morning. join the discussion. announcer: tomorrow, a new report on efforts to find out about the ebola brave this -- ebola virus. venezuelan democracy activists discuss the country's political and humanitarian crisis at the council of the americas in washington. live coverage at 4:10 eastern here on c-span, c-span.org, and the c-span radio app. announcer: now a look at the recently concluded supreme court term. judges, journalists, and law professors look at key cases decided this last year and the impact of, new justice neil gorsuch. from the university of california irvine law school, this is an hour and a half. [applause]

>> good morning. my name is rick hassan. i am pleased to welcome you to the seventh annual supreme court determined review event. our first event was held in a closet. [laughter] we are expanding. this event brings together the law school, university, and the larger and broader orange county community to talk about one of the most important but publicly neglected institutions, the u.s. supreme court. we have an outstanding group of scholars, journalists, and judges to talk about the supreme court and the major changes to come. before turning to the program, i want to thank a number of people and organizations who made this possible. the irvine theater, including robin darling and jeff stamper the special events team, from the law school, our new

--erim dean, and thanks also to c-span for recording this event for the first time. i also want to single out for special thanks the man in the middle of the stage. uci laws founding law school dean. [no audio] [applause] >> as you all know earlier this month, he left uci to take up a position at our sister school at uc berkeley. it is no exaggeration to say that none of us would he here today if it were not for him, neither this event or the law school with such a reputation for teaching and the cause of justice. it was your vision that brought

the school to life your hard , work that made it flourish, and your kindness which made it a joy to go to work each day. we will always be in your debt. thank you for everything you have done. [applause] [no audio] [applause] >> two years ago at this event, the dean commented on some of the surprising liberal decisions of the supreme court, including the hodges case, recognizing the constitutional right to same-sex marriage, and king versus burwell, which saved the obamacare law from being killed by a typographical error. he said a 2014 ending term last year was revenge of the agenda -- jedi, and a 2015 term was likely to be the empire strikes back. [laughter] including a case that would have affected public sector labor unions. ,ut then justice antonin scalia

died suddenly in february 20 16th, turning the term upside down. adcident obama nominated chieftains -- d.c. chief judge mary garland to fill the seat.justice garland did not get a hearing. after the election, president trump nominated 10th circuit judge judge gorsuch to the bench and he was confirmed in the spring. judge gorsuch participated in a handful of decisions. he is already making his mark on the court. retirement rumors continue to circulate about justice kennedy. more movement at the court could be coming in the near future. empire strikes back might have had its release date pushed back , but there is still every reason to believe the eventual sequel will be a blockbuster. [laughter] joining us to sort out what the court did this past term and what it will be doing going forward is our stellar panel. i will keep the introductions

brief. i will be introducing the speakers in the order from here. greg store has covered bloomberg news since 1998 and covers the bloomberg law program. he won the new york press award for coverage of the supreme court decision. and a breaking news word for the 2012 health care decision. she has been a justice of the since january 2015. justice kruger served in the u.s. department of justice as a assistant attorney general for the office of legal counsel. 2007 to 2013 she served in the department as an assistant to the solicitor general. during her tenure, she argued 12 cases on behalf of federal

government in the u.s. supreme court. dean of professor of law. previously, he taught at duke law school and at the university of southern california law school. he is one of the country's leading experts in constitutional law. the honorable alex kaczynski was appointed circuit judge for the ninth circuit in 1985 and served as chief judge on the court from 2007 until 2014. . after law school, he clerked for chief justice weinberger for the u.s. supreme court and justice anthony kennedy. prior to the appellate bench appointment, he served as chief -- judge to united states claims court. and finally, a professor of law with a focus on federalism and

postconviction review. he was at our panel two years ago. she clerked for justice anthony and kennedy on the u.s. supreme court. professor lipman joined from harvard law school where she was a fellow in lecture on law. keep the program moving, i have asked the panelists for speak than no more than seven minutes on one of the court cases as term,s a theme from the which will be left half the time for the town to engage with one another and to take questions. we will take questions from the live audience, questions on lawscotus,ing #uci all one word. we have changed our format for audience questions. rather than stepping up to the microphone, there should be cards that you can fill out. i will make an announcement that

you should pass your cards to the il. -- aisle. they will be collected. you can direct a question to any of panelists. please keep your questions short. please keep your writing legible, and please keep them questions. [laughter] to keep things moving, i would like you to please save your applause until the end of the program, except for now as we welcome our panelists. [applause] >> i'm going to talk about the travel ban. reg has only given me seven is to talk about it. i would like to talk for of words of one hour, but because of the time, i will skip over some things. i presume most people are familiar with the political context of it. --ill try to focus on these this opinion from the supreme court, about what it says about the court's relationship with

the president. i will skip over provocative opinions by judge kaczynski. the executive order, second one issued, citingad national security, and people from six mostly muslim countries for 90 days from entering the country, the order said the purpose is to reduce burdens on the department of homeland security as they review vetting procedures from people for those -- from those countries. terms of the supreme court, we have two more courts that have blocked the van -- ban. the fourth circuit says the rationale is unconstitutional discrimination on the basis of religion and shows animus towards muslims. the ninth circuit says we don't need to reach that constitutional question. anare going to uphold injunction against the ban

because the president exceeded his authority under the federal immigration laws. thehe supreme court, president asks for basically two things. to hear the court appeals of both the rulings, but not hear arguments until the fall, and to block the travel ban in the meantime. and because of the temporary nature of the then -- ban, because it's only 90 days, it creates an unusual dynamic where they stay application and the merits question intersected in an unusual way. whatever the court does on the stay application may be the entire ballgame because the travel ban might expire before the court overhears arguments. it comes up to the supreme and cutting to the chase, the court lets part of the ban take effect. it issues this effect -- opinion

, it is not written by any member of the car. you can search through the entire document and look for the names roberts, kennedy, sotomayor. those names do not appear. says remarkably little in this opinion about the merits. and they said they are not even focusing on the merits. usually when the court picks up a stay application, it looks at a list of four factors. the first is likelihood on success of the merit. courts case, the essentially said we will not focus on that. we will look at what it calls the equities, which side will be hurt more if they lose, and a broader question of the public interest. ,n looking at the equities

probably most people know this, but the court decided that people who had a connection to the u.s., what they called a bona fide connection to the u.s., the court said the travel ban cannot apply to those people. remarkably, in evaluating that and looking at the equities, it described what the lower courts said and how they talked about the impact on the people who could not enter the country. they cannot decide if the lower courts got that right. they said we are going to leave that in place and not disturb that. so the travel ban can't apply. when it came to the people who fide tied to bona the u.s., this is the media's part of the court opinion. it had a statement in here that said the president's interest in enforcing the travel ban and using the executive authority to

do so is at its peak when there is no tie between the foreign national and the united states. from my standpoint, that sounds like the court is pretty much saying that with regard to people who do not have any pre-existing connection to the u.s., the president has unfettered authority to say you cannot enter the country. there is a separate opinion by justice thomas, joined by other justices, justice alito and , that suggested the court has made a decision on the merits in this case. the conclusion that the government has made a strong showing and is likely to succeed on merits. what issays unquestionably the right way of describing the majority opinion -- he called it a compromise. that must be right. this opinion must be a product of people on the court who did not want the public -- want to

publicly dissent from it. you can imagine justice roberts having a conversation about what is going in or not going in. the court didn't decide everything. we have two more issues, two big things to look for. one is to agree to hear arguments in the fall. it is not clear if there will be anything left for the court to decide in the fall. there's a chance events will overtake the arguments. the 90 days will expire. the president might issue a superseding executive order, and it's possible the case going -- goes away. litigation ing the court of hawaii weather -- on what the bona fide connection to the u.s. means and whether the trump administration has taken the position that only a limited amount of family members, not including people can enter thents, country. there is a fight over that.

that could make its way into the spring court to clarify what it meant sometime in the next couple of weeks. interestingly, there was a poll that seemed to suggest that the public liked the result that the court got to in this case. the court sometimes has a sixth sense of what will be an acceptable decision. maybe trying to avoid a big concentration, -- confrontation they gravitated towards that. ,talking about themes of the term. this court has been mostly and -- on a holding pattern since justice scalia died. there were not a lot of blockbuster cases this term. we will have some interesting cases to talk about here. to a large degree, the court managed, or the lawyers did not bring highest profile cases. there was one big case involving transgender rights, and the case went away. that is about to change.

we will have very big cases in the fall. hopefully, we will have a chance to talk about those later. characterized i and uncharacteristic degree of sleepiness, one of the higher profile cases was probably the ese threertant of th first amendment cases -- can you not hear? is this better? as leeas a case known versus tan and better known as a kind of proxy fight over the cancellation of the trademark of the washington redskins football team. the question had to do with the constitutionality of the provision of the 1946 act. it governs the federal registration of trademarks and forbids the registration of marks that are found to be disparaging to persons, institutions, beliefs, or to

national symbols. the argument in the redskins case was that the term redskins has long been understood as a slur against native americans. this particular case arose in a very different factual setting but raised the same legal question. it concerns the use of the mark , the slant, for a dance rock group that was trying to reach appropriate a term that was used as disparaging towards persons taken asdescent, and it term of pride. it was found to be disparaging and therefore not able to be registered. a member of the band challenged that decision and prevailed before a federal circuit. a unanimous supreme court

