have intentionally discriminated. why did they take it out? thomas farr: it was reason for them to give most of the response only -- responsibility for the creation of ideas to the department of motor vehicles, which had offices all over the state for people to go get an idea. we have heard all this bashing of the provision of motor vehicles -- division of motor vehicles throughout the case. judge wynn: i will ask another question. in an acting the statute, did specificlature request ids? thomas farr: let me ask you a question. judge wynn: you do not ask me questions. [laughter] i understand. you and i have been together a lot. i understand where you are going. let's keep it where we are. i am simply asking the question, and the answer is one where the other hand i will live with what

you give me. we know that racial data information was requested as -- the the intentionally other side did so, and they did with a knowing mind with how it would affect minority voters. i ask you to respond to that? thomas farr: i would say it would be not prudent not to ask for that, knowing that these laws could be subject at the passed, that data was the state was under section five, but even after section five went away, it was under section two, so it would be only prudent to ask for that information. in fact, judge schroeder asked department, the would it be worse or better for the state of north carolina not to ask for that data and the justice department said they could not answer the question. so if you are concerned about complying with the laws and we

laws that prohibit dissemination, it is prudent to find out some degree of what the racial demographics are. judge wynn: and if that democratic -- the graphic information, you may have legitimate reason for asking for it, but once you have it that information informs you of certain behavior, the early voting is more likely to be used by african-american in the first week, for example. or voter ids more likely not to be possessed by them, or out of precinct voting may be used because of lack of transportation because -- is that the type of information, my question is, that the legislature had before it? thomas farr: my answer -- my time is up. judge wynn: answer it please. thomas farr: every case, whether it is intentional dissemination or section two or section five,

every court has said evidence of disparity does not prove anything. so, that is the first point. secondly, there is no evidence -- judge wynn: is one of those every -- the supreme court? thomas farr: you do not find discrimination because there is disparity. judge wynn: i am trying to get at least my understanding clear on it. asking a specific question, the evidence that was before the legislature, whether it informs a decision or not come it could go either way, but i want to know the time it was enacted, did they have this information that they could take off, by example, information that the use of these particular procedures was fortunately higher in and minority community than in non-minority

communities? thomas farr: they had knowledge that the state board of elections indicated that they were unable to match african-americans at the same as whites, there is no indication that they did not possess photo ids, that they could not match them. the state board said that it was inflated, that report, because there were problems associated with the reports. in fact, it was inflated and this state took that information and adopted a rollout. period before they decided to enforce photo id and they have mandated, as found by judge schroeder, an educational campaign to try to educate people on photo id and help them get a photo id. they got the information and they took appropriate steps to do something about it. judge wynn: thank you.

mr. peters? alexander peters: thank you. i am alexander peters of the deputy attorney general's office. i think it might be simpler conceptually, what i want to make sure the court is aware of is factual consideration. the general election is 20 weeks from today, so i want to make sure the court is aware of what will happen in those 20 weeks. i can't take it by each of the mechanisms we are talking about, the preregistration, out of precinct voting, photo id and early voting. was the plaintiffs said partially right, but partially incorrect. plaintiffs do not administer elections, so it would be understandable that they do not

have quite the information. when it comes to preregistration, same day registration, out of precinct balloting and photo id, all of those things are handled in the electrictem, the information management system suite of applications. there is testimony about that in the record. place, in then form it will be used, prior to the beginning of absentee voting. at the beginning of september. so seems pretty much must be locked in for what it will look like during the election by mid to late august, before it can be anded in, a number of tests essentially mock elections and that sort of thing must be run to make sure that everything is working together properly and that it will do what it is supposed to do on election day.

those tests have already started, so we're at the point right now that it is very difficult, it is -- if not impossible, to start recoding new information and for it to work for the general election. judge motz: no way we can issue an opinion that does anything? alexander peters: that is not what i am saying. not what i am saying that all. one exception, that is preregistration. it is too late at this point, it seams setlate to have up to deal with preregistration and have it in place prior to the beginning of september, which is when it would need to be in place. for the purpose of the election, the effect ithave might seem, because anybody that -- can register right now. so the fact that there is not

preregistration built into the system at this point would not prevent anybody who will be 18 at the time of the election to register, if they have not already. they may have registered for the primaries. judge wynn: i am thinking preregistration is something that you have to do in addition to what you already have. the others seem to be, you are taking away from things that are there, so it may be easier to subtract than to add. alexander peters: same-day registration come out of precinct voting because of the induction in the trial court and because of this court's order, they will stay in place pending this decision of this court. out of precinct voting are already in seams, seems is set up to handle them and will handle them. same with photo id. it is set up to handle that. the ideal would be if we are

were not going to have any of those things, would be to pull them out of the system, because -- but you cannot do that without risking missing up other things you do not intend to mess up. so the state, if the court was to issue a decision that said, no same-day registration in november, no out of precinct for -- noer and november, or photo id, the state board would need to make sure that county boards know not to use any of those. that leads to what the second issue is with regards to this, training and education. statewide mandatory training for civil action's, county board members and county election officials are expected to attend this training and it is training that they use to train workers in the county. that training is set and it has been for months, for august 8

and 9. seven weeks from yesterday and seven weeks from today. that is what officials will be trained on what the rules are for the election. given the materials to take that to the counties in use for training. changes are made after that date, then it becomes an issue, not just of educating people what the rules are, but three educating people. -- three educating people. it is not going to be this. and it also means, there is testimony and evidence in the trial court about the station got -- guide, the big resource manual essentially, that every poll worker has at their station that has all the information about how to do everything.

that would have to be redone in informationcurate to be available to county poll workers. judge motz: what does this information now say? currently, at the moment, some of these provisions are at joint -- a joint -- adjoined. alexander peters: it tells them how to implement photo id, how to do same-day registration, and how to do out of precinct voting, because those things are in place for this election. judge motz: so, if we should conclude -- it seems to me it would be easy to strike those. --epresent election boards in my youth. alexander peters: in my be easier for registration at another precinct, but for photo id it is harder, because there are so many aspects in terms of

the process coming in. i would also point out that videos and the like have been prepared, that were used for the primary it would be used in this go around. all of those deal with photo id come on how to implement photo id. the bottom line is if you are going to change, if we want to make sure the elections ministers are informed and elected officials have the best information available to them, really the state board of elections would need to know what changes need to be made well in advance, weeks or months in advance of the training, so they could make sure that all the training materials are accurate. counsel also mention the photo guide -- mentioned the voter guide that goes out to every household, over 4 million go out. under the contract for the state

board of elections, the proofs have to be at the vendor, the printer, on august 5. august,e talking early by which things will be going into print and county board officials will be educated in terms of what the rules are for the election. if we get after that point it becomes an issue of re- education, rather than saying these are the rules. with regard to early voting, it is important to remember that it is the county that implements that. county boards of elections have the ability to tell other public buildings in the county, we intend to use that building on these days for early voting. there is a 90 day deadline for that, if they want to use them for the early voting time, if it was increased to 17 days, they

would need to give notice by july 22, in order to be entitled under the statute to use it. it bigger issue might be poll workers, because they will be working with budgets for the counties, july-june budgets, so those are set now or in the process of being set over the next week or so. so if you got into an instance where they might need to expand the early voting time, they might not have the budget to pay the people to handle it. alluded tos counsel -- judge motz: i thought there was a same hours provision? why would there be an increase? alexander peters: it would depend on if they were able to spread things out more, or adding more time to what they already planned for, but it is

important to remember that the council alluded to, under the old statute, the only requirement for the 17 days of early voting was that the county board elections had early voting during business hours and on the last saturday. so it would be possible that were a county told that they need to add seven days, they might be able to do that by offering early voting at the county board office, which would be consistent with the old structure. if you have other questions, i will try to answer them. judge wynn: i see that you lead the department of justice their time not sure anybody knows as well as you do. [laughter] judge motz: a rebuttal?

