to get the voters an idea of where this race is headed, where are the fundamentals is where we are most o helpful. host: stuart rothenberg and >> c-span's washington journal live every morning with news that is important to you. mental health in the united states and congressional efforts to extend the mental health act. and from the christian science monitor, linda heldman -- feldmann on the republican trump.n to donald and from politico, every border on her recent story over the

money it cost to fund the musical bands. join the discussion beginning this morning at 7:00 eastern. the communicators, the 30-year-old communications privacy act requires the toernment to get a warrant search e-mail that is less than 180 days old. written before cloud storage, now the house wants to extend privacy to those forms. the senate is considering legislation. counsel for the aclu and a commonwealth attorney from alexandria, for genia, of different perspectives. they are joined by the technology reporter for the morning consult.

has not been updated since 1986. in the interim, police have said please have had to get a warrant. this would put the protection into the law. our main concern, to make sure electronic communications are provided with the same level of protection beyond what you would expect at home. i knows the communicators tonight at 8:00 eastern on c-span two. >> and now a look at the supreme court with litigation attorneys of supremethe legacy court justice antonin scalia. it is one hour and 15 minutes.

>> it good afternoon. thank you for joining us. we have a wonderful turnout today. a special thank you to the staff that has been working tirelessly to plan this. we have a of hard-working women. the one in orange riding around has been running around like this for several weeks. a big thank you. productive morning. i appreciate your feedback stop you may have seen we have a sign in the lobby. the boiled it down version of working for women. it a conservative commonsense commitment and we would love your signature to show your support for this project and for the work we are doing to advance women's economic opportunities with outgoing government. as many of you know over the

past five years, iws has been encouraging conservatives to engage more and more effectively with women. we've urged our allies and partners on the right to take gender differences more seriously. we've urged them to talk to them about the issues that matter to them. with a message that's going to resonate. we realize these changes are going to take time despite our best efforts. it will not happen overnight. they may not happen this year but i think things are moving in the right direction. i am very happy to be able to say today that the highest ranking gop woman in the house leadership, cathy mcmorris rodgers, has signed on to are working for been agenda. that is a huge step forward. it shows we are building support at the federal level and she will be able to help us gain support at the state level as well. sometimes it does seem that for every big step forward that we take two steps backward.

republicans managed to shrink the gender gap to about five points in the national election, but i think many people feel as though conservatives have been set back this election season with women which is frustrating to many of us who have spent years focus on advancing a policy agenda and messages that will resonate and be appealing to women. our goal is to make sure that more women value limited government and liberty come as a -- and liberty, so this is a frustration. this for are in long-term hand when i look around the room i know we are theng a difference for reason i feel confident about it is that i don't just see i fw supporters here. but is he a roomful of other women leaders and other women's organizations from around the country are working to impact the conversation with us, whether it's at the universities or in their neighborhoods are -- or in professional fields are at the state capitals. many of your prolific writers and reporters, others have been

built impressive social networks. some are offering important candidate and media training. we know many of you are creating who are interested in creating a conservative brand of feminism where they can come together with other like-minded women. for all of of his work on -- and for all of this work, everybody opt to be applauded. -- everybody opt everybody ought to be appluadued. [applause] sabrina: right on cue.

[laughter] some people, we have donors here today who've asked me if they're going competition during women's groups on the right? and i say no. i am thrilled there's there has been this proliferation of women's groups on the right. because many more women today understand that we wrote a few years back that liberty is not a war and women. it means there is a marketplace for ideas and messages, it is very exciting at a book is for sale in the lobby last night just in case. ifw, however is thrilled to continue to be the consistent thought leader on the right focus on substantive policy for women and their families, extensive broadcast outreach and serious academic great research. this is our contribution to the conservative in his movement and we know our product as many of you already rely on, and we hope many more of you will visit a ifw website and think of us as a resource as you go back to your communities and try to reach women with a limited government. so while we're on the topic of persuasion since we're in an election year, i wanted to talk a few myths about women voters and what this all means. i know that there are candidates both at the state level, at the federal level who are hoping to convince women to come onto

their side of the fans. i was listening to a show on npr morning edition. i am a conservative who listens regularly to npr, but my favorite segment comes about once a week or so, "the hidden brain" and he reports on an interesting social science research of the day. he recently talked about some political such research out of canada, if you want to persuade people you should frame your points using your opponent moral framework. so republicans are talk about isis will speak passionately about patriotism. democrats are talk about income inequality will talk passionately about fairness is the problem is speaking passionately to those already agree with us simply reinforces support among our existing supporters. it doesn't do much to broaden our coalition. so that's why this research emphasized if you want to persuade you supporters yet to start by using their moral framework rather than your own. that's something easier said than done.