ultimately agreed. but unanimity was characteristic of the eight justice supreme court for the lengthy period in which it was shorthanded. the unanimity of the results , there were significant differences about the proper mode of analysis for reaching that result. the government's central argument rested on having a certain understanding of what exactly federal trademark registration does and does not do. the government emphasized that federal registration is not mrs. -- necessary to use a particular phrase in public discourse and everyday conversation, nor is it necessary to use a particular market in commerce to identify the source of goods or services. what federal registration does is the government creates a list of those registered marks and makes it easier to defend the mark against other users who

might want to use the same mark to identify their differing goods or services. the government said that there speakhing that bridges about the federal government choices about what mark is going to register or not registered, but what the government is doing is adding additional legal protection against other people using that same speech. it is providing something of a monopoly power for the holder of the trademark. as such, what really matters is whether or not there is a reasonable relationship between the various kinds of criteria that the government uses to decide whether to register the mark, and the purposes of providing that enhanced perception. a contrary conclusion would not only call into question the constitutionality of the anti-disbarment -- anti-disparagement provision, but also other criteria the government uses, like whether or not the mark is just descriptive, whether or not there is a risk that the registration of one mark might dilute the power of another mark.

the supreme court was not moved by the government's framing of the case in these terms. notably, i will highlight a few aspects of the court opinion, but the court really did not engage deeply with the government attempt to characterize federal trademark registration as a kind of a special sort of government program. the court was extremely careful. there was a lead opinion written by justice alito, and a concurring opinion by justice kennedy, also signed by four justices, to avoid making broad pronouncements about what the right framework for thinking about trademark law is in general. it was very focused just on one provision the anti-disparagement , provision. the central theme that emerges from the various analytical approaches in these separate opinions is really this, that no

--ter whether you concede of conceive of a federal trademark registration program as a kind of government subsidy to mark holders, or whether you consider it a regulation of commercial speech or any other kind of category under the first amendment, what the government cannot do in the context of that >> what the government cannot do is attempt to suppress speech on the basis of viewpoints that it expresses. essential move the court makes an essential first amendment take away from the case is that theng offense to people is question of a viewpoint. the government that argued it was not because the applied acrossan the board purity cannot disparage or publican's just as you cannot disparage democrats. you cannot disparage women just as you cannot disparage men. regardless, just because it suppresses more viewpoints does not make it less viewpoint

discriminatory. that is the one thing the government cannot do. is, interestingly, some suggestion in justice alito's lead opinions that the result might have been different if the disparagement bar had applied more narrowly to ethnic slurs and the like because of a government-asserted interest in protecting the free flow of commerce that might be imputed by discriminatory speech. the court said -- justice alito said in his lead opinion -- that this is not such a cause. it was not drawn to serve any such purpose. the purpose with what he derisively calls "a happy talk" klaus. lause. there is no adequate justification for the government trying to draw distinctions on that basis. disputesort-term, the

that have centered on the disparagement bar are over. the government have filed a letter of surrender and presumably, we will see more registration of this in the future. we will also see additional questions arising about how exactly courts reasoning applies to other aspects of trademark law, including a provision that bars the registration of marks that are scandalous and will give rise to additional questions about how to think about the government's role in making judgments about what counts as scandalous speech for trademark registration. throatedmous and full method that comes through from the court decision in this case is really a fundamental law,iple of free speech which is the notion that giving offense is not a sufficient reason for the government to attempt to censor or drive

particular views from the marketplace, and the appropriate response is instead more speech rather than less. it is wonderful to be here. thank you so much for those kind words. i would be a mess if i did not think rick for this program. rick came to uci. he had the idea of doing this program this summer. each year he put together this program. only -- not only the best attended oven, but one of the most attended events on the entire campus. thank you for doing this. [no audio] [laughter] i want to talk about trinity lutheran of columbia, missouri. the state of missouri has a d to school.h is ai

missouri has a program called -- it will not give aid to religious schools because of a provision that prohibits the state from giving aid to religious institutions. the majority of the states have similar positions in their constitutions. there was a time congress insisted on such positions as a condition for statehood. , if youhese schools look at columbia, missouri. it is a free exercise of religion to keep it from receiving the aid secular schools were able to get. they were in favor of the state of missouri and wrote trinity l. aid that other schools get. cases of thecourt

question -- when is the. -- prior to this, there is only one supreme court case. the decision of locke versus davey. giving scholarships to students .ithin that state joshua davey had received one of these scholarships. he wanted to attend a seminary in washington. the state of washington refused to allow the scholarship to be used in that way. he said it infringed upon his exercise of religion.

the key issue in the brief -- the united states supreme court, in a seven-to decision said that locke versus davey was distinguishable. the supreme court ruled against the state of missouri. court,an opinion of this except for one footnote. --tice thomas and gorsuch chief justice roberts said this discrimination against religion must meet the most exacting scrutiny.

