population in the last couple of months? why does that seem to hit the mark? sec. gutierrez: i would say they have been successful with a certain portion of the population, a certain primary voter which is not the mainstream national voter. 11 million, 12 million voters you are talking about. you are talking about a lot more if you get elected nationally. i'm not sure the that this is an argument that plays nationally. the way that it was communicated was false. it implied that the mexican government is sending us their worst people. actually, we are getting mexico's hardest working, most adventurous, most ambitious. they are willing to risk their lives to come over. it was that concept that somehow the mexican government is sending us their worst people

that -- you know, it is false advertising. he sparked a lot of people because of something that is absolutely untrue. again, you cannot get elected in this country. i don't see the shape of the electorate to get elected without about 35% of the hispanic vote. romney had 27%, mccain had 33%. george w. bush had 44%. even though trump says he is going to win the hispanics, i doubt it. i am not sure it has been that successful. peter: let me open it up. questions, please. we start with the gentleman there.

>> thank you. i wondered if you could talk about the role of education and the economic relationship between u.s. and mexico and economic coordination collaboration between the two countries. prof. shambaugh: i think there are a lot of things that go back and forth in terms of teachers or students or attempts in coordination and cooperation. i think it is a place where having nafta or having a free-trade agreement that make some of these flows a bit easier in terms of education is important. i think the other thing is, honestly, improving education on both sides of the border is a crucial piece because as i was saying, i think often people look at globalization and talk about trade agreements causing

certain things when really it is changing from the global economy. one of the things we know is that upgrading the skill, upgrading the ability to work with technology and improving standards on both sides of the border is a crucial part to ensure that both countries are successful in the global economy. sec. gutierrez: there are a lot of u.s. students in mexico. it is surprising how many mexican students are in mba programs in the u.s. words are used on both sides of the border. mexico city is like a big billboard for the american brands. there is such intimacy between the two countries that -- on one hand it is ridiculous but somewhat painful that we are talking about it the way we are. one of the things that we have to think about is you build a wall to lock out your neighbor. that is the kind of stuff that 10, 20 years from now creates

revolutionary movements. but we just forget about it. we are not thinking about, what are we really doing? how is this going to be perceived 30 years for now -- from now? it feels good because it gets an applause line and someone may get a nomination because of it. peter: other questions? >> i am a student here. i am wondering, as the u.s. signs a trade deal with atlantic and pacific trade partners, particularly tpp, the you think our trade relationship with mexico in the future will decrease our exposure to mexican

economy, especially as the gravity theory falls by the wayside? prof. shambaugh: i do not expect tpp in particular to decrease our trading relationship with mexico. we already have, obviously, a trade agreement with mexico. tpp goes further in the number of dimensions than previous agreements we have with the number of signatories of tpp already. i think it is something that would make all of north america, u.s., canada, and mexico, more integrated into the pacific economy than they would be already but i don't think they would be less integrated with one another. i think the common supply chains across the border would be more important, frankly, then exports to the asian market. it is not something i would expect to decrease the tie at all.

sec. gutierrez: i agree with that. mexico has a border with the u.s. and that will never go away. that is an amazing asset. since the 1980's there has been this manufacturing culture developing in mexico going all the way back to dennings, physical process control, all of those. it was taken seriously throughout the country. mexican manufacturers are very good and very competitive. u.s. companies planted in mexico will tell you that is probably one of the most productive plants. it is a good hub for manufacturing, the border with the u.s. i bet on that long-term. >> thank you for being here. i am with the embassy of mexico. why is it so hard to explain to people why trade is good?