i was thrilled to hear this because this is exactly what ifw tries to do everyday. our own social science research has written from this and again we are social science nerds that ifw but that's what we do. a few years ago we conducted a randomized controlled trial on the issue pay equity which we talked about this morning, and became a with two critical findings. the first was a very large majority of women, 74%, think discrimination in the workplace is somewhat of a problem. and it showed as responders perception of fairness as equal outcomes has posted equal opportunities was the single best predictor of their support for progressive law like a paycheck fairness act. this research made his request any conversation about the wage gap has to start by using

progressive moral framework or put simply have to start on their playing field. we have to begin by acknowledging their archive actors and that enforcement discrimination exist. the second point is more important that's, it is not enough for us in this room we may say it will opportunity is all that matters. but if are trying to persuade women to oppose a massive law like a paycheck fairness act would've devastating economic consequences for men and women, do we need to speak to them in terms of what they want what does equal outcome. if that's the case that we need to emphasize we can't set women back by passing laws that would create barriers to entry, reduce flexibility, limit their ability to advance in the workplace. there's one thing this new research may have overlooked and it's another thing we take seriously at ifw, that is speaking passionately is forgiven from speaking at an emotional personal level. of the research was conducted on paid leave mandates, another

issue we talked about this morning and will continue to talk about this afternoon, is that when you frame an issue in personal terms, we are tremendously effective at persuading women to oppose one size fits all big government mandates. we learned when we talk to women in a sympathetic tone that recognizes their experiences and explains how paid leave mandates would make it too expensive for them on,er to keep support for these types of regulations drop precipitously. were able to turn a balance of into a balance of opposition. even more effective than when respondents learn these mandates would hurt the very people they are meant to help, the poor get this is true among progressive women as well. when we use their moral framework, we are having a more meaningful conversation and we are more persuasive and that is what i think most of us today would like to see. it's about self-satisfaction, preaching to the choir. if we want to persuade new supporters as i think all of us do want to continue doing, we need to speak to the personal emotional level on their terms keeping their moral framework in mind, not our own.

i think that will help all of us in this room, we are in the business of generating policy like we are at ifw activating grassroots coming digital social media work reading social networks. and so, with that. i want to get onto the business of of the lead" andon of "women we will get on with our conversation about the future of the supreme court. thank you so much. ] pplause >> good afternoon. this is our first panel after lunch. i hope everybody is full of energy and fresh from a delicious sandwich, so you talk about constitutional law and the future of the supreme court the we have an excellent panel. i am hadley heath manning, and i am proud to be here today with

three distinguished lawyers. i will introduce our panelists starting with megan brown come a partner at wiley. we have with us today erin hawley who is our ifw legal fellow. we have worked together on some amicus briefs that independent women's forum occasionally filed with the supreme court. and most recently filed an amicus brief so if you have any questions about the unsigned opinion that came from the court in the past couple of weeks, i'm erin will be happy to take this questions for you. erin is a former clerk for chief justice john roberts. and, finally, we're joined today by susan engel who is partner with kirkland and ellis college is a former clerk of justice scalia. we will of course be discussing the legacy of justice scalia today and also the future of the supreme court. billed as ais

conversation. so not only will this the a conversation among the three panelists and myself but i invite everyone who is here to stay in a conversation. i hope to reserve some time at the end of the panel for us to continue the conversation. it helps me to be engaged with any kind of speaker when they show me where the conversation is going. i'm going to show my cards and reveal to you a sort of rough outline for today's conversation. i wanted to structure it like this. first we'll talk about the past, and then we'll talk about the present, and then we will talk about finally the future. i think the future may be the juiciest part of the conversation because of course supreme courtthe is very uncertain at this time. but without i want to allow our panelists to give opening remarks and then i'll ask them several questions about the

legacy of justice. and then we will ask about the case in the present term in finally, we will discuss this together. audiencesk for participation, especially in the part about the future. with that i will turn it over to rin. erin: thank you, hadley. it's so nice to be there. i wanted to share a story about justice scalia that many of you may not know to begin our remarks. and so justice scalia's father's name was salvatore eugene scalia. he was an italian immigrant, and one of the most interesting things about justice scalia's father was not that he put himself through college, earned an advanced degree, but what the subject was in. he was an expert in romance languages. he published several books and his idea was you want to develop

a methodology or theory of interpretation. you look at the old great works of literature and he believed those words should be interpreted literally. so in other words, if you're going to translate -- sorry about that. so if you're going to translate one of the great works of literature, then justice scalia's father, salvatore eugene scalia of them would recommend that you look at the little words. to him, words mattered. so young justice scalia grew up with the idea that words matter. so if you look at his legacy on the bench to look at what he accomplished over his lifetime and in this that i think will discuss something that would probably alike agree on, on the justice league is the single most influential justice across not only the legal profession but a cabin in terms of how we look at text. this has deep roots in his upbringing, in his father believe that you need to look at the text, it actually matters and you should look at the text

literally. megan: thank you for being here. this is a great event. it's nice to see some a people engaged in these issues. i was thinking about justice scalia. the court to with the up to justice scalia and i was thinking about him and his impacts on sort of the job i had to vent and my legal education and my career since been in practice and stumbled on a quote from justice scalia about the role of judges that i think really captures what was gratifying about finding justice scalia in law school in florida reading a matter of interpretation and having to start a common sense approach to a rulebound society. one of the quotes i like patty made and if you're going to be a good and faithful judging have to resign yourself to the fact that you're not always going to like the conclusions you reach. if you like them all of the time you probably doing something wrong.

seems that takes life in my judges chamber what i was looking for a lower court judge very gratifying, that it's not all politics, that's our principles and rules. that is one of the things that i stand for is we can quibble about doctrinal changes but he stood for the idea that rules matter, words matter. and as a lawyer, you are trying to bring decisions and arguments within those confines and recognizing that you can disagree with ebola the outcome: ie and i ensure he hated a a lot of the decisions that he wrote. but it's ultimately congress that is supposed to be making a lot of those decisions and not the judges.

his principles to me as one of the things that makes it such a good part of his legacy. >> thank you. thanks so much for having me. i clerked for justice scalia, and i did so in the 2001 term. i had a rather, the relatively uneventful term but we followed the bush v. gore term, and one of the things that struck the most about come into the court after, you know, shall we say a contentious term the prior year was how the justices and justice scalia could put in a separate box their disputes over the law, over the outcomes of cases, and how it didn't affect their collegiality on the court. and justice scalia i think was known for that. he was very much able to separate ideas from people, and he loved the law and he wanted to be right. he wanted to be in the majority. but he had such strong friendships with folks like justice ginsburg. he became a hunting buddy of his what justice kagan. it was a very, very collegial court and he made it a point to try to improve opinions from all justices on the court.

justice ginsburg recently told a story at the second circuit judicial conference where she was writing the majority decision in a case, and justice scalia was writing the dissent. and before going home one evening, he dropped off a draft of his dissent with justice ginsburg, saying it had not been shown to the court but perhaps she could use his dissent while writing the majority opinion. in she said reading through his dissent greatly improved when what she wasng -- writing as the majority, because

as can be anticipated, his dissent had words to pull quote in the majority opinion. and that's another thing that stood out from my clerkship. the number of times whenever justice scalia was writing a dissent, the back and forth between that justice was writing the majority of the one come and justice scalia writing the dissent. justice scalia would add something to his dissent saying that argument doesn't make sense. sabrina mentioned how important it is to understand someone else's moral framework when you are arguing with them so that you can argue on the same playing field. so while justice scalia might not accept their judicial philosophy of someone like justice ginsburg or a justice breyer, he was very calm he was -- he was such a brilliant he had such a brilliant mind, but he was able to critique someone's opinion both from his own point of view but also point out inconsistencies with a result in another

justice thomas -- with the justice'sanother philo so i thinks one ofo his lasting legacies on the court is justphy to improve the. the scholarship and writing and the analysis that came from all of the justices. >> each justice had four law clerks typically. justice scalia often had one woman and three men. we were treated to a light. maybe heike to think was a little nicer to me sometimes. maleuld jump all over a

law clerk that was not dressed properly, but he never said anything to me. he did not want to go there. scalia liked to debate every case, so that was one of term.ghlights of the every single case that came through the door, he would call lerkarati into his chambers and we would discuss the case before and after the oral argument. the cases were not the hot button cases you read about in the newspaper. second amendment or abortion case. scalia'sjustice judicial philosophy, he knew what it was. there was not a lot of debate about whether he believed an

abortion was something the constitution spoke to. you know? he did not believe it was. those types of cases did not yield a lot of discussion. the case that stands out the most to me was a case about hope trust company safety regulations. the clerks chose cases to focus on, we would take turns. chosen. the last case it sounded so boring, yet we spent hours talking about this. cityrned on whether a could pass safety regulations or only a state could do so. and it turned on what the word in a statute. in this particular statute, some section of the statute said

"state and political subdivisions." and this one only " and justice scalia thought if they wanted to state cities they couldn't. so it mean something when they did not. o'connor signed and dissent but concluded there was no doubt that "state" did not mean "safety" in this case. justice ginsburg said she thought it was a close call but based on various considerations including respect for state rights, it did include cities. clerkshipy from my what an amazing job he did taking each case. each case was important and required careful analysis looking at what the word said

and giving them the meaning that was intended. >> what you are saying reminds me of a dispute the court has had about the affordable care act and what the meanings of words are. >> it is hard to figure out sometimes it things are not written clearly. hadley: i'm referring to king v. burwell who for anyone who thought the litigation about the aca. i wanted to ask you about an area of law or areas of law that you as lawyers see influence of justice scalia, or which parts of the jurisprudence as he had a big impact on this especially as relates to your work, feel free to explain to us how, but each of the three panelists would like to respond to that. we will start with erin and move to the left. erin: justice scalia has had a tremendous of impact a number of areas of law but i will take a quick step back and look at his

overarching impact. so justice scalia as we all know believe in originalism. what originalism means, that variations of it but basically if you look at the constitution and interpreting it as applied to a case today, the fourth amendment, for example, do you need a warrant to search a cell phone? those questions go back to what the fourth amendment met -- mint at the time of the founding. meant at the time of the founding. or least that's what justice scalia thought. he really changed the debate not only looking at constitutional text but also a look at statutory text. as megan mentioned is published numbers of english books including a matter of interpretation. in that book he explained that the text matters. one reason the text matters is because if it doesn't matter, then you've got unelected judges sitting in very scored across the land that are putting their own policy

preferences into a fact by contributing this text. and i think one of the ways we can see how influential justice scalia has been is to look at the legal opinions of the 1960s and the 1970s, and compare them to the legal opinions today. without exception nearly if you look at a legal opinion today regardless of the justice who wrote it, they will look to the text of the statute they will try to hearken back to the constitution. this wasn't the case before justice scalia. broad purpose was enough. if congress had intended such and such, or a judge thought congress intended such and such that was enough. today the courts and judges are required to look at the words that congress actually spoke. i think this is really important when we look at how our constitution structure, our government with the legislature given the power to legislate, to make the law and the courts empowered to interpret the law but not make it according to their own policy preferences. i think he has had a tremendous can't be overstated affect on how judges and even academics look at the law today --. >> to echo that before getting into specifics of the areas where i think his legacy is enormous and also impactful for

practicing lawyers, sabrina mentioned using the vernacular of your opponent and i think what's interesting is what susan was think about being able to relate to his opponent on their terms and make their arguments better for them and show why their logic field. he in a way sort of took over the playing field when it comes to legal debate and legal arguments because so many advocates, professors can of the judges now start with the framework that still be a sort of pioneered in a way. .. has to fight on that field. in terms of the areas that the longer is the meet is tremendous and also really cracked me impactful for

racticing administrative law common he was sort of a dean of administrative law prior to going on the court. he was on the d.c. circuit, which is the court of appeals that hear so many battles of administrative law and his role in those cases really can't be dated. he is responsible for some of the biggest cases and decisions that were not. it was interesting to me to see in recent years have so much as approaches to deference to agency's hardship to the little bit heavy with the growth of the administrative state. the reason he felt strongly about deference to agency's goes back to his believe that congress is the place that should be making policy decisions.

it makes develop our intuitive white agency should be deferred to them given a lot of running room. he also wasn't shy about telling congress he can fix this. f the above are delegated to an agent they come you can always access his at the same time he would require agencies to faithfully go through that your interpretation to reach reasonable results. what i like about the decisions as they weren't uniformly pro-or anti-agency, but you could expect him to the agencies through their paces in you saw lawyers at the nation is no when they are making roles, they would have to expect search and review of their decision and tried their best to make their roles more reasonable, more logical and grounded in the text of the statute that congress told them to implement. that is one of the most impact areas with oligocene in the scholarship behind administrative law and what the federal agencies are doing, which is so timely right now

given the growth of the federal administrative state and so much is decided by this agency far from congress --. >> i have to agree. both of utah without justice scalia is at emphasis on the tax. on the taxpayer by the rest of he the constitution center and let a statute as. think it impacts not just judges, but i see it in my own work as a lawyer. if you don't start with the relevant language of the rule for the statue, you know you are in trouble because why ouldn't you start with the text if it helps you. i never did it, but when i was clerking, i have said to my co-clerk, we should take all of the pieces we are hearing, open up the braves and compare it to

party starts with attacks, are they more or less likely to win? after justice scalia, the answer is if the text is on your side coming or going to win. what is remarkable is this practicing lawyers it's normal, but it's really quite different from a few decades ago. we've made such a meaningful change in the way judges resolve cases --. >> one additional thing i find funny that he did is there's always a debate about the role of legislative history and when you can reach back when you're trying to interpret a word, what role did the committee reports by and there were hearings don mancini has definitely created a healthy skepticism. he has a famous quote that i won't try and do because all butchery. the idea you can look over the crowd and pick out your friends when you look at legislative

history is very easy to manipulate data. that is why it's important to serve attacks. this practicing lawyers who have to decide when to deploy legislative history. it is in your arsenal of tools. but it is not to go to that i think it was in the 70s as an easy way to sort of say no, this is a congressman. this is what the rule should mean and move on --. >> justice scalia felt so strongly about this and not relying on legislative history that if there was an opinion in which he agreed entirely, but it used legislative history you would file a separate concurrence say i agree except for the legislative history point --. >> i think it is important, why does he care so much? right? the reason he cared is that the lawyer i can come up with a policy argument for like any argument you want me to make

here the same goes for legislative history. you know, there are members of congress that will have spoken and taken a position, kind of across the board. you can sign on either side of an issue, you can find legislative hits yuri to support the result that you agree with. so what is it that will ground the judge or put down various around how a judge can decide a case. you know, justice scalia, he made a real mark on separation of power. this is all consistent with that. he believed judges had a role and had to remain within the role to keep the proper balance of power among the three branches --. >> they issued separation of power in administrative law are obviously critically important. sometimes the issues we think about when they think about the supreme court, the issues that get more attention or the hot button issues like abortion or

immigration or affirmative action. we actually have some cases that speak to the very issues in the present term. now i want to shift gears and talk about not so much what justice scalia's legacy was and will continue to be, but how we are going to feel his absence in this current term. i think off in the absence of someone speaks volumes to what their legacy really would be. if i can ask each of the panelists and maybe we will start with susan and work our paycheck to the right to the comments on the cases currently before the court and what it means to have an eight-member court that is absent the voice and influence of justice scalia --. >> well, there are 38 cases that jump to mind. i am sure i am leaving some out there that do focus on three, they are still pending. one is the immigration

case. and actually, they all come out of the circuit. what is important about having a justice court is how the fifth circuit, how the lower court resolve the case. if there is a fortran 94 split, the decision will stand. so the split won't make any new law. i think they won't even write a decision, but the parties to that case will be living under whatever the lower court said. so when the immigration case, the deferred deportation programs that are as she'll have not gone into effect. so if there is a fortran 94 split, the administration loses. that case was argued just in april i believe. people can speculate about what

is going on in the case, and that the gas is the longer it remains undecided, the more likely it is you will not be fortran 94. because i think it is in the courts interested, for some way of resolving the case and not to have a split tear the thing about the immigration case is that it's very complicated case about whether the executive is intruding on commerce is the already to say when emigrants are lawfully in the country, when emigrants are entitled to ork. but there are several pressured issues in the case that the justices could very easily -- i shouldn't say very easily. they could resolve the case on standing issues, like i was eighth even allowed to bring this action to the court to resolve.

there is a notice and comment, an administrative law issue in the case. the program is put into effect without giving the public like the typical notice that the program will go into effect and you have an opportunity to comment on it. there are issues like that that is possible that the majority could he coddle together in the case could be resolved kind up without a solution. should i leave it at that? the other two are the abortion clinic case. so if that one -- if that one is a tie, then the clinics -- the state of texas one in the lower court. so the clinic that supposedly will close with close. no abortion law would be ade. again, in that case, to a moral

argument, there was some inkling that the courts might try not to resolve it. for example i believe justice kennedy spoke about whether the record was fully developed as to whether, even if some clinics close were the ones that remained open, you know, how many abortions would they still be able to perform? so this type of questioning suggests that the justice are not anxious to make new law with just eight members. they are not anxious to resolve the case with a fortran 94 ruling. is there a way to kind of resolved the case on threshold or narrower grounds and the last one is the affirmative action case from the university of texas and university of texas and not only has seven justices because justice kagan worked on the case when she was in the administration and so is

recused. so that one won't need a 4-4 tide. it would be unusual to make new affirmative action law with inus two --. >> taking a look at the broader issues, i will note that susan mentioned standing as a potential way to dispose of the immigration cases. that is another area where scalia had a major impact. he wrote the seminal decision in a case called lujan versus defender of wildlife and in a lot of the agency litigation, and there is a tension in the lot about who can sue and challenge certain things in a goes to the constitution's separation of powers and what kinds of disputes can be brought before the judiciary and the courts require you have to have standing and certain harms that will happen to you. you can't bring a generalized

grievance that everyone shares and scalia pioneered a lot of the thinking, but it's actually rather critical to a lot of sites over agency action. that is in particular a loss for the court going forward. there's several environmental cases percolating along the way. i am not an expert on environmental law issues, but in the state of west virginia has secured some pretty extraordinary relief in the case and just is scalia has also been a thought leader and a pioneer in dealing with environmental cases. i read some commentary that has been critical of this deference the prize last to the epa. that may be fair in recent years has the epa has seemed to have gotten further and further afield from its statutory mornings and congress hasn't done much that the epa has been sort of occupying the zone they are. that is an area where the particular cases percolating out under the clean air act and

clean water act cases will miss his contributions and going forward that is an area where his boss will be particularly acutely felt. we can talk about the bigger picture issues, but those are the things on the docket that will be notable to see how the votes shakeout --. >> to pick up a bit on what make and just sat about the litigation with the epa. epa has a number of challenges against regulations working to the federal quarter. there have been two issues. one against the claim power plant and one against interpretation of the great waters that. what is significant about both of these actions is by federal courts, the supreme court is that the agency we think looking at the merits of these cases that you've actually gone too far. i think the clean waters case of a particular example of why the text matters. the statute passed in early

1970s. congress said that the epa and agency created by congress shall have the already over waters of the united states. since then, there've been a number of supreme court decisions that the supreme court has interpreted to include waters directly adjacent to navigable water. a series of iterations and agency regulations was the outcome that today the agency interprets waters of the united states to include basically an area that can wash into even a wetland. the epa looks at the watershed and if the cumulative effect on the watershed could ultimately impact some sort of stream are rather coming year may be in trouble if you want to do a building project for farm or anything like that. in one opinion a few years ago, justice scalia said we just can't tolerate the epa's waters of land approach. in other words, when the

statute says waters between spotters. it doesn't in fact mainland. as in all areas, we are really going to miss both his weight in pointing out the logical fallacies in the other side's argument that time as well as commitment --. >> i want to ask one last question about the present term and it's pretty specific so passive you like. since we are here with an audience of overwhelmingly majority female audience today, if you have a comment, this is a background case consolidated by nonprofit employers over the aca's regulatory mandate that all employers. health insurance coverage for contraceptives. some times hobby lobby part 2% n like that. they were still not a satisfactory way to resolve the

issue. the case included a poor group of nuns. you may have heard the media coverage about that. i would like to ask panels that they have a comment. if you would like to take a gas in your crystal ball that night it happened had scalia not passed, that would be an interesting thing to consider. also where the future that case is going. start with this because i know you wrote our amicus brief --. >> thank you. hadley and i co-authored an op-ed on this. i want to start actually let the decision handed down. it was a unique sort of surprise decision and in that decision it was unanimous to all eight members of the corzine on today's lugubrious concurrence of justice sotomayor. every mandate to the core. the consolidated case, five

cases have come up through the lower court with contradictory results. so you don't have the clean result and it goes back in the circuit law in place days and you've got the opposite result and it makes a 4-4 split messy. with no inside knowledge, and this is a strong bargaining chip in getting all of the justices to sign onto this opinion. the opinion remember the lower court, but it had been uniquely set up to result in a victory for the poor in other petitioners. the reason for this is in its order, the court says they may not be fine, so prohibit the imposition of any sort of punishment against religious orders who choose not to provide contraceptive and tells the government to work it out. during oral arguments, the

government has received questions about what would be a reasonable or acceptable accommodation? during subsequent briefing, both sides grudgingly agreed that it would heal kay if the government wouldn't violate the religious liberty rights of petitioners and the government would be able to do this. and what this says is to provide insurance to employees who want contraceptive coverage without involving the poor at all. in other words, the government would contract with their insurance company separate plan. they wouldn't co-opt the plan and they wouldn't require the little sisters to be complicit at all. the court's opinion says the party said this is an accommodation work. go and work it out by the way, you can't find any of these petitioners. there's been arguments in the commentary about which side to win four. in my view is a clear one for

petitioners and also for women provision for a contraceptive coverage for employees who wish to receive it --. >> i do miss the opportunity to have seen or read justice scalia's opinion in that case because he's had a rich history and it would have been interesting with commentary on some perceived inconsistencies or tensions with his religious case from years ago that said no the general applicability is generally going to be ok to bring your exercise of religion, but he would've understood this this case in a unique way and i think he would have been colorful and describing the asymmetry here commented david goliath dynamic. really you are going to go after the little sisters and fight this principle is hard with these -- i just miss the

opportunity to have read that the summer --. >> this case was argued with justice scalia. and so, i think it is an interesting example of the court trying to work out these cases without the 4-4 split. i think the gases probably could've easily been a case with justice scalia in the majority. the other case that was also argued with justice scalia with the texas affirmative action case. so it is more of a question of what happened to a majority decides that they're even worse than in most cases, whereas some of these other cases in march and april can see from the oral art event itself of the justices were asking questions in an attempt to recognize going in to oral

arguments that they might need a third way out. so this is definitely a good example of avoiding kind of a nondecision in the case. it is still not a full decision. it still leaves things somewhat up in the air, but better than it could've been --. >> great. now i want to shift to talking about the future. i want to involve the audience a little bit at this point so prepare yourself for a flash poll or two. as we are all aware since the passing of justice scalia, president obama has made a nomination to the supreme court and what they think about this nomination. my question at this point, the u.s. senate has refused to confirm merrick garland to the supreme court. my question for the audience is raise your hand if you approve of the way the u.s. senate is handling the nomination and pproval process.

ok. now raise your hand if you disapprove. very interesting. now, not to put them totally on the spot, but am going to ask the panel asked the same question and i will ask if the panelists will justify their approval or disapproval of how the u.s. senate has handled the nomination of judge garland. we can start with megyn this time --. >> far be it for me to tell the majority leader how to run the senate. this to me seems like a classic kind of political dispute they would say that politics advise this. if they want to hold out and not do the processes that sometimes go went to advise and consent, that is their

prerogative. i haven't followed all the constitutional areas that i've heard and it about from different scholars with their own agendas. the president has discharged his constitutional responsibility and the senate i don't know of a requirement that they take action within a time certain. it seems like your quintessential battle between two branches of government. we will see what the election season holds to whether someone links or we end up with something totally different in january.>> aaron, did you want to comment? -- >> i agree with that. you might as well say this is a political issue and we will not get into it. but he was certainly look at the text. as megyn alluded to, there were two sort of powers or authority is while the president shall appoint a supreme court justice said in the senate shall give advice and consent. but it says nothing within the

advice consent clause that requires the hearings that are recent phenomenon by an up or down vote. many of them actually turned the job down. they didn't want to go all over west virginia. the process has changed throughout the constitutional history. it is fair to say that there is no constitutional requirement that the hearing be held in any certain time --. >> i mean, i think it's been three months now. it's interesting to me when you travel outside d.c., does anyone really care? the supreme court has nine justices. it had eight, would anyone know that was wrong? it seems like a lot. maybe you only have seven that should get rid of one. but you know, i think more likely than not, like if you

describe yourself as a republican, this is a good approach. if you describe yourself as a democrat, you know, there should be -- the senate should take action more quickly. maybe that doesn't describe veryone. but i think if the shoe were on the other foot and democrats were republicans to defend exactly the same democrats would have exactly the same approach. because justice scalia was so influential and he had one vote, but he was such an intellectual powerhouse and kind of a center of the conservative side of the court, and that to replace 10 with someone who has a judicial philosophy that is really so different. the supreme court should be a

big issue in the election. i don't know that it will be except inside d.c. but you know, when you look at the things that are really at stake in this election, i think the supreme court is one of them --. >> that leads me to a next question. i live outside of d.c. now. i would say it will be an issue in the election. my workarounds in this world of public policy. my next flash poll for the audience is how many of you when deciding how to cast your vote for the office of the president of the united states would be considering the supreme court is one of the top issues when you make your decision about how to vote. pretty good number. we are in d.c --. >> in the d.c. greater area. well, thank you for your input audience. my question for the panelists

and susan sort of raised this point. do you believe this will be a driving issue and people go to the polls and how many votes might be influenced by the future of the supreme court? erin, do you want to start? -- >> sure. probably agree, i think it should be a very big policy consideration as you think about who to vote for. there are two very different competing judicial philosophy is typically advocated by the right and left. there are exceptions to that, but generally speaking, we should look at the text that each branch of government has its own defined set of responsibilities and roles that her government is a limited government, though in a congress to ask and we need the judiciary to interpret that is a very sort of sat way of looking at the law congress might enact. on the other hand, you've got he philosophy were generally associated with the left.

that also applies to textual statute as well. this idea of the constitution changes are also timed so the founders could not have known what it would've happened in 2020. we need to interpret the statute or the constitution loosely to encompass all of these new sets of ideas. as suzanne mentioned, this leaves judges opened to put in their own policy preferences. if you think about the two different kinds of judges come you might get not only on the supreme court, which is usually important, but the courts of appeals and district courts are i don't even know how to get, probably 50 or so vacancies to come up during the term. these are training grounds for supreme court justices. who gets in this lower federal court offices, federal court judgeships as well as the supreme court. from my perspective, you want to judge faithful to the tax, not someone who will interpret it however they think it would be interpreted or sort of the

legal theory of the day --. >> aaron did an excellent job with the typical. but judicial nominations and philosophies. this is not a typical election year. there's a lot of questions about who the front running candidates, and who they might appoint and what their particular philosophy is when it comes to the supreme court. further comments on how this election might face the supreme court. if you can also comment on what we might expect a different running candidates on either side of the aisle. i know that is a difficult question. does that makes the panel so entertaining --. >> yeah, donald trump made his list and there were some very commendable judges. there was a pretty mainstream right of center sort of republican list. there weren't any big surprises there. i think a question one could

ask oneself if you are trying to figure out what kind of judges he wants on the court is i would like to think of it, you know, look at the diversity of ideological or jurisprudential approaches on what is typically considered the right side of the supreme court versus the left. notwithstanding scholars like to say justice goliad and justice thomas are two peas in a pod. they are not. when you're trying to count notices, one of the jokes is who wins the supreme court. it's not necessarily a few returning to five. when you get to the five votes, and i don't see that many places where we are actually wondering what is justice ginsburg going to do with this case for well-adjusted soda may your peel off and do something wacky compared to the folks who tend to align with her. it is our side that tends to be our side. the right side of the court as

more jurisprudential diversity when you look at those. people wonder, where was justice o'connor going to be? or is justice kennedy going to be? you can't predict where justice alito is going to be. what i would look for is the nominee go into sort of always reliably run down that one path, or might they be on our side and sort of the criminal cases where they peel off into different things. just one possible principle for trying to cut through some of the confusion about who they are. i think we know where president clinton's nominations would fall. i don't think there would be a big surprise in any of the big cases where president clinton's nominee would vote --. >> i agree. some of the folks who miss justice scalia is he had a lot of disk decisions that were

favorable. there were certain amendment decisions come in various fifth amendment, a sixth amendment compelled to testify against yourself. you know, he was often a fifth vote in a pro-criminal defendant 5-for case, which was consistent with his judicial philosophies and his riginalist view of the constitution. but that part of his kind of legacy i think is, you know, mr. glossed over at times. i do not think that it will be a big issue. i don't think people are focused on it. i think it should be. it will be a very much discussed issue in the

media. the limited numbers of times that i go into virginia, the further away from d.c. though, the more into the weeds it seems, even in i don't think it is --. >> the supreme court asserted an issue, but touches on so many issues because an entire branch of government unto itself. this'll be my last question for the audience and my last question for the panel. for those of you who may have been brainstorming questions of your own you would like to ask, i'm giving you fair warning. the final question of the day is how many of you, by show of hands are optimistic about the future of the supreme court? how many of you are pessimistic? and how many of you are unsure, undecided? looks about 830, 30, 30 split. panelists comment tell me if ou are optimistic or

pessimistic or unsure, ncertain and give us some of our reasoning why. shall i call on you? -- >> i feel like i'm sufficiently incapable of predict in what's going on. you have a grounded reason to be optimistic or pessimistic. it is a wild season and i just don't know what we could have in january that might affect the court and what that might look like --. >> i think it will stand our fall with the election. there is some speculation on how close would president trump's foreign-policy bee with president clinton? one might be speculating to answer that question.

on the question of how different would a supreme court look like under president trump and president clinton, we may still be speculating a little. i think they would look very different. if you look at the ages of the supreme court justices, we are not talking about just justice scalia c. there's at least three of them who are in their. i think it like mid to late mid-80s, you know, could be lose to stepping down. i think there could very well be four seats the next president. that is the supreme court could wind up with a dash seven liberal justices. i may be counting wrong. you have thomas, alito and

chief justice roberts. you know, they are fairly young. but the other six seats could be filled by liberal justices. and that is a sea change. we've had a fairly conservative supreme court. cert money during my kind of legal lifetime. you really will see a lot of different types of decision on issues like standing, which is who gets to litigate, who gets to bring a case. can the states challenge federal government action? how far can agencies go? it's not really a conservative or liberal issue in terms of result. what it does give the judiciary and more liberal justices will tend to give the judiciary judges more authority and so that can be good if you like

the judges and it can be bad if you don't like the judges. but i think we would see a very, very different court --. >> i think you would also see a real change in a pro-plaintiff class-action sort of way that would make the legal system here less hospitable to innovation and growth because that's a big distinction between ice in european countries and others as we have ery act of planets out there and the supreme court is often the bulwark against the more aggressive innovation then i think with a solidly liberal supreme court you could see some real changes in what would be anon helpful direction on class-action management and bringing very aggressive lawsuits that are hard to deal with and not great for the economy --. >> one other issue, not to

scare you off, but also a change in a more liberal supreme court is the number of issues the court within two. it is sort of the least dangerous ranch predicated on the idea that the court would decide what the law is, but that would be interpretation and leave a lot to the state than the state, for example, and would be able to decide the marriage issue that would read how they define marriage. of course this past year the upreme court waded into that issue. if we have to supreme court, we'll see more and more social type issue is that one might prefer it be elected branches decided by the supreme court --. >> all of this is not to mention of course as we have been learning this year the president is critical to selecting justices, but the u.s. senate as well. they may be considering that as they head to the polls to vote for your senators as well. now i would like to open up

this conversation and include questions from the audience if there's anyone that that has a question for the panelists. please press the button on your microphone --. >> so, do you think that just is scalia's original will carry through at all? even if we have more liberal justices? do you think any of that will carry through? -- >> i mean, i think it will emain. but i think he is often the dissent now and i think his original decision making would be in dissent on the supreme court. in now, which will eventually rickle down.

i think the supreme court is kind of a vote changing institution. it is unusual that we will find ourselves talking about not one, but four seats. so once the seats are filled, likely over the next four years, it will change more slowly again --. >> i think that is one of the questions of what will happen to his legacy and that is why this election is important, whether there is someone still the carry that flag, to make a ontribution to jurisprudence --. >> other questions? we will take one in the middle and then go to my right.

>> the question is will you consider other justices to be originalists? >> probably not. i think justice thomas is actually probably the most originalist justice on the court. justice scalia self-described himself as a hesitent originalist. that's the wrong word. sort of someone who was originalist but maybe didn't always like the results. i think if you look at chief justice roberts and justice alito's opinions they are very faithful to the text. but i don't know that they describe themselves as sort of following the same legal rameworks. >> the question is textualist versus originalist. right? >> one more question. >> my question is what is the supreme court's job to do? i understand the executive

branch basically when you're president you propose things and when you're congress you make them laws. can you tell me what is the job of the supreme court basically to do? i know you've got to interpret but what does that mean? also my other question is, what are the roles, other than presidential appointment, does the president play? what is their job to do? and what are the role as presidential appointment play in that role? >> great question. >> someone want to tackle the role of the supreme court and what it means 20 interpret the law? >> i think it's easy to overthink what they mean to do because now they have so many things other than law-making on the plate. but this is something that first-year students tackle with. you're supposed to be the

umpire, you're calling balls and strikes. you're being fair. there are times when that gets very difficult, when you have to interpret a word that has never been to interpret it before that has an ambiguous meaning and clouded history. and then you have two parties that are fighting about i it. i would think your job as the judge give meaning being respectful of what it's doing in the overall scheme that it finds itself. and you're supposed to not be look for the outcomes, but resolving disputes over the meaning of the words that congress used or the actions that the president has taken. >> i think that's right. i think one thing justice scalia believed was you're resolving a dispute about what the law is or what it says in a specific context. right?

the parties are framing the issues for you they're telling a factual study. but the way you interpret the law then should remain the same when the parties change. right? so you have a factual background to intpret what the law is. but then it's sticking to that interpretation. that i think justice scalia believed is what gives judges their impartiality. >> for the roles of president it seems often that one of the parties were the federal government itself, especially the executive branch. so i don't know if any of you believe you want to touch on the roles more broadly in terms of which cases lined up with the supreme court or how this conflict arrives. >> the department of justice is probably one of the largest law

firms in the country and within that justice department there's a special sort of section that lilt gates supreme court cases that is called the solicitor general's office. so what their job is under the executive branch and the president's authority is to defend the laws of the united states. there's arguments over to enforce and defend the law. but generally speaking the lawyers in that office are to defend the law as written by ngress and had enforced by the president. so they're sort of the government laws yrs as it were. >> one point on that is the in this administration i think others have commented i'm not brearking any new ground here but the folks who are lit gating for the government are very influential about framing cases, what legal positions the government would take to defend the statute or to go out and prosecute someone or bring a

civil action. we filed the brief in a religious freedom case a few years ago where the government's position changed dramatically. and the supreme court's opinion called them out and said this is the really aggressive position you're taking it was not -- they lost handly and you can see the aggression that i don't know would have been present or pursued under previous administration whose may have been a little more humble. but those appointments and who runs the department of justice matters. >> we're at time with this panel but i would like to offer any brief last remarks or anything left that they haven't added to the conversation, if you have any final closing remarks very briefly. or you can pass. >> well, thank you for having me. in february, what the country really lost one of its great legal minds. it was a privilege and an honor

to work for him in the supreme court for a year. and his presence would be missed on the court. it really will be missed in the legal field. i think lawyers have learned a lot from reading his decisions and certainly not all lawyers are dealing with supreme court decisions but he's had an incredible impact on the legal scholarship and on how lawyers argue cases. >> in terms of legal academy our loss tioners, doesn't compare to those in his orbut but it is a loss. lot of us admired and learned a lot. it was very jarring in february.

>> i think to respond to a question earlier. i think if there is a zimmer of hope in the supreme court it would be justice scalia's legacy and the fact that liberal justices do now pay attention to the text. his biting decisions would hold them to it. but we will survive. >> thank you audience for humerg my flash poles today. please join me in thanking our panelists. >> a look at women voters and he 2016 presidential campaign. this runs about an hour, 10 minutes.