a mistake because congress can fix it. that arguments has a lot more way than here because in most context it's a pretty benign fiction. here it would have seemed ridiculous because everyone knows that thebecause everyone knows that the last thing congress would have done is amended this provision to add established by the state or the secretary in lieu of the state. i suspect that they felt not being able to write that opinion, they really had to put it on ambiguity and resolve that ambiguity by purpose. what does it mean going forward? i think the act is here to stay. there will be some legislative tension for very -- various things. there are still pending judicial challenges, there's the origination clause challenge, i think there's legislation pending. i don't see anything here that would increase the chances of en banc or search. i think there are other cases

pending in the district court in washington, d.c.. once one appropriation that the white house is made to some of these health insurance companies for about $175 billion, claiming that is not authorized by the act. i think that case actually, brought by the house of representatives against the secretary -- that case has a bit of a boost from the arizona decision. they were standing questions about whether the house can bring that suit. granted, it's only the house and not the entire congress. but the arizona case allowed for standing error and surely enough, the house and a letter to judge collier yesterday saying we think the arizona decision helps us on the standing piece of it. i don't see much year on the merits, but it may make it more likely. there's the case brought by west virginia that been reassigned on the industry to fix regarding individual plans.

i don't know that this case helps the secretary, the chevron discussion actually may hurt the administration a little. i think there is no denying that atmospherically, there is very much a feel now that the challengers have gotten their day in court and it's hard to think that that won't influence them of these pending cases. [applause] mr. goldstein: thanks, jeff. we now turn to the three big buckets of cases, bodies of law that the court confronted in the number of decisions. we have the nation's foremost experts as really almost any civil liberties question for many years. she was the director of the aclu.

can you talk to us about the first amendment? >> i'm going to start by censoring a word, it's not nyu, it's new york law school. i have students with me i would like to thank. i'm delighted to be here at acs, which i have been an enthusiastic supporter of since the very beginning. i'm thrilled at how this organization is doing. i also love frequent speaker and debater before another organization that tom mentioned in his introduction. every time i speak to the group i thank them for what i consider there greatest achievement, the foundation of the american constitution society. coincidentally, the last time i had the great good fortune to speak before this group at an

annual convention a couple of years ago was also on the roberts court and free-speech decisions. i stressed the point that still is not nearly as well-known as it should be, namely that the roberts court overall has a very mixed record on freedom of speech. that's surprising to many people because so many of the courts marquee free-speech cases, the big-name media heavily covered cases, the court has indeed protected controversial and unpopular speech. but it's overall record is right next and the current term illustrates that. there were two major free-speech cases, one of them upheld free-speech rights in a way that expanded an important speech protected theory. the second one contracted and rejected free-speech rights. in doing so in a way that

expanded a speech suppressive theory. both of these cases will have big ongoing applications. the first case was read versus town of gilbert, which was the case that struck down a towns sign regulation ordinance that drew distinctions on the basis of the content of the sign. the court reached that resolve importantly by expanding the concept of content-based speech. its definition of content-based speech regulations that will therefore automatically trigger strict scrutiny. therefore almost automatically damming, condemning to unconstitutionality the regulation. it did so by undermining past rulings that had a narrower concept of content based regulation and therefore allowed unpopular controversial speech to be suppressed.

the second case, in contrast, walker versus sense of confederate veterans, upheld state power to deny the selection of messages by private speakers on specialty license plates. and did so under the criterion -- if the design might be offensive to any member of the public in. i was the court able to allow what we generally think of is the most blatant viewpoint discrimination, completely contrary to core first amendment principles -- it did so by describing this expression as government speech, a relatively recent category, that is completely exempt from any constitutional free-speech protection at all. this is definitely an expansion of that government speech

sanctuary. we got these two contradictory rulings. on one hand, contracting the government's ability to discriminate on the basis of content and viewpoint, but walker doing exactly the opposite. that is the bottom line from now on. until my gone goes off, going to amplify a bit on these cases, starting with the walker specialty license plate case. the bad news for free speech. in terms of how far that case was a retrenchment on existing free-speech protections, i want to stress that we had eighth circuit court of appeals have ruled on this issue and a full seven of them sustained the free-speech right. supreme court was really bring us in a backwards direction. i want to quote my friend and the great first amendment