scrutiny,et strict meaning government action must seem to be necessary to achieve a compelling government purpose. the court found that strict scrutiny was not that. that is not a compelling government interest. the key issue is going to be locke versus davey distinguish ability. denied to whatng joshua davey was doing. it was because of what the institution is, a religious institution. the court concludes it is odious

to discriminate against religion and term of the aid that it receives. the key issue is going to be how ?ar does this extend does this mean any time at government provides aid, it has to provide the same assistance to religious institution? he said this is just about aid to a playground, nothing more than that. others say this is just about an eight four program -- playground. -- aid for a program. it indicates a really want to overrule locke versus db. he said this is the first time in history that the supreme court has ever found that the government is constitutionally required to give government aid

to a religious institution. the firstd to distinction that it was based on any joshua davey was doing, time government does not give aid to religious and the tuition is discriminating against what it is. that would violate the constitution. tos is giving money religious institution, and institution all about religious devotion and prayer. if you give money to a playground, that is something else. this is not about just the playground. now you are going to see in the norma's amount of litigation in any instance where the government is giving aid to secular institutions and not to religious ones, religious ones will sue and say this violates.

justices on the court who would go towards overturning box versus davey. ins is can he voted majority 97% of all the decisions. even if you exclude the unanimous cases, justice kennedy was the majority 93% of the time. second was chief justice roberts. for lawyers litigating, my advice is to make a must attempt to pander to justice kennedy. -- make an attempt to pander to justice kennedy.

then we will have a dramatic goal -- ideological shift. in light of his last comment, i should make it clear that when rick mentioned justice kennedy, that was not exactly correct. -- clerked for judge kennedy. about isi want to talk coming up to understand it was a case.e court state -- -- it was a matter of due process where the criminal defendant is entitled to have

handed to him any evidence proving lack of guilt or innocence. i want to spend a minute talking about it because it is not like miranda or the exclusionary rule , rehab rules in criminal law that serve some other purpose. oppression rules of to protect each of us. this is actually geared toward the defendant. .hey choose this

is a crime where please come in and cordon off the area and gather up all the evidence, they have access to witnesses. they can subpoena them. the police can call the men. -- called them in. evidence to this the defendants. noer cases, there is usually discovery. there is a real need for prosecutors. it has been 54 years, over half a century.

there is strong evidence out many prosecutors do not live up to brady. the question is, the supreme court said that government must -- thatr evidence for is material for the defense. the question is, what does it mean to be material? this case with turner was based on what happened in 1984. this was before i was appointed to the ninth circuit. i was living in tc, a few blocks ,way in the southeast -- in dc a few blocks away in the southeast. was abducted on the street, taken into an alley,

, she wasinto a garage sodomized with either a poll or iron pipe, and killed. the government brought the case against nine or 10 defendants. wasfear of the government the group of youths headed -- had decided to do this lady. testified forup the government for a lesser suspense -- sentence. what the government did not disclose, i should note this is not an oversight. this was a willful nondisclosure. the body had been found by a street vendor. this treatment vendor had told the police that two other people

have been rushing away from the crime. guy, when the defendant asked for the names come the government willfully refused to provide the information. this information that was not disclosed to the defense. themajority looked and said government has said this was done by a group. nothing really that the defense could have found. they said the reason the defendants excepted the group killing, they would not have this information. it would have looked very different if they had had this

information. whyexplains convincingly the government should have turned over the evidence. , theakeaway from this case position of whether to turn over evidence from the prosecution come the prosecution always sees the case from its perspective. they believed it was a group killing and they found this evidence to where a group killing was not convincing. so they did not turn it over. here came to light 24 years after the event. the second thing to take away, the make bash man whose name was not disclosed, he was involved

and found guilty in the killing blocksyoung woman a few from the scene of this crime. the second takeaway is that whenever the government failed to turn over evidence, not only can they risk convicting a an innocentn -- person, they are allowing someone to go out there and do it again. this has happened again and again. the third thing is, there is nothing in the supreme court's any -- onat casts what the government did here. finally, the government -- the supreme court mentions that the

justice department guidelines avoid this problem. article that documents all of the cases where -- alltice department the instances where the parchment of justice has failed since 2000 -- department of justice has failed since 2006. all right i will try to fit two cases in my time. they raise the same two questions. the first question is when can you sue a federal official for damages for violence is -- violations of your constitutional rights? the second question is when you can get damages for violations?

that is when an officer is liable for damages, assuming you are allowed to sue them. the two cases that raise these questions are ziegler versus -- and on and is -- hernando's versus mesa. the first case involved a group of men who were unlawfully present and undocumented in the united states. all south asian or arab. many of them were muslim. were arrested and fbi investigations in the wake of september 11. they were not suspected of any terrorist activity. noy found that they had connection to any terrorist activity. at the time, the fbi had a policy of holding until the

training persons of interests that were undocumented. partially on the basis of public and that the fbi received, many of the tips were about reportedly dangerous looking middle eastern men. the men were detained in conditions that can barely be described as rent this -- her industry and -- horrendous. they were subjected to the strip searches. border patrol agent policing the .exas mexico border the colbert is a fenced in includes portions of el paso tech -- a pass out and mexico. that bridge that people actually passed between the two

cities and countries. there were kids running around in the colbert -- culvert. say theyndez families were just playing games. others say they were perhaps trying to enter the united states. one of the boys hides under the leg of the bridge that spans the culvert.- the officer chased him and killed him. it turns out the boy was a mexican national who was standing on the mexican side of the border. the officer was standing on the u.s. side of the border when he shot him. is can youuestion sue in federal official for damages or for constitutional violation?