>> i want to reply to some of mr. farr's points. and then mr. alexander's point. mr. farr said there is no other case like this, there is no case like this, no president for the role that house 589 created, and pairing voting rights across the state. house bill 589 present the first major construction in north carolina, since 1965. north carolina picked up where history left off in 1965, right after shelby county came down. the legal heirs -- errors were numerous, so to your point, it does matter, the distance in between whether the court is looking at rational motive or rational basis. arlington heights -- judge wynn: what was used here?

>> rational basis. judge wynn: how do you know that? >> the exact language of the district court. the district court said it would not have been unreasonable for the north carolina senate to wait how -- to see how shelby county came down. that is not evidence. that is rational basis. the point here is the senate was not just sitting on a voter id bill waiting to see if they could avoid the burden of going through it, it won't together all these -- lumped together all these other changes and dramatically changed the scope of the bill. these were not bills that were percolating somewhere else, the previous version of house bill 589 that came out of the house did include public assistance ids. post shelby, they take it out

for no reason. and the district court recognizes in words -- he says they could have -- right. are not actual reasons, these are rational basis reasons. allison riggs: if you do not look for pretext or actual motive, you collapse into rational basis and commit their and -- error in the reach the wrong conclusion. also the language that we decided about the troubling interplay between race and politics, to get your question where you are asking about the emerging political power, is voteow only applies to a -- case, that is not true. the supreme court used the same language. it is intentional discrimination, violating the

14th amendment, to spread out a portion of the electorate -- to force out a portion of the electorate, regardless of how they voted it is not limited -- vote. it is not just a voter dilution case. and he also mentioned that there is no showing of injury here. there is no evidence of injury, respectfully that is not what the record shows and it is now with the district court found. the district court found hundreds of voters that we presented that were disenfranchised in 2014, because of house bill 589 copy because of the cut to same day registration and the cut to out of precinct voting. it is there and it is throughout the opinion. on your question about knowledge, i want to make clear that the record shows, and we decided in our brief, that on

all different levels the legislature asked for data on racial impact during the post shelby consideration of house bill 589 and it received that data, that is on page 26. judge wynn: there is a point there, that data was requested for preclearance? for shelby? allison riggs: yes. it goes to the knowledge with which the legislature was acting. judge motz: are you making an argument that the legislature could not have requested the information? legally? allison riggs: no. post shelby, they were relieved of the duty to confide with section five, but more and poorly this goes to the new -- importantly, this goes to they knew the divisions. there are tons of provisions

bills every year, the ones that got pulled into house bill 589 were the ones with the impact on minority voters. so, on the -- judge motz: where their separate bills dealing with all of these provisions, all of them? combined in one piece of legislation. will it show that? allison riggs: i am not aware that there was an out of precinct bill, there was a bill proposing to eliminate same-day registration. i could be wrong on that. there were bills wanted to eliminate preregistration, bills wanting to cut urban voting. judge motz: where was it? allison riggs: none have been heard, they have been filed. exactly. that is -- there is an extensive amount of material in the j.a.

error, jump in around a little bit, i want to emphasize that this court in 2014 emphasized that the district court committed legal error as dismissing as minimal those voters that were disenfranchised by certain provisions. and the basic truth, even when disenfranchised voter melitta allowed -- voter, let alone thousands, is too many. the unread bottled -- the facts that they found, demonstrated that were thousands that were disenfranchised, so sacrificing voter disenfranchisement, under resourcing, is not acceptable and it goes to the remedy of what mr. peters was talking about, which is -- the state board of elections may have set training for august eight, but that can be moved.

they may have a contract to get proofs for a gun, but if a federal court rules that these laws are discriminatory and unconstitutional, i think that there will be ample time to educate voters, get a remedy in place and make sure the north carolina can vote in november. thank you. judge motz: thank you. we will take the case under advisement and we will ask the clerk to adjourn and we will agree all of the lawyers. pounding] >> on american history tv, july 4 weekend, this evening beginning at 6:00 p.m., american history tv is live at the smithsonian national air and space museum for the 40th anniversary. we will tour the museum and see one-of-a-kind artifacts and think with the director, jack dailey. we will also speak with jeremy kitty -- kinney.

and you can join the conversation as we will be taking your phone calls, e-mails and tweets. saturday night at 8:00 p.m. >> she was focused on her position as a mother. her position as a mother to say that women are different than men, but women can really do society better. >> boston college professor on the new role of women in politics during the late 19th century. and the growth of political organizations run by women that focus on probation and women's suffrage. sunday morning at 10:00, the 1968 republican and democratic national conventions. , strong, without being arrogant. that is the kind of america that will help build the peace of this world. tothe time has come for us

leave the value of -- valley of despair and climb the mountain, so we may see the glory of the don. for peace and freedom in the world. >> former vice president richard nixon accepted the nomination. and hubert humphrey accepted the democratic nomination in chicago. and on monday evening, the supreme court justices share stories of the current supreme court food traditions. >> whenever a justice has a birthday, the chief brings in some wine and we coast the birthday boy or girl -- toast the birthday boy or girl and saying happy birthday. and we are missing our course leader, because we were told that most of us cannot carry a tune. >> and talking about culinary

customs that it back to the 19th century. for the complete holiday schedule, go to c-span.org. terme u.s. supreme court ended on monday with decisions on abortion, gun control, and public corruption. up next, constitutional attorneys and experts talk about the decisions and surprises from this term. an event hosted by the constitutional society in washington. constitutional attorney thomas goldstein moderates this 90 minute event. >> good afternoon, everybody. i would like to welcome you to acs's annual supreme court review. i am caroline fredrickson. as i think all of you know, we are in organization that was

founded in 2001. we are a national network of lawyers, law students, judges and policymakers that believe that the law should be enforced to improve the lives of all people. acs works for positive change by shaping the debate on vitally important legal and constitutional issues, such as the ones you will hear discussed today. so, i think we have many of you that have been to these reviews, year in and year out. so many of you will recognize when i say, what a blockbuster term we have had. we will have to repeat ourselves because this year was no exception. it was in part, not an exception to the blockbuster term, but for reasons that we could not have anticipated. obviously, there were many cases of great importance before the

court. cases dealing with whether access to abortion would remain a reality for the women of texas and elsewhere. the constitutionality of the dappa immigration program and the viability of collective bargaining agreements that provide for fair share fees by way of example. the term was overtaken by the passing of justice scalia and the resulting vacancy on the court. some consequential decisions were made and some are not. cases were remanded to lower courts for further consideration, some of them ended in ties, leaving critical questions on the answer. and in some case, different understandings of the law in different parts of the country. given the senate's continuing refusal to consider it the nomination of judge garland to

fill the vacancy on the supreme court, much uncertainty lies ahead. but we do have an amazing guy to lead us -- guide to lead us through the discussion with a distinguished panel. a true expert on the supreme court and a friend of acs, tom goldstein. tom is one of our nation's most experienced practitioners. he has served as counsel to a petitioner or respondent in roughly 10% of all of the court merit cases for the past 15 years. personally arguing 38 of them. and in addition to practicing law, tom has taught supreme court litigation at harvard law school since 2004 and previously taught the same subject at stanford for nearly a decade. he is also the cofounder and theisher of scotusblog,