advocate bob, who was in the audience somewhere in this direction. bob said, and he gave me permission to quote this -- the walker opinion began with the eight scariest words in first amendment law quote, justice breyer delivered the opinion of the court. [laughter] ms. strossen: to be sure, justice breyer is generally less speech protective than other justices because he issues categorical rules which tend to be speech protective. in raid, he reiterated his unique view that content-based speech regulations should not automatically trigger strict me. in walker, ironically, justice breyer's majority opinion did base itself specifically on a

formal categorical rule. namely that once speech is categorized as government expression, it is completely exempt from the first amendment. to heighten the irony, the last time this court discussed the government speech exception as they called it the newly minted government speech exception from first amendment protection was 2009 in a case where justice breyer had disavowed precisely this categorical approach to government speech, which he then supports ironically in the walker case. in 2009, justice breyer concurred -- on the understanding that the government speech doctrine, to indicate he doesn't think it's a fixed doctrine, as a rule of psalm, not a rigid category.

even more pointedly in his concurrence, he says if the government discriminated, in its selection of private messages on political grounds, it might it's action might violate the first amendment. in walker, the government to discriminate on political grounds in deciding that it would not grant a specialty license plate 21 license, one message. but it would to another on the very same day, no less. this is a factual aspect of this case that is mentioned in justice alito's dissent to my surprise is gotten very little national media attention. of course, it's well-known that the text of the -- texas department of motor vehicles denied the particular license plate at issue in the case, namely one that featured the

embattled confederate battle flag. with much well westbound -- what is less known is that many members of the public find the design offensive. of course. offensive speech, as we know, is constitutionally protected if it's private speech in a public forum. what's much less well known is that on the very same day, the very same board, despite testimony from many other members of the public said the design was offensive, did agree to issue a specialty license plate celebrating the buffalo soldiers. the buffalo soldiers, as many of you know, are all black cavalry unit that fought in the indian wars. many native americans said, and i testified before the dmv, they felt the same way about the buffalo soldiers as

african-americans felt about the confederate flag. one native american leader said when we see the u.s. cavalry unit formed, we are forced to relive an american holocaust. so now, thanks to this decision, government has carte blanche to pick and choose, not only between certain battle signs and uniforms, between certain minority groups who were offended and others who are offended, but also between any other controversial messages including pro-life and pro-choice, which have been selectively denied and approved in various states. to be sure -- if it is the government itself that is in fact speaking, of course, as a practical matter, the government may pick and choose its messages accountable not in the first amendment, but only to the electorate. but the problem is, in a case like this, the government is

selectively endorsing and disfavoring private speakers and private messages, which the supreme court has repeatedly said violates the bedrock principle of the first amendment -- the government may never censor expression just because the majority of the community, even the overwhelming majority of the community finds the message offensive. the supreme court has said the government speech doctrine must not be used as a subterfuge for favoring certain private speakers over others based on viewpoints. walker seems to be inconsistent with this. there's no better expert to make that point in justice alito, who number one wrote the majority opinion in this and rice the dissenting opinion before justices and walker. there is special force to his

critique in walker when he says the majority badly misunderstands this. to give many examples to illustrate one case plan, which is that no reasonable observer is going to look at the hundreds a specialty license plates that texas issues as conveying a government message. one example he gives is if you are driving at 8:30 on a monday morning and you see a car with a plate that says rather be golfing, would you think this is the official policy of the state? better to golf them to work. that brings us to the good news for the first amendment. mr. goldstein: i want to make sure we get to all the topics, hopefully we can come back and get to the good news in the first amendment. [applause] mr. goldstein: there were a

number of significant criminal justice cases this term. the person who will take us through that is cynthia jones, a professor at the washington college of law, the codirector. the criminal justice practice. she was my instructor in law still -- in law school. she gave me my first., which was an f. i like tears and grievances afterward. prof. jones: when you were my student, you were tommy. if you keep bringing up the us will keep calling you tommy. the supreme court tackled late amendment challenge to an oklahoma statute dealing with

lethal injection drugs. and in ohio versus clark, the court tackles the issue of whether the sixth amendment confrontation clause protects a defendant from a statement given by a child complaining of abuse, when that child doesn't testify at trial. in high-end versus north carolina, the supreme court deals with the scenario -- you would think improbable, but not very improbable, with a police officer someone in a traffic stop and the basis for the stop is actually conduct that is not illegal. they stopped the car saying you should have two working brake lights when actually under the law, you are not required -- is that an unreasonable seizure if in fact, your conduct didn't violate the law and there was no legal basis for the stop? the defendants losing all three of those cases. i think that each case sets very important precedent and gives a somewhat of a roadmap where

things are going in these three areas. there's no way i can in 12 minutes fully cover the scope of this opinion, but i'm going to try and do it justice and move on to the other two. in gloss up, the court has a strategy of death penalty abolitionists, which is if we keep eliminating or making unavailable the drugs needed for the lethal injection cocktail states will not be able to administer the death penalty because they won't be able to get the drugs. we work with the manufacturer we are sure the people who are shipping it in from overseas, we will attack their ability to get the drug that they need. this strategy appeared to be working, and they had successfully eliminated two of the cocktails needed in this three drug cocktail. three drugs are needed. the first drug is the drug that basically puts the person in a coma.

or makes it so they can no longer feel pain, at least that's what it's supposed to do. the second drug causes paralysis , which would be painful if you didn't have the first drug, and the third drug induces cardiac arrest. that sequence of events is how they administer the death penalty. the first drug is the drug under attack. the death penalty abolitionists and the death row inmates said this drug does not in fact cause the sense of painless mess and put the person and estate where they cannot feel the pain of the paralysis and of the cardiac arrest. it doesn't work. and the supreme court said they took great pains to note -- you will the other drugs that were working. they take great pains to say there were two other drugs on the market that were being news, and you effectively got rid of

those drugs. and the court says in order to mount an effective eighth amendment challenge to this lethal injection cocktail, you not only have the burden condemned prisoners from oklahoma you not only have the burden of showing the drug being used actually does needlessly inflict severe pain, you also have to show that there is no other reasonable and available alternatives that would be less painful unless cruel. the court articulates that second prong as if that has always been the law, the dissent takes them to task saying that has not been the burden placed in a commitment challenges and the majority, it is now, but the majority next very clear that if you're challenging this, you have to show both things. the court says neither of those wilmette that would justify an injunction. he didn't show that the drug is administered did not cause the condemned person to experience no pain prior to the other two

hearts of the cocktail. and even if they did, even if you manage to show that, you have to prove in order to prevail that there was no other available drug, that there is another drug on the market that could have been used and that they are not using. effectively, what that does is it makes the eighth amendment almost completely out of reach. if this is your strategy for challenging the death penalty in order to prevail, that burden makes it extremely difficult for abolitionists and condemned prisoners to prevail. if you have to show that there was this alternative. in gloss up, the court notably says there are going to be some pains and involved, it's this needless suffering and torture that is prohibited. i think in the end, this will be known more because of the

defense that it is because of the majority. in the dissent, shock of shocks, two justices stated pretty definitively, prior rights the opinion and ginsburg agrees with this opinion that it is now time to examine whether the death penalty is constitutional. pretty definitively, they go on to say, we believe it is not very. causes scalia to almost explode. [laughter] prof. jones: the debate now going on, and i think you will invite litigation, and invite other challenges to the death penalty -- abolitionists know they have a couple of votes, perhaps more votes on the supreme court now. i think that this case will be known for two justices coming out and saying i believe at this point, i am no longer tinkering

with whether this part of the death penalty works or whether we can fix it with this patch. i believe at this point, it is a violation of the amendment because it is cruel and unusual punishment. i suspect the going forward, we see lots more cases involving that. on to the second case. ohio versus clark. ohio versus clark deals with something that scalia holds very near and dear. he rewrote the law on the confrontation clause. he basically gave defendants the right to confront any person who is making a testimonial statement against them out of court. the scenario that exists is an individual here, child goes to the teacher and says i was physically abused by my mother's boyfriend. the child does not testify at trial. the teacher testifies. the defendant says i have a right to cross examine or confront that child. in the supreme court says no. if the statement that was made out of court that you don't get

to confront at trial was testimonial in nature, at the time that statement was made, it was pretty clear that that statement was going to used in a criminal prosecution, then you have the right to confront that statement. the government will not be able to use that statement against you in trial unless the child testifies, provided you didn't have a prior opportunity to cross examine the child. the defendant says this is a scenario, when the teacher basically went to the child and said who did this to you, what happened to you? they were conducting the kind of investigation pursuant to a mandatory reporting statute in ohio. the supreme court said that he does not convert the statement into a testimonial statement. there was an ongoing emergency. and that become significant because in a series of cases since about 2011, the court has begun to erode away the protections that scalia provided under the confrontational clause in crawford in the immediate

aftermath of crawford. the court has expanded this ongoing emergency exception. before, and ongoing emergency occurred when the person calls 911 and says help, my boyfriend is beating me up, get someone over here. the court said at the time that statement was made, no one was vision about prosecuting the boyfriend, they are thinking about getting help for the girlfriend. the courts then later said it's an ongoing emergency because even though this child wasn't in imminent danger of being abused at the time, the teachers had an obligation to try and resolve and protect the child and that kind of thing. therefore, the ongoing emergency existed in a much broader context and for a longer time. i think you're going to see more cases where the court is declining to recognize that confrontation clause right and expanding what constitutes an ongoing emergency exempting the defendant from the protection of the confrontational clause.

the final cases is fine versus north carolina, and here, the supreme court does an effective job of insulating police officers who do not know the law. this is a police officer who says i didn't know that what happened was actually legal. the court says as long as the officer was reasonable and not knowing the law, it was a reasonable misinterpretation of the law, then it doesn't violate the fourth amendment. this case falls in line to a certain extent with cases by the supreme court that simply distinguish between whether you have constitutional protection and whether the state can administer the laws way they decide. in this case, the supreme court has already decided that a police officer can rely on a mistake affect, that is, is not an unreasonable seizure if the police officer says i arrested you were stopped you because you

match the description. it turns out you were not the guy who committed the robbery but you looked like the guy. it was a mistake of fact, but that's fine. the court says they can also now stop you even if they say wait a minute, you are not allowed to wear glasses after 7:00 p.m., that's life. if that's a reasonable interpretation of the law, the court says that's not an unreasonable seizure under the fourth amendment. the court was clear though, it's an objective determination, not whether an officer can come in with very specious reasons and say i thought -- the court says it's an objective interpretation. that's going to invite a lot of litigation over whether the officer's misunderstanding of the law was objectively reasonable or not. and therefore whether the fourth amendment protection covers the defendant when the officer has seized them under the fourth amendment and had no legal authority to do so. [applause]

mr. goldstein: thank you. another bucket of significant cases involved issues related to politics and voting. we have with this dear ebert both as a litigator in a writer, known as the director of the campaign legal center. he also had a job as the acting head of the voting section of the civil rights division of the department of justice. mr. ebert: i'm thrilled to be here. if you told me at the beginning of the term that we see decisions upholding civil rights plaintiffs claimed in the alabama redistricting case, that we would find chief jester it's john roberts rejecting a challenge to the candidate getting constitutions and applying scrutiny but still

upholding the campaign finance law, and if you told me that our bg -- rbg would write a decision in the arizona case of pulling the right of the commission to do the power redistricting, i probably would've looked at you with the same degree of lack of credulity i would have 20 years ago if you told me that 20 years from now we will have a black president, that all americans who want affordable health care will have access to it, and the state will have to recognize same-sex marriage. it's just really amazing. my talk is a little bit about hopefulness in contrast, i saw on the way in here the rick perry is speaking here tomorrow on the cycle of hopelessness. [laughter] mr. hebert: i think that's not a commentary about his campaign. let's begin with alabama.

alabama redistricting was drawn by republicans when they took over the legislature. what they decided to do was to take all of the majority black districts and to say that when we draw these districts, we're going to draw them the same number, and we're going to maintain the black percentages in each one. we're going to do that because we want to avoid record -- retrogression under section five of the voting rights act. this was pre-shelby county. the plaintiffs challenge this on a number of different grounds. i have to say, i was not involved in this case except for assisting with the advocates in the supreme court. but i say the justice breyer went out of his way to give a very liberal reading to the pleadings below, so as to incorporate what he considered to be their true claims of racial gerrymandering, some of

the districts and overly relying on race. so much so that he actually had an appendix to his opinion relisted all the pleadings where you can find support for the fact that the plaintiffs really litigated the case in a way that he said they did. justice scalia took integrate task in the dissent for having done so. again, this was a case where the plaintiffs were claiming that alabama should not have applied race in the predominant way that they did, that they overly relied on it, that they misinterpreted section five of the voting rights act which does not require you, they said, to maintain the same racial percentage. this is the first time the civil rights voting rights law has decried these cases since 1993, but this was one of the first cases where the utilize that weapon to bring the challenge. they had to show that race predominated in the creation of

these districts over traditional redistricting principles nonracial principles. there are several takeaways because the supreme court said these appeared to be racial gerrymandering, actually sent it back to the lower court, but had some very strong language and gestures breyer's opinion for why they essentially believe that any of these districts violated this shot of the reno doctrine. you have to have plaintiffs that live in the dish if you are challenging, it was not clear, even at the supreme court level whether the plaintiffs really had met that particular goal. one of the groups was a member organization that said we have members in all the district, in nearly all the districts. as justice scalia points out nearly all isn't all, so maybe they don't have some in one of the districts they are challenging. on random, they have to cure that. the big take away from the case though is that it really is going to go forward and impact a number of other cases are pending now. cases out of texas and virginia,

for example, that also alleged discriminatory intent. in those cases, again, before alabama was decided, the state had come in in both cases to say to avoid retrogression under section five of the voting act we had to maintain these districts at a certain percentage. the supreme court has not rejected that it said no, the test is really whether or not the district continues to provide african-american voters with a realistic opportunity to elect the candidate of their choice. it doesn't require this rigid calculation or appearance to a particular percentage. the cases that are percolating out there now, there are three redistricting cases involving race in texas, in addition to alabama, virginia, north carolina. i think we were going to see because this case has really made it harder to rely on the voting rights act to achieve partisan gerrymandering, which is really i think would ultimately people think is a safe harbor. when you deliver lead pack

minority voters into a district because they vote overwhelmingly democratic, are you packing them into the district as a partisan gerrymander or are you packing them into the district as a racial gerrymander? we will see. this was particularly important post shelby because now, in order to get preclearance, you can build them in for preclearance by showing that they engaged in racially discriminatory intent that violated the constitution. in many cases now, but are they are texas photo id, north carolina big case pending with redistricting in texas or redistricting in virginia, everybody is trying this preclearance to be brought back in. we will see. the thing that's interesting about justice kennedy joining the opinion is that this is a case that has the mixed motive of partisan intent. you may remember that he was the ninth justice in the big partisan gerrymandering case from the 2000 where four

justices said that it wasn't just visible, four of them at various tests. he couldn't agree with any of those tests but agreed that it was still just a civil. the problem is no case has done it yet. we are still waiting for the supreme court to come up with a theory. they haven't done so, maybe these are cases that kind of get out the partisan gerrymandering without the court actually having to come up with a constitutional theory. the other bucket of cases or williams versus williams yulee the florida case where i mentioned the judge challenged on first amendment grounds the right to solicit contributions for their campaign and the chief justice for the first time in a campaign finance case that he's been on, and he's been on seven of them, he struck down campaign finance laws, this one he actually upholds the judicial restriction and he does so

because it's clear that overconfidence in the judiciary really weighs heavily on the chief justice's mind. judges are different, he says. they are not politicians they're not like politicians. states can regulate judicial elections differently than political ones. politicians are expected to be responsive to their supporters judges are supposed to be evenhanded, bowls and strikes rubber that from his coverage and hearing. many of us in the campaign finance field wonder shouldn't we equally care about public confidence in our elected officials in democracies as much as we care about having confidence in elected judiciary? the big take away, be aware that the ninth circuit case is pending en banc, it's being briefed now cometh out of arizona, arizona seems to dominate the stage these days in many ways. canons of ethics from arizona

pretty inhibit -- that prohibit candidates publicly endorsing political candidates, it also involves the contribution issue case which was stayed for the last year pending the williams yulee case. the last case, the arizona commission case was mentioned earlier, the interesting part about that case is it could have had disastrous consequences. everybody looked at the cases of to say if this case goes down, we're going to lose independent commissions to do district. this is a the arizona legislature the claimed under the elections law that he had the authority to do redistricting and it got taken away from them. because it did get taken away from them, they had standing to challenge it. but they lost the case, but it had huge consequences because there were numerous time, place and manner regulations that have been adopted not just with respect to independent commissions, but constitutional

amendments. the secretary of state issues a regulation, that could be something that was done without the legislatures authorization. all of these things -- the brennan center had about 87 examples in a publication and briefs that talked about that. again, ruth bader ginsburg, a great decision for democracy. she says the elections clause is in line with the fundamental premise that all political power flows from the people. we haven't heard that from the supreme court in quite some time. i think voters in arizona she says curved partisan gerrymandering which the court noted involves an inherent contradiction -- cognitive interest. i think singling would like that from the supreme court is very encouraging. i think it will give encouragement to reformers and funders to go out into some other states and seek some reforms.

