continue down the same road that we've been on for decades and decades, and what we wind up is people who are just, you know, quite complacent to be in e same public housing that their mother or grandmother was in. not saying anything bad about their grandmother or mother. i understand you have to say that now. but what i am saying is we have to create ladders of opportunity so that people can move up and once again recapture the american dream and start thinking about what they can do, not what they can't do, and not what somebody else needs to do for them. >> watch all of our profile interview with housing secretary ben carson. that's coming up tomorrow night t 8:00 eastern here on c-span.

[captions copyright national cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. isit ncicap.org] >> good morning, everyone. shh. good morning. welcome to a.c.s.'s annual supreme court preview. i'm cara stein, vice president of policy and program at a.c.s. which most of you likely know is a national network of lawyers, law students, judges and policymakers who believe that a law should be a force to improve people's lives. so here we are again. after a supreme court term that many felt was lackluster, despite the much-delayed addition to the ninth justice to the bench, we are looking at an upcoming term that promises the high stakes we had grown accustomed to in recent years. you need only look at the first two weeks of oral arguments to

see what i mean. during just those five days, the court will continue the constitutionality of the president's travel ban, legitimacy of wisconsin's redistricting scheme and whether american workers can be forced to arbitrate their disputes with their employers as opposed to have a day in court. some might say the stakes are perhaps too high. to lead us through the discussion today with our distinguished panel, we have the privilege of welcoming a newcomer to this annual event, steven sh win. steve is a professor of law at the john martial law school in chicago and is co-founder and co-editor of the constitutional law prof blog if you are like me a law junky. he regularly rights for the a.b.a. preview on united states supreme court cases and directs the a.b.a. media alert for the seventh circuit. most importantly he serves on the board of advisors of the chicago chapter of the american

constitution society. i had the pleasure of working with steve repeatly on the soon to be ever released the supreme court review journal which will be forthcoming october and there are fliers out there if you want more information. but now without further ado, please welcome steve sh win. -- schwinn. [applause] steve: thank you, kara. on behalf of myself and the panel, i would like to thank the whole team at the american constitution society and we'd really like to thank you all for attending. what a fantastic turn outtied. i am excited about this. what an important time to be talking about these issues. it seems like every time i open the paper there's a new constitutional issue coming up. it's a time we really need to be engaged in these things. and so i'm pleased you are part of this conversation today and i am really looking forward to hearing from our very distinguished panel. my job as moderator is basically to introduce the

panelists and quickly get out of the way and so i think i am going to do that. what i'd like to do is just a give a short introduction for each of the panelists going to my left. their full biographies are in your materials so you can take a look and we'll get onto the program. so immediately to my left is claire who is associate general counsel at the services employees international union where she focuses on the csiu docket. she worked at public justice and she's authored and co-authored amicus briefs in supreme court cases on a full change of different topics. so we look forward to hearing from claire today. to claire's left, anel, an associate professor of law at drexel university and currently visiting associate professor of aw at washington university in st. louis.

he is very involved in new york city bar association and american association law schools. focuses on immigration law, criminal law, united states and comparative constitutional law, privacy and veals and human rights ish -- surveillance and human rights issues. that was quite a mouthful. to his left is marty, associate professor of law at georgetown university law center. marty served as deputy assistant attorney general in the department of justice's office of legal counsel from 2009 to 2010 and as attorney advisor from 1994 to 2002. he is an active contributor to media and blogs, regular contributor to balkanization, and slate, among his other very many activities. we're pleased to have marty on the panel with us today. and to marty's left, dale. dale is the director of the aclu's voting rights project and supervises the aclu's

voting litigation anded a vow casey work nationwide. he's litigated a number of cases under the voting rights act and national voter registration act and is an adjunct professor at n.y.u. and to dale's left is aaron murphy. partner in the washington, d.c. office of kirklin and ellis. it focuses is on supreme court, appellate and constitutional litigation. she's argued three cases before the united states supreme court and she has more awards and recognitions than i think we have time for today. but this is our wonderful panel. would you please join me in welcoming them? [applause] steve: thank you very much. with that i will say a brief word about ground rules and turn it over to anil to talk about one of the cases that we're all waiting to hear about, the travel ban. so each of our speakers we've

asked to speak for about 10 minutes. we've asked that they consider intervening with each other as we go and that will leave us about 30 minutes at the end for questions and answers from the audience. so with that i'll turn it over to anil. >> great. thank you so much and thanks for a.c.s. in including me and inviting me to participate in this event. it's interesting to be discussing immigration in the context of the supreme court because the supreme court doesn't typically grant a lot of grants for a lot of immigration cases. they are typically in the last 10 years, maybe one, two, maybe three. and not necessarily raising big constitutional questions. this year the court has already agreed to hear three cases. of course, the one that was referred to arising from the muslim entry ban in two consolidated cases but also two cases that were heard last year and then scheduled for

reargument in this term with the ninth justice being appointed. jennings vs. rodriguez and sessions vs. demia. i will talk about the entry ban case although i will say about rodriguez as well and demaya if there is time. especially noffers they raise similar issues. by way of context for those who are less familiar how constitutional issues arise in the immigration context, there's a long -- there's two -- oversimplify and say there are two lines of cases that are somewhat intention with each other. on one hand going to cases dating back to the 19th century, the supreme court said the political branches have quite a bit of -- are afforded quite a bit of demps in their substantive issues on immigration with very limited judicial review. this line of cases dates back to the late 19th century, the era of chinese exclusion, and has never really been revisited

directly. predates the constitutional rights revolution. but on the other hand in more recent cases, even back then, procedural due process was still respected in limited extent and in more robust sense since then but the court has more recently indicated there are limits. in ines vs. chavez. just because the case may -- the issue may involve immigration that doesn't mean what the political branches do is entirely immune from constitutional review. those have never been fully reconciled. they are in somewhat in tension with each other. often what the court has done is to use constitutional avoidance when possible or look to procedural surrogates for substantive adjudication to use - to draw from the work of hiros himbings. and they may be at issue in

cases that arise this term. the enter ran ban case, i am sure most of you are familiar with this because it's in the news. i won't belabor a lot of details. of course, there was the first executive order that was issued soon after the new administration came to office that was widely understood to be aeffectuating campaign promise that initially was formulated as a total and complete shutdown of muslims entering the united states. that then evolved over time in how it was framed. and that first executive order was joined and then rather than litigate it the white house issued a new executive order in march even as it maintained that executive order was simply a watered down version of the first one in response to the ninth circuit's decision, the various injunctions affirming the washington injunction. but really seeking to accomplish the same goals. so the cases that are before the supreme court, one, from he district of maryland, one

from the district of hawaii. our concern is the second executive order which has a number of different provisions that are at issue. the first one involves the suspension of entry of nationals from six muslim majority countries for a period of 90 days in order for various agencies to conduct a review to identify what additional vetting was necessary. and the order included the number of exemptions that were not in the first executive order. for example, for lawful permanent residents, duo citizens of other countries and also authorized a waiver that was not authorized in the first order for them to exercise case-by-case discretion. these review provisions provided an internal review was to be conducted within 20 days of the effective date of the order and also directed it on submission of that report that there would be -- that the secretary of state would then again to request other governments to provide additional information about -- what information the united

states wanted from other countries about nationals seeking to be admitted to the united states. and that report -- that was supposed to happen within 50 days. so subsequently over the summer the supreme court modified its second executive order to change the effective date such that the effective date of each provision would be when any injunctions were lifted as to those particular provisions. what nt ninth circuit lifted the injunction on june 12. so now all of those internal provisions will by now have run the review provisions in terms of the time period that's prescribed in the executive order. section 6 of the executive order suspended the u.s. refugee admissions program for 120 days and then also reduced the number of refugees that were authorized to be admitted for this fiscal year from 110,000 to 50,000. also removed an express religious prrch in the first executive order -- preference

in the first executive order. you have two cases working up. in the fourth circuit, the issue was resolved on constitutional grounds. the fourth circuit concluded in a divided embank opinion that the district court injoined section 2-c of the entry ban provision didn't address the refugee provision but did so when the fourth circuit affirmed it affirmed on a constitutional ground under the establishment clause. the dissenting opinions in that case essentially took issue at the majority looking beyond the face of the executive order itself to reach its conclusion that religious animus was on the order. with one dissenting judge raising a concern that donald trump might in his words never be able to free himself from the stigma of bias that the district court has enshrined with the preliminary fact finding. in the hawaii order by contrast, the district court

injoined both the entry ban as well as the refugee curtailing of the refugee admissions program. then when the ninth circuit affirmed that, the three-judge panel rested its decisions on two separate statutory grounds. that it wasn't an exercise of the delegated authority from congress and that it may have run afoul of the anti-discrimination provision in the immigration law. the supreme court granted serbary and the injunction allows the entry ban to go into effect as to individuals who can't creditably claim bonafide relations to persons or entities in the united states. there's been a decent amount of litigation as to the scope of that. what the supreme court said. there is a good chance by the time this case is argued next month that it will be regarded as moot. i should note that professor leaderman has written quite a bit this issue on i think on just security and i would

commend those pieces to you. because presumably the period will have ended now that the states have been limited and by the -- stays have been limited and by the oral argument comes around, all of the time limits in the executive order even as modified will now in fact have run. it's also -- by then, presumably then a new executive order issued and the focal point of this issue will turn to that. should it reach the merits, it's not by any means it will be ultimately be decided on constitutional grounds because there are statutory issues and so it may well be either by avoidance grounds or straightforward statutory interpretation the court doesn't reach these constitutional questions. let me with just a couple minutes left say something about jennings because i think especially if the court doesn't reach these issues in this litigation and does in fact conclude that the case is moot, some of the issues in jennings might become relevant. so jennings involves --

presents the court with a challenge how to navigate -- en two intentions that with each other. they held indefinite, permanent detention of an individual who has no foreseeable likelihood of being reinvolved doesn't raise the due process clause and in light of those constitutional concerns the corporate interpreted those provisions to not authorize indefinite detention but rather to require periodic review of the need for detention. on the other side, moore vs. kim decided a couple years later sustained against constitutional challenge, statutory provision that categorically mandates detention for individuals based solely on their being deportable due to prior criminal convictions as opposed to having an individualized determination of their -- whether they're a flight risk or a danger to public safety. and unlike the individuals, those are individuals who don't have final orders of removal

d so it again in rodriguez there may be -- it may be that this case will be decided on statutory grounds if the court wishes to invalidate this policy. that is how the ninth circuit did so. at oral argument last year, there was some discussion about how to apply the avoidance cannon and that is something -- to the extent there's a different approach taken in rodriguez, then that could affect how the avoidance cannon is applied in other context. there's also the issue involving the strength of the power and also each set of issues there's a concurring opinion in the past from justice kennedy that might bear upon how to -- how the court might act in this case. so i'll stop there. we can leave sessions vs. demaya and leave that in the q&a if folks are interested. steven: ok. thank you very much. next up we'll hear from claire prestel about arbitration cases and cases that may be on the

court's docket dealing with labor issues. claire: yeah. so as mentioned i work for the service employees union. so i'm handling the cases about workers. these two cases are linked to each other because they are about employment. in my mind connected because they have a real chance of being a one-two punch against workers' rights that we haven't seen a chance of since the 2013 term. and what i mean by that, in 2013 we had a case culled mullhall which fortunately in my view was ultimately dismissed as improperly granted. that was an attack on private sector employee's an ability to ban together and organize. at the same time there was a case called harris vs. quinn which went after the ability of public employees in particular home care workers who are paid with public moneys to organize.

and so in this term we have sort of the same situation where you have the first set of cases i am going to talk about, it's three consolidated cases. the lead one i think is called nlrb v. markue oil and that's private sector employee's ability to ban together. and then the second case in which cert has not been granted is janice vs. ask me and that's an attempt to make every state in the country right to work for all public sector employees. so first with respect to murphy oil, i think the relevant legal background to help understand the case is that the national labor relations act and another statute that's less commonly act, the la guardia act, those two statutes from the early 20th century both sort of provide one core protection for workers. and the core protection in both statutes and the core right

they guarantee is right for workers to ban together and, you know, work together to defend their rights or advocate for themselves. whether it's in litigation, testifying before a legislature, you know, more traditional things you think of like strikes and both statutes protect both union members and also nonunion members. it doesn't matter if you are in a union. you just have this right. at the time congress enacted both of those statutes, it was very well aware of the possibility that employers might try to get workers to waive their rights. and that was forefront in congress' mind because part of what motivated the statutes is yellow dog contracts which is a requirement you -- your employer would say, i'll hire you, but only if you sign here saying you will never, ever try to form a union. and so congress -- that was one of the practices that congress wanted to get rid of when it

passed the nlra and nlga. the other thing that's interesting about both cases -- sorry -- those statutes, at the time they were thought of as the more sort of free market solution to the problem of income inequality and workers' rights because the point of both statutes is to facilitate a private ordering of labor relations, facilitate private negotiation as opposed to imposing, you know, set requirements like minimum wage or, you know, leave, stuff like that. the idea was if you just give workers the ability to ban together, they can negotiate to a fair deal themselves and you don't need as much of the top-down regulation. o both statutes prohibit employers from requiring employees to waive their rights . the nlga strips course of jurisdiction to enforce such waivers. the nlra goes a step further

and makes an employer's requiring of such a waiver an unfairly labor practice. the north la guardia act also includes a provision that says -- refers particularly to workers' rights to support each other in litigation. so the issue in these cases called murphy oil and the related cases is whether employers can require their employees to waive their right to participate in collective action, to ban together with other workers. if they embed that collective action ban in an arbitration agreement. and just to be clear, because sometimes this is not clear, the provisions that are at issue, they ban not only class actions, not only collective actions, they even ban things like joinder or co-plaintiffs. so, you know, simply put, the question is whether or not we

are going to return to an era of yellow dog contracts, just in a slightly different form. and the parties in the cases basically cite over two different things. one is whether the various relevant statutes can be harmonized so the nlra, the nlga and also the federal arbitration act and if so, great, stop there. and if not, which statutes should prevail. so on the first point, both sides say that all the statutes can be harmonized. not surprisingly they would harmonize them differently. there are a lot of arguments for why the f.a.a. could be harmonized with the nlra and nlga in a way that protects workers' rights. one of those -- i won't go through all of them, but some of the most straightforward are that the f.a.a. itself includes

a clause that says the point of this statute is to make arbitration agreements as enforceable as any other contract but not more so, and so any defense you would have against a regular contract you should also be able to have against an arbitration agreement. and here, you know, this kind of collective action ban would be invalid and illegal under -- if it were in any kind of agreement. so you would think that savings lause would apply. the other side's argument, strongest argument, i guess i would say, is that in some cases the court has talked about requiring something called a clear congressional command before it will conclude that an employee has a right to a judicial forum as opposed to going to arbitration. the problem with those cases is that -- the reason they are

arguably not applicable, in the past when the court has applied the clear congressional command standard, it has never done it in a way that strips people of substantive rights. and here the right to engage in collective action is the course of protection of both of our federal labor laws. also usually the court applies that clear congressional command standard when an employee is saying they have an absolute right to go to court, they can't be sent to arbitration, and here that's not what we're talking about. the nlrb actually said you can force your employees to go to arbitration. what we're talking about is you just have to allow them to do it as a group, whether in court or in arbitration. so this is really about a collective action ban that has just been embedded in an arbitration clause, not sort of the issue of arbitration itself.

so the second piece i was going to talk about, janice vs. ask me. again, at this stage, it's a petition and before i would go into the merits, i would just say i think the conventional wisdom would be -- has been that the court is likely to grant because it took a case last term. i'm ang read the papers, little more optimistic that the court will deny religion as a reason to deny. there's a basic jurisdictional problem in the case and a question about whether the courts ever had jurisdiction ver this case. i won't go into the details but what the right to work foundation is asking is to overturn a 60-year-old precedent nesm considerate is inclined to do that, it might want to do it in a case where it doesn't have the outstanding question with

respect to its jurisdiction. there are also pleading problems, you know, the complaint, this has all gone up con complaint, it's very to ry if you were to -- apply it. the idea is that no employee in the united states, public or private, has to join a union, never has to pay to fund a union's political activity. in a -- if a majority of workers in a work place decides to unionize that union becomes the exclusive representative. what that mean the employer has to bargain with it and the union tinings a duty which is once you're chosen by the workers and become the excuse i representative, as the union, you have a legally imposed duty to represent both member os they have union and nonmembers. it's called a duty of fair representation, any union can be

sued for violating it. what's been worked out over time is a system where, because nonmembers of the union are entitled to union services, so for example, if they want to bring a grievance, they're require, they can be required to pay a small fee which is called an agency or fair share fee. they don't have to pay for any of the political expenses of the union, they're just required to pay a small fee to cover the cost of the services that they are actually receiving. so what this case says, or argues, right-to-work, argues is that as a matter of the first amendment, it is unconstitutional to require nonmembers to pay even for the services that they provide. so in other words, as a matter of the first amendment, nonunion members should have the right to receive union services for free. and you know, i think it's time for me to stop but you can imagine the consequences of that kind of system.

you end up with a basic collective action problem that any economist could have explained to you 100 years ago. you get all the services for free, gets a lot harder to convince anyone to become a member. which is why we don't have that system in the first place. but anyway, i'll stop there. >> excellent. thank you very much, claire. now we'll hear from dale about a gerrymandering case and possibly another voting case. >> thanks. i'm going to talk about two -- gil vs. wilford and whitford and another one. i'm going to steal from pam who described this case as being one about ason the tant -- a cons tan feature of our politics, one that starts with discussion of lofty ideas, moves to a situation where a few people retire into a room and there, in

pool e suter's words they and trade interests and somebody gets screw. i'm not talking about ted cruz's twirt account but gerrymandering. gil vs. whitford is the first gerrymandering case to be heard in over a decade. the last one ended incost clue d inconclusively, where four justices held that gerrymandering claims were found found ice rble, and four they were and one said the plan was not unconstitutional but didn't say that no partisan gerrymandering claims could be justiciable but the court had

failed to arrive at a standard. this case tries to take up that challenge and articulate a manageable standard for assessing when partisanship in the redistricting process gos beyond sort of the ordinary injection of politic into redistricting and becomes so excessive as to become unconstitutional. one of the innovations that the plaintiffs have introduced to this area of law that's much discussed in some of the coverage of the case is something called the efficiency gap, developed by one of the professor, i'm sorry, one of the lawyers in the case, professor stephanopoulos of the university of chicago. the efficiency gap attempts to measure each party's wasted votes at the statewide level. that's the numb of votes cast for losing candidates and the number of votes cast for a winning candidate beyond the level that that candidate needed to receive in order to actually win that seat. and then compare the number of

wasted votes that each party resoved on a statewide level and calculate the ratio. it purports to show that at a certain level, the ratio is so extreme that one party is effectively locked into power, entrenched for a decade, after which the cycle perpetuates itself. in a 2-1 decision, a lower court, and this was a district court a three-judge district court rather than a court of appeals, because challenges to a statewide redistricting plan under the constitution go to a special three-judge court. the district court held in a 2-1 decision that the plan was unconstitutional. it discussed the efficiency gap but did not rest excuse ily on it. it found a range of evidence that the republicans in wisconsin had entrenched themselves effectively for a decade. i thought one of the most interesting facts that the court dentified was the share of the

party -- the share that each party got in 2012 and 2014 in terms of statewide vote and the share of seats that each party got. in 2012, republicans -- republican candidates for state assembly got 48% of the votes statewide a minority. they got about 60% of the seats, the supermajority. but in 2014, republicans candidates for state assembly got about 52% so they did much better, right they got the majority and again got about 60 noveget seats. right? so what's interesting, i think, is not so much the disproportionality but the fact that the g.o.p. candidate vote share really made no difference in terms of the seat share. either way, whether they were getting a minority or a majority of the votes statewide they were effectively locked into a supermajority of the seats.

now wisconsin makes a variety of arguments as to why this does entrenchment or a variety of issues in the case including issues relating to -- related to standing. i want to focus on one issue, the question of whether or not the disproportionality that we see sometimes between a statewide vote for candidates of one party and the translation of that vote into seats is due to gerrymandering or to political geography. this phenomenon is referred to as the big sort , in which liberal voters tend to be clustered in densely populated urban areas that are very, very liberal, districts are maybe 80% democratic or the vote share goes 80% for democratic. whereas conservatives tend to be more spread out in areas that are conservative but less so. if you think about, say, maps of

which presidential candidate won which counties, right, sometimes you see these maps after an election. and you tend to see this sort of sea of red surrounding little ileft-hand side of blue in urban areas. i think that kind of gives you an idea of what this phenomenon looks like. the result is that democrats naturally have more wasted votes in any system of representation that depends upon geographically compact, single member districts. the question that i think is posed here is how much of that bias can be attributed to natural sorting and political geography and how much of it can be attributed to gerrymandering and is there a way to develop a judicially manageable standard that enables a fact finder to determine the difference? there are a lot of amicus briefs in this case, imi think there's one for every man, woman and child in the state of wisconsin. i'll talk about the aclu's

briefly -- >> what percentage of them are wasted? [laughter] >> there should be a study and a paper. >> there will be, i'm sure. >> the aclu's brief arises from first amendment principles. and two principles in particular. first that there's a principle of government neutrality in the public sphere drawn from freedom of speech cases and second that vote verse a right to associate freely with their candidates and parties of choice, a freedom of association that's imper missably burdened when one party has so entrenched itself that shifting voter preferences have no meaningful effect on the distribution of political power. some party -- parting thoughts about the case, it has, i think, the potential to be the most significant vote rights and redistricting case since reynolds vs. simms established one person, one vote a case that

chief justice warren himself described as the most significant case he ever authored. if you look around the country, there are reasons to think we have something of a crisis of democratic accountability right now. you look at a state like maryland where democrats statewide get about 60% of the votes and yet control 7-8 congressional seats and a huge supermajority in the state legislature you look at a number of states that are about 50-50 in term of the statewide vote that candidates from the parties get, michigan, pennsylvania, ohio, virginia, north carolina, but where the g.o.p. has a super majority in terms of the congressional delegation and the state legislatures. i think the best political science on this suggests that the massive disproportionality we see in a lot of states and the entrenchment of one particular party is not fully attributable to political geography. there are, i think, reasonable estimates that as much as 15

seats of the republican advantage in congress right now can be attributable, can be attributed to gerrymandering. so if the plaintiffs succeed in this case, it has the chance to have immediate consequences for redistricting around the country and the distribution of political power and introduce an entirely new limiting principle in redistricting processes going forward. briefly, i'll mention one other case, houston vs. a. philip randolph institute, an aclu case we're litigating with the organization demos, a challenge to an ohio vetter purge program. if you live in highway and are registered to vote and don't vote in a two-year period, half of the electorate not voting in a mid term election, you're marked for possible removal based on the assumption that you have moved to another jurisdiction and are no longer eligible to vote in that jurisdiction. you're sent a notice and if you

do not return that notice and do not vote during the next two federal election cycles, you're removed from the roles. the sixth circuit found that this violates the national voter registration act. the effect of that ruling was that 7,500 voters who cast ballots in the 2016 election, people who had not moved and were indisputably eligible to vote, the state of ohio concedes this, cast ballots, they had been purged under this process, and had the sixth circuit not thriled way it did, these voters would have been disenfranchised and their ball will thes would have gone uncounted. this case centers on the motor voter law which prvidse that any law that removes voters because of failure to vote is prohibited. congress were concerned about programs that kicked people off

the roles for inactivity. there were concerns that these kinds of programs were essentially a reregistration requirement that disproportionately affected minority communities where turnout tends to be lower and a reuters study found this affected mostly people living in african-american communities this case will be argued in november. >> thank you for those terrific summaries. we'll hear from aaron who will talk about a fourth amendment case coming up and if time permits an alien tort statute case. >> i am going to talk about that, but just to make sure nobody gets the wrong impression about me sitting on the left side of my co-panelists. we're involved in the wisconsin case. it's an interesting case, i wanted to share a few views about it. there's a lot of discussion in

the case about how we can identify the partisan impact and whether we can find this narrow and precise test that everyone is looking for to figure out how much partisan is too much partisan and gerrymandering, but it seems to me that the fundamental problem is there's a lot less discussion from the plaintiffs and their side of the case of how we're going to map any of that onto a constitutional violation and in thinking about that, i think you have to think about how this is very different from the context of racial gerrymandering. the court said in that context, the injury is the idea that is an equal protection violation to be sorting people on the basis of race. that theory doesn't work when you try to apply it to sorting people on the basis of partisan affiliation. one, because it's never been treated as a suspect classification in the same way, and two, because the reason it's not treated as the same kind of suspect classification as race is because part season affiliation is not an immutable

character usic. you can change your partisan affiliation and the way you vote in one election may not dictate how you're voting in other piece of the same election, let alone in future elections. so just because i want, you know, the republican in my particular district, doesn't even necessarily mean i want the republican candidate for governor or whatever else it may be statewide and to me the real question is in this case is, how do we -- does any of this map on to an actual constitutional theory of injury in the notion that, you know, i have an interest not only in being put in a district where my vote counts in a certain way for purposes of who i'm voting for but also in such a manner that the districts are arranged so that there's a proportional representation statewide that reflects the way i voted in an individual election. i think it's particularly fascinating for all of this to arise in wisconsin which is kind

of your quintessential purple state where you have voters that really are voters, who consider themselves independent, who may in the same election vote for one republican and one democrat. who may want divided government among, you know, between the house and the senate, between the legislateture and the executive. so the notion that people have a protected interest in ensuring that however they vote in particular elections sort of is reflected all throughout the state not only to me is constitutionally problematic but also just isn't really right and may be attributing to people things that aren't what they want. now of course there are plenty of people who vote in a particular way all the time and you know, they have a practical interest in that. but i think that's the real issue in this case and it will be very, very interesting to hear argument in this case and have that fundamental, theoretical debate because that's the debate that's been going on in partisan

gerrymandering cases for quite some time and is at the heart of the standing of justiciability issues in the case. with that said, i'll talk about what i'm supposed to be talking about which is the carpenter case which is to me one of -- another really, reagy interesting case, really interesting set of criminal issues in a fourth amendment case. s that case about so-called sell site data, the data that your cell phone company is -- keeps, they keep records of every time your cell phone is connecting to a tower to ensure cellular service. they have a record of what duer you're connected to. if you think about it if somebody gets hold of those records they can learn a heck of a lot of information about you. it's sort of a little more rudimentary version of g.p.s. because it's not an exact location of where you are, probably a one to two-mile radius but those records can

basically show where you are. 24 hours a day. since most of vuss -- most of us have our cell phones on us most of the time. that's exactly what, kind of the records were used for in this criminal case. . carpenter was charged with violations for a string of robbery the government obtained these records if from his cell phone company and introduced them at trial to demonstrate that he was in the vicinity of each of the relevant robberies and it obtained that information without a warrant. it had a court order, i'll talk about that in a moment, but did not have a warrant. he argued that this was a violation of his fourth amendment rights, it was an unreasonable search. the sixth circuit disafwreend relying on this doctrine known as the third party doctrine, concluded there wasn't a search at all because this information,

he knowingly allowed his cell phone provider to have this data and it's just information that a third party is keeping in records and therefore there's no really -- he doesn't own this information and have a privacy interest in it such that the cell phone company can't release it without running afoul, without engaging in a search. and the sixth circuit was not alone in reaching that conclusion. