it's res judicata with the entire class. those people who lose, lose. they are bound by that because they are class members. the proper remedy is not to redefine the class. that would be unfair to the government. the proper remedy is to

an injunction that implements the constitutional rule of law this court announces. >> how would you articulate that group of people? how would you say who are these people, who are the ones that ones -- we are the know the ones that lose, just right.ng, who are the ones that win? >> i would ask that the district court issue an injunction prohibiting with respect to all class members the state of california from analyzing or otherwise using d.n.a. taken under these provisions until formal charges have been filed and there is a judicial finding of probable cause to believe that the person whose d.n.a. is at issue has committed a serious offense. >> you want to us rewrite the statute? >> no, i want an injunction that simply says that in implementing this statute the state cannot violate the fourth amendment and injunction has to spell out what

is prohibited and what is not. >> is there evidence in this hasrd that ms. haskell petitioned to remove her d.n.a. sample from the system? no. >> there is a statutory remedy to permit her to do that but she's not availed herself of that remedy. a discretionary statutory remedy but there's no element.n >> she hadn't pursued it but we don't know what the response would be. if they say yes we'll take it out of the codis system and itself, shesample would get all of the relief she's entitled to, would she not? >> if that happened, yes. that would impose an exhaustion requirement. there's only an exhaustion the 1983 suitser under. under pat't apply board of regents. that would impose an exhaustion requirement that is not appropriate here. >> would your argument also apply to fingerprinting? could you bring a lawsuit claiming that fingerprints that

were taken from the same people that you just described are like wise unconstitutional because people were released and never charged? you've got this record that remains there after this occurs. the supreme court said fingerprints and d.n.a. are constitutionally the same for purposes of this setting. how can you distinguish between two? >> i do not read the case that they are the same. they share many common aaracteristics but it's factual matter, they're different. they are different technologies. footnote to kylo, we have to lies them differently. we could bring that suit and the analysis would then be whether fingerprinting, what are the interests there and the interests in finger printing are different.ly fingerprinting is supported by history. it is not at all -- it doesn't tell you -- you can't do family searching. you can't do anything with finger printing other than

identifying in a narrow sense. >> you are talking about abuses of the statute and have you no evidence that it's been abused. justice kennedy started with the bodily examinations and then they went to photographs and then they went to fingerprints and now d.n.a. there is a different technology but he said constitutionally that the same analyses applied. what i'm puzzled about is how you can say that when there is no evidence of d.n.a. abuse in this case, you can distinguish between an ability on your part to strike down a statute that allows the collection of d.n.a. from people who have not been charged and are released within 48 hours, no bail and so on and not apply the same thing to fingerprinting. >> because d.n.a. and fingerprinting differ in ways i just mentioned, and there are three additional reason. first of all, i believe that the retention of the d.n.a. sample and the profile is a continuing infringement on fourth amount -- amendment liberty. printing.from finger

>> also different from fingerprinting? they keep them. codis, if you will. >> and they periodically run automatedst the fingerprint identification systems to see if they match any from a newts taken crime. >> i don't believe the ridges on one's fingertips raise the same constitutional issues as the used.e that can be admittedly it's not being used right now but can be used for familial searching. that categorically distinguishes what it is in finger printing. >> let me ask you in a more concrete sense -- you're drawing the line at the judicial issue of probable cause. correct? >> that's one of the lines, yes. that and the charging. >> charging or judicial determination. >> yes. >> so assume somebody gets complaining the witness flakes or something happens and the person is

released so there's no immediate but then there's a hiatis. under your line drawing, although the d.n.a. was collected at the time of arrest, the law enforcement could not utilize that d.n.a. in any way, is that correct? >> not until there was a charge, some sort of judicial finding of probable cause. >> so even though arrested, let's say they may have been arrested on a rape and then there was a hiatus and there needs to be more investigation and they are not ready to charge and they are not detained so they don't need to be taken before the court, you are saying that even though the d.n.a. is now in the hands of law enforcement and you potentially have a complaining witness on a rape, that the government is precluded from making that match, correct? >> no, i'm not saying that. because in that situation -- >> they haven't been in front of a judicial officer and there has

been no charge yet. >> in that situation the government has several options. if there is semen left at the crime scene, there would necessarily be probable cause to get a warrant to test that sample. or under california law section 817 of the penal code they could get what's called a ramey warrant, an arrest warrant precharging. >> there could be alternatives but having alternatives does not make necessarily a third alternative unreasonable or unconstitutional. so the question i'm asking is a yes or no one, and if you have this rape situation that i laid out, does this mean that the officers are precluded from using that d.n.a. sample for further investigation? >> they are precluded from using this law to test that sample. they are not precluded from using any of the other alternatives they have which are less intrusive. in a general sense. >> what's the difference between this law and the others?

less -- again,'s what's your response to what seems a logical question and theres, simply because might be other alternatives doesn't make this one necessarily unconstitutional. why couldn't they use the d.n.a. under this law? >> it's not reasonable and the availability of less intrusive alternatives. dispositive, it is a relevant factor. this court has said so repeatedly. >> let's say we don't have a rape situation, but we have the d.n.a., the arrestee is let go for whatever reason, they now run the d.n.a. through the data base and they say, voila, this actually -- this individual is maryland for rape, murder and three other serious crimes. could they -- are they also precluded from making that match because the person has not yet had a judicial probable cause determination? >> just to be clear, they're not going to find out this person is

maryland. they might find out this person is implicated in an unsolved case in maryland. if he's wanted, this won't help them to do that. fingerprints will, but this won't. >> if they run it through the c.o.t.u.s., they might find there is a warrant out in maryland or something else. but since fingerprints, according to the supreme court are really the same as the d.n.a., you're simply saying they are stuck to the fingerprint alternative, they can't use this alternative. i just want to understand where you are drawing the line. >> c.o.t.u.s. will not help them find outstanding warrant. it will only help them find an unsolved crime and connecting it. this confirmation process. so if there is an outstanding warrant they can find that. but that interest in simply connecting someone who has been released without charges, connecting him to an unsolved crime in maryland, that's the government's interest in solving

cold cases that the supreme court refused to accept in king. the majority opinion never lists that as a legitimate reason to from someone without a warrant. that's remarkable. that was the government's main basis chief the justice roberts used. >> you're out of time. >> thank you very much. >> we'll hear from the police. >> good afternoon. please the court, enid paleees. d.n.a. identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. this is the holding of the united states supreme court in maryland versus king and this holding is broad and unequivocal. the court does set parameters in the very next sentence of its

opinion. when officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's d.n.a. is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the fourth amendment. >> that probable cause determination was made by the court? >> yes. >> is that right? is that the case here in california under the statute we're dealing with? >> no. when it's for arrest? >> no. maryland takes the sample after booking and before and analyzes it only if there is a judicial finding of probable cause and charge. >> so in our case, under our somebody could be arrested by a police officer for a felony out in the field.

