years.my husband of 30 heart breaks that you're not here. bless all those who lost their lives as a result of the terrorist attacks on september 11, 2001 and those who continue to suffer from the aftermath. serving.less all those god bless america and may we never forget. >> and my uncle. we all love and miss you every day and we know you're watching over us.

[reading names of victims of 9/11]

>> and may only child, my beloved daughter. brother, donald w. robinson junior. we love you. until we meet again, may god hold you in the palm of his hand. god bless america. >> president obama, the first lady and vice president biden led a moment of silence thursday morning on the white house south lawn to commemorate the 13th anniversary of the september 11 attacks.

[bell tolling] [silence]

♪

>> from there, president obama attended a ceremony at the pentagon to honor those who died in the september 11 attacks.

also delivering remarks were defense secretary chuck hagel and joint chiefs of staff chair general dempsey. this is just over 30 minutes. >> ladies and gentlemen, please direct your attention on the flag on the pentagon building. the flag hangs from sunrise to sunset in honor of patriot day and in honor of the 184 lives lost at the pentagon. the national anthem of the united states performed by the united states navy brass quintet. ♪ [playing "star spangled banner"]

>> ladies and gentlemen, the united states army chief of chaplains, major general donald rutherford. >> let us pray together. lord of hope, we have endured over a decade of conflict. we have raised a generation that's never seen a sunrise without war on our national horizon. we look back on the events that brought us to the present, it would be easy to despair. let us not forget we've yet to write the ending on our national story. it would take a moment to look at the day it began, we witnessed the flames of hatred extinguished by acts of valor. we've heard the cries of the lost match with the prayers of

the grateful. we live every day with those memories, those whose dreams the darkness left unfulfilled. the concluding hand shake, the last good-bye, and the final kiss. remember those that we lost and we grieve for them, grieve for their families and for ourselves. and we come to remember them as well as those who continue to fight in our frontiers and those who stand watch within our borders at home. we come to remember that those who expected weakness have instead seen strength. those who want a division have instead seen unity. those who sowed seeds of violence and hatred have watched us harvest the fruits of grace and of hope. 13 years ago, the lights of darkness hoped to extinguish still shine today.

our hope and resolve and the darkness cannot enter our lives. and we pray this day, amen. amen. >> ladies and gentlemen, 13 years ago today, at 9:37 a.m., the pentagon was attacked. please join us in observing a moment of silence to remember those who perished. [moment of silence] >> ladies and gentlemen, the chairman of the joint chiefs of staff, general martin dempsey.

>> mr. president, mrs. obama, mr. secretary, distinguished guests, thank you for being here this morning. i want to offer a special welcome to the families and friends of those we lost on these grounds 13 years ago. we know the memorial ceremonies and we know you've been through many are especially tough, emotion-filled moments for you. it takes a great deal of courage to keep coming back here. so thanks for being here. not long ago, i received a note from a mom whose daughter is buried just across the way at arlington cemetery. she said the pain of losing someone you love, even years later, never really goes away. at any instant, a smell or a color or a song or a date on the calendar like today can bring into stark relief the first raw moment when everything changed. she said if there's any secret to grieving it's that there can be room for sorrow and joy,

sadness and pride, to exist in the same space at the same time. and she learned that grief is not a lack of faith or sign of weakness, it's a price of love. today is foremost about reflecting and about remembering and about the love for the 184 lives that ended here at the pentagon and those that perished in new york and in somerset county. today is about strength and resolve. we found strength in the children who lost parents on 9/11 and who have blossomed into fine young adults and are now making their own mark on their world. we find resolve in the men and women that 9/11 roused to step forward to defend our country, a generation that has served in iraq and afghanistan. and today offers us, all of us,

the opportunity to rededicate our own lives to the causes of our great nation. and its great future. for as one of our nation's leaders said, we could easily allow our time and energy to be consumed by the crisis of the moment of the day. but we must also lay the groundwork to help define our future. it's now my privilege to introduce the man who spoke those words and who strives to live them every day, our nation's secretary of defense, chuck hagel. >> general dempsey, thank you. mr. president, mrs. obama, distinguished guests, family members, survivors. we will never forget what happened on this day in this hour in this place, an act of terror that shook the world and took the lives of 184 americans. today we remember those we lost on that day, this day as we are surrounded by those who love them.

we celebrate our nation's strength and resilience, surrounded by those who embody it. and we draw inspiration from the ways in which survivors and victims' families continue to honor their legacy. my thoughts also turn to others whose lives were forever changed that day. the first responders and survivors whose heroism and resilience we celebrate. the pentagon personnel who came to work the next day with a greater sense of determination than ever before. and the men and women in uniform who have stepped forward to defend our country over 13 long years of war, bearing incredible sacrifices along with their families. we live in a time of many complicated challenges. but america has always faced challenges.

and we have always responded as a nation united in purpose, woven together in a fabric of strong character and resounding commitment to each other, and to our country. to lead our nation in such a defining time requires not only the courage and the vision to lead, but the humility that recognizes this unique privilege. these traits are embodied in our commander in chief. ladies and gentlemen, the president of the united states. [applause] >> good morning. >> good morning. >> scripture tells us we count as blessed those who have persevered. secretary hagel, general dempsey, members of our armed forces, and most of all, the survivors of that september day and the families of those we lost -- michelle and i are humbled to be with you once again. it's now been 13 years. 13 years since the peace on an american morning was broken.