there is no statute that allows you to sue federal officials for violating the constitution. it allows you to assume state officials, but not federal officials. suit -- the court said you can -- you often will not have a remedy for constitutional violations. that is the case for both of the above cases. and hernando, there was not forg to be a trial -- hernandez is, there was not going to be a trial. if there is no control child, the exclusionary rule not remedy the violation. another way can remedy a violation is to go to federal court and ask the court to give

you an order or an injunction. cannot callndo's the federal court when the officer was pointing a gun at him and shooting him. plaintiffsome the could not have alternative available to them as well before they were detained. they did not know how or where they would be detained. after they were detained, they were held in isolation without communication from the outside world. allowedestion, are you to sue the federal official for damages? the first case said no. i said it is true that there are these order cases that says you can sue federal officials for

damages. we are not sure if we agree with those cases, but we will not overturn them. unless your case is very similar , youe three prior cases are not allowed to sue federal officials for damages anymore. hernandez did, -- directed the court of appeals to decide that question body. wake of the the second question is assuming that you can sue an official, when are they viable under a document called qualified immunity? the officer also violated statutes. it -- in factid

my late a statute. statute.e deficit would not have been qualified for immunity because .e did not know the facts he did not know he was shooting a 15-year-old national standing in mexico. the court did not decide whether the fourth amendment on excessive force actually applied to the officer under those circumstances. those were the cases that i wanted to discuss. i think they underscore something that is noted at the outset. the court is one of the most publicly neglected institution. they were not headline makers, you may not have heard about them before, but they are incredibly important. if you have a question, if

you could pass your question .ard to the aisle there will be people coming through to collect the questions. paneliststo all the for keeping time. [laughter] while the cards are being collected, let me open up this question to the group. we only have a little bit of evidence about justice gorsuch. >> let me comment on greg's presentation. i cannot speak for the merits. that is a case coming for my court. i want to describe one issue that i think is important. i think it will be a bigger issue coming up. that is the problem of nationwide in junctions of district judges in a city or

circuit in the country, issuing injunctions across the country. that is a new phenomenon. it started in the last administration, during the course of the last administration. they were very happy with it when texas joined some aspect for deportation. the obama administration's .olicies now the shoe is on the other foot. they were unhappy with this. i think it is a serious problem. justf my students at nyu

wrote an article. he did an editorial in the l.a. times talking about the dangers of federal nationwide in junctions. what this means is one judge and one circuit gets to control the until the the -- law supreme court intervenes. have due idea that you eling views in the lower courts before it percolates up into the supreme court and it can choose among different views. it is an important issue. because thisn it will be a big issue coming up. >> a follow-up that anyone can answer. if you do not allowed nationwide injunctions, you have one rule in washington state and a different rule in massachusetts.

how is the federal government to respond when it has a single immigration policy? >> you can have tax rules in different circuits. ,ntil the government acquiesces they will simply have different operating differently in different circuits. that is the way it operates. if it is important enough, the the government- takes it to the supreme court and says we need a nationwide policy. you need to take this case. the supreme court hardly ever says no. the government says we need one answer. >> in a situation where the question concerns the constitutionality of government action, the supreme court can be fairly motivated. >> most policies, there are

different policies of many areas of the law that operate differently in different circuits. we muddle on. panelists these chance to respond to each other. i only had seven minutes. does anyone else want to respond? my first question is justice gorsuch, i think he was only there for the april sitting. we have some sense of him. how do you think he is likely to change the court used on the little bit that we know? what would our conversation look like have the other justice been on the court? that is open to any of you. >> i predict that liberals who look back on this glia days as

days as the good old days. [laughter] yet to remember that what we have seen in the last 18 months is unprecedented in u.s. history. in 21 out of 24, the senate denied confirmation. never before has the senate said no hearings, no vote. this will set a precedent for the future. the president and the majority of the senate of different political parties, the -- given the electoral maps, it is highly unlikely the democrats will take the senate in 2018. if they do, president trump will not confirm those last two years.

before has there been a filibuster of a supreme court nominee. neil gorsuch is going to be a very conservative justice. he is 49 years old. if you reminds on the court remains on 90 -- he the court until he is 90, he will be a justice for 40 more years. i think the key question is will the other justices -- it is that appointment that will ideologically shift the court. >> i have a couple things to say. i think it is remarkable.