globalization does not just exist in the u.s., but in europe, mexico, all over the world. why has it been so difficult for politicians to explain to people that trade is a good thing that benefits the general population, or maybe there are negative things that half -- have to be taken into account? sec. gutierrez: there are 3 million jobs in the u.s.. the chamber has a higher number. jobs associated with exports in mexico. you have to ask yourself, with those 3 million jobs -- would those 3 million jobs be in existence or more or less if we did not have nafta? the problem with trade is if you look at the three countries and

look at 25 years before nafta, 25 years after nafta, the three numbers are better in the three countries. it is remarkable. anyone who has followed mexico at all before nafta, you had inflation rates of 6100%. usually had a crisis at the end of a six-year period. you dont' see that anymore. it has been remarkable since nafta came in. the problem is it is anecdotal. i know a neighbor who has a cousin who lost his job because the plant went to mexico. it is true and it is real. the national numbers are better. how do you reconcile the national numbers are better but some communities have been impacted? i think there are things that we can do.

we do have a program for trade adjustment assistance to help communities that have been impacted by trade. but the numbers are there. the numbers show that trade has been good and nafta has been a tremendous success. not for everyone, but for the country as a whole. prof. shambaugh: i think the question is to why trade does not resonate is a positive force is a complicated one. there is a story about a person who moves to a town and build a building and sell things in the town much cheaper. they must have an incredible technological advance. they open the door and they see a rail line to a port. and they are bringing in goods

from out of town. people suddenly hate the person they love before. i think that is not necessarily a question economists answer but sociologist. i do think one of the answers is people get to vote on trade. they do not get to vote on technology. they do not always recognize the shifts they are responding to our technological shifts. in the united states, manufacturing goes up. manufacturing employment goes down because we get more efficient at making the stuff we make. we also import things. we export things, too. when plants shut down because a plant is moved overseas, you see less attention on the plants that are built here. we have bmws in the united bmws in the united

states. people have jobs and that factory building german cars for export. i do think one of the reasons is we don't necessarily do enough for impacted workers. there are a lot of them that this administration has proposed over time, that people who are making minimum wage or displaced over time are finding a new job. if they took a lower wage to get some sort of wage insurance for a few years, they build up their skills in a different industry. i think there are a lot of different things you can do that will cushion the dislocations that do happen, due to trade or technology. in some sense it does not matter why. trade adjustment assistance is an important idea but because it is hard to say, did you lose your job to trader technology, it winds up hard for people to get it. broad-based support for people

who lose jobs makes it more likely for the public to have a popular view. sec. gutierrez: ceos go into the factories in office and say thanks to trade, this is what it means to our company and for your jobs. i think it has to be company by company. it is hard to make a national argument. peter: time for one more question. someone with their hand raised here. >> my name is gabriella. i work for the department of agriculture, but i have an interest in conducting research from the particular state i am from in mexico.

they are one of the top producers of agricultural produce. immigration is going to have a great impact because currently they have about 20% of their population of agricultural workers are here in the united states. that is what i learned recently. having the immigration program in place or agricultural worker in place increase, that will take away some of their labor. they are not particularly interested in that. my question is does it really benefit the states such as the one in mexico to have such programs? and the fact that it has the free trade agreement? sec. gutierrez: you mean does immigration to the u.s. hurt that state? >> yes.

sec. gutierrez: it is an interesting question. in 1970, the average mexican woman had seven children. 1970. today, it is about 2.2. the u.s. is about 2.1. 2.1 tends to be -- there is a number where it tends to be holding steady. there is going to come a day not far into the future where there are no mexican immigrants or there are not enough as we need because they also need the workforce because the population is not growing as fast. there is a big number of young people so there is a lot affront way. -- a lot of runway.

but there will come a day where we are going to wish where we had more mexican immigration. peter: let me end by reminding everyone that on her website -- our website, we have a series of social media tools. they are educational tools. they are tools for all audiences, young, middle-aged, and older. as i learned from my colleagues, we have to direct at the young crowd. i urge you to use those tools. i urge you to spread some of the titles on twitter. take a look at the video we have an spread those around. i think it is important to use this event as a one for the educational event we will have in the next few months. i want to thank both of you for joining in the previous panel as well. i want to thank my colleagues for working so hard on this. it has been great and it is a really important cause.

thank you all for coming. [applause] [captions copyright national cable satellite corp. 2016] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org]