13 years since nearly 3,000 beautiful lives were taken from us, including 125 men and women serving here at the pentagon. 13 years of moments they would have shared with us. 13 years of memories they would have made. here once more, we pray for the souls of those we remember. for you, their families, who love them forever. and for a nation that has been inspired by your example. your determination to carry on, your resolve to live lives worthy of their memories. as americans, we draw strength from you. for your love is the ultimate rebuke to the hatred of those who attacked us that bright blue morning. they sought to do more than bring down buildings or murder our people.

they sought to break our spirit. and to prove to the world that their power to destroy was greater than our power to persevere and to build. but you and america proved them wrong. america endures in the strength of your families who through your anguish kept living. you kept alive love that no act of terror could extinguish. you, your sons, your daughters, are growing into extraordinary young men and women they knew you could be. by your shining example, your families have turned this day into something that those who attacked us could never abide. that's a tribute of hope over fear and love over hate. america endures in the tenacity of our survivors after grievous wounds you learn to walk again, stand again, after terrible

burns, you smiled once more. for you for our nation. these are difficult years. by your presence here today in the lives of service that you led, you know no matter what comes our way, america will always come out stronger. america endures in the dedication of those who keep us safe -- the firefighter, the officer, the emt who carries the

memory of a fallen partner as they report to work each and every day, prepared to make the same sacrifice for us all. because of these men and women, americans now work in a gleaming freedom tower. we visit our great cities. we fill our stadiums and cheer for our teams. we carry on because as americans, we do not give in to fear.

america endures in the courage of the men and the women who serve under our flag. over more than a decade of war, this 9/11 generation has answered our country's call and three months from now, our combat mission in afghanistan will come to an end. today we honor all who have made the ultimate sacrifice these 13 years, more than 6800 american patriots. and we give thanks to those who served in harm's way to keep our country safe and meet the threats of our time. america endures in the perennial optimism that defines us as a people. beginning tomorrow, there will be teenagers, young adults, who were born after 9/11. it's remarkable. and while these young americans did not know the horrors of that day, their lives have been shaped by all the days since. the time that brought pain but also taught us endurance and strength. the time of rebuilding, of resilience, and of renewal. what gives us hope, what gives me hope, is that these young americans who will shape all of the days to come. 13 years after a small and hateful minds conspiring to

break us, america stands tall and america stands proud. and guided by the values that sustain us, we will only grow stronger. generations from now, americans will still fill our parks, our cities, generations from now, americans will build towers that reach for the heavens, still stand for freedom around the world, still wear the uniform and give meaning to those words written two centuries ago. land of the free, home of the brave. generations from now, no matter the trial, no matter the challenge, america will always be america. we count as blessed those who have persevered. may god bless your families who continue to inspire us all. may god bless our armed forces and all who keep us safe, and may god continue to bless the united states of america. [applause]

♪ [playing "america the beautiful"]

you. . . . . . .

>> afternoon, everyone. welcome everyone, we're glad -- please silence your cellphones. also, if you can hold your

questions to the end.

>> please join me in welcoming them and enjoy ththem and enjoy. we've put together to talk about the upcoming supreme court term. while we've advertised this as a preview of the term, i think that was false advertising because we're going to talk more broadly about the supreme court

and in particular, we're going to talk art the roberts court because as hard as it is to believe, we're about to spend the tenth year of the robert's court of the supreme court under john roberts. i was actually watching college football when they broke into the football game with the news that the chief justice had passed away and i think for all of us it feels like it was yesterday in many ways. now it's been more than nine years ago. john roberts had, of course, already been nominated to join the supreme court for sandra day

o'conner. >> to bring to the subject not just because you're the general. i had to admit i googled before i came over here and came to the realization that you're almost the same age as the chief justice. of course, you distinguish yourself in practice. now of course with a somewhat

different relationship. so i'd love to get any thoughts you might have from having now argued in front of the supreme court the roberts court both as solicitor general and in private practice. >> i'd be delighted to start the conversation off. one observation is that -- i guess i would say there are two ways in which the court, the roberts court, does reflect something fundamental about the chief justice himself. one is -- and i get to see this because in my job, i'm at the court for just about every oral argument session whether i'm arguing or not. usually somebody from my office is arguing. we're up there at about 80% of the cases. i'm in there just about every day just about every argument. one thing i find remarkable

about that experience is to observe how well prepared and engaged all the members of the court are in the process of deciding the cases. it is atownstound ing. they are really drilling down and thinking very carefully. very well prepared. i do think that from where i

sit, the court is not afraid to tackle big issues. if you think about the last several years, the roberts court has taken on a lot of issues in the law and for the country that are consequential. that doesn't show signs of abating either. >> is there anything you can contribute that to? -- attribute that to? is that just institutional confidence or something more? >> to me, it seems like a psychological disposition that this is their job and they're not going to shirk from it. they may get themselves into tough issues and rule narrowly but that court and the chief justice seems to me, i think they understand they feel a responsibility to take on the big issues. >> i think it makes sense to get

a perspective from someone who covers the court and we have one of the best here. he's been covering the court now for 25 years. i also know from google he is roughly a contemporary of the chief justice. i won't say anything more than that to not seem ungentlemanly. he is currently the legal edit or the or roiters and has covered the court for many years for other publications like "the washington post" and "u.s.a. today." >> having embarrassed you and you can return the favor in ample measure i'm sure, what's your sense of how the roberts

court differs from its predecessors. >> it's great. i'm glad that you first brought us back to that september 3rd when the chief justice died because of course i remember when i was. i had prewritten the story and it was in the middle of the hurricane katrina episode. >> he had been sick. >> he'd been very sick with thyroid cancer. and during that prior term had not been able to be in very much but i remember getting the call and it was late on saturday night when you were watching a game and i was probably working at the computer. the funny thing about the hurricane angle is i remember one of our reporters being down there in new orleans and coming across a man who said we've not

had news for days, did the chief justice really die? anyway, he was a very different man than john roberts even though he was obviously a proto -- proto-jay ege of his. and i would agree with the assessment of him .but i also would say that i think that he's playing a much longer game that if he doesn't have to go broad, he wouldn't. i think we've seen that in many of the rulings where they'll just build on something. i also think most recently of the chief himself in this term, this most recent term, we saw him maybe making moves forwards the center in a way that we could have expected of an on this -- anthony kennedy.

i think of the abortion buffer zones out of massachusetts. and what most people will remember him for so far is his key vote in the obama-sponsored healthcare law when he swung over with more liberal justices in 2012. so i think that he's moving slowly. he's only, let's see, since you mention -- [laughter]. >> he was born in january, 1955 so he's 59. he's got many, many years. the last chief died i believe at 80, 81. he's got a lot of years ahead of him. and unlike justice scalia, the chief is not as forceful to the law. i would say one other thing about. coalition that he's building when he is with the justices on

the right wing which happens a lot in the most consequential cases. we've seen something emerge from his partner from the george w. bush appointment years and that's samuel alito. he took over the hobby lobby case and also the harris v. union case.

>> pointing out that joan is about to publish a book entitled breaking in the rise of sonia

sotamayor. -- sotomayor. we have four new members on this court including justice alito, justice sotamayor. so to what extent do you think it's about the new justices more generally. >> justice kagan has been quite strategic. she has been firmly with justices ginsburg and the libs are together. i find her to be quite an active participant during oral arguments and so piercing with

those questions. she's got a way even though she's on the far end of the bench of zipping right into the conversation. i would think that it's -- [laughte [laughter]. >> she is very effective and a very effective stylist of the rank certainly of the chief justice who has excellent rhetoric in his opinions. the two of them go at it a lot. she's a player and will continue to be so. >> before turning to our other panelis panelists. you refer to the fact that the chief justice is playing the long game and that's one of these bogus washington phrases. the first time i came across it was in your boom about justice scalia. what do you think that means with regard to the chief justice? after all, one thing it might mean is that he is moving along

knowing that he will likely have many years on the court. but of course he has no guarantee of the makeup of that court and whether he's going to find himself in the majority or potentially in dissent. how do you think that, that factors into the psyche of the chief justice. >> warning shot fired by the chief in terms of intense

scrutiny for the federal government's voting rights policy in terms of federal authorities having to clear any kind of electoral changes in jurisdictions that had had records of past discrimination and the chief said be careful how this is use. we're not sure if this is still constitutional into the 2000s. and sure enough in the case of shelby county versus holder, the chief got a five-justice majority to effectively gut this key provision known as section 5. i think they punted in some regard in the university of texas case that we just saw up there last year also. i think people like the chief and anthony kennedy who took a more modest step in that decision know another one might come down at some point.

so even though he can't think in ten years i'll be able to do some things. the way the cycle of cases is coming towards the court, he's going to wait at least two or three years. >> right. and with the risk of seeming obsessed with age, i want to turn to the younger members of the panel. willy jay who is the echo head of the supreme court and lori mcgill who is the partner specializing in supreme court and appellate litigation. and as it happens, they first asked the supreme court really around the time of the transition to justice roberts. they have really grown up with

the roberts court primarily. i think i'll throw the floor open and ask the two of you to react to what has been said and offer additional thoughts you might have on the roberts court. i'll start with william. perhaps if you have thoughts about arguing in front of the roberts court in particular, that would be of interest. >> sure. i think one change that we see today actually has almost nothing to do with the chief justice himself. but it's equally significant to some of the developments that joan mentioned and that is the retirement of justice stevens in particular. what struck me was joan mentioning that we have four new justices. in some ways, we almost have five because justice ginsburg today plays a very different role than she did when she first came to the court. justice stevens was very much a

leader on the court of justices who -- not always the same justices, but the justices who agreed with him on particular issues. and he too was as tactically savvy as a justice has ever been. and i think for a time after he stepped down there was a lot of questions about whether justice ginsburg would be able to cover that role. i don't see news articles speculating about that anymore. it has been interesting to see -- what she would do with dissenting opinions, assign them to herself, other members of the dissenting group in the each individual case? and i think we've seen her write more passioned dissents orally from the bench as a sign that this is something she feels really passionate about and she

knows that when she does that, it gets more attention than if it's just filed in writing. that's been one of the most interesting developments. another development and then i'll pass it on to lori has been the addition to the court of a number of justices with experience arguing to the court. justice kagan obviously had done that. but justice alito had served in the slays -- so solicitor general's office. also the cases that they take. to just put one example on it.

i think you see a lot fewer run of the mill death penalty cases if it's fair to ever call a death penalty case a run of the mill case. when they take the case now, often it is to eliminate an entire category of potential defendants from the reach of the death penalty. that's not true all the time. but the court takes more business cases, fewer death penalty cases, fewer search and seizure cases than they did with the renquist court.

-- rehnquist >> i think it's fair to say that in a series of speeches maybe going back almost two years now, at every opportunitity she's refuted any suggestion that she's looking at retiring any time soon. i think it's fair to say that she kind of develops a stronger voice, kind of came into her own a little bit more if that even makes sense given her position at the time but starting around 2006, 2007, when she started reading those dissents from the bench, the lily ledbetter case and the partial birth portion

decision, they were just within days of each other and it was big news that any justice, let alone the same justice would read a dissent from the bench, you know, just days apart. i think that she has made clear that she feels like she has taken on that role, not just of the justice stevenson's but the elder woman in the room and i think she feels like she still has work to do. >> i wanted to touch on something that we've been talking about, the transition between the rehnquist court and the roberts court. one thing i observed because i was actually in the s2's office when willy was clerking so i witnessed a lot of oral arguments that year and then i went to clerk and then it was the new chief. and watching him sort of navigate how he was going to run the courtroom was interesting.