the last point i want to make is that there were three state issues and the supreme court at the very beginning of the term -- wisconsin photo id, texas photo id, and north carolina. in each case, the supreme court stepped in. in one case, they granted a stay in wisconsin to a seventh circuit's decision that put into place the photo id law that had previously been enjoined. this is just prior to the election. in taxes, there had been an injunction issued by a trial judge just prior to the election 2013. the fifth circuit stated and the supreme court refused to vacate the stay. north carolina, the plaintiff and challenge laws that were about to take effect. they lost the preliminary injunction, they got one out of the fourth circuit and the supreme court stepped in and vacated that stay. what is the take away for 2016? the takeaway is this -- election officials making last-minute

changes are going to be vulnerable to an injunction. litigants have to go out and get injunctions early but not be premature in their litigation. to set up the status quo because it's clear that the supreme court has decided that instead of the usual multifactor test in deciding whether a state is going to be granted -- a stay is going to be granted, it's really only one factor. are you changing something close to the election? if the answer is yes i think we will see a lot of litigation on last minute. if you are changing the status quo prior to the election, the supreme court is liable to step in and probably the lower courts will too. thank you. [applause] mr. goldstein: thank you. i'm grateful for the panelists for being thorough and concise. we made the commitment so we could finish up here about 20 minutes early so you take questions. not.

-- i'm not sure if we have a standby microphone or not. >> can just. all of the headlines of the wrapups, including mine and everyone else's have stressed the courts liberal tilt during the past term of. i wondered if any of you have comments on the extent to which that is accurate or inaccurate, misleading or other. >> if you were to take any of the cases that have a ideological bent, we know these people in the same folks we've had in previous years. there's not an intuitive reason to think suddenly they ended up

eating substantially more liberal. i think one of two things and probably, nation of them is happening. the cases get on the docket, that's just how it is. if you look at next term and think about things like public union financing, which is going to be an extremely fraught issue, and affirmative action and all likely, abortion as well, you're going to likely see a difference a result. the second thing is that it's possible that while the court has been moving to the right for 20 years, it's hitting the wall of some of these doctrines. we actually think of as a liberal result is just a not further conservative result. [laughter] mr. goldstein: we breathe a sigh of relief, but is not with the exception of same-sex marriage a move to the left. a conservative court didn't strike down the affordable care act. it didn't limit the use of race in fair housing in disparate impact claims when i was an accepted means of litigating those cases for 25 years. i think that we will learn a lot

more in the next year or so about whether the move to the right of the court continues or it has run of gas to some extent. prof. eskridge: i think what happened is the modern regulatory state got a shot in the arm. i think that's the thing that together a burger fell -- o bergerfel and king. they say there's this great plain that congress has put a foot. are we going to mess it up based on the scriveners error? the chief justice said no. i think this can be read along the same line. family law is the government that the mechanism for people to make life plans for themselves. you can't arbitrarily exclude

lesbians and gay people. that also might save federal cases, which are a different kind of regulatory state. and maybe the confederate license plate cases well. i don't hear how you characterize it. i think the modern realtor state is here to stay. and even extremely conservative justices are now internalizing that in the way that they think about the supreme court doctrine. ms. strossen: to put this in context" stephen colbert, who says just think, gay americans achieved full constitutional personhood just five years after corporations did. [laughter] mr. goldstein: other questions? >> i'm >> with bloomberg.

follow-up to that question. why did the court take some of these? cases where did they take the health care case and why did they take the texas housing termination case? mr. wall: there was a split. it was an incredible question that was going to affect millions of dollars in millions of lives. i think it satisfied multiple criteria. on the fair housing act, same thing. it had been a disputed question for a long time. they settled it out of the ada and smith, bob easley scalia there had crossed the side of the island lay the groundwork for what the ended up saying in the fair housing act. i think it was surprising to see justice kennedy come out the way he did. i didn't think it was surprising that the court took the case i don't think most court watchers were surprised. they had taken at twice and both times it had been scuttled and they didn't get a chance to answer the question.