>> as i mentioned before, i never felt the urge to make money. what turned me on in the 1960's was to meet policy. that is always what drove me. tonight, a two-part interview with former public interest lawyer and politician mark green, author of "bright a generational, ." -- a generational memoir

>> you've got to wake up and go to sleep and say i want to so much, if you do everything, you win. announcer: part 1 airs tonight at 8:00 eastern on c-span's q&a. ont two will air tonight c-span 2. returnsr: the house after the fourth of july break with gun legislation. we could see debate on that early as wednesday. also iris spending and an extension on faa funding. watch live house coverage on speed -- on c-span. the housemates again on wednesday to consider a judicial nomination. you can watch the senate live on c-span 2. for more on the week ahead and that anticipated debate in the house on gun measures, we spoke with a congressional reporter.

billy house, bloomberg news, you write that speaker ryan plans a house vote on gun provision after the sit in by democrats. what exactly are the main details? aboutis more counterterrorism, not gun control. and safety and security act. it includes a provision to prevent terrorists from buying guns. it is much like the bill in the .enate from senator cornyn but the democrats in the house and senate have already rejected

that idea as insufficient. host: it is pretty close to what the majority whip in the senate had offered. and the senate blocked that. so why do republicans think that is the appropriate measure here? democrat are a house in a conference call early this afternoon, you are saying that it was because you are letting the national rifle association write your legislation for you. and they want to limit whatever as muchcts of that bill as possible. whether that is true or not, who knows? but certainly, house republicans are feeling pressured to do "guns"ng with the word in it, but perhaps not do so much that it might upset one of their big backers, the nra. about thealked democrats might be planning. nancy pelosi released a

statement that reads in part that democrats will continue to push house republicans to give the american people a vote on meaningful gun violence prevention measures that will save lives and protect our communities from terrorism, with expanded strength in background checks and manyfold no-fly no buy legislation. so what are you hearing about the planned for house democrats in the coming week, both on and off the floor? exactly, what we are talking about is the same things that immigrants were asking for last week. they want background checks on gun cells. and they want to their government -- and they want to ban sales on the government no-fly list. stepped up on the heels of the orlando shooting were 49 people were killed. . talked with john larson

john larson of connecticut tells lewis haveand written to speaker ryan and hope to have a meeting with him early next week. if there amendments cannot be put on this republican bill, dilatory tactics" tied to the 1960's civil rights movement may be considered. not so certain that they will do another sit-in. there might not be a second act on that. but for instance, he said protest march. what kind of march that might be, either a jericho like circling of the capital or national march 2, i don't know, the lincoln memorial or anywhere else in 10 -- anywhere washington come i don't know. but that is what they are talking about. they hope to have the speaker and what spills onto that, if anything happens, to get their stuff into that republican bill. host: house speaker paul ryan called the democrats sit-in on

the house floor a publicity stunt. and the republican leadership was looking at all their options, talking to the parliamentarian, the sergeant at arms. what sort of rules exactly are they talking about? what kind of rules were potentially broken by the democrats during this sit-in? with regardsules to whether the house is actually in session, what you can and cannot do. rulesnnot disrupt other -- you cannot disrupt. other rules are a little meeker. you can take photos or videos of action on the floor. all the things that happen in the senate do technically occur until late in the morning when they quickly jam votes in most of that happened when the house wasn't technically in session. but you are right, the speaker said he is looking into what can be done. not quite sure what can be done other than, you know, forcing them off the floor, arresting

them perhaps, democrats that won't move. arresting the of civil rights icon john lewis on tv is something they really don't want to have ingrained going into the november elections. i'm sure that speaker paul ryan doesn't want that forever imprinted in a 2020 campaign president, if he mounts one. i do know the republicans have advised him, please, for whatever we do, let's not handcuff these people. billy house is congressional correspondent for bloomberg news. twitter. you can read his reporting at bloomberg.com. thanks very much for being with us. >> i enjoyed it. thank you. announcer: "washington journal" live every day with policy