only one to ever receive the peabody award. the national law journal named him one of the 40 most influential lawyers of the decade. and illegal time named him one of -- legal time greatest washis of the last 30 years. who better could navigate these unchartered waters for us? please join me in welcoming tom. [applause] tom: thank you all so much for being here and thank you to the folks as well who are watching, to our friends at c-span. it is an incredibly exciting time, not just to be following the supreme court, as it has been for several terms but to be doing it through this organization and its eyes, as we take a look at what could be an incredible transition in the

supreme court. the changes that might well be a foot in the course of jurisprudence are truly astonishing, could be historic, and could chart a path for the ,ext quarter century or more depending on what happens between now and the end of november. have a great group of people knowledgeable about the fields they are going to talk about and about the court generally. we want to do this in two parts, talk about very specific and important cases, give reactions to what the court has done and not been able to do, but also take a longer-term look around the corner and over the horizon at what is going to happen to the supreme court in different scenarios. it is probably impossible to overstate the situation. we have a court with a four-four ideological balance and a

presidential election coming up. when you think about the actual where he also situation the court finds itself in, where each of us knows, hopes, and ginsburgt justice lives forever, but the prospect that she will resign to go run outthons or other things is there, as is the possibility for justice kennedy. the nextesident in four years could have an opportunity to shape the court in a 7-2 direction one way or the other. we want to talk about some broader trends and men leave time for questions at the end. time foreave question questions at the end. christina has an unbelievably diverse portfolio of litigating

cases around the country on issues of race and other things. thought, christina, you could start by talking about affirmative action. christina: it is a pleasure to be here and to share the stage with by distinguished colleagues. i would love to talk about fisher. , fisher is around to of alice fisher's challenge to the affirmative action policy of the university of texas. this was a big surprise, especially with justice kennedy writing the majority opinion. i would like to talk about what about the ark of justice kennedy's thinking on race conscious admissions. it demonstrates a remarkable evolution in the way he looks at these issues, and i think it

does offer some insight into how we might anticipate and expect that the court might role going forward on these issues. i think in order to talk about , we should start by talking about anthony kennedy, because it really does frame what he did in the fisher case. court know, the supreme upheld the university law school's race conscious admissions program in 2003. case, justice kennedy lambasted -- he issued a scathing dissent regarding the court's decision in that case. he really lambasted the majority on a bunch of grounds. court of failing to it here to strict scrutiny and meaningfully apply strict scrutiny to its evaluation of the university of michigan's and implementation of its goals. thatpecifically, he said

in my case the majority conflate -- in thaterence d thethe majority conflate te deference the university was due. it was not entitled to that level of deference in the way it implement it its goal. was "preferment by race when resorted to by the state can be the most divisive of all policies, containing within it the potential to destroy confidence in the constitution and the idea of equality." he was very unhappy with this decision, i think it's fair to say. he accused the court of conducting a perfunctory review of the admissions process and accepting the university of missions assurances that its process was fair, and he mocked to their math. he said, "real review of the university of michigan's process

demonstrates beyond question why the concept of critical mass is a delusion used by the law school to mask attempts to make race of factor and to achieve numerical goals indistinguishable from quotas." not like this decision. he went on to complain that the university had failed to provided missions personnel with the objectiveth of securing critical mass. he really came out strongly against the way the university administered its race conscious policy in 2003. fast forward to last week, and we have a very different anthony kennedy. he writes for the majority. he issued a straightforward decision that affirms the fifth circuit's decision saying that the university of texas's race policy isadmission

narrowly tailored. in that decision and in the fisher decision, he embraces , notwithstanding how hard she was in its dissent. in thes out and says decision, makes clear that the principles articulated in fisher one and repeatedly articulated with respect to race conscious admission continue to apply. university can consider race in its admissions process, but will be subjected to stricter scrutiny. university's decision to pursue educational benefits is entitled to deference. but the university bears the burden of proving there are no alternatives. these are principles articulated by the court repeatedly, and he reaffirms them in this case. however, when he applies that to looking at abigail fisher's

university of texas process, he takes down her complaints one by her and in many instances, complaints echoed his in the previous case. it's a fascinating read. she says the university of texas failed to define the level of minority enrollment that would actually constitute critical therefore it would be impossible for the court to determine if the university of texas had met its goal of achieving critical mass. increasingnnedy said " minority enrollment may be instrumental to educational benefits, but it is not, as the suggest, aseems to goal that can or should be reduced to your numbers -- pure ." he said the university could not be faulted for failing to specify the level of minority

enrollment the must be obtained. he flipped it on its head. the university cannot do number of students of color. so the request to identify a particular number of students as a goal as a definition of critical mass is rejected. continues and says, "of course, the goal of achieving critical mass cannot be amorphous and has to be measurable, but he says -- measurable," but he says the university of texas met that goal because they promoted cross racial understanding and prepared the student body for increasingly diverse workforce, cultivating leaders of different ethnicities in the eyes of the community. abigail fisher accuses the university of texas of not needing to consider a because in

her view they had already achieved critical mass with the race neutral policies administered. shows that there was not critical mass based on the goals identified by the university. she said consideration of race was not necessary because it only had a limited impact on advancing the university's compelling interests. he said that was contradicted by the record. , "the fact that race consciousness played a role in only a small portion of admission decisions should be a hallmark of narrow tailoring, not evidence of unconstitutionality." again, the fact that this affects a small group is evidence of the constitutionality of the process. she said there were

alternative race neutral means available. justice kennedy takes these down one by one. none of fisher's alternatives viable, according to the decision. the university should not have had to alter the weight given to things like socioeconomic factors because you do not have to choose between a diverse student body and academic excellence. ofalso rejects her pursuit expanding the top 10 race neutral policy. at the end of the day, this is a very different anthony kennedy then we had in 2003. i have not had dinner with him, so i cannot explain how he got their relative to where we were in 2003, but we know a few things. that there wasr a continuing relevance of race.

he disputes justice roberts -- he criticized justice roberts for his all too yielding insistence that race cannot be a factor in admissions. know that he, we was talked back from striking down the university of texas's affirmative action policy based on sonia sotomayor's description of her powerful experiences with students of color. we watched the united states explode in a fury of race-based violence. unquestionably, that is and, as we allw u did. 2015, he again it knowledge is -- he saw, as we'll all did. the, he again acknowledges

role of race. it seems like he has really evolved on this issue. win case obviously is a big for the civil rights community and, we think, the right decision. leastonstrates that at four times over the last decade the supreme court has upheld race conscious decisions in the university setting. we only haveoint, three justices with clear and unambiguous opposition to race conscious decisions. willdicates how the court rule going forward. >> what does that mean as a practical matter? do you expect to see expansion to these programs? do universities inc. of this as a high water mark of what they are able -- think of this is a high water mark of what they are able to do? what do you think will be the next stages?

texas had a relatively unique program. >> it did. reaffirms,s certainly, without question, the constitutionality of certain programs. each of those programs has to be considered individually because there is deeply specific analysis. i cannot say every program out there will meet what justice kennedy has set forth today. i think the universities have -- ionfidence to know think it's a big change that justice kennedy does see a role for race conscious admissions and is willing to reaffirm that role. i think it should give universities confidence to tailor their programs in a way that these needs are identified. read in justice kennedy's decision anything that speaks more broadly about a

shift in attitude by him in respect to race generally, for example, race gerrymandering, civil rights litigation involving race, or do you think this is specific to this context? aristine: this is straightforward application of broader. tom: many thought. ultimately, he appears to the majority. he did not dissent. to the majority. he did not dissent. in terms of a wider view of not say that this particular decision opens a floodgate of where he is on race. i would say that the evolution i described, coming from where we anrted in 2003, demonstrates evolution of his view on race overall.

tom: i may just bring you in, one person who has been involved significanthe most cases from a conservative youpective -- were surprised by this? >> i was. we agreed with the standard set by fisher one. we thought a straightforward application would have led to a different result. it didn't. if you trace justice kennedy's it's a straight line, and then it's a real shift. in terms of the decision itself, i don't have a lot to add beyond what justice alito said. justice kennedy often doesn't respond. that's his way of handling majority opinions. but i did not see anybody respond to the points justice

alito made. i don't think there are risk -- there are responses. i would make to broader points if i could. the first is -- two broader points if i could. , what i think it is more interesting than what justice kennedy said is what the liberal block of the court and say. -- didn't say. about justiceill on hockey, he stood up for his about the justice, he stood up for his vision. no one wrote to defend that vision on the liberal side. they simply were willing to sign on to anything justice kennedy was willing to write. when we are talking about people standing up for views, i think

that's quite notable. and i would add, it's not true on the other side. the opinion could have been assigned to justice kennedy. they needed his vote, and they knew it would be decisive. but alito and scalia were unwilling to join the opinion. his view would be controlling, but it would not be their view. i did think that was striking, that there was no response to the points made. last, in terms of the future, we always did see this as a unique top 10 plan in texas filled 70% of the seats. we thought that were operated in its favor. it created more racial diversity at the university of texas than it had when it previously used racial preference. we entered the case thinking this was an interesting case

study. what happens when a school is forced to abandon racial preferences by its own circuit, moves to a race neutral alternatives, gets more minority enrollment, and then is forced by the court to alter course. results are disappointing, i don't think it what willll together happen going forward. i have colleagues that sued harvard college over the use of racial preferences, university of north carolina chapel hill over the use of racial preferences. i think fisher invites a fundamental challenge. notere criticized for building more of an evidentiary record, forgetting more data and statistics, for learning about the kinds of students being admitted on these policies.

what does the racial makeup look like on graduation day? does it look the way it did on orientation? dillinger, once after duke and the hogan firm, former acting solicitor general of the united states, could you talk about politics, bribery, and all of the kinds of things we know -- from so well secondhand experience, at best. [laughter] tom: in the mcdonald case. walter: sure. could i just make a brief comment to emphasize something christina has said that emphasizes the mystery that both of you addressed of the shift by justice kennedy? i think you cannot underestimate

is the fact that christina mentioned, and that is what happened in the culture. the larger issue that the court has been grappling with is, to what extent is race still an important, culturally relevant category? to what extent does race really matter? are we in a post-racial world with the election of a president the only timeich discrimination raises its head is when disappointed applicants to an elite college bring a lawsuit? is that sense. it is reflected in justice dissenting opinion. a vicious dissent in which he is deeply offended by what he believes are odious and pernicious forms of racial discrimination addressing a non-problem. that racial discrimination against people of color is a thing of the past.

some of that is reflected in the opinions justice kennedy has written and signed previously. but i think the combined effect chicago,ston, baltimore, and above all ferguson, missouri, the ferguson report, makes it hard to maintain the position that we are beyond race having to matter anymore. the #blacklivesmatter movement , asaffect justice kennedy it did justice sotomayor your. she was very concerned about what was happening to young men of color by police in ferguson. mass incarceration. along with alito's dissent make a very nice pair of debate. in some sense, i think so to debate -- so

wonayor -- sonia sotomayor .he debate against kennedy mcdonald. [laughter] this starts with a businessman named johnny williams who had a nutritional supplement product that he wanted to bring on the market made of some kind of residue of tobacco materials. needed to get fda approval. he needed studies. he needs something -- needed something the state could provide. justhe four mcdonald was before mcdonald was governor, mr. williams ingratiated himself waso, before mcdonald

governor, mr. williams ingratiated himself. there were university studies to test the supplement and use the state of virginia as a validator of the benefits of this. gifts.ided awesome it really makes you think being governor of virginia is a good life. a 15,000 dollar check for the governor's daughter's wedding. he provided free use of his for rory. the governor's wife -- his for erari. he provided the governor's wife with a rolex. that in exchange for these benefits, the governor arranged that various state officials would be brought to

the mansion for luncheons. he and his staff would make calls asking researchers to meet with mr. williams, otherwise williams with access to the decision-makers. he was convicted, with the jury actions takenhe by the governor were in exchange for and as a result of the largess provided by mr. williams . unanimouslycourt reversed the conviction, and they did so in the following way. found thatght have what mcdonald bought for his referrals,ccess, setting up meetings with the underriate officials, and the instruction, the jury need not have found that the governor

was urging a particular result. to meetey just wanted with these officials. so, what you have here is benefits being provided to the governor. arguably, the jury could have and the exchange for -- government undertook to prove that. what the court said was we are going to narrowly limit what counts as an official act. governor did not make an nor, we theision, jury have found, that the governor urged a particular part of those to whom access was provided in exchange for money. shockingt seem like a

result given the undisputed level of corruption involved here. says there are constitutional issues lurking in the background, but i think that -- back drop here is that the court has seen a number of cases and read about that haverecent years left them concerned about the degree of prosecutorial discretion under the old, broadly written statute. the 19 14 statute, and gives prosecutors lots of leeway and lots of targets. in recent years, the court has seen the bond decision out of , where a missouri woman was suspected of having an affair with a neighbor and put some kind of powder -- a woman suspected her husband was having an affair with a neighbor and put some kind of powder that burned her fingers in the

mailbox. this was a violation of the international chemical warfare treaty. what are they thinking? florida,er case from dodd frank's destruction of evidence is used against a fisherman who throws back grouper in order to have not caught under sized fish. and you are really thinking, why are you making a federal case out of this? there was a shocking overreach a federal authority involving governor vetoing funds when he did not think the prosecutor doing investigations was to his liking. there are a range of these. i did the martha stewart case. i won't go into the reach. that mightg case

necessarily -- not necessarily ,ave been seen as sympathetic an employee in wisconsin was the me in state provider of government supplies. -- the only in state provider of government supplies. he was convicted and sent to prison. the panel had heard this case in the seventh circuit with frank easterbrook being the presiding judge. the three members of the panel conferred. ordered the u.s. attorney assistant who was arguing the case to be released by close of business on the day of the argument. they were into this and putting this mother imprisoned pending appeal, they have seen extraordinary cases. so there is a legitimate sense of the part of the court that we have to narrow some of these statutes and when you have a

world, a world in which this court is partly responsible of large amounts of contributions and people gaining access, if you are a prosecutor you have this limitless range of prosecutorial targets. where did you, and here was not just gets -- gifts but campaign contributions. and the knowledge would trigger the statue. they're really worried about campaign contributions. but. but you can't take -- the gifts problem. it's ridiculous to allow government officials to be taken $50,000 gifts. that is legal in virginia. so virginia. so that is the underlying problem here. what worried the court is that campaign contributions would also count and if gaining access was the -- what you would have