most new justices of the court talk about how it took them three or four years to feel like they knew what they were doing. he shows none of that. he has been extraordinarily assertive. confident. people call him aggressive. in justice kagan's first two years, she wrote several different opinions. neil gorsuch wrote that many as -- and his first two months in court. they were of the opinion on technical points. they challenged other members of the court on how they were doing things, when they were deciding. how they were reading statutes. indications,e

watching an argument where he got some pretty firm pushback from justice kagan, who is a withce who can get along anybody on the court. she used a word like radical -- to describe argument he was making. -- i amefinitely interested to see the interactions between him and the rest of the court. i would echo erwin. if it changes anything it will be the confirmation process itself. i do not think his confirmation to the court will change the court. i do not think you will be that different from justice scalia. he will perhaps be more conservative than justice scalia was.

i would also echo using the --logy of added details adjectives in which he described neil gorsuch is writing -- gorsuch's writing. the substance of his position, .hey were assertive were radical and perhaps revolutionary. he is not one to hesitate to be theed the law -- reshape law. borrowing on the statistic of the other justices taking a little more time and moderating the town among colleagues, erwin concern. the trinity there is defenses were notable

because they do not often use the rhetoric they used in those cases to challenge the majority opinion or their colleagues. judge gorsuch use that rhetoric in a most every opinion he wrote. just react to what you said. the reason the nuclear option was used for the first time by with therats filibuster -- we had other times in the past where we were on the brink with the bush administration. before, when there was talk about the republicans using a nuclear option, they pulled back. if the confirmation process has

changed, you need to send a thank you note to harry reid. i want to follow up on the gorsuch question. .alk about his separate opinion question of birth certificates and same-sex marriage couples. can you describe the case? case.is an unusual they have a law that says if a woman who is married has a child, this husband's name will be listed on the pacific area -- the birth certificate. the case involved two lesbian couples. througheived the child artificial insemination.

the arkansas supreme court ruled against them. the supreme court in a 6-3 decision -- the supreme court said in 2015 that not only gay and lesbian couples have the rights to marry, but they have the right to go along with marriage. that means both spouses sign of the birth certificate. -- ites thomas and alito was surprising because of its sarcasm. it seemed to be mocking the lack of clarity. it was clear that these three justices not only disagreed with the majority here, but mrs. hodges. this is an the same day the

supreme court ran a review. whether or not a business can ay and to serve a g lesbian wedding on the grounds of the beliefs of the owner. >> i am not sure that is correct. there were three dissenting justices. with of theion travel ban does not indicate which injustices join the opinion. ofause the case was disposed on the brief, the justice who defend it does not necessarily have to note there dissent. it is possible this was a 5-3 decision. it is possible it was 5-4. but i would not necessarily say it was 6-3. >> i disagree.

does not note or concur [indiscernible] >> i am not sure they are any longer the world. they wrote a post about this. someone in chicago wrote an article [indiscernible] [laughter] >> they do not think there is a norm that requires a judge to never vote. curious, even if there

is no opinion, do we assume -- as a reporter i deal with this all the time. >> it works by subtraction. [indiscernible] >> even in order with no opinion attached? >> i am not sure about that. [laughter] >> what is it like in your court? denyingstandard order the case, the fact votes are not ordered, does not mean everyone agrees. a summarying about reversal.

i cannot speak to what the norms were. >> there is no doubt about this. i agree, if the supreme court does not know the difference is, that does not mean anything. but if they take an action, per for dissenture means you have joined. onjustice kagan may be twitter with an anonymous name. [laughter] >>. the question from the audience. with the justice kennedy set to retire anytime, can we talk about respect for precedents. to how the court

can rule on roe v. wade? abortion case.s >> they always come to the same conclusion. residents should be followed, except when it should be overruled. [laughter] it is the only possible answer. we also believe there are types of presidents overruled. precedence over rolled. -- overruled. bythey are replaced i do not trump -- believe that chief justice roberts or thomas or alito or gorsuch will carry it when it comes to something like this that matters deeply to them.

maybe we can have a discussion about john roberts. i challenge anyone to find something in john roberts's career, that leads them that he might -- leads them to believe he might overturn roe versus wade. >> let me just take you up on that. when you see has votes in the obamacare cases, that is an institutional type of vote. overturning roe versus wade would be terrible for the republican party, torally.lee. -- elec >> i do not have the view that his votes in the obamacare case were institutionalist. [indiscernible]

i believe john roberts voted because he got the government's argument. i think there are issues were john roberts cares very deeply. think about the only dissent he has ever read. i thought he would go along with the majority, but he wanted to be on the right side of history. he had a blistering defense. affirmative action is another area where he is a firm believer. their places when he would be in institutionalist. but not in the years when he care so deeply. >> not to drag us back into the discussion we were having, [indiscernible] could it apply if the chief justice was under that majority, could it mean he accepted that? >> it is interesting, when i was

listening to this discussion. it was about, was john roberts going along with the majority? five is no doubt that the justices that found wrongful marriage majority would have voted to overturn the decision. does that mean john roberts was going along with them or not? i tend to agree with judge kozinsky here. has not know that means he five votes in affirmative action cases. >> this is an important distinction. it is one thing to go along because he -- because you know you are outvoted. and you do not have the votes to overrule it, so you do not make an issue of it. votes, you the four would not join that decision.