he's definitely made some decisions to run things a little bit differently than his pedestrian receredecesso predecessor. he will let you finish your thought and sometimes will even let a colleague finish a question and let you answer it. that's something that is very different and i wondered as i was sitting there this term -- which case it was escapes me -- but i wondered whether he's ever regretted kind of the loosening of the normal rules, the formality around argument protocol. because you do see on occasion

this dynamic, particularly with justice sotamayor where you can see the chief getting visibly upset that someone is either talking over another question or overstepping in some way. and there was at least one occasion this past term where i felt like he visibly shut it down in a way where he was trying to restore order and i wonder if we'll see this term everyone on a little bit better behavior. >> one thing that this chief justice has done that chief justice rehnquist only rarely did is allocating more than the normal amount of time for oral arguments. in a significant number of cases this year and a couple of the prior years, the court has

provided for up to 60 minutes per side rather than 30. from my experience, that's a huge difference. this is a very active bench. they all have their questions and they kind of compete for air time in the 30-minute argument. they're all kind of waiting to get their questions in in. and that can -- questions in. and they're not necessarily related to other questions. so what i've found is -- the arguments just go much better. the justices are a little more relaxed. the advocates get a better chance to elaborate on their points. i think it goes back to something lori said. i think probably that comes from his experience as an advocate realizing that there are situations where it just makes sense and the argument process goes better if you take pressure

off by adding time. >> and he's even done that on the fly on a couple of occasions. >> those are harder. [laughter]. >> he doesn't say -- hasn't said i'm going give you five more minutes. he's said you can kee

>> >> [laughter]. >> i've heard that a lot.

tell me whether you disagree with that and if you don't, i'd be interested to see -- >> anyone can weigh in on this. >> it may not happen a lot of times but there's no doubt it's useful in figuring out the weaknesses in the case and the things that make -- how the things that make the justices tick intersect with the things that the cases are about. sometimes the justices, i think, find in the course of an oral argument that the case is about something, perhaps a little bit different than they thought coming in. i think it's rare that a justice marches in thinking i'm a solid vote to ample and walks out thinking thanks to oral argument i'm a solid choice to dissent.

>> do you find that you're usually standing up there thinking, boy, i have an instinct about this or thinking boy, this is generally hard. >> i think much more the the former than the latter. but i think that is in part function of the kinds of cases that an sg argues. they tend to be the tend -- but i will say on in oral argument thing, one of the benefits of getting to go every day and see the arguments is that i think there are other cases that lawyers in my office have argued in that may not be very high profile but it may be a super technical case about statutes where it seems at the beginning of the argument that the

justices are not buying what we're selling. they seem kind of hostile to us. but it's because they don't really understand the way the statutes work, and then the lawyer in the office has been able to patiently work through with the court how the statute actually operates and how it fits together with other statutes. and although you never know for sure, i had a couple of instances where it seemed that lines were changed by that process of education argument. it doesn't happen much and i don't think in the high profile cases but it wouldn't surprise me if some outcomes change in those cases. >> i'm the one person who hasn't been behind the scenes but i have been able to interview all the justices over the years and they say to a person that it matters. you know, they have a hard time quantifying it. it's an elusive factor.

>> in the cellphone case, they seemed quite hostile to the idea that police wouldn't be able to search the contents of a cellphone but by the end you were a little uncertain where they would come out and then they were unanimous butting a new requirement on police for cellphone searches. it is part of the whole process. they do not talk in any formal way actually before oral arguments about the case and their conference on it is typically at the end of the week.

i think from everyone that you all suggest and what i've heard from them is that the conversation begins way before they get to the conference and part of it is in oral arguments which is why it's become so crucial for all of you who get to argue these cases because it is so high profile. >> you've given me the perfect opening to talk about last term since you mentioned the case on cellphone searches. as a journalist who covers the court, do you describe that as the most consequential decision from last term? >> politically, any time we have any ruling involving the obama-sponsored healthcare law, that's a big deal. we're still seeing issues from the contraceptives mandate. i do think for all of us regular folks out there, the cellphone case might have been the most

important because we all can -- you know -- >> can you provide a little information? >> yes. the issue is when all of you are stopped and arrested -- [laughter]. >> do police need to get a warrant to search the contents of your cellphone that's been confiscated. smart phone essentially. the police argued a pair of cases that said they shouldn't have to quickly get a warrant because someone could tamper with the contents. there could be issues that would lead to destruction of it and it would be a routine cursory look anyway. but the justices by a 9-0 vote said no. you do need, in usual circumstances, unless there's some sort of danger of a chance that the contents would be destroyed immediately, you do need to get a warrant. and the interesting thing about

oral arguments then during that case, you felt like the justices might not be aware of smart phones [laughter]. >> there was a moment when the chief justice suggested who would carry two phones anyway unless you're a drug dealer. and i know for a fact some of the justices do carry two cellphones. [laughter]. >> so he got set straight quickly on that probably even in the robing room. but there was -- >> someone sent him a text? [laughter]. >> and justice kennedy who is our kkey vote -- they would nee

warrant to search. >> other cases that were of significance from last term that people want to comment on? >> we saw a case about recess announcements. any time you have the judiciary talking about the limits of executive power, it tends to be a big deal. it was sort of a compromised decision that allows recess appointments in a narrow window of time, it's the kind of case that can have implications.

>> that must have been an interesting case to argue because it's a constitutional provision that the supreme court has never really spoken about. >> it was quite amazing. it gives the president the authority to make appointments that would otherwise require confirmation of the senate if the vacancy shall happen during the recess of the senate and the question was does the recess mean on the recess at the end of one session of congress or can it be any recess during session of congress. and the second being does the vacancy have to arise during the recess or can it arise before

the recess. and do they -- so that they weren't in any lengthy recess at least as a technical matter and really the case turned so much on the historic practice because there really wasn't any precedent from the supreme court in our country's history about the scope of this power and ultimately the court said the president can make appointments for any recesses ten days or longer and he can make appointments even if the vacancy arose before the recess but, no, the president has to respect the senate's assertion that it's actually in session for these 30-second sessions and the court's not going to look behind that. this may just be looking at the world with rose-colored glasses but i think from the perspective

from where i sit representing the interests of the executive branch of the government, there was a lot that was very positive about that decision because for the first time in history, it said the president does have the authority in these circumstances and prior exercise by presidents going back a long time has been validated and that will be there and be solid going forward so future presidents will know what the scope of their authority is. that was quite an interesting case. >> we talk about the constitutional cases but really in terms of the cases of interest to -- patent rights. could you comment on that? >> right. i think that if i have this right, last term, the court took

six patent cases, two copyright cases and two trademark or false advertising cases. it's a high slice of intellectual property on the docket. on the rehnquist court, all of those would have involved cases of an officer searching a car somewhere in california. [laughter] >> i think what's important about the copyright that dealt with the streaming of live tv over the internet with a startup called areo is that in some of these cases, the supreme court doesn't have the traditional guidance for which cases to take. usually the simplest version of the criteria for cases to hear

is the court looks to see if this appeals court has decided the same issue one way and that appeals court decided it another way. they all go to the same federal appeals court dealing with patents. it's harder to which court of federal circuit is not deciding. sometimes they ask if this is a case they should take. last term i think one of those cases got there because you asked them to take it. but others did not. and the supreme court reversed the federal circuit in every one of the cases. generally they don't take patent cases because they're happy with what the lower court has done. what that may signal is in this cases they don't take, they're fine with what the lower court is doing. but it still requires the court to take and engage with a bunch

of different issues of patent law. >> i've actually argued a patent case as sg and i've been told by many people that i'm the only to have argued even one. [laughter] >> much less three. so i think that's a sign about willy's point that the

intellectual property docket is becoming for interesting to the court. >> ken star had been a solicitor general and early in the '90s, he happened to write two pieces in the "wall street journal" about how this court was not hearing the right business cases. he didn't say what willy so smartly said, you keep hearing these search cases from california, can't you take some business cases. and he said he thought some of the clerks weren't up to speed and john roberts who once was a clerk certainly is up to speed on intellectual property and business cases. it's been such a transition from the rehnquist years to now but

that was something the bar had been pointing to and the problems. >> is the court taking the right kind of cases nowadays? the court of course is a court of discretionary jurisdiction. it only hears around 75 cases a year so it has the luxury to decide what cases to hear and i'm curious whether anyone on this panel has any thoughts about whether this particular category of cases that the court perhaps should take more of or is this a particular category of kateses that the court maybe -- cases that the court maybe is taking too many. and of course any practicing lawyer is going to say, well, they don't take enough of my cases. [laughter] >> it's -- intellectual property is such a driving force in the economy that it's not a surprise

that the court is taking so many cases. it's like going back to the late 19th century, there were a lot of railroad cases on the docket and that makes sense viewing the nature of the economy and it makes sense now given the nature of the economy.

let's talk about the upcoming supreme court term. we're really talking about half of the upcoming supreme court term because the court has filled a little less than half of its calendar for the upcoming year. it will continue to grant review in cases in the coming months to fill out it's calendar for the upcoming year but we're going to focus on cases that are coming up during college football season, the case on the court's docket for october, november and december. and i want to start with the solicitor general and as we were sort of talking about cases we were going to discuss today, we came up with probably about ten or 12 cases, and the common

thread of the cases you're going to talk about is they are cases that seem to involve the separation of power and the relationship between branches of the government. so i know you're going to talk about a couple of cases. the first case is one you have argued already, the case called --- the secretary of state has changed since you arguedded the -- argued the case, as have the legal issues. this is a case he will be arguing in november. >> this is a case that is back for the second time in my tenure. it's a case, separation of powers case. the recess appointments case we talk about earlier was a separation of powers case last time, allocating authority in the constitution between the president and executive branch vs. the congress, and this is also a separation of powers case and involved a clash between the congress and the president over who has the authority under the constitution to decide whether to recognize and how to recognize a foreign country as sovereign. it's quite an interesting case.

and arises out of a statute passed in 2002, and the statute's title is the following. the titlele is -- "united states policy with respect to jerusalem as the capital of israel." and then the statute has four sections. the first urges the president to begin the process of relocating the u.s. embassy from tel aviv to jerusalem. the second one says that the united states funds can't be used to fund u.s. consul in jerusalem unless it's supervised by the ambassador to israel. third says any government document, like a map, that lists national capitals, has to list it as the capital of israel. and the fourth says that any american citizen born in jerusalem has the right to have israel listed as the country of birth on his or her passport. that statute was enacted in 2002

when president bush signed it into law as part of a big omnibus kind of statute. when he did he said that executive branch, particularly the state department, which issues passports, was not going to follow those provisions. it wasn't going to allow citizens to have israel listed as their country of birth if they were born in jerusalem. the reason for that is that going back to 1948, when president truman first recognized israel, the united states has not recognized the sovereignty of any nation over jerusalem. it has said that until the parties in the region work out among themselves who will be sovereign over jerusalem, the united states is going to remain agnostic about that question. and the concern about issuing passports to people born in jerusalem, listing israel as a country of birth, would be it would be in effect a statement by the executive branch of the united states government that