issues that impact he appeared this morning, kelly jane torn, managing editor of "the daily and -- talk about "washingtonatch journal" beginning live at 7:00 eastern this morning. join the discussion. this weekend on c-span's cities tour, along with our comcast cable partners, we will explore the history and literary life of provo, utah. under tv, we will visit mens rea books. visit moons rare books. >> thomas payne went to robert bell and wanted to have this printed. he wanted the proceeds to buy

soldiers mittens. after it went through three printings, they had a falling out. so thomas payne allowed anybody to print it. he lowered the price and said anybody could print it. that is the reason why that book is so well-known imprinted. announcer: and the author of "peculiar people" talks about as amormonism in america religious minority in the origins of the animosity. >> they fit awkwardly in that. not only are they religious minority, but one that overtime has figured in disproportionately visible ways in the debates about religion. announcer: on american history tv, take a tour of the brigham young university museum of paleontology. the curator talks about how the fossils were gathered from utah

and surrounding states and how jensen changed the way fossils and those are displayed. >> when you can hide armature and the still supports, the animal looks more a life, in the sense that you get the feeling that these are bones, but it brings life to these bones. announcer: and james spencer fleming, professor of history at brigham young university, tells how mormon pioneers settled sully city. families33 norman established provo in 1839. this weekend, watch c-span cities tour in provo utah -- provo, utah. workingan cities tour, with our cable affiliates and visiting cities across the country. announcer: coming up next, a review of the supreme court's most recent term. then a senate former -- foreign

relations hearing on combating isis. at 7:00, "washington journal" is live with your calls and a look at today's headlines. announcer: the supreme court ended its term under with decisions on abortion, gun control and public corruption. talked legal experts about the big decisions and surprises we saw from the court. at this event, hosted by the american constitution society. it is one hour and a half. >> good afternoon, everybody. i would like to welcome you to acs's annual supreme court review. i am caroline fredrickson. i am the president of the american constitutional society.

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 d 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. i guess i will just have to repeat myself because this year was no exception. but this year 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 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 -- 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. 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 publisher of scotusblog, the 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 -- legal time named him one of the greatest lawyers of the last 30 years. who better could navigate these uncharted waters for us? please join me in welcoming tom goldstein. [applause] legal times named him one of the 90 greatest washington lawyers of the last 30 years.

[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 next quarter century or more, depending on what happens between now and the end of november. we 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 prays that justice ginsburg lives forever, but the prospect that she will resign to go run marathons or other things is out there, as is the possibility for justice kennedy. so the next president in the next four years could have an opportunity to shape the court in a 7-2 direction one way or the other. so, we want to talk about some broader trends and men leave time for questions at the end. -- then leave time for questions at the end. christina has an unbelievably diverse portfolio of litigating cases around the country on issues of race and other things. i 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. as you know, fisher is around to --round two of alice fisher's -- is the second round of abigail 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 this reflects 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 it, we should start by talking about anthony kennedy, because it really does frame what he did in the fisher case. as you know, the supreme court upheld the university law school's race conscious admissions program in 2003. in that 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. he accused the 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. and specifically, he said that in my case the majority conflate and the deference -- in that case the majority conflated the deference the university was due.

it was not entitled to that level of deference in the way it implement it its goal. what he said 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. -- and he mocked the concept of critical math. again, i will quote him.

"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." he really did not like this decision. he went on to complain that the university had failed to provided missions personnel with evaluations with the objective 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 conscious admission policy is narrowly tailored. in that decision and in the

fisher decision, he embraces grider, notwithstanding how hard she was in its dissent. he comes out and says in the decision, makes clear that the principles articulated in fisher one and repeatedly articulated with respect to race conscious admission continue to apply. the university can consider race in its admissions process, but will be subjected to stricter scrutiny. the 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

one, and in many instances, her 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 mass, and therefore it would be impossible for the court to determine if the university of texas had met its goal of achieving critical mass. justice kennedy said "increasing minority enrollment may be instrumental to educational benefits, but it is not, as the petitioner seems to suggest, a 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 counting 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. he 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. that is absolutely in line with the university's goals. 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. he goes through those and says absolutely not. the record 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. he also says, "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. lastly, she said there were alternative race neutral means available. justice kennedy takes these down one by one.

none of fisher's alternatives were 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. he also rejects her pursuit of 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. he made it clear that there was 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. in fisher one, we know that he 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. one year later, we watched the united states explode in a fury of race-based violence. unquestionably, that is something he saw and, as we all did. 2015, he again it knowledge is -- he saw, as we'll all did. 2015, he again acknowledges the role of race. it seems like he has really evolved on this issue.

this case obviously is a big win for the civil rights community and, we think, the right decision. it demonstrates that at least four times over the last decade -- over the last four decades, the supreme court has upheld race conscious decisions in the university setting. and at this point, we only have three justices with clear and unambiguous opposition to race conscious decisions. it indicates how the court will rule going forward. >> what does that mean as a practical matter? do you expect to see expansion of 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.

i think this reaffirms, 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 the confidence to know -- i 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. tom: do you read in justice kennedy's opinion 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? christine: this is a straightforward application of gruder. tom: many thought. christine: ultimately, he appears to the majority. he did not dissent. -- adheres to the majority. he did not dissent. in terms of a wider view of race, i would 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 started in 2003, demonstrates an evolution of his view on race overall. tom: let me just bring you in,

one person who has been involved in some of the most significant cases from a conservative perspective -- were you 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 trajectory, 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. respond.doesn't 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. the first is, what i think it is more interesting than what justice kennedy said is what the liberal block of the court and -- didn't say. say what you will about justice 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.

ked about parents involved. 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. they knew 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 case, the the top 10 plan in texas filled 70% of the seats. we thought that were operated in its favor. -- we though tit made it a unique case in our 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. while the results are disappointing, i don't think it tells us all together what will 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. we were criticized for not 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? >> walter 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 you know so well -- from 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 addresses 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 of color in which the only time discrimination raises its head is when disappointed applicants to an elite college bring a lawsuit? there is that since. it is reflected in justice alito's 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

of charleston, chicago, 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 did affect justice kennedy, as it did justice sotomayor your. she was very concerned about what was happening to young men of color by police in ferguson. mass incarceration. that dissent along with alito's dissent make a very nice pair of debate. in some sense, i think so to -- sonia sotomayor won the debate against kennedy. mcdonald. [laughter]

not a person of color. [laughter] watching some folks on c-span the morning e case. not know thi 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. but he needed to get fda approval. he needed studies. he needed something the state could provide. so, before mcdonald was just before mcdonald was governor, mr. williams ingratiated himself -- so, before mcdonald was 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. he provided awesome gifts. it really makes you think being governor of virginia is a good life. he wrote a 15,000 dollar check for the governor's daughter's wedding. he provided free use of his for -- his ferari. he provided the governor's wife with a rolex. let's assume 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 providing williams with access

to the decision-makers. he was convicted, with the jury finding that the actions taken by the governor were in exchange for and as a result of the largess provided by mr. williams. the supreme court unanimously reversed the conviction, and they did so in the following way. the jury might have found that what mcdonald bought for his money was access, referrals, setting up meetings with the appropriate officials, and under the instruction, the jury need not have found that the governor was urging a particular result. maybe they just wanted to meet with these officials.

so, what you have here is benefits being provided to the governor. arguably, the jury could have found in exchange for -- and the government undertook to prove that. what the court said was we are going to narrowly limit what counts as an official act. and the governor did not make an official decision, nor, we the need the jury have found, that the governor urged a particular decision on the part of those to whom access was provided in exchange for money. this might seem like a shocking result given the undisputed level of corruption involved here.

it's a statutory construction matter. the court says there are constitutional issues lurking in the background, but i think that act drop here -- back drop here is that the court has seen a number of cases and read about others in recent years that have left them concerned about the degree of prosecutorial discretion under the old, broadly written statute. you get the 1914 statute, and gives prosecutors lots of leeway and lots of targets. so what has the court seen in recent years? the court has seen the bond decision out of misery -- missouri, where a 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? the grouper case from florida, 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? the prosecution of governor perry in texas. there was a shocking overreach of federal authority involving a 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.

in the skilling case that might necessarily -- not necessarily have been seen as sympathetic, an employee in wisconsin was 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 so livid about the prosecutorial judgment. they were so livid about the prosecutorial judgment that went 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 if 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. it's ridiculous to allow government officials to be taken $50,000 gifts. that is legal in virginia. so that is the underlying problem here. what worried the court is that campaign contributions would also count and if gaining access quo, what you the would have to prove, my son 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. but the court is worried that if you send this to juries and you show that campaign contributions were given, meetings were held, 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 is indifferent 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 quo, that is also the issue. 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 reproductive freedom project. ms. dalven: it is wonderful to be here and it is wonderful to be celebrating a victory. [applause] this was an enormous victory for -- 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 interest that has a -- with the 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. the second 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. so all the trial court's heard 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 is -- was for us many places to 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. that's 10 clinics for 5.4 million women of reproductive age. 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%. if they had prevented 50% of 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. again, the court said 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 -- must be weighed against the burdens. 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? this is terrific news and a number of regulations are already falling on tuesday -- already falling. on tuesday, they decided a case that was challenging a very similar admitting privileges

law where 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. one anecdote, in louisiana they 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 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. so texas, 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 -- ginsberg's opinion in spokeo, 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 take care clause, far less about to be -- about the -- act, the 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. and do i think there is a sense that the case would go out on an 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 industry, 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. but that they 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, 4-4, and was a default to the 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 -- significant one person, one vote case. mr. charles: 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. majoritarianness about 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 voting rights around 2006, where you see his way of thinking and talking about race also evolving. one final point, let's also not forget shelby county versus 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 -- scintillating case, which i 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. those who are not eligible, kids, etc. 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. -- look at our precedents. 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 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. they have a portion of the basis of total population, said that day, at the end of the leaving aside a lot of the political theory. at the end of the day, fifth-grade arithmetic all over again. this is how we count. count. how we ought to 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. [laughter] mr. goldstein: very interestingly presented. [laughter] mr. charles: when you have a boring case you need to make it exciting. [laughter] mr. goldstein: deepak gupta, maybe want to talk about the particular -- principle consumer case and 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. it's a case about access to justice for consumers and workers. 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 discrimination 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 community has about these cases

is that it allows you to aggregate up across millions of people potentially, the 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 -- and particularized. 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 is recognized, that you can go to court even if it is just invasion of legally protected interest. and even the statutory damages framework under the copyright act.

i think a tough, tough case for the court to decide and it looked at or -- or -- at oral argument. justice scalia died while the case was under consideration. i think a lot of observers in this case thought it would be 4-4. and we can talk about this a little when we get into the discussion. and number of different cases has been avoiding the impression are the reality that it is release it -- split 4-4 in a lot more cases than you would think if you just counted up the 4-4. the court has taken pains to produce things that look like supreme court opinions but don't decide anything. a for that is a remarkable thing. it looks like it emanates from the alito chambers, but we see the fingerprints of justice kagan and perhaps justice breyer

all over it. it is an 11 have a page opinion that restates everything we already knew about article three standing about other cases and doesn't even apply what it says to the facts of this case. it says you figure it out. so it has actually unsettled things. this has sort of set off a wave of litigation in the lower courts where poor district judges have to figure out what this means. says, youurt simply know, history and the judgment of congress play important roles in figuring out whether their standing. thank you. that's helpful. [laughter] ins means that, garden-variety transactions, you see medieval english common law making arguments about whether to defer to congress. of what a good example happens when you have a court that is really unable to render

decisions. example -- there were three big trend -- there were three big class-action cases this term. assemble -- they all at some level kick the can down the road. >> i am a little biased. i think the court did decide the big question. the big question was do you always have to show actual harm, damages, what we call consequential harm to yourself or not? the question -- the answer was always in every case, that the statute of violation could never be sufficient.

i agree there was a lot left undecided, but it wasn't that. second, it is really hard to read the tea leaves about what happened behind the scenes. but it doesn't look like to me that it was for-four. outuse justice thomas took our view of the case and came maybe half a step short. think justice thomas's views changed. he tends to say what he thinks and stand by it. the others were voting for spokeo, it is hard to see it as a 4-4 case. the question left is we now know congress can create intangible rights. the question that was left undecided was what does congress have to to do to decide?

so they said, well, congress, your judgment is important, but not decisive. i think the court wants to leave some role for itself. if congress sets forth a clear and articulated division of what it is trench of attack, whether it is privacy or accurate credit report, i think most times, courts are going to find standing. questions,e turn to walter, for five minutes, could you send back and give us a bigger picture sense of what this means? walter: the last time we had a appointedf the court

was democrat president 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. someone at the center of the court is not likely -- is likely

to -- >> are we not going to see x versus y is overruled wink wink? >> i think we won't see those magic words. think 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. [laughter] it's shelby county, but 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 on the quarter, no other states had it. it wasn't the more draconian of laws. the states under reacted. crawford is -- there's not much evidence here of a burden. you can make a powerful case, -- opinions very much like in that sense. for the court says we are not changing casey, but taking seriously the assessment of the benefits and burdens. i can even imagine in the area

of reproductive rights taking a look at the question of funding, the statutes that gerrymandering carveout planned parenthood. from what otherwise would be a general category of funding. 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 -- is excised to be excluded 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 granular, quite modest, great 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. [laughter] 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. we will see what they have to say if they have five votes. from someone from my perspective these kinds of

cases. we have asked the courts to overturn precedents 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 towards -- 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? is the supreme court setting its elf 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 against a public referendum of 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. i do think to your question, i can't say that -- obviously they haven't so far. i think the court is taking seriously and does recognize that race does still matter.

he >> 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 restrictions will fall on bogus claims of women's health but other types of restrictions will fall, other things like we can look at all sorts of other restrictions. we may muffle visits to clinics, 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. actions. >> to link the two things, this is a reference to 10 years ago when the court upheld a program at 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 on here 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, and eating in particular -- expected to take the home health care cases, versus the department of labor, the work case -- talk about the denied 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. by and large, individual regulations have been upheld in lower courts. the supreme court has in the 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. i would tend to agree with will that there is some sense among the conservatives on the supreme court of overreach by the administration. you can sense frustration on the

part of the administration with a congress that finds it difficult to do much of anything at all that somebody has got to 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. texas thought they could choose 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 this question? >> 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 balloon. i don't see what the theoretical and the legal argument there would be. on the flip side of it, you can see where the court found its footing to say this is permissible. this is required as a matter of constitutional law doctrine, precedent, practice.

>> we did a brief for the naacp legal defense fund on this question, urging the court not to go ahead and rule that a 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. given the fact that we've had an 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 other subset, which has the risk that it would be manipulative to bid in a way the top of -- total 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. [laughter] >> 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? [applause] >> that's what you want, i think you read is to give the other side the possibility, what kind of person would you expect donald trump to put on the supreme court? what would happen? >> 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 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 further erosion post 2008 a disability nondiscrimination protection, especially in the context of policing or related criminal justice issues? >> i don't know if on the civil rights side, you want to talk about stability law. it seems to be a relatively mixed bag. the court has done ok by ada

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 merrick garland or someone else could make quite a bit of difference. progressives are concerned on questions like qualified immunity, this is quite related. i think we regard merrick garland as less of a change than he would otherwise expect from a nominee from a democratic president. >> if you would join me in thanking our panelists and thank you all for coming. [applause] [captioning performed by the national captioning institute]

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