it is a matter of arithmetic. this one?omments on >> i would say something. overturning roe could mean two things. one, there are five votes to have an opinion to overturn roe versus wade, and discontinue planned parenthood. and it is no longer a protected liberty interest. the other way to overturn roe without explicitly doing so is to apply that standard the court announced for determining whether restriction on abortion is constitutional or not, but to uphold every restriction on abortion you come across, thereby effectively rendering roe no longer the law on the ground. that is another way the courts could potentially tip away at roe, if there is an appointment.

appointment, they could overturn roe. >> i did not say that. [laughter] >> i do not know that will happen. isas just agreeing it possible in a situation like that. samet be bound to do the in the next case. i am not sure the court will have a chance of the composition changes. but i do not have proof of this. it is important to note that justice kennedy is the only remaining justice of the three notasey who said, we will

overrule as a matter of resident -- as a matter of precedent. the other justices retired. >> we have a question from twitter. we talk about justice kennedy's parts in gerrymandering views. -- justice roberts b suede be swayed? unconstitutional, partisan gerrymandering. >> anybody want to weigh in on that? [laughter] >> i am the moderator. i will briefly weigh in. i think it is unlikely he would be part of that. he is a justice -- especially arguments. he hates lines where you cannot figure out where to stop.

to the extent it is a case about a numerical way to say, here is where it becomes too partisan. i think that chief justice will struggle with and not be happy with saying, that is too partisan, that is not. this is not something the court should be involved in. >> let me give a plug for the dissent. questions, judges have no business signing the issues. these are made by clinical branches, not judges. >> i want to disagree with judge kozinsky. [laughter] on, he was asked what is the most important decision during his time in the court.

he said, reynolds versus sims. these are the cases that said a portion of legislature violates equal protection. it should be one person, one quote. but there is no issue more important than gerrymandering. legislature.the this has become more effective than ever before. in 2004, the supreme court filed a report that said gerrymandering is a political question, not to be resolved by the courts, because there is no standard to decide what is too far. said maybe wey will have a standard in the future, we should not close the

door. two years ago, in a case with arizona state legislature, there was an opinion for the court saying the state can have an independent commission for congressional seats. sized she sharply at a the partisan gerrymander. she said they should choose representatives, and president -- and the justice kennedy joined that decision. endorsing partisan gerrymandering as being permissible. tea leavesys the point in opposite directions. >> why doesn't the democratic process work when gerrymandering maximizes power? that is the democratic process. what is inherently, objectively

any worse about that than having on what a that turns particular justice house for breakfast the morning of the opinion? >> we will move on. [laughter] would say it is the party that controls the legislature that draws the districts and away the not only helps that party, totally apart from one person, one vote, where you had districts of varying sizes, that would be ok. >> absolutely. that is wide acre versus reynolds was wrong. baker versusy reynolds was wrong. these are political questions. has been no equal protection and voting at all. [applause] >> and we want it that way. [laughter]

much does oral argument matter at the supreme court? you have numbered -- you have argued a number of cases. >> the thing you have to tell yourself when arguing to the supreme court, depending what position you are arguing, it matters quite a bit or not at all. when justices have been asked this question in public settings, they give roughly the same answer. it comports with my experience on the other side of the bench. oral argument does not often change the outcome of cases. occasionally it does, reveals a new dimension for the case the judges have not fully thought through. large, the supreme court justices have had a lot of time to read and review the brief and spent a lot of time thinking about the issues and oral arguments.

kickingtime they spent the tires on their conclusions about how the case should come out. it is also the first time all the judges sit down together to talk about the case. oral argument serves the function of them talking to each other. sometimes through counsel or past counsel, to try to lay the groundwork for conversations to have an conference. oral argument matters tremendously in terms of how opinions are ultimately written. hazards of resolving cases comes to light, complications that may indicate to the justices they are entering what may be more difficult territory than they appreciated. you often see some of those becerns and efforts to

incremental rather than prejudging a wide swath of issues. ultimately it is reflected in the court's opinion to lay the groundwork for continuing conversation. it has been a long time since i looked there. was it 1976 -- a long time ago. when i served at the ninth circuit for judge kennedy, i thought it was a thoughtful court. and much more influenced by the briefs and oral arguments than at the supreme court. they pretty much have their minds made up. it may have changed. justice kennedy bringing them ethos of the supreme court, things may have changed.