because they are arrested for a felony they have to be taken into the station and booked, correct? >> correct. right. for whatever reason the arresting officer may ultimately decide that there is not enough there and just release the defendant, correct? >> correct. he could also release the defendant prior to any booking. >> takes him down to the station. as i understand the california statute, at that point they could request and demand d.n.a. sample. >> at booking? >> yes. >> yes. what marylandctly versus king permits. >> but there has been no judicial determination of probable cause at that point. >> no, none of the factors that the appellant identifies are part of the holding in king. form lake list -- >> the court says a valid arrest based on probable cause. so that's the premise of the ruling, and, as judge paez

points out, in that case there wasn't subject to challenge because there had been judicial determination. now we're dealing with cases in our state where there is no such determination. so the basis of the court's opinion, the starting point is in doubt. so i'm interested in the answer to this question. so since -- i think when somebody is arrested, just from all the movies i've seen, they take them to the station and fingerprint them and take may a picture before anything else happens. right? >> and now they take d.n.a. >> it would be at that point. so at that point there haven't even been charges filed? >> no, because taking -- nothing -- i'm just asking factually how it happens. so at that point there haven't been charges filed. it's entirely possible, and i'm sure it happens somebody is

taken down to the station, theed, fingerprinted, matter -- the police officer consults with the d.a. and the says, no, you know, here's the reasons we're not going to this guy. we're not enforcing these, have too many, whatever, and they decide to let him go. must happen, right? >> that's one of many options available. but not the only option. not ansorry, it's option, it's a factualual scenario. >> it's possible. but there are a variety of things that can happen. >> of course. they could say we're going to book him and slam the door. course. but it is possible that nothing will happen. there will be no charge. it's possible that on consulting with the d.a., the d.a. will say we're not going to treat this as a felony, we're going to treat this as a misdemeanor. that's also possible. >> it's possible. >> it's possible the d.a. will

say, look, tell me more about the arrest. it sounds to me like the arrest was illegal. we are going to let him go because we don't want to get in to a dispute about the legality of the arrest. possible. i take it under california law at that point the cheek swab would have been taken and the state is entitled to analyze the sample, right? >> that's correct. but the supreme court set -- >> none of those cases were dealt with by the supreme court because they assume probable cause and a valid arrest as a premise for the opinion. i mean, that's a fact, right? >> i don't think that's the case. the holding is very broad. when there is an arrest on probable cause and you've brought the individual to the station -- >> we can argue about what the holding is, but just as a factual basis, as a premise, the

court there was dealing with a situation where all the cases i've discussed are not included. the cases where the d.a. decide the arrest was bad. they didn't have a warrant or whatever, all those cases were not presented by the statute. >> correct. but the court set the time for collection at booking because the information that is available after booking can inform the charging decision. so in that scenario the charging decision isn't finished. the charging decision is still under review and subject to the information that is returned from the identification information that is obtained at booking. >> let's take the example that the chief just gave and substitute fingerprinting for d.n.a. let's assume that someone is arrested in a traffic matter and

they are brought to the station. they are fingerprinted and booked and the d.n.a. is taken. but as the chief suggests, the d.a. says this is weak. i'm not sure we have probable cause. are fingerprints removed from the database because that occurred? >> no. they remain in the database and they are not expunged. >> do you know of any state or the federal government that has an expungement statute for fingerprints? >> california does not have that process. even on an invalid arrest, the fingerprints remain in the fingerprint database. >> this is part of what justice kennedy referred to that is reasonable under the fourth amendment, is it not? >> yes. booking part of the process. >> correct. so d.n.a. at booking is the functional equivalent of fingerprints and that's what the

recognized. >> that may be so, but that is not, in fact, covered by the opinion. it may follow logically from what the opinion says. is there a case talking about expungement of fingerprints? the very question that judge smith asked you about -- is there a case saying that has litigated a question of whether or not fingerprints need to bee plunged? i don't think there is. >> there are california state cases. >> yes, who cares. [laughter] >> for the individual -- >> who cares as a matter -- i'm not saying we don't care. i mean -- federal law, as a of -- who cares about what state law says, we're talking about federal law. >> federal law also as a retention policy. >> no, no. i'm asking has the case been litigated as a federal constitutional matter?

i thought you were saying there are state cases dealing with it, and that's fine. but are there cases dealing with the federal constitutional question of whether or not there is retention of -- i mean retainingpractice of fingerprints, there's no doubt about that. i think most of us gave our fingerprints when we became members of the bar. >> and the bench. >> i'm sorry? sort of that was voluntary. we could have said no, i suppose. fingerprints, sets, couldn't get them right from me. right.ah, that's we all give up fingerprints. but is any case dealing with whether or not the state is entitled to keep fingerprints if you find somebody totally innocent or totally, the arrest was illegal? >> i think that there are processes pursuant to federal law and state law where an individual can apply to have their arrest records expunged if

they are found factually innocent. and i'm not sure whether or not that would encompass the same kind of expungement. i think, as far as i understand it, fingerprints are retained indefinitely and remain in the state and federal database. >> if we deal with another issue besides just when one can keep the particular d.n.a. sample, can we deal upon when one can get rid of it? in maryland, all samples and profiles are immediately destroyed if all qualifying criminal charges are determined to be unsupportive. but in california, quite opposite occurs. in fact, even if someone wants to have his d.n.a. sample destroyed, he must send a request to the court, to the d.n.a.

laboratory, and to the prosecuting attorney, right? and the court has the discretion to expunge and then if the court doesn't expunge, then denial is unappealable, isn't that correct? >> the process -- that is not a full description. expungement process. >> i didn't expect it to be a full because i haven't got all day to give it to you if i had to read the statute. but the bottom line is this is expunged only when the court has discretion and if the prosecutor says no, often it doesn't, it cannot happen? >> that is a very limited reading of that procedure. what the statute actually provides -- >> tell me, then -- it seems to me there is quite a bit of difference between automatic expungement on one side and going through the process and maybe get it done on the other side. and therefore, is that not a difference we ought to take into

effect? that's my question. >> it's not a difference of constitutional significance. >> why? >> because there is a valid procedure for an individual to have the d.n.a. sample expunged from the state's database. in fact, there is an expedited andedure for doing it california has done it within two to four weeks. time. its average california modeled it's expungement process on the process for expunging arrest records. >> that is different from maryland, correct? >> it is different. >> it is so where the court has the discretion in california where in maryland there's no discretion whatsoever. and in california if the court says no expungment, there is no appeal and in maryland it's automatic expungement. >> there are statutory criteria for the judge to follow in the expungement provision and we'll assume that the judge will follow those provisions. there is a hearing to allow the

department of justice to say if it hasn't already expunged the sample, look, this individual is qualified otherwise to have his sample remain in the database because he's a registered sex offender or arson offender and so it gives, in the event that d.o.j. doesn't expeditiously expunge the sample pursuant to its own procedures, there is another forum for the individual to say, no, i meet this criteria. >> the judge could just say no and that would be it, right? >> that's hard to imagine that the judge wouldn't apply statutory criteria that is in the statute. to decide whether or not to expunge the -- >> is that a yes? i didn't hear you answer my question. the judge could say no and that would be the end of it, true or false? >> correct. that is a non-appealable decision.

i'm sorry? that is a non-appealable decision. >> there wouldn't have to be an explanation. you wouldn't have to know why. >> we would assume that the court would follow the criteria. >> you could assume anything you wish. the fact is you wouldn't know. >> is there anything in justice kennedy's opinion about the reasonableness of the use of d.n.a. in the booking statute to an ability to expunge the d.n.a. were foundon innocent? >> no. >> didn't even enter into his thinking, did it? >> it didn't. because it's not a difference -- >> are you going to speculate on what justice kennedy was thinking when he wrote an opinion? that there was automatic expungement and there may have been no cause to address the issue. are you going to speculate on what he was thinking? >> i think the opinion is a very broad opinion. the court was well aware of the difference in expungement procedures. it was aware of the difference

between california's law and maryland's law. as your honor pointed out, we told the court of the differences in california law, and the a.c.l.u. told the court of the differences in the california law, and the court was aware of the particulars of california law more than any other state. >> it decided the case based on maryland law. it didn't say -- we also cover other statutes where rule is broad enough to cover anything other states may do. it's a typical justice kennedy opinion. he is a very careful common law kind of guy who takes a case in front of him and decides that case. that's how he writes his opinions. >> this was an intentionally broad opinion. >> but counsel, he kept putting in to his broader statements the foundational aspects, one of

which included that there was automatic expungement. except in the recitation of maryland's law, which was dropped at that point. what is clear is that the court intended to set a national standard, it was aware that 28 states in the federal government have laws similar to maryland. it acknowledged that the state laws vary in their particulars and that is their word and it recognized that its holding goes beyond those particulars and "implicates more than specific maryland law." >> could i also reference you some other language? i grappled with this problem all the way through this, but it seemed to me justice kennedy said statutory safeguards on use are enough. that is statutory or "regulatory

duty to avoid unwarranted disclosures generally allays privacy concerns avoiding unwarranted disclosures is more important." it seemed to me that was his approach. would you agree? >> his approach, he recognized the statutory and regulatory safeguards but those safeguard individual privacy and that is the lynch pin of the decision that standardize these procedures and that was the reference that the court in other parts of the opinion explained that these use and confidentiality restrictions in the law make the invasion of privacy minimal. it is those factors. c.o.t.u.s. does require expungement. >> so it would be different some of those restrictions weren't in

place, hadn't been in place, right? i mean let's say for example maryland took all this information and put it online where everybody could reach it, sort of like the sex offender registry and the balance would have been difference, right? >> no. >> just no? >> no, because the court weighed the constitutionally significant issues in this case. the government interests -- >> one of the interests was on the one hand intrusion on the individual. and you don't think it would weigh differently if the intrusion on the individual had been much more serious if for example the coding had been done on non-junk d.n.a. but had been done on d.n.a. -- you don't think the weighing would have

been different? >> yes, it recognized that as one of the significant factors that the intrusion is minimal. >> why aren't those privacy safe guards part of the balance in king? >> those set a national standard and all of the samples are processed pursuant to those standards there. there isn't leeway how to process these samples. >> how does he set a national standard when he emphasizes some of these restrictions that maryland law imposes? >> he didn't relegate it to maryland law. >> he was dealing with maryland law. he was probably -- when you think about maryland law and how it applies and how it protects a privacy and how it insists on probable cause and how it requires that the sample be destroyed, should the person not

be prosecuted or should the person be found not guilty, all of those to my mind just fit into the balance, the balance here of dealing with a very intrusive interest in privacy. we are getting there and we are in a new age and a new phase of being able to not only identify people but to identify who their relatives were, all their problems, their mental problems, their physical problems, the whole picture is there. and so that's a very serious intrusion.

and i think when he talks about these limitations, he's trying to strike a balance. and he was dealing with maryland. california is pretty extreme in the other way. you can arrest people who are joyriding, and you can book them as a felon, and it may turn out that they are convicted on a misdemeanor. we have a different system of law here. that is the way i read it. he's trying to strike a balance. >> the court struck a different balance and just because maryland law includes elements that go beyond what is required -- >> why does he emphasize them? >> maryland's law? he didn't emphasize maryland law.

in fact he used california examples throughout the opinion. and just because maryland law includes elements that go beyond the fourth amendment does not mean that the constitutional bar is set at maryland's law. the u.s. supreme court has repeatedly recognized and made clear that the fourth amendment outcome does not vary with the laws of particular states. so a state can provide more protection and a state can enact limitations. but each of these rights and limitations does not go into the balancing test and affect the fourth amendment calculus. otherwise the fourth amendment would vary from state to state, and that is a proposition that the supreme court has rejected. >> what the state law happens to be like and what balance it strikes and how it protects the privacy interests. we have a difference of opinion