i don't think anyone was surprised when they granted the texas case. are there surprising grants for next term? i was surprised for the one person one vote granted. the question for the panel -- that was much harder for me to explain than either king or the texas housing case. i'm not sure. mr. hebert: there was a case -- prof. eskridge: there was a case brought in taxes using total population to topless the one person one vote equal population requirement in each district. the plaintiffs claimed they should have used a subset of the population because representation is all about voters, it's not clear whether they want to use registered voters instead or whether they want to use citizen voting age population or actually the

people who turn out? all of those have pernicious concert was as for minority voters. it's been a well-settled area of the law for decades, since the 1960's, the total population pretty much is the base that is used to redistrict. it's also the number that used to allocate congressional seats among the states. we allocate congressional seats based on total population. it's kind of a well-settled area. it really is questionable. there are only two states that use something less than total population that would be kansas and hawaii, who both take out temporary residence for military people who are temporarily stationed, they take those out of the total census population and then they redraw the lines. that's been upheld by the supreme court decades ago. the supreme court has taken three cases for the next term in the area of redistricting. it's astonishing. about the one person one vote

case i just mentioned, there's another case of arizona where they uphold the arizona commission's right to be a commission to do redistricting and then they take a case the next day that says we're going to review whether or not the plan you drew violated the one person one vote rule whether you properly relied on the voting rights act whether you allow deviations within a 10% range, it's got a whole host of issues and then a third case out of maryland where the plaintiff's roddick case of partisan gerrymandering, the district judge refuse to convene a prejudge court and the case is now up to the supreme court about whether or not that failure to convene a three-judge course in that we district in case make sense. it is legal. it reminded me of shelby reynaud in a way because everybody was thinking we have to drop majority, minority districts or matter what they look like and we had to do it, and then when they all did it, the supreme court decided in 1993 that said

appearances matter when it comes to redistricting. don't draw these silly looking majority minority districts are you will have to meet strict scrutiny. litigation boomed for redistrict in law. which is good for me. but not for democracy. >> are not the press, and while i'd ask a question? i think everyone technology is the congress is in really doing its thing. when the justices say if this is a problem, congress can fix it, that's a laugh line for the solicitor general. should we just operate as there is no way to fix the law and hope for the best? we have one bridge of government this is not working, how should the supreme court reacted that? mr. goldstein: they say they're not going to overruled or

interpretation of this case or having a high bar for finding an absurd result. they state go across the street. do you think they really believe it? do you think i was busy tension when they say it?' mr. hebert: they haven't even given it a hearing in a committee. i don't know -- congresses and seem to take it very seriously. prof. eskridge: i just did an article on the collapse of statutory override. none of the justices was aware. i think they are still kind of in denial about that. i'm sure they realize the congress is dysfunctional now. i believe that did get some laughs, but i don't think they really internalized how vast is the underperformance of congress.

one thing i would add about that , i think the big winner when congress is dysfunctional is the executive branch. i have seen that in king versus burwell. that puts a smidgen more pressure on the court not to break the statute realizing the congress is not going to fix it for them. >> i just wondered if anybody can comment on whether the term tells us anything enduring about statutory construction and the use of legislative history? prof. eskridge: this was not a big term for legislative history. a lot of big cases, statutory

cases like king versus burwell that was a comic it is statute and justice roberts says it's in artful because didn't go through committee process. you saw very little reliance even on committee reports probably the high point was justice kennedy's opinion in this highly case where he relied on committee reports and i think senator kennedy as well in ruling there was a disparate impact of claiming for relief under tightly. but we now have this term is -- is what i was going to say about king and burwell. the chief justice seems to be saying in king and burwell that even if that language is established by the state, even if you think that's unambiguous or clear, it's made ambiguous by the whole act and the statutory context. the only other reason i could

think of to say that was the opinion from justice scalia and romantic are several terms ago. this is now a court where whatever you have is the appropriate text, when we say look at context, with a mean is not legislative history. not just talking about scalia and thomas, and talking with the chief justices, justice sotomayor or, justice ginsburg. they are not looking at legislative history, -- i take that back. they are looking at it but they are not citing it anymore. and that is a very important distention. -- distinction. this term is in a dear -- a nadir in my history. it's dominated by the judicially created statutory construction. i might had, by dictionary.