in my days, it mattered little. >> let's try to get to a few more questions. how likely is it to see executive case that will be dismissed as the travel ban case in october? meaning, the court will never fully decide. i will stay away from the word moot, because of the legal meaning. there are plenty of ways you can see the case goes away. i alluded to the case earlier. there was a separate version about refugees lasting 120 days. the ban on refugees from six countries only lasts 90 days. by the time the court hears arguments, those 90 days will have elapsed. you have to think that something

will replace it. certainly possible the president most people can come in, but it seems just as likely, more likely, the president will say, we have looked at the vetting procedures, there are problems, and we need to permanently or for a longer period of time ban people from these countries and maybe other countries. there will be challenges, but that is a new case. it is hard for me to see in the supreme court, even if they hear arguments, ultimately deciding --y want to roll -- rule whether or not it is legally immigration laws and other big issues in a case where the practical implications are little if any at all. i think the court

will not ultimately issue a decision on the legality of the dayay entry ban or 120 suspension plan of the refugee programs. they wanted to allow the government to devote the necessary time and resources to the government's own review of refugee procedures. opinion, thes court said it anticipated the government would complete its review of those procedures within the 90 days that it said. there is every indication in the opinion and expects the government to complete the internal review process, the duration for which was tied to the cessation of the refugee program. second, the point of the internal rep -- review project was to potentially generate new ones.

if the government does that, it is no longer the same case. toit just allows entry ban expire, there is no longer a wide controversy for the court to do anything about. third, i think the compromise nature of the way the court deposed the stay applications, leaving injunctions in place in some respects, and modifying and others, indicates a desire for the court to avoid controversy and maybe step in with too much force. for all of those indicators, absent some significant change before the court hears the case in october, it is likely we will not get a supreme court decision that determines the legality of day executive120 order. >> the government never does anything on time. [laughter] >> no, it is a serious question.

what if they get close to 90 days and they say it is more difficult than we thought, we now anticipate six months rather than 90 days? what happens than? -- then? the supreme court says what? >> if the government really thinks it will win -- >> i am a suggesting they are trying -- they genuinely say it is a hard process, there is no suspicion of manipulation. >> one of two things could happen. evidence thectual government made its best efforts it would takeod and could not complete the process in the window, they may have to find a way to address it . compromise, soal

justices can agree. if the government does that, it will create issues for the government. when the president signed the first executive order in january, they have to review existing procedures. but they never started that, even though the internal process had not been joined under the first executive order. by the time the government created the second order, they should have that information about how long the process to review existing procedures would last. they modified the time period, and the court seemed to think they should be held to it. i do not see that operating to the government's benefit, even if that might be the case. >> that is a great question. the only thing i would add to what leah said, it seems to me that might be a new case.

isuess what they would do say, we are amending the executive order. is whether debate there is a national security rationale for what the president did. the assessment might be different if it is six months as opposed to 90 days. it is something i could see the supreme court wanting lower courts to take the first crack at. it is possible. ultimately, this will probably come down to how interested they are in actually deciding this issue. do they want to lay low and not issue something big, or do they feel this is something where they want to find a way to answer the question? right thateah is they do not want to do something big. but that remains to be seen. >> i had a great last question what -- question, which would be

about term limits on the supreme court. [laughter] >> but we will have to come back. there is a reception right behind you. please feel free to enjoy. please join me in thanking our panelists and we will see you next year. [applause] [captions copyright national cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> tomorrow night on c-span, a discussion about the future of

the democratic and republican parties. joe sexton talked about the importance of voter turnout. here is a preview. >> we spend a lot of time, most recently in the last 18 months talking about america and what is america and what do they want? we have elected the gentleman. we've elected the government. we voted for. how is it possible? how is it defensible? so i put it out there in part because i think, you know, if your kids are thinking about a big question of whether we can create another political party or how might that happen, you know, what little i know about politics suggests that's a

daunting sort of notion. the amount of money that is involved in politics is so extraordinary and the interest so entrenched that you might think wow, we're going to create another political party? that's fancyful. that's crazy. i think you might grasp a more concrete idea like what can we actually do to improve things? what can we do to make the notion of another political party practical. that is get people to vote. >> you can watch the rest of this discussion about the future to have democratic and republican parties tomorrow night on c-span at 8:00 p.m. eastern time. >> every month book tv on c-span 2 features an in depth conversation with a nonfiction author about their writing

career. join us when our guest is eric -- his book "if you can keep it" and "amazing grace." maureen down will discuss her books "bush world." november 5, michael lewis will talk about his books including his latest "the undoing project." join us for in depth, the first sunday of the month at noon eastern. hat's book tv on c-span 2. >> at the city club of cleveland, trump campaign manager corey lewandowski talked about the campaign in the first six months of the trump presidency. this runs one hour.