, then. >> if we uphold the judge's decision to deny prelimenary injunction, is there anything left of the case? would the case go back to the northern district of california for reformulation of the class and perhaps some kind of a trial on the merits? >> we think this case begins and ends with maryland versus king. there would be nothing left of this case. >> you think that -- your position is that the supreme court's decision in king forecloses any claim that simple arrests, that an arrest that results, taking them down to the station and booking them and determining -- the cop, the arresting officer says i've made a mistake, let him go. d.n.a. is taken. it's your view that king forecloses any claim by these

guys that they don't have a possible claim? >> right now there for one is a mismatch between the certified class. >> the class now in light of king is overly broad but they could narrow it down or do individual and try and set some precedent on an individual basis. >> it would be inconsistent with the holding in king to draw the line at charging. >> so as long as you're arrested, taken to the station and booked, that's it? >> right, because your identification information informs the charging decision. >> there was never a determination of probably cause. >> there are a lot of situations an individual can be arrested, booked, bailed out according to the county bail schedule and then given a notice to appear at a later date. so there is no finding of judicial finding of probable

cause or a charging decision and yet they are on a bail and release. >> i understand that in the maryland statute that they could collect it but they couldn't test it. >> correct. so the court looked at that as a delay, not as a good thing but as a delay. so it's not that california is premature. it's that maryland is delayed in its analysis and was making that observation as well. and the court said the finding of the analysis goes to the efficacy. >> so when does it take place under the california scheme if at all? >> it can happen at a lot of different junctures. >> where? walk me through the process. >> well, it could be made -- >> when and where is it made? somebody is arrested down on the street dealing in drugs, taken to the station --

where is the it made? >> within 48 hours it needs to go to a magistrate. they can also be released prior to that time and the case can be charged. if the district attorney doesn't charge right away it could be for a whole number of reasons. >> so bottom line on what you're saying is that there is no class of arrestees who could be picked up on technically what would be called a felony, everybody would agree, it wasn't a serious offense. they are booked but never really held in detention other than going through the booking process and then they are kicked

loose. once they've had the swab taken, then the state is free to go ahead and analyze it and process it as occurred in maryland. and all of the rationale in justice kennedy's opinion about the criminal history and the protecting of the jailors and the imposition of conditions of release or revocation of bail, where do those come into play in that category of people? >> it comes into play at the out set. a felony is a serious offense, is the classic definition of a serious offense. but in the opinion it is also clear that there is no threshold of seriousness in particular. >> you are sort of reading out some of what justice kennedy

elaborated on because he kept repeating serious offense. >> right and some of those examples came from california. >> that may be but i'm talking about one that wasn't one of those there. there is no burglary, there is no rape, there is no assault and battery. it is just somebody who got picked up on what is a wobbler, for example, and there is no assault or anything like that and the system itself recognizes it wasn't serious so they kick it out and that person's d.n.a. is now captured. fingerprints, we give up in lots of context. the big difference about d.n.a., two of them, one is they are building the fingerprint data base by arrest. you don't do that when you send a fingerprint in, you are matching it against a data base. now they are creating a data base and the fingerprint doesn't

carry with it all the biological information that is associated with full d.n.a. and you are saying that california can take that full d.n.a., hold it in it's custody, and for now only look at the junk d.n.a., but they've got it in their custody. all the d.n.a. in their custody and there is no remedy because of maryland versus king? >> by law california can only look at discrete portions of identification by d.n.a. that is it, nothing else. >> what is wrong than what the proposal by ms. haskell recognizing what king does restrict to simply say go to the supreme court decision, it talks about arrest by probable cause. ms. haskell's counsel says we can draw the line and charges or

judicial determination of probable cause, and therefore free reign under the california statute. what is wrong on that line as far as and during how king applies to this case? >> that interpretation would not be consistent with king which recognizes that the identification information, whether it is fingerprints, photographs, or d.n.a., and form the charging decision. >> counsel, what role does justice scalia's dissents -- how would this respond to the points, make no doubt about it, as a consequence of today's decision, your d.n.a. can be taken and entered into a national dna base if you are arrested rightly or wrongly, and for whatever reason. so he is saying even if they have probable cause, they got it

wrong, something that did not chart, but you can be put there under the rationale of king. how do we interpret that? >> the decision -- justice scalia made a number of factual errors in that analysis. and there are criteria. the court announced what the criteria is for taking, keeping, and analyzing a sample. they would cross the line to take a sample from an ordinary citizen. there are criteria for analyzing and expunging the sample, and every judge on the u.s. supreme court recognized and focused on the national import of king. chief justice roberts stayed the maryland decision and recognition of the fact that implicates important features of approximately half the states and federal government, recognizing the important implications of king, justice

alito said it was one of the most important cases be court would decide in decades. in the case itself, it said this holding implicate more than specific maryland law, and because a court's holding and legal determinations were not tethered to the four corners of the maryland law, there is no basis for appellant's claim that maryland law is constitutional but california law is not. >> thank you. >> thank you. >> you are out of time. would you like a few minutes for rebuttal? >> yes, please. >> tell me in the one minute you have, i need to see a minute on the clock, why isn't the best thing we can do here is simply affirm denial of the injunction, and the case would then be back in district court where you can reshape the class and make whatever claim you make -- why

isn't anything else we say beyond that too much? >> because my named plaintiffs, lily haskell and others were not charged with offenses, they are entitled to relief -- >> they are now tied at the ankle with a class which is too big. if you had a broader one on behalf of them, you might have a claim, but how can we say in light of maryland versus king, the district court here has abused its discretion by denying interrogatory relief? >> it is a question of pure law. this court can say what the law is, the district court will ever let that law, otherwise we may be appear again in a year or two in precisely the same situation. i do not think that serves anyone's interests. >> we would be up here on a fuller record.

>> the record we already have is vastly bigger than it was the record in king. i think the rule i propose is a reasonable one that flows directly king's holding and reasoning that accommodates all of the interest that king identifies. i do not think additional facts are necessary to establish that. so i asked the court to subset decide the issue now one way or another to be honest. >> thank you. we are adjourned. [captions copyright national cable satellite corp. 2014] [captioning performed by national captioning institute]

>> the supreme court heard oral argument on whether airlines need any reason to drop customers from their frequent flyer programs. northwest airlines stripped a rabbi from its world perks membership because according to the airline, he abused the program. at issue is whether rabbi ginsberg has a right to bring his case or whether it's preempted by the airline deregulation act which prohibits parties from bringing claims against the airline because of price, service or route of the carrier. this is an hour.

>> we hear argument first this morning in case 12462, northwest incorporated versus rabbi ginsberg. mr. clement? >> mr. chief justice, may it please the court. under this court's decision there are only two relevant questions and the ninth circuit got both of them wrong. first question is whether a claim for additional benefits under a frequent flyer program like price upgrades relate to price and routes and services. this court answered that question and agreed that it was not particularly close. to reach the same conclusion in the same context underscores how far they've strayed from this court's precedence. the second question is whether this party's claim seeks to enforce state law to enlarge those undertakings and enlarge the party's bargain and as to

that question we think respondent's own claims make the case quite clear. respondent did bring a claim to enforce the party's voluntary undertakings, a breach of contract claim. implied preemption seeks to impose a duty of fair dealing in reasonableness and superimpose on the bargaining even when the parties to the contract have essentially given one party absolute discretion. >> the argument was made that if the airline has an unreviewable right to terminate this agreement for any reason or for no reason, if that is so, then it's an illusory contract. what is your answer to that if

one party can get out willy- nilly, what kind of bargain is it? >> there are a couple of answers to that. although the focus on whether a contract is illusory is sometimes used as part of the analysis under the implied covenant for a bilateral contract. i don't think that same analysis would apply to a frequent flyer program which would be understood as a unilateral contract. the second thing you have to understand -- >> make sure i understand that point? >> there is a distinction if you go back to the horn books on contract law between a unilateral contract and bilateral contract. a unilateral contract is a typical outstanding promise that doesn't require an exchange of consideration and the party who makes the promise has the ability to withdraw the promise until there's performance essentially relying on the promise and that's why i think it's actually a little bit of a mistake to apply that doctrine to something like a frequent flyer program. >> i don't understand that because i always thought the way

these agreements worked were they were agreements that if i flew a certain number of miles on your plan i was going to get a free ticket and it wasn't a gift that i was getting a free ticket, it was because i did something, i flew a certain number of miles so there was an exchange with value on both sides. >> i suppose you could conceive of it that way and also as a premium offered by the company to reward your loyalty but you've already gotten full performance. >> i think you have to perceive of it that way but it still makes it a unilateral contract. it's not a promise in exchange for another promise. it's a promise in exchange for the performance of an act. that is, flying the airline, you know, a certain number of miles. you're correct, it is a unilateral contract. whether that means that is there no such thing as an illusory unilateral contract? >> i don't think there really is.

i looked at the treatises for that and i don't think that concept applies in the unilateral contract. >> i don't see why that would make sense because if i knew it was really up to you to give me the free ticket, maybe i was going to get it, maybe i wasn't, i don't think i'd be spending all this time in the air on your plans. i'd find another company that actually gave me the free ticket. >> that really, i think, gets to the nub of this because what you're suggesting is that there would be a market solution to this problem and that's what the airline deregulation act is all about, letting the market decide these issues so some airline really were crazy enough to systematically turn on its most lucrative and loyal customers, surely the market would solve that and if a bunch of airlines did it, department of transportation stands ready to police that. >> what we say when a contract has no consideration, we don't say, oh, we're going to hold you to it anyway because the market will solve it. we say the contract has no consideration, it's illusory in just the way that justice ginsburg pointed out and the

question is, if there's really no obligation on the part of the airline here to give that free ticket, if they can do it when they feel like it and not do it when they don't feel like it, why is there any consideration, why isn't the contract illusory? >> there is consideration because this is not something where the airlines look we can do anything we want. they say, look, if you present us with miles while you're still in good standing in the program, we'll give you upgrades, we'll let you into a lounge but if pursuant to the contract you abuse the program in our sole discretion, then you lose your membership status and that's what's happened here. >> you're not trying to enforce the contract anyway. you want to get out of the contract, so you want to be happy to have it pronounced an illusory contract, right? what do you care? >> that is true but i suppose the argument might be that you could as a matter of breach of contract law use this principle to interpret the contract and if that were an argument, it's an

argument for count one. >> you're making an assumption. the claim here is not whether he abused or didn't abuse the program. his allegation is that the only reason you terminated the contract was because you wanted to get rid of these high flyers in your merger negotiations with the other airline. that's the same as saying, they didn't terminate me because i abused the program, they terminated me because i was of a certain race or i was woman or i was handicapped or some other improper consideration so are you suggesting that this contract permits you to use that kind of self -- that kind of ground, not grounded in the contract but grounded in your whim and caprice? >> a couple of points, justice sotomayor. i think it's really important to emphasize that the claim about this pretax and all being about

the merger is not made in the breach of contract count or breach of implied covenant count. that's pled in the misrepresentations counts, counts three and four of the complaint that everybody recognizes are preemptive. under the contract, somehow, we don't have the ability to terminate somebody without just cause and that's the argument that the district court rejected on the merits. the implied covenant count two is different. it says that under state law there is a duty of good faith and fair dealing and that duty is superimposed on the contract even if the contract gives one of the parties absolute discretion and those aren't my words, those are the words of count two of the complaint, appendix. >> even if you have absolute discretion, isn't there a limit to that? isn't there a limit of reasonableness to that absolute discretion?

that's the whole question, otherwise you have a contract with no substance. >> the way i would think about it, justice sotomayor, is absolute might not mean absolute and the place to make that argument is under the breach of contract rubric but when you get to saying even if the contract's absolute, state law still superimposes a reasonableness requirement in the contract, that's the point in which preemption kicks in. >> suppose the contract said in its absolute discretion and subject to no obligation of good faith, suppose it said that, would state law still impose an obligation of good faith? >> it might well, justice scalia. >> it might well or it would? >> in the state. >> the state we're talking about. >> minnesota, as i read the cases, the rule in minnesota is that the covenant of good faith and fair dealing is not waivable so there's a case we found called new amsterdam casualty, in the indemnity context and it

says a covenant of good faith and fair dealing is not waivable so i don't think you could do that which i think underscores this is not the parties agreeing to this, this is having this condition superimposed on them. >> there's a choice we have here only between state law and no relief, or is there some theory under which either federal common law or appeal to the d.o.t. could give the flyer, the customer, some relief? and we can all think of crazy hypotheticals, suppose the phone rings and said i'm john doe, i want to talk to you about my airline, you miscalculated, mr. doe, we've heard from you 15 times, you're out of the program. it's a mistaken identity. can the innocent good faith john doe do anything at all? >> yes, the good faith john doe can do two things. one, as your question suggested, he can go to the d.o.t.

the d.o.t. has the authority to investigate complaints about frequent flyer programs and exercises that authority. it's discussed in pages 20 and 21 of the brief. they heard something like 289 of these complaints last year. that's one place you can go. the other place you can go in a case of mistaken identity, if you followed up and certainly if you went so far as to bring a routine breach of contract claim, i assume that would get addressed in that forum because airlines are not in the interest do not have an interest in getting rid of their most lucrative and loyal customers mistakenly. >> in part of that suit wouldn't you have -- what's the underlying substance and you say well there's a duty of good faith dealing under minnesota law and you're right back where you started unless you make some federal common law or something like that? >> no, i don't think there's federal common law, this court essentially rejected that. in the case of mistaken identity, i think that would get

sorted out in the process certainly at the point where a breach of contract action was brought. if there's a john doe -- >> i don't understand the substantive basis for the breach of contract suit if you say we can't refer to state law. >> you can referred to state law for the breach of contract. you can't add the covenant of breach of good faith. >> suppose this complaint only had one count and suppose they said, look, we have this contract and it gives substantial discretion, gives -- by the words alone it gives absolute discretion to northwest but that can't really be right because contracts have this implied covenant of good faith, there's an implied duty to perform in good faith and that means that this discretion is narrowed in certain kinds of ways so they can't terminate my membership for certain kinds of reasons and that's all the complaint said, there was just this one count. do you think that would be

preempted? >> i think the reliance on the implied covenant in that context should be preempted. i think that's the better rule. if this court wanted to adopt a narrower rule and say it's really at the point you try to bring a separate implied covenant claim, that's preemptive, i suppose you could do that. it might make some sense. you have to take a practical look at this. in the wake of woolens, if you plead a routine breach of contract claim, you have preemption. the only time you run the risk of -- >> the implied covenant here is just an interpretive pool. it says there are certain kinds of provisions that are written very broadly or very vaguely and an implied covenant comes in to help us interpret those kinds of provisions. and viewed in that way it's just a contractual divide that in light of rollins ought to be permitted. >> here's my thought on that.

even the respondents admit that in some states the implied covenant is much more than simply a rule of instruction for the explicit terms of the contract and i suppose if this court wants to say that the only way the implied covenant is not preempted is when it's just a rule of construction for the explicit terms of the contract, i suppose we could live with that rule and i think we would win in this case. the reason i would suggest that the better rule for this court to adopt is that the implied covenant should be preempted even in that circumstance is because in that circumstance it doesn't add anything. if it really is a rule of construction for the express terms of the contract, you could get in the same place with a citation to cordozo and lady beth gordon. >> can you tell me where you think they concede that some states -- their position would lead to a different result in some states? >> i'm not -- it's in the red brief and i think it's quite clear. i think they say -- i'll try to find the point where i find this

rebuttal but i don't think they do this. they basically say that some states do apply this rule. they say that our claim is different and i'll get you the exact -- >> i thought they were saying that in some states it's not an implied term of the contract but a different sort of provision. >> i may have misspoke. i think both parties agree as they would have to that in some states the implied covenant doctrine is used to directly impose public policy so in alaska that seems to be the case, in montana that seems to be the case. >> how about minnesota? minnesota is the rule of construction of the contract? >> we don't believe so, your honor. i'm not going to try to tell you that minnesota law is clear on this but the minnesota supreme court case, the hennepin case that recognizes the implied covenant cites the restatement. the restatement quite clearly embraces a view of the implied covenant that goes beyond merely constructing the express terms of the contract.

>> i still have this problem. you say -- now don't worry, you can always bring in express contract action, i said, well, what law do you apply? well, you have no state law and there's no federal common law. i don't understand how you can bring an action with no substantive law to inform it. >> i may have misspoke, justice kennedy. the breach of contract claim that you bring, the routine breach of contract claim you bring is a state law claim so we don't have a quarrel with count one of this claim which uses minnesota contract law to interpret the express terms of the contract. but count two says even if the contract gives the parties absolute discretion we are going to superimpose a duty of good faith and fair dealing and to complete the answer, since minnesota has adopted the restatement, the restatement suggests that the way you find good faith is you exclude the possibility of bad faith based on community standards of fairness and decency and at the

point you're applying community standards of fairness and decency it seems to me quite clear that you are not applying the party's self imposed undertakings but something else. >> you could say it is assumed that parties to a contract comport with community standards of fairness and decency. you know, you can wiggle to there if you want. >> you could try to wiggle there and my point would be, the way to wiggle there is interpreting the express terms of the contract. an implied covenant is different. if you step back and think about the context, when an airline reserves to itself the sole discretion to make judgment by taking an unruly passenger off a plane, do you really want state courts to apply community standards of decency? if i could reserve the remainder of my time.

>> thank you, counsel. >> thank you, mr. chief justice and may it please the court. in rollins, this court recognized that congress enacted the a.d.a. to leave the decisions of prices, routes and services to the business judgment of air carriers subject to market forces and limited oversight by the department of transportation. in light of that statutory purpose, rollins held that claims based on the state common law of contract are not preempted by the a.d.a. to the extent they seek to enforce the voluntary undertakings of the party. >> what if you had decision by the minnesota supreme court on common law contract principles and it said when the parties use the word "sole" in a contract, we interpret that to mean subject to reasonableness constraint. parties here use the word "sole," would the application of that principle violate, would that be preempted or not? >> in that context i think not. it depends on what the court meant by the term reasonable.

if the term reasonable incorporates external standards such as -- >> reasonable means, i mean, you know, the airline says sole means sole. we don't have to explain why we did it and the minnesota court said no. when you say sole, it has to be reasonable. it can't be for no reason. it has to be for some articulated reason. >> i understand, chief justice, thank you. but i think reasonable could have different focuses. it could be reasonable in light of the expectations of the parties at the time they formed the contract or it could be reasonable in light of community standards of decency which are >> let's say going forward, going forward, the parties know that this decision is out there and they say, sole. so it means they're using the term subject to the gloss that's been put on it by the minnesota supreme court so what about in that case? >> i think subsequent, if there is a gloss and the -- i think that would be a question of what the parties intended with the

contract and i think there may well be an argument under that scenario that the airline understood that the gloss was going to be given although -- >> they would assume then that the parties knew whenever they used the word sole it would mean subject to reasonableness as interpreted by the minnesota supreme court. >> that may well be right but i want to caution that an argument like that can prove too much, an argument like that could suggest as respondent argued in the lower court that any time a party enters into a contract, the party endorses or at least accepts all normative principles of contract law that would include things like doctrines of unconscionability and other doctrines that impose extra contractual limitations on the party's choices. >> you're not going to give me reasonable for interesting? >> i absolutely am going to give you reasonable. >> if you're going to give me reasonable, in other words, the party's express terms do not say reasonable. the most natural reading is that it's not reasonable but they take the contractual, the

interpretation that the minnesota supreme court has adopted, i don't know why the same rule wouldn't apply when the minnesota supreme court says there is an implied condition of reasonableness, across the board and that the parties contract against that background just like they do when there's a specific interpretation of the word sole. >> i think the problem, chief justice, is that the notion of doctrine of the implied covenant is extraordinarily broad and encompasses a number of concepts. it encompasses notions of reasonableness and implying limitations to discretionary grants of authority reserved in contract. it also encompasses in some states concepts such as notions of fairness which extend beyond the intent of the parties. >> let me change the hypothetical slightly. suppose the contract says that one of the parties reserves sole discretion to do something and the contract goes on to say, and in exercising this discretion,

we don't promise to act in a reasonable manner, but the state court says that nevertheless that has to be interpreted to mean that the party can only perform in a reasonable manner. then what would the situation -- >> i think the a.d.a. would preempt exactly that sort of claim or a claim based on that sort of an argument. the crux of the a.d.a. is to leave to the judgment of air carriers subject to market forces decisions concerning rates, routes or services and i'd like to underscore this point by pointing out that the interpretation that this court gives to the a.d.a. is not only going to control frequent flyer programs, it's also going to control contracts of carriage. >> the question i have, which is, i think, for anyone who wants to answer it, particularly the government, i absolutely agree with you that a free market and price is at the heart of the deregulation act given. i also think frequent flyer

programs are simply price discounts given. i also think that if you don't have contracts, you can't have free markets, given. but i also think that the state cannot, under the guise of contract law, regulate the prices of airlines. if you allow that, we'll have worse than we ever had. it will be 50 different systems. if i think those four things, what standard do i use to separate when a state is and when it is not using its contract law to regulate prices. >> justice breyer, i heartily endorse -- >> what i'm missing is the standard. >> the standard that this court could adopt and make very clear is that any contract doctrine which seeks to interpret the intent of the parties at the time of the contract formation is a valid standard to be applied in any suit and is not preempted by the a.d.a. but any contract doctrine like

unconscionability and like, in some states, some instances of the doctrine of the implied covenant which seeks to impose extra contractual terms like community standards, like -- >> you said in some states. what about the states where that doesn't -- >> no. >> are you saying that in some states the implied covenant is assumed to be what the parties agreed upon and some states it's not? >> justice ginsburg, i think there's a continuum. the notion of the implied covenant as justice scalia explained for the d.c. circuit and the time share decision is a label that encompasses many meanings. some states like illinois and connecticut use the doctrine purely as an interpretive device to discern the intent of the parties. other states at the other end of the spectrum, arizona is one, use the same concept to encompass extra contractual

principles. >> state by state. it seems to me the regime proposed by the petitioner is much more manageable. if it goes beyond the words of the contract, and you're reading into something it doesn't say, it is a matter of state policy. i can work with that. but you're asking me to go through each of the 50 states, one by one, to decide, oh, which of these are really trying to discern the intent of the parties and which ones aren't. especially since you're discerning the intent of the parties by simply saying parties intend to apply community standards and there's different community standards in every state, presumably. some states are more honest than others, right? >> justice scalia i have two responses to that observation.

first is, i don't think the state-by-state analysis is either unusual or difficult. there has to be a state-by-state analysis any time you have a contract claim applying state law. there are variances among states in their contract law. the second part of the same response is, i don't think the standard we're articulating is a particularly difficult -- >> there are variances but not variances in such an ineffable question as to whether this is really an effort to discern the real intent of the parties or rather, whether it's an intent to impose community standards, especially since, as i say, parties intend to adopt community standards usually. >> with respect, justice scalia, i think it's not at all a difficult question. i think it's unlikely that a frequent flyer contract or any airline contract that reserves discretion is likely to have incorporated implicitly community standards. i think the point would be that if a carrier were to decide to

incorporate ineffable standards such as that it would be clear. >> easy for you representing the government but suppose you were representing the airline, would you come up here and say the airlines want it to be well known we don't have to be reasonable. i find that very difficult to understand. >> i have one principal response, justice kennedy, which is this. if the court were to adopt a prophylactic rule along the lines petitioner is suggesting, we think it would be better than the alternative prophylactic rule in the other direction because it would cut off the use of the implied covenant doctrine that would impose extra -- >> it seems consistent with the normal presumption of preemption is that we apply out of respect for the state legal regimes to adopt a broad prophylactic rule. >> this is why we propose the court adopt a standard --

>> let's go back to a simpler standard. >> go ahead. >> my simpler standard comes from coding hennepin. does the implied covenant claim extend to actions beyond the scope of the underlying contract, or can it override the express terms of an agreement? if the answer is no, it's not preemptive. is that an ok statement? >> that is an ok statement. >> so if that's what minnesota law says, it's ok and it's not preemptive. >> with the following caveat, justice sotomayor, in some states that have adopted the implied covenant, they have hybrid approaches where they look to the intent of the parties and impose external standards. >> thank you, counsel. ms. rosenbaum?

>> mr. chief justice and may it please the court. northwest claims that the contract allowed to terminate rabbi ginsberg may be and take away the miles he accrued in reliance of the frequent flyer program contract, that is allowed it for come reason or whim to deprive him of all the benefits of the frequent flyer program contract bargains. our position is that northwest actions breached its obligations under the contract, specifically the contractual obligation to perform in good faith. because this is a question of contract interpretation, rabbi ginsberg's claim is not -- >> what are you saying was the bad faith? what action? >> the action was terminating him from the program and taking away his miles. >> it can't be that. >> without having cause for doing that. >> what are you saying was the bad cause here? assume their answer, that he was abusing the program.

>> we do not think he was abusing the program. the complaint -- >> so you're doing exactly what he's saying. you are saying that their judgment of abuse is not enough. >> we think that there are some reasons he could not be terminated from the program for and there are allegations in the complaint that are incorporated into the covenant of good faith, claim in the complaint, that he was terminated because of the merger between delta and northwest. >> as i understand your argument, correct me if i'm wrong, he could be terminated without reasonable cause if he happened to be from a state or if the suit was brought under the governing law of a state which imposed this obligation of good faith as a matter of law.

the state says, regardless of what the contract says, even if it says in its sole discretion without any obligation of good faith, even if it says that, as a matter of law, there is an obligation of good faith. as i understand your case, you acknowledge that in that state, he would simply be out of luck. >> i don't think so, that he would be out of luck -- >> that he would have no cause of action because this is obviously not an interpretation of the contract. it is an imposition of a state requirement. >> we agree that it is not construing the contract, that if a state were instead claiming that the contract violated the law, instead of that northwest -- >> somebody's been given a raw deal, that's still going to be punishable even if we rule for you here. it depends on what state he's from, right? >> well, states tend, in applying the covenant of good

faith, to apply it as a contract interpretation tool as a way of giving effect to the benefits of the -- >> some do, some don't. some do, some don't. >> the vast majority of states and there's an appendix to the states' brief on this issue, talks about the covenant of good faith as a way of interpreting the contract. >> let me ask you this, unless you have, in minnesota, or one of the states, where you say the covenant is simply a way of effectuating the intent of the parties, you have a contract between two very tough and nasty business men and they write right in their contract, you know, we're going to comply with the literal terms of this contract but we do not promise each other that we're going to proceed in good faith or that we're going to deal with each other fairly. we're going to take every advantage we can under the literal terms of the contract. now, would that get rid of the covenant under minnesota law? >> generally the covenant of good faith cannot be waived.

i think the question of whether the principle that the covenant can't be waived is itself an external principle of law is a much harder question than the question here of whether the covenant itself -- >> it can't be waived. it sure seems as though it's operating independently of the party's reasonable expectations. >> i think you need to separate out the principle that it can't be waived from the underlying principle of what the covenant is doing which is giving effect to the bargain the parties entered into based on looking at the reasonable expectations of the parties. >> in the case that you rely on and that allowed room for contract claims, the expression was "self imposed undertaking." and the airline says, we didn't impose, we didn't take on this opposition but the law, we did in every contract whether we want it or not.

how is it self imposed if the party has no say and applies anyway? >> the terms of the contract are the self imposed undertaking and this is the tool being used to understand and interpret the terms of the contract and then to enforce them and this is a widely used tool to interpret terms of contracts particularly when there are discretionary terms within a contract. that's something that's done in the vast majority of the states and in fact the discretionary -- the cases where there are discretionary terms within a context is the quintessential application of the covenant of good faith. a lot of the early covenant of good faith claims involved outputs or requirement contracts where the specific amount of the contract was not set and the

covenant was applied to that sort of situation and scholars? talking about the covenants, often specifically note that it applies to discretionary terms. >> how do you account for the fact that in many states the covenant of good faith and fair dealing is read into most contracts but is not read into employment contracts? >> i think that's a situation that states struggle with given the at-will employment doctrine and they view the covenant and at-will employment doctrine as being in conflict with each other. here, though, the covenant and the contract and any other principle are not in contract -- conflict with each other. the covenant isn't being used to override any terms in the contract. it's being used to help give meaning to the terms in the contract and to identify what the implicit restrictions are. >> doesn't that discrepancy show simply that the state has different policies with respect to those two types of contracts? >> i don't think that it's applying different types of policy.

i think it's interpreting the contract and what the contract means differently in different situations. >> it might be, because people have different expectations in those two different situations and that the at-will employment is so pervasive and so customary and so sweeping that the policy -- the rule of an implied covenant of good faith doesn't apply there because we think everybody expects it not to apply there. >> exactly and i do think courts will sometimes say the covenant doesn't apply when what they mean is that if the covenant did apply and the court were looking at the reasonable expectations of the parties based on the contract, there would be no reasonable expectation. >> the at-will contract is a contract that gives the employer sole discretion as to whether to retain an employee and here we have a contract that says that the airline has sole discretion to determine whether to terminate somebody from the frequent flyer program so what

is the difference? >> it's a difference in the context and what the term, sole discretion, means in different contracts is going to vary based on the context and based on what someone entering into that contract reasonably would have expected that contract to mean based on the terms of the contract so in the employment context, an employee, given the wide acknowledgment of the at- will employment doctrine, might not expect that they could only be terminated for a cause. >> you would agree, same question i asked the government, i'd like your answer, i imagine you would agree that a state says the following, we read into, like common law, courts used to do all the time, for a transportation company, we believe the price must be fair and reasonable and a contract in our state for transportation prices has to set a fair and reasonable price and i personally think many fares are not reasonable. they're too high.

all right, and therefore we have substituted the judges and the states for setting prices instead of the parties. you agree that would be preemptive. >> we agree. >> now, what is your standard for distinguishing what is and is not preempted where the state uses its contract law to imply a fair and reasonable term? >> i think our standard is very familiar to the one that the united states said. it's about whether the covenant is going -- whether the claim is looking at whether the parties breached the contract or whether it's looking at whether the contract itself violated the law so it's a question of whether the claim is actually interpreting the contract and trying to get at what the parties -- what their agreement was or whether the claim is really that the contract, as the parties agreed to it, violated the law. >> does the supreme court of the state have an opinion, if we're

going to be candid about this, the prevalent of fair dealing, good faith, it's not in this contract, but we will read it into every contract, that is, if the state's supreme court said it's externally imposed, this is a rule that we will read into every contract because of the policy in our states that people should deal with each other fairly. suppose that was controlling decision of the minnesota supreme court, then you're out, is that right? >> yes, if a state says it's imposing external notions of policy that would fall on the other side of the line drawn in rollins which looked at enforcing terms of the agreement versus imposing external state policies.

>> in such a state there might be a contract where the parties reasonably did expect this implicit term that limits something, a very broad conferral of discretion to operate and yet just because this state supreme court has framed its argument in a particular kind of way, they don't get the benefit of that. >> i think it would depend on how the claim was framed and how the court interpreted that claim and whether in interpreting that claim the court was looking at the reasonable expectations of the parties based on the terms of the contract and based on their desire to be bound by an enforceable contract or whether it thought it was imposing, overriding the parties' contract and imposing external notions of fairness. >> that's no clearer than the government's view and it seems to be a particular problem when talking about the objectives of the a.d.a. to say that the rule varies from state to state, particularly since we're dealing with airlines that go to a lot of different states.

it seems to me that loosest state from the point of view of the preemption is going to set the standard. >> i don't think that the rule itself is varying from state to state. i think the rule would be the same across states. >> yeah, it's a general rule but it depends upon the particular circumstances. that's the same rule but in application it varies from state to state. >> i don't think it necessarily would because in all the states a claim seeking to get at the expectations and intents of the parties would not be preempted whereas one imposing external notions of fairness -- >> that isn't what your complaint, but i think the paragraph 56, which i think is the key paragraph, says, that the -- under the law is the contract law that you want to enforce is even where a party to a contract is given absolute discretion, it must exercise that discretion in good faith in