this is a court -- and this is bizarre. that statutory language, the federalist papers of been explained by justice scalia the fact that he says tell what the constitution mean. when they get similar questions the current supreme court does not look at the federalist papers, city looks at dictionaries. which are an impoverished source of meaning, because they don't look at clusters of words, they don't look at policy context they don't look at what the democratic process is focused on , it's really a world of bizarro superman the supreme court has now entered us into when the respected deliberations of elected representatives are ignored in the published

decision and dictionaries are the source of authority almost universally. so there. [laughter] mr. wall: because of the mix, i do think -- i used to believe that it was not a whole lot more than lip service. that is certainly still true justice thomas. i think for the rest of them, it has come to hold i think more swayed in the granite here is frequent in halliburton case last term, and both people, a lot of people said they are going after basic be levinsohn maybe that's right. several years ago i would've said that's the easy explanation. they graded fishers of people will say they are going after the firm of action cases.

i'm not so sure. the bankruptcy case this term on a precedent none of them seem to think is correct, they didn't overturn it. i actually think that for majority of the court, statutory device has more hold right now that i think it did 10 or 15 years ago. mr. goldstein: time for one more question. >> and a pakistani spectator. i attended an event yesterday on the same topic at the heritage foundation. there's a lot of resentment and anger. [laughter] >> isn't that the objective indication that the court has moved to the left? mr. goldstein: does the fact that there were tears of the heritage foundation, beyond bring a smile the ones face -- not true those are wonderful organization. does it tell you anything more

the reaction from the right? does it portend that they believe that something more is afoot? ms. strossen: there been a couple of comments in response of the first question about is the court moving to the left that, just that the liberal justices have been more disciplined and have been working better as a team. maybe there is frustration that the so-called conservative justices are more concerned with infighting and standing up for their own idiosyncratic views of conservatism and judicial review. there may be some sense of frustration that they are not marshaling their resources as effectively as more liberal justices are. prof. jones: even if they are moving more to the left, they are not moving that way with respect to criminal justice. i think most people would agree that their opinions remain pretty conservative and across party lines and some of the cases.

the justices did not divide in the traditional way in the criminal justice context. it's not across the board, and even if it is the case in civil rights cases. prof. eskridge: let me just add rank speculation. prof. jones:on. mr. hebert: i think that the conservative litigants that push the envelope so far to the right that justice kennedy is uncomfortable going there. i think he is often times now as we saw in the alabama case and as we saw in the arizona commission case, i think you just not willing to go out that far. i think that may count for some of this, and so the court becoming more liberal, i think it's more -- it all comes down

anthony kennedy these days. that's my rank speculation. mr. wall: the atmosphere among conservatives seemed as fractious to me as i've seen it in the last 20 years. you find justices kalina -- scalia and alito sniping at each other. he wants a the name of. you see justices kennedy and thomas in the solitary confinement is going out of. 10 years ago justice it's -- justice thomas doesn't write that concurrence, he just let that sit. you see them going at it in king the burwell. i don't know whether the court is moving to the left or right tom's numbers are better on that than i have. but the conservative wing of the court certainly does not seem to be getting along very well right now. mr. goldstein: two minutes. because our good friends at

c-span are here, we have to be faithful to our time. it is exactly 2:00, so we've done that. join me in thanking acs and our panelists. [applause] >> today on c-span "washington journal," is next live. some of this year's college commencements, including speeches by george w. bush condoleezza rice, and senator elizabeth warned. later, live coverage of residential candidate rick perry as he presents his economic platform. in about 45 minutes, lambda legal talk about the aftermath of the supreme court's ruling legalizing same-sex marriage in

all 50 states and what procedural hurdles remain. and gun owners of america on calls for gun control following the charleston, south carolina church shooting. good morning. front page of the "washington post"s the airlines probed over pricing policies and the justice department looking into whether the airlines have colluded to keep airfares high. and mixed message and no progress in the greek crisis. the labor department releases latest numbers on unemployment. the jobless numbers will show a slight drop in those out of work. and the washington times is reporting that vice president joe biden is