jerusalem is indeed a part of israel, and president bush said that he wasn't going to enforce that provision because it infringed on the president's exclusive authority to decide what countries to recognize and what borders to recognize in countries. and president obama has continued with the same policies president bush had of not enforcing that statute. now, someone brought a lawsuit under the statute saying, hey, that's statute says i have a right to have israel list offed -- listed as my country of birth because i was born in jump, and jerusalem and the state department has to be ordered to give it to me. they're refusing. that made its way through the federal courts of appeals and one of the arguments the government made to the courts is, hey, that's a political question. this is something that the court shouldn't get involved in. you ought to leave it to be fought out between the president and the congress, using the

usual tools that each branch has to bash the other branch with, and the court shouldn't get involved. now, the court rejected that in a decision back in 2012 saying, no, no this the kind of question the court should answer under our system because it involve to the constitutionality of a statute and sent it back to the lower courts. and that case is now back in front of the supreme court to decide the constitutionality of this statute. and the question is, i guess i said, whether that statute infringes on the president's exclusive authority under the constitution to recognize foreign sovereigns, which case the president wouldn't have to follow it, or whether it doesn't, and it's a valid exercise of congress' powers under article 1? the problem with this case, one thing that makes it really interesting, is that the text of the constitution does not, at least in so many words, assign to either the president or to

congress the power to recognize foreign sovereigns. and the president's side, the constitution and article 2 give the president the power to receive ambassadors, and starting with george washington, presidents said in order to receive an ambassador, i have to recognize the legitimacy of the country from which the ambassador hails, so, therefore, the president has the power. and then more generally the president is in charge under our constitutional system of to diplomacy, and so those of are the sort of constitutional arguments on the president's side. the congress has said we have enumerated powers in article 1, section 8, to regulate foreign commerce to regulate naturalization and the power to declare war, and sometimes recognition or nonrecognition of countries is bound up with the power to declare war, and it's long recognized that congress can pass laws using these power to regulate the content of passports and that's all we have done here. so this is a case a little bit

like the recess appointments case we talked about, in that very, very little law -- ask there's actually no law addressing the question of whether the recognition power resides as between the president and the congress. history will tell you that there's a very, very long history of presidents exercising the recognition power, and no history of congress actually exercising the recognition power, but actually there are numerous instances of congress tangling with the president over the recognition power, enough of them so the thing is not entirely clearcut. as a structural matter, what the folks favoring the constitutionality of the statute will say, most presidential powers are subject to a check in the congress. the president can negotiate a treaty but it has to be ratified by the senate, for example, and it would be odd that this power isn't subject to a check, and so the congress should have a role. on the other side of the coin

one of the things we'll argue on behalf of the executive branch is that, as a functional matter, just can't work to have the recognition power reside in the congress because sometimes the power has to be exercised instantaneously. for example, president truman recognized israel 12 minutes after israel declared its independence. sometimes there are very sensitive reasons why you might want to delay exercise of the recognition power. and going back to the founding, congress wasn't around for about half the year, at least, and so it would be hard to exercise the recognition power under those circumstances. so it's going to be actually quite an interesting space somewhat like the recess appointments case, i think insuring that you have to really dig down deep to the first principles of our constitution struck tour and function, and look -- structure and function and look at history and see what you can learn from it. >> the other case you would talk about is not the allegedly improper excess size of legislative power but the

delegation of -- allegedly improper casting off of power. the department of transportation versus the association of american railroads and also case about the powers available to congress under the constitution. the different kind of question in this case, particular a question about whether congress can delegate any of the government's decisionmaking authority, the federal government's decisionmaking authority to a private entity. it rises out of a statute that congress passed in 2008 to try to improve the on-time performance of amtrak. [laughter] >> you laugh. it's doing much better as a result of this statute, doing much better. outside the northeast corridor, amtrak doesn't -- amtrak runs on tracks that are owned and maintained by freight railroads. and by law the freight railroads have to let amtrak have right of way on the track and have to actually give amtrak a

preference so it can increase it on-time performance. but before 2008, on-time performance was pretty abysmal and is costing the government a lot of money because the amtrak is not profitable, the government has to subsidize it. so congress passes the statute to improve on-time performance. the statute said that amtrak and the federal railroad administration, government agency in the department of transportation, should get together and jointly set metrics for performance, for amtrak. and that if they agreed, great. those would be the metrics that govern amtrak performance. if they disagreed, then the statute provided for the appointment of an arbitrator to make a decision. so, amtrak and the federal railroad administration got together, actually agreed on metrics, published them as proposed rules, and the freight railroads, whose tracks amtrak runs over, challenged them, and

they challenged them on the ground that congress impermissibly delegated government decision picking power to a private entity. probably asking who the private entity is. well, amtrak is the private entity, and although it's heavily subsidized by the government and has numerous other features that's may make it seem like a government entity, when congress created amtrak to preserve passenger rail service in the country, one thing the statute said is this is a private company. it's not a government entity. and then why do the freight railroads care about this? because if amtrak is falling short of these metrics on the freight railroad's lines, and amtrak can show the department of transportation it's the freight railroad's fault that amtrak is late, then the fraying railroads have to pay damages, and so the freight railroads are

complaining about that. now, this case went first to the d.c. circuit court of appeals here in washington, and the d.c. circuit struck at the case down on the ground at that time under our constitution, congress cannot delegate the government's authority to a private entity and that's what happened near this case. and that was quite a remarkable thing in the sense that a ruling like that, a ruling saying that congress had impermissibly delegated its authority to private actors, had not occurred in this country since the early days of the new deal. one of the things that happened in the early days of the new deal and one of the more famous cases, carter vs. carter cole, was case in which before the switch in time that saved nine, the supreme court had held that one of the key provisions of fdr's first new deal, the nra, was unconstitutional because it

delegated, in the case of carter cole, to a consortium of private entities, the coalminers and the coal company officials and private citizens, the power to set terms of competition and set wages and set working conditions, et cetera, essentially delegated governmental functions to a private entity and that violated the constitution. that is one of the real major flash points of the new deal controversy between fdr and the supreme court back in the 1930s, and since then there hasn't been another case holding that delegation was unconstitutional. but we have one now. and it's on the docket. and i've given you a feel, think, for what the challengers have said and will say in the supreme court. i'll give you a little feel for how we're defending that statute. we're trying to defend this by narrowing the scope of the issue, really, and saying, look, the reality here is that it

isn't right to think about this statute as a delegation to private entity because, at the end of the day, amtrak doesn't have any final decisional authority if the federal railroad administration and amtrak together agree, then the federal government has agreed to the metrics. if if the federal government and amtrak disagree, then an arbitrator is appointed, and you can construe the statute to require that the arbitrator be a government official, and so a federal government official can have the last word and therefore the last word and therefore the private entity doesn't have the last word ask therefore there isn't a delegation. besides amtrak is the government. it's not a private entity. [laughter] >> reasons why we think amtrak is the governmt is tt eight of its nine members of its board are appointed by the president, and the ninth is the ceo of the

company who is appointed by three eight, and the supreme court has held that amtrak is the government for certain purposes under the constitution, like the first amendment, and therefore you ought to consider the government here, too. so i don't think this is a case as quite as serious an issue of separation of powers or governmental power as the sitokosky her to cannon case did but it's an interesting case about the scope of congress' authority. >> i want to put a proposition to the panel, maybe, general, start with you. the proposition is this. this supreme court is not at all shy about refereeing disputes between the two political branches. i want to know whether you agree with that, and i you agree with it, i want to get your speculation as to why that is true. >> well, i think they aren't shy about it, then you have to watch how they rule. the separation of powers is a very important topic to the chiefs, and it was always a topic to our most senior

conservatives, anton scalia. he always talked about to that part of the constitution would capture more of his imagination than due process and equal protection issues. it seems like just hearing as you describe, you're giving on both of these the court a way to narrow and not to do anything too dramatic and threat what happened in canning. the canning ruling rolled back the d.c. circuit's bolder idea of limits on presidential power, correct and so that was, i think, for both these that's potential, especially given what the d.c. circuit did in the second one, but i think that this court isn't afraid to take those up, but i also think this court isn't interested in dramatically scaling back anyone's role in the separation of powers. >> willy and lori, any thoughts? willy, like me, checked for justice scalia who has in many ways been kind of the leading proponent for the court

resolving separation of powers issues. >> yes. although also, he and the chief justice both have been strong advocates of the enforcement of the limitations the constitution places on the court's ability to referee abstract disputes or disputes brought by -- brought to court by people who don't have a -- >> to in other words, limitations on company court's jurisdiction. >> yes, standing is the heading that a lot of these case goes under. don, do i remember correctly the supreme court in the first divitoski case asked you to brief the merits and then didn't decide them? >> correct. >> i thought that was interesting. the court, having had before it the opportunity to resolve this, ultimately gulped and send it back down to the d.c. circuit.

>> what is interesting the prior decision had been it was a political question the court shouldn't get into. when we got through oral argument the first 15 of the 30 minutes for both the lawyers was on the merits, and it was advocates had to be forced back to talking about the political question issue by the justices. >> but the political question doctrine is a restriction that the court has kind of placed on itself and the strength of it has waxed and waned. used to be in reapportionment cases the court teams those to be a political question but in the 1960's the court changed its course. i think there's a strong majority of the current court, just about whatever the issue is -- the majority might shift -- generally a strong majority of the court, whatever the dispute is, thinks the court can resolve it. how they might resolve it is a separate question. the same-sex marriage case from california being a notable exception to that, where a narrow majority of the court decided because there was not a

person with standing to defend california's initiative before the supreme court, it wouldn't can take that up. >> that standing ruling might have been designed nearly to avoid answering the merits question at that moment in time and not because of some principle of adhering to principles of standing, limits on the court's power. >> it might have been, but if you look at the alignment of the justices in that case i don't think you can think, here are five justices afraid of who share the same view of where the court ought to come out on this case, and, yet there are five justices -- a majority agreed to duck the case. >> well, turning to something completely different, joan, i wish i could couple with a common thread for the cases you're going to discuss but haste -- >> railroad travel to --

>> and then redistricting. none of which really have anything in common. so joan is going to talk about the case involving religious liberty in the prison context, holt versus hobbs. >> this case will be argued october 7th, and in some ways this involves religious rights for prisoners and does pick up a bit where we left off with the case that some of us referred to earlier as the hobby lobby case involving the contraceptive mandate of the obama healthcare law in which the justices narrowly ruled by 5-4 that closely held corporations, operating for profit, could assert religious interests to avoid abiding by the insurance provision on the contraceptives. based on the beliefs of the owners. and that case came to the court under a 1993 law known as the religious freedom restoration act. and this new case comes to the court on a cousin of the law, called the -- let me get ill

just right -- it's the religious land use and institutionalized persons act. from the bench i'm sure we'll hear, -- they go off and engage in these awkward acronyms. under this case, a prisoner who is a fundamentalist muslim wants to be able to grow a beard in prison. he is in arkansas. arkansas has a policy that says no beards allowed, not even a half inch beard. and the prisoner lost in the lower courts with judges ruling that prison officials have great leeway here for they run the prisons, and even though this law i referred to, the religious -- the religious land use and institutionalized persons act, even though it says the government cannot restrict somebody's religion unless it has compelling interest and is exercising that interest with

the least restrictive means, the lower courts said, prison officials have much more latitude in this area than just about anyone else. and the courts took the case. the prisoner appealed to the supreme court, saying that, okay, right, prison official do tend to have great leeway in terms of how they run their institutions. there are matters of security, public safety. but this rule doesn't even meet the most basic standard because 44 other prison systems in america do allow beards for religious reasons and that law was just -- this one involved a half inch one. the question is how much deference to give to prison officials under this federal statute. and the prisoner's lawyer -- they raised issues all the -- going back to an 1879 case that involved a no-braided hair policy that a chinese prisoner was objecting to, and justice

fields wrote that violated the equal protection clause because it was so severe on chinese prisoners who at the time had long braids. and the prisoner's lawyer in this new case said it was-a-any as if any institution, in this case in san francisco -- mandated that all prisoners in the jail should be fed pork even though they're jewish made no difference the ordinance was wherein in general term thor prison officials raised concerns about health and discipline. this court tends to be very careful when it comes to prisoner issues.

i think it was four years ago, we had the stricter case out of some counties in new jersey, where the justices ruled that prisoners -- people who had just been arrested, not even charged with anything could be strip-searched if they were going to be put into the general population. that case was brought by a man who was stopped in his fancy car in new jersey and suddenly nut with the general population, and was saying why shy be strip -- should he be strip searched. the justices ruled against him, saying there should be deference for the prison officials. it comes at an interesting time because by a different 54 vote a few months ago the court really took special heed of religious rights and religion is a tricky topic for them.

we also saw that in the town of greece ruling that didn't come up earlier but that's where the justices just last term gave city councils more latitude for prayer before legislative -- before municipal hearings. so, this one will be closely watched. as i said it comes up october 7th. and a lot of -- as you can imagine a lot of prison rising groups have come in on the side of the inmate here, and several states have come in on the side of arkansas, saying, let it be up to the states, even though 44 correction systems might believe that it's important to allow this kind of religious exemption, for certain inmates, in this case muslims, that overall it should be left the prison officials. >> i think there's something else going on october 7th, is a recall. >> that book coming out. >> a book coming out that day. flash forward to november and the completely disconcept of redistricting. the supreme court is wading back into that thicket in a case from california. >> in the 1990's we had all the redistricting fights. most of you are aware or voter i.d. cases in challenge, as we march

toward the notify mid-terms, where the supreme court left off was with the shelby county vs. holder ruling in which the justices scaled back on the voting rights act and protections that -- for individuals who might be trying to get an early challenge to electoral changes in states where there's been a history of discrimination, and that case was from alabama, and this case is also from alabama and it's called the alabama legislative black caucus versus alabama and the democratic conference versus alabama. and the question is whether a run sponsored plan -- in alabama the house and that are republican majorities -- whether their new legislative plan drawn every 20 and institute fled 2012 packed froms into a limited number of districts, diluting their voting power and making it difficult for democrats outside those districts to win. that's why the black caucus and democrats are bringing the case. now, this is a complicated set of facts below. in fact the plan actually was cleared by justice, right? he cleared it.

it was cleared by justice. but the justice department has come in on this case saying, i think taking, again, sort of a modest step -- okay so the lower -- the special three-judge panel by 2-1, upheld the plan in the face of these challenges from the black caucus from democratic lawmakers in alabama, and what the sg is saying is it used the wrong standard under the voting rights act and equal protection guarantee. instead of looking at whether race was the predominant reason and the cause for packing blacks into these districts, as a whole, the lower court actually -- the lower court actually should have gone district by district and put more scrutiny scrutiny on. the issue for these supreme court and what was below was, was race the predominant factor? did the lawmakers just decide, look, we're going to just consolidate in a certain way

that goes beyond whatever kind of mandate there might be to strengthen black votes in southern states but, rather, ended up diluting and it made sure the politicians in power could keep going. it's actually one of those cases that it will depend on how broadly the justices go, how much it matters. state legislative districts at issue here not congressional districts, and it is part of a generation of cases that will probably on incrementally be ironing out things when we have large event percolating in texas for redistricting and voter i.d., a voter i.d. case to be argued in the seventh circuit. all part of the franchise and who gets to exercise the franchise and so many elections come down to just a few votes and such a critical question of turnout and this will be important before the november elections, too. >> i want to ask one question, drawing on your experience

covering the court. i think there was a time when everyone thought as abortion as the third rail issue for the court just as is it for politics more generally, but it seems nowdays, particularly under the roberts course, as if the third rail issue is race. do you think that's fair? >> i think it in part because -- well, first of all, he is not shirking from it. he's not afraid of it. this stems in part because of the chief's own background. as many of you know he came up through the reagan administration at a time when the reagan administration was actually fighting a lot of racial policies, thinking the time had come to end those, and that was in the '80s, so he has for a long time felt that it's important not to classify people on the basis race, even when it's to compensate and to help for past discrimination or bring about diversity, for example, higher education. and even before he took the lead in the shelby county case we referred to, he wrote in another

racially charged case about this business -- the sort of business of divvying up people according to race. it's something that very much turns him off and turns off some of the other conservatives, even though, as someone like right -- ruth bader ginsburg, who dissented so poignantly in the shelby county case said it's not time to be able to say we don't need to take these steps. >> perhaps maybe third rail issue is the wrong term. i didn't mean to suggest the court avoids it. it's more that when the court gets into it, sparks fly. >> definitely. >> the area of the law which passions seem to run. >> 5-4 rulings, yes. >> one that that you might add on this subject, why has the court had one voter i.d. case in the last decade but a bunch of redistricting cases. it's because they have to. when you have a challenge to a statewide districting plan, state legislature or