who is a lawyer argues that this is what ought to be the grovel, having having to prove that there is actually an understanding in the exchange for the two. the court is worried that if you send this to juries and you show that campaign contributions were held, meetings were whether there is an exchange, that provides prosecutors with the limitless range of targets they are not comfortable with what they have seen from prosecutors in their own caseload. mr. goldstein: and do you think this pretense of big cutback in those kind of provocations for quid pro quo corruption or do you think actually the important cases involved much more discreet, official acts? mr. dellinger: i think it's a fairly big cutback because the elected official who has received campaign contributions does not have to tell some mid-level functionary that they

call in for a meeting, the results that they want. when you sit with the governor of the state, the governor calls and says i want you to meet with mr. goldstein, yes. [laughter] mr. goldstein: you could -- mr. dellinger: you could have the position that the governor will grant -- whether they grant what you want or not. but i think you are never going to have to come all you have to ask for his access. if you eliminate that i think , it's going to be very easy to take. in some way way this is an aftermath of mccutchen as well. the court believes that given money is constitutionally protected. the campaign contributions and that is the foundational part of what is at issue in mcdonnell. if you think that campaign contributions are constitutionally protected under

the money of speech part of the first of -- part of the first amendment, then anything that would chill the exercise of that speech is to be viewed with some skepticism and scrutiny by the court. and if it is possible that a subsequent meeting would be seen as a protocol pro -- quid pro the issue.s also and they are also worried about due process. and virginia allows these gifts. the court says there's these are concerns and that's virginia's problem. if they want to allow that. it's not for the federal government to fill in the blanks of the gaps through the hobbs acts. mr. goldstein: let's turn to another case. one that people were at least fearful of. jennifer is the director of the project.ive freedom

ms. dalven: it is wonderful to be here and it is wonderful to be celebrating a victory. [applause] this was an enormous victory for will him -- for women and families in texas, but also in anonymous victory for those -- enormous victory for those in the country. why do i say that? for two reasons, the court said and crystal clear language that the state cannot rely on sham justifications to make it harder for women to get abortions. it will have repercussions throughout the country. and the court also made clear that even if there is state interest that is furthered by the relation, and here there was none, but even if there is -- with thet has a

further, you need to balance that against the burden that is imposed on women who decide to have an abortion. so what were the law issues in texas? there were two. it required doctors to have admitting privileges at a local hospital. i know that sounds kind of good. i want my doctor to have privileges. but it turns out, those doctors that provide abortions cannot get privileges because of antiabortion stances, but also because you need to stand -- sent a certain number of patients to the hospital. but abortions are so safe that those who perform the abortions, they cannot meet that quota and they cannot get privileges. in other doctors are not subject to this. only doctors who provide abortions. so those who provide comparable procedures, those that have

similar risks or greater is are not allowed to have privileges at those hospitals. requirement requires facilities to turn themselves into many hospitals -- many hospitals. this does not provide those that have even comparable risks and it would cost a minimum of $1.5 million for facilities to turn into these mini hospitals and many could not do so. heard the trial court's cases like this. they found that these requirements did nothing to protect women's health. and on monday the supreme court agreed. they found that there was virtually no evidence that these would advance women's health, they said that they were arbitrary. this is not a surprising finding, given that the medical

association and college of gynecologists had all found that these laws do not make women safer, they put women at risk. but with the laws did do was or places tofor us many shut down in texas, making it impossible for women to get the care they needed. and if they were allowed to take effect, we would have gone from 40 clinics in texas, to 10 clinics. so how did we get here. this sounds pretty clear. but the fifth circuit said that these laws were ok. it upheld the laws, even though there was no actual evidence of medical benefits. they said that did not matter. they said as long as there was conceivable rationale for the law, that was enough. and they chided the district court for expecting evidence. it basically said, as long as it

passes the last test and it does not prevent too many women from getting the care they need, a regulation is ok. how many is too many women? texas argued 50%. 50% of had prevented women from getting an abortion, that many -- that they could strike that down. i am happy to say that the supreme court struck down those arguments. they had actual evidence that the law sustained evidence. flimsy rationales on along siena -- are no longer enough. and they also said that the benefits of the law must be weighed against the vertebrate -- weighed against the vertebrate they ruled that they were on constitutional -- were unconstitutional. the court said this is an application of planned parenthood. this is not something, in a test that they created. it was what courts were supposed

to be doing all along. and the other thing that is worth noting, this was joined by full by justice kennedy. after the last couple of opinions, critically and gonzales versus carr, people had questions on where justice kennedy stood, whether he stood behind his opinion with planned parenthood, whether he would protect the right of women to have an abortion. and i think that we got our answer on monday. so where do we go from here. ? and as terrific news number of regulations are already falling on tuesday -- already falling. caseesday, they decided a that was challenging a very similar admitting privileges lawnmower evidence showed that it would force women to wait 8-10 weeks for an abortion in

that state and the court reviews to look at that, striking down a lot. the attorney general of alabama said he would no longer defend the admitting privileges law, that would have shut down four of the five clinics in the state and would have left one doctor for the entire state to provide abortions. but the fight is far from over. louisiana theyn said, we do not care. we think that our law is different and we will continue to defend our admitting privileges law. and we said, we need to remember that in the last five years or so, state have passed over 300 restrictions on access to abortion. we will be looking all of those laws and seeing what is manageable to challenge, but we have no illusions that this fight is over, that we will start to see state legislators

calm down. in fact, we expect to see doubling down. there may be changes in strategy, they can no longer pretend that these laws are entitled -- or are intended to protect women's health. we will have to see different rationale, but we expect the fight to continue with just as much intensity as the four. -- as before. mr. goldstein: thank you. let's come back to this next major fight related to immigration. mr. consovoy: so the case i think everyone is aware of his -- of is texas versus united states, it is a multistate

challenge for the presidents immigration policy. the policy known as dapa. i'll try to stay away from acronyms. the policy had essentially two main planks to it. one had to do with not removing essentially from the country for de-prioritizing the removal of parents of children who are either citizens or who have a lawful presence in the united states. the second part and i think this , is where the heart of the case was, was giving essentially legal status to those people in a particular work authorization. without many states objected to it, claims injury in several forms but as it focused on providing licenses to these individuals and the cost associated with it. the litigation began in texas and texas one in the district court preliminary injunction and issued a nationwide injunction. so this case very quickly turned into a very interesting federal

court case. you have issues of jurisdiction, of standing, of the scope of the district court's power, the scope of the president's authority of the clause of the constitution. there were apa standing questions for law students in the audience i suspect you will see these on exams for many years to come. you will not have the supreme court to give you guidance because it ended 4-4. so it is obviously a case of enormous importance, having weighty questions that go to the heart of the president's constitutional powers, i think for everyone it is disappointing to know would answers are for , the majority of the court. so i would offer a few comments. one thing, this is my own perspective, i would not be entirely confident that the votes on standing where the same as those votes on merits. i think there's an assumption

that people have but i would not necessarily be too convinced of my own assumptions on that one. obviously the chief justice , wrote the dissent in the massachusetts versus epa case. but that case i think provides some authority for standing. i think they had additional arguments for standing as well. we'll talk about spokeo as well which is a standing case. there were arguments about standing in fisher as well. so people have very different views of standing. if you look at ginsberg's old in spokeo,'s opinion she says, when you get away from this 3-part elaborate testers do we have a real dispute among real parties with a real stake in the outcome. say what you want about standing law, i will allude to the people who view the winter losses under particular test. it is hard to imagine a case with a more defined fight between two people two sets of

, organizations in the case. texas on the border with the flow of immigration that most states do not see costs associated with that, challenging a president exercising his authority to say who may or may not stay within the borders. on the merits, i think the big fight may have obscured the more -- the fight that may have led to the outcome, which is there was a lot of talk about the clause, far less about to be act, thethe -- procedure act and whether the of ministers and violated it. a full disclosure i noted brief in support of texas and that my clients to think they violated the apa. i think it was a fairly clear case for that. sense i think there is a on anhe case would go out issue so narrow?

i would say yes that is the , whole point of law. that is the whole point of the apa. we do not decide that certain cases are two important to notice and comment. in fact, i say that this is exactly the kind of area you want input from the united states, from employers, from organizations who support and fund immigrants as they come to the country. that you would want all of the stakeholders to be heard. i do think that potentially part of the problem and the -- phase before the court was that this was not the first time that the administration had used administrative process to support what they think as noble and important policies and they are entitled to think that. we may have skipped procedural requirements and this came up in the affordable care act of changing the date of the employer mandate and there are other examples as well. so while we may think of this case as a big question on president of power, i think it may be more about something more , which is section 553 of the apa. mr. goldstein: so in addition to

the fact that the court is tied and was a default to the , 4-4, decision to invalidate these may be the most consequential thing that the administration lost this year. this is probably the second major initiative at the end of the obama administration that is on hold, even though the supreme court did not put together a majority. another significant administrative action. mr. charles, maybe we can talk about voting rights? and also about issues related to voting. and we had us in the vacant one person, one vote case. -- significant one person, one vote case. i want to go back to fisher for a moment. i remember listening to the oral argument in fisher while a lot of the oral argument were going on and thinking, there is

another worldliness about those arguments, where we are arguing about the way that it -- to what extent, this particular person at that level is a violation of the constitution. is this what the constitution means when all these other issues are doing on in ferguson etc. , and it just seems as if the court was in one world and reality existed on earth. and what was interesting about fisher, the two met in the person of kennedy. aboutis a majority this kennedy, he seems to understand, even though he may not go there the whole way all the time, he does understand where the country is and where the country is going and tries to be that person on the courts that takes it there. whether you think about gay rights, or in this particular --

in fisher, there are other places one can point to. so kennedy's opinion and the 2006, wheres around you see his way of thinking and talking about race also evolving. let's also not forget versusshelby county holder the voting rights act for , the court officially declared the end of racism. and it literally, saying that this was a different world than the one we inhabit today. especially with respect to voting, but rightly about the way that race has dominated american society since its founding. and you then see a different world emerging and i think that kennedy understands and recognizes that, so to me it is also worth underscoring before

we get to perhaps the less tense which iillating case, will tell you about. that is the case in some respects about fifth-grade arithmetic and lyrical philosophy on the one hand. it is a case about counting, and who counts, and it is a case about representation, and theories of representation. it is simple at one level and at another level, perhaps extremely complex. this is a case in which justice ginsburg writes a majority opinion and it is joined by everybody except for alito and thomas who concurred, so the question, the plaintiff in that case said the way that we want to draw district lines and determine who will count, should be on the basis of citizenship. you draw the line and you

conclude -- include in that cap, the folks that are citizens and not the ones, not simply everybody in that district, including those that can vote and those that were in as noble -- intelligible. and they argue that by drawing the lines and including everybody that way for the state of texas, they argue that you are violating my equal protection rights by diluting my vote, especially if you live in a district in which there are a larger percentage of citizens, they are arguing their votes are being deluded in violation of the equal protection laws. so the court rejected that argument and what's interesting about the opinion, the ginsburg opinion it's very formalistic ,. so ginsburg makes three points. she said, 1 -- let's look at how the framers and the founders thought about this question. there is a theory of represented -- representation that is

included in the constitution and we can look at the founders, as well as the time of the 14th amendment when it was ratified and look at the theory of representation, it is about total population. that is the theory of representation. and she also said, let's look at our presidents. and then she said, look at practice. so it is a fairly formalistic opinion and she concludes all 3 of those things point in one direction. they point to the fact that the theory of representation is one of total population, that the constitution does not require and is part of the argument , requires to compel the states to draw the lines only including citizenship. and she says, no, it does not require that. when the founders were thinking about representation, particularly the house of representatives, they thought

about total population and they did the same thing in the 14th amendment, when we look at the president's -- precedence with respect to reapportionment cases. that was based on total population and not just citizen age or eligible voters and then we look at the practice of the last 50 years, what localities have done. basisave a portion of the of total population, said that at the end of the day, leaving aside a lot of the political theory. at the end of the day, fifth-grade arithmetic all over again. all done, all done in about 12 or so pages. fairly simple ginsburg opinion. , when you look at it you say there's a bit of a formalism about this, perhaps because it seems to be relatively straightforward case, it would have been a radical decision to

conclude that the constitution means this particular thing , in fact justice thomas would say the country has a theory of -- does not have a very of representation of all. and it would undermine and reverse the baker line of cases that go back to the 1960's and reverse all of those cases and say it's up to the states to decide. doesn't have a theory representation. so i think it would've been a radical move if the court had gone the other way. so that is what makes this a straightforward case, compared to all the ones we are talking about. mr. goldstein: very interestingly presented. mr. charles: when you have a boring case you need to make it exciting. mr. to -- gupta, maybe want to talk about the particular -- principle consumer

maybe will will give us his thoughts as well. mr. gupta: i fear this may be the one case that people find even less exciting. it's a case about article iii , standing and abortion and immigration bribery voting. not a case that has got a lot of attention. spokeo versus robbins, but i think it is an important case in its own right, because -- but it is also, i am glad that tom made the time for this case. these cases are usually not the ones that they focus on, because they are about procedural issues, maybe not as sexy. so maybe when they involve race is committed to at walmart, they are often on the front page. you can say it is a case about justice, about separation of powers. you can say it's a case about whether people can put out false information on the internet

because those are the facts of the case. spokeo is a web site that publishes reports with facts about people so you can look up , a job applicant or look up your ex-girlfriend. you can look up your creepy neighbor and find out information from public records. and spokeo had a profile of the plaintiff thomas robbins that he alleged was riddled with inaccuracies and he was concerned that because spokeo markets these reports to employers, that that could harm his job prospects. so he brought a class-action lawsuit under the fair credit reporting act which requires companies that put out consumer reports, including reports used for job screening, that they make sure those reports are accurate. the thing you need to understand about the fair credit reporting act is that it doesn't require you to prove that you have actually suffered actual damages

like a lot of consumer statutes , and other kinds of statutes like environmental statutes and statutes across the range of the federal code. if you show that there is a violation with respect to you you can recover statutory , damages and the whole idea of statutory damages is a few hundred bucks for the violation is a lot of different violations , are hard to prove. so if you are talking about privacy, you are talking about the risk of identity theft, disclosure of information those , kinds of things can be quite harmful if companies are violating those rules but it can be very hard to prove the harm. so congress creates statutory damages regimes and allows people to bring class actions. now the concern that the chamber of commerce and the business committee has about these cases is that it allows you to aggregate up across millions of

thele potentially, statutory damages claim so a case that might seem like it's a relatively technical violation can result in astronomical liability. and so this is really a case in some ways about tort reform and as we will see where will see -- whether those reforms can be constitutionalized. spokeo said there was no article iii standing in the case and the ninth circuit applying. standard lower court jurisprudence said what he talking about? he is alleging a violation of the statute. as with respect to him. nothing more is required in this article iii standing is -- standing, essentially this congress said so. out of these mundane facts emerge a pretty big separation of powers question in the way the petitioner spokeo frames it is can congress can for article , iii standing on the plaintiff who doesn't suffer any concrete harm other than a violation of

the federal statute? this was not the first time the supreme court had granted search on this question. if you go back, the same day that a big health care case upholding the constitutionality of the affordable care act came out, class action lawyers were more concerned about another decision that came out the day with the court in first american financial versus edwards dismissed a court, a case -- dismissed a court case raising the same question. and it was because that case argued in the fall and it didn't get dismissed until the end of the term suggesting that the , court had difficulty deciding that question. i think there is good reason to think the court had a lot of difficulty because an oral argument in edwards and spokeo, the courts seem very divided along familiar ideological lines. this is a question about who decides. who decides what society is going to regard as a harm,

whether it is about privacy or rights information or discrimination. so does the congress decide that, or does the court have a role in deciding that question. the previous decisions by the supreme court have spoken, the court spoke out of both sides of its mouth. on the one hand the court had , said article iii standing must be concrete and particular allies and -- in particular a full minimum suggesting that is a contact -- -- it's a constitutional floor and limits the way congress can legislate. on the other hand the court had said, justice kennedy had said this very strongly in a concurring opinion that congress can elevate the status of illegal cognizable injuries that were previously inadequate and in the oral argument of edwards case it emerged that chief

, justice roberts, i think is a , really big proponent of trying to limit standing in this area he thinks there is a distinction between injury and fact on the one hand and injury and law on the other hand. but that's a really in my view is pretty untenable and ankle , here a distinction and if you think about some examples just to take and give advice that the one foot over the other property line and we are neighbors, i have committed trespass even if , there's no additional harm to you. if i breach of contract and you suffer no additional damages you can sue me for breach of contract. i think what that shows is a lot that, a lot is recognized, you can go to court even if it is just invasion of legally you could sue for copyright infringement even if you couldn't prove there was any financial harm other than the invasion of your legally protected rights.

a tough case for the court to decide, and it looked like kennedy was in the middle. that changed was that justice scalia died while the case was under consideration. the court and a number of different cases has been avoiding the impression or reality that it is really split for-four in a lot more cases than you would think. the court is taking pains to produce things that look like supreme court opinions, but don't decide anything. isibit a for that argument -- it's a remarkable thing. we see the fingerprints of justice kagan.

it is an 11 page opinion the restates everything we already knew about article three standing from other cases. doesn't even apply what it says to the facts of this case. supreme court decisions are supposed to decide things. whereas set off a wave judges have to figure out what this means. the court says the history and judgment of congress play important roles in figuring out whether they are standing order. in garden-variety class actions, you see plaintiff's lawyers making analogies to medieval english common-law and making arguments about whether to defer to congress. it's a good example of what happens when you have a court that is unable to render

it'sions, and i think another example -- there were three take class action cases this term and they all at some level had to deal with the intersection between class actions in article three of the constitution and they all at some level left some pretty big questions under i did and kicked the can down the road. >> do you disagree or you hereto apologize? one? which >> both of you. >> i agree with most of that, i'm having arguments for the class action plaintiffs, maybe i'm a little biased. i think the court to decide the big questions. the big question was it due always have to show actual harm, damages, what we call consequential harm. the court unanimously rejected that proposition.

i agree there was a lot left undecided. but it wasn't that. justice thomas through our view of the case became maybe 1/2 step short with trying to figure out issues particular to the statute, but it's hard to think justice thomas' views changed. he tends to say what he thinks and stand by it. unless you think one of either justice kagan or breyer was voting -- it's hard to see how it was a 4-4 case. that isnk -- a question left, we now know congress can create intangible rights. the question is, what does congress have to do to decide? the court seemed like a parent sending their child off to school on the first day, not quite ready to let go.

congress, your judgment is important trade history is important, not decisive. the court wants to leave some role for itself. in the main, if congress sets forth a clear and articulate its justice kennedy said in lieu of what it's trying to protect, whether privacy or an accurate credit report, most time courts will find the standing right >> before we turn to questions, walter, for just 5 you step back with the bigger picture sense of what you think this transition means to the court with the loss of justice scalia and the possibility of democratic appointments, or not? >> the last time we had a majority of the court appointed by a democratic presidents was 1969. that's nearly half a century.

if there is a president clinton and she gets to get a justice confirmed, who by that time will have been literally 1/2 century, in which republican presidents have named the majority of the court. in that sense, we have to ask -- this is a large moment. at the university they would say an inflection point. it sounds like a big moment, something is going to happen. one of the things we will not see, it's easier to define what we won't see. i don't think we will see any significant number of opinions that say x versus y is hereby overruled. tom, i bet you would agree with that. >> are we not going to see x ?ersus y is overruled wink wink,

i think we won't see those magic words. there are areas in which a court will reevaluate where we are heading in areas. there will be some emphasis on election harness in a large sense. i launched a debate on the front row before we started about what was the worst supreme court decision of my professional lifetime, excepting bush versus gore. county, even their what a court is more likely to do than to try to resuscitate preclearance is a much more robust application of section 2 in the voting rights act of

finding actual discrimination and practices. when you read cases, for example crawford, the case at first upheld voter id laws, snuck up no other states had it. the states under reacted. crawford is -- there's not much evidence here of a burden. ,ou can make a powerful case the absence -- opinions very much like in that sense. taking seriously the assessment of the benefits and burdens. i can even imagine in the area of reproductive rights taking a

,ook at the question of funding the statutes that gerrymandering carveout planned parenthood. as health care becomes more universal -- i think it he comes more and more dramatic that a certain kind of health care that affects women is scooted from coverage. >> let's all agreed to come back in five years. when we do, how many members of the panel think we would be looking at a substantially changed body of american constitutional law that seems still to be on the move, or how many of you think instead, what we are talking about is quite , greatr, quite modest

bigger parts of the legacy of the rehnquist and roberts court not overruled, substantively or by name? how many people think big change is afoot? will does. will doesn't feel great about it, but will does. >> they changes either way. the center won't hold. over the next five years you will see one way or the other depending on how the election goes, a substantial change. i do think there will be big changes. that was an important principle that the board. was under recognized by the conservative part of the court. if they have five votes -- someone who litigates this case

we have asked the courts to overturn precedents -- presidents and seen resistance. i very much enjoyed seeing the commentary from many people who see the prospect of the court shifting and making their wish list of top 10 they want to see overturned. it doesn't happen, if the election doesn't go that way and conservatives keep it, i think we have more clarity about what people really think now and that may matter too. >> just because we made a commitment to answering questions and i'm sure a lot of these issues we can build into the question, let me turn to the audience and we will start with members of the press. i assume we have a microphone that will come around, which is in the back and it's coming and around. here we go.

>> two-part question for christina, then jennifer. does the supreme court decision on affirmative action mean affirmative action, not just for 25 years but for forever, even if voters even a chance vote against it, and does the supreme court's decision on abortion mean that abortion laws are going to get struck down even if elected state legislatures in 25 states enact such laws? court setting its health against the public appears to be pissed off? i certainly don't think fisher next to the question. i don't think fisher pits itself

ofinst a public referendum affirmative action. this was a very pacific case addressing a specific policy at the university of texas. i don't think that question has been queued up because of the fisher case. i do think as walter pointed out, there is some recognition in the court, based on recent events that race does still matter. that is a shift in the wider american public's understanding of the role of race and whether it does still matter pretty when president obama was elected we had this entire conversation, where are we now in post-racial america. the explosion of 2014 laid that to rest. , io think to your question -- obviously they

haven't so far. i think the court is taking seriously and does recognize that race does still matter. i'm going to take issue with the premise. i think politicians in many states are wildly out of step with people. i was taking issue with the premise and saying that politicians in many states are wildly out of step with the public, when you look at the polling, people were overwhelmingly opposed to the texas abortion restrictions, or example. the second half of your question, i do think more on bogusons will fall claims of women's health but other types of restrictions will fall, other things like we can look at all sorts of other restrictions. clinics,ffle visits to

mandatory ultrasounds, things like that. the first one on affirmative action rests with the point you made earlier. what is president? to what extent is the 25 year thing is that a command of the constitution? is that an aspiration? that is also where some of the right is going to be, when we think about a shift on the court. some of it will be at that level . what is that we will consider precedents? what will be consider as part of dicta, jurisprudence, whatever. that is worth thinking through as we answer some of these actions. >> to link the two things, this is a reference to 10 years ago when the court upheld a program ,t the universe the of michigan saying aspirational he perhaps, we really expect to see these kinds of programs no longer be necessary in 25 years.

the question is, will they be necessary and will the supreme court changes you in that time and they enough is enough? >> one thing we have not touched is administrative law. one thing i noticed in reading through both decisions and the certiorari list is a lot of administrative officers upheld by denying certain. i'm thinking in particular, if that's a pattern we expect to see in the court in the future, -- eating in particular expected to take the home health care cases, versus the department of labor, the work denied talk about the certs and the administrative role.

the administration hasn't done great. it is the case we have a body of law that says if an executive agency does something and congress has that go figure it out, the course are not supposed to take too hard a look, and this is very important. large, individual regulations have been upheld in lower courts. in thereme court has conservatives have taken a more jaundiced view of what the administration has done, particularly on big questions, and a clean power plan is a good example of that that i mentioned have been enjoyed, which is a major effort related to pollution and global warming. willld tend to agree with that there is some sense among the conservatives on the supreme court of overreach by the administration.

thecan sense frustration on part of the administration with a congress that finds it difficult to do much of anything has got to somebody do something and so we will review statutes and our powers broadly. there have been some significant setbacks for the administration, the immigration case being the principal example. other questions? >> hi. i am a law student, university of texas. it's been an interesting term from our vantage point. i want to ask the panel about an issue in evan well that did not come up in the earlier discussion, which is the dispute between texas and the united states. united states thought total population is the only permissible basis for a worsening districts. choosehought they could

from several. the court did not resolve that question. do you think we will see a jurisdiction test that? >> it is ok to mess with texas. do you have a sense of discretion? >> it is possible a jurisdiction will test it. i don't see the court taking a position that the state must use, total population. justice alito in his concurring opinion thought the majority was flirting with that idea and wanted to pop that the loon. i don't see what the theoretical and the legal argument there would be. , you canip side of it see where the court found its footing to say this is permissible. as a matter ofd

constitutional law doctrine, precedent, practice. naacpdid a reef for the legal defense fund on this question, urging the court not that ahead and rule state was prohibited from choosing some other method, because the court had no record for doing that. we did not say, of course the state -- all we are holding is that texas is not required to use citizen voting age population. we did not want them to go ahead and suggest that a state to choose if it wished to to use anything else because we said there's no record here. had anhe fact that we've

almost unbroken tradition of using total population for a couple hundred years, do you want to know why a state had decided to go down the risky and difficult road of defining some , which has the risk that it would be manipulative to total a way the top of -- population isn't an you want to know what the motivation is, don't cast holy water on anything else the state might want to do. i think the court did generally leave that open. >> let me ask a question about the future of the court. in the event hillary clinton does win the presidency, how many of you think that merrick garland will be confirmed in a lame duck before she takes office? one person? anybody else? how about, would hillary clinton

stick with the nomination and renominate merrick garland? how many people think that would happen? it's hard to know because it's the future. how many people think if hillary clinton is elected, that instead what you will see is a younger, substantially more liberal, perhaps of color nominee than merrick garland? two people? that's what you want, i think you read is to give the other what kindossibility, of person would you expect donald trump to put on the supreme court? [inaudible] i don't have a ton of insight . it's an issue that matters

greatly to people, conservatives, who find themselves among the republican party, and the list was interesting. >> do we have a final question? we are at our two-minute warning, so -- my name is lydia brown, i'm also a law student and not at university of texas. my question actually stems from a case that was last year decided to last year the supreme court decided in the she and county of san francisco that the americans with disabilities act did not apply in the context of police interactions when police entered the home of a woman with mental illness. in the district of columbia in a case rising at the state level, robinson d farley -- v. farley

-- after the passage of the ada, i know there was a lot of litigation that sought to erode or narrow the protection under the ada, particularly around who was captured and the definition of qualified individual with disabilities. in 2008, the ada amendments act sought to reverse -- erode those provisions. do you think cases like potentially what will happen in robinson are going to lead to 2008 a erosion post disability nondiscrimination protection, especially in the context of policing or related criminal just issues -- justice issues? >> i don't know if on the civil rights side, you want to talk law. stability it seems to be a relatively mixed bag. ok by adahas done

plaintiffs and concerned, to be a case about cops. the court is very concerned about policing and the prospect of police liability, perhaps unfairly so. you see it in things like qualified immunity as well. something where -- to go back to your earlier question, whether it's merit or lend or someone else could make quite a bit of difference. progressives are concerned on questions like qualified immunity, this is quite related trade -- related. i think we regard merrick arland as less of a change than he would otherwise expect from a nominee from a democratic resident. >> -- president. >> if you would join me in thanking our panelists and thank you all for coming. [applause] [captioning performed by the national captioning institute] [captions copyright national cable satellite corp. 2016]

>> for the first time, the air and space museum will be staying open all night tonight to celebrate the 40th anniversary of the museum here in washington, d.c., including a film system will and tours.

you get to be in on the action this evening. starting in a few minutes on our companion network, c-span3, we will be live from the museum, taking a look at what is happening there and at one-of-a-kind aviation and ace are to craft -- artifacts. see all of that when our three-hour live event gets underway in about 2 minutes on c-span3. voters viewligious donald trump's candidacy after he met recently with christian leaders in new york. this is 40 minutes. >> our next guest this morning is from cincinnati. senior fellow of the family research council, former elected official in the state of ohio. mayor of cincinnati and treasurer and secretary of state for ohio. good morning. guest: goo thank you for joinin. the reason we ask you to come on

is that you and others attended a meeting with donald trump in new york. a meeting with christian leaders. tell us about the meeting. but was the goal? how many people were there and what was it like? a series ofs meetings, some small, one large of about 1000 social and christian conservatives. it was a conversation with donald trump. one in a larger group, and others in a series of small conversations, where folks were sort of taking his measure. this was not a meeting or series of meetings for the objective of endorsing donald trump, nor was it an inquisition. filled, ait was conversation basically trying to provide an opportunity for social and christian conservatives, leaders in their

own right to take the measure and see if they could get comfortable with the candidacy. there were those who had already the meetings,of but the large majority were undecided, and this was the opportunity for them to interact and take as much. that one of the themes was religious liberty. what did mr. trump say about that particular topic and what does it mean to you? guest: let me give you context. aristotle, folks have been concerned about the organized power of the state and the tension with individual liberties, and within the context of religious liberty and the american context, religious liberty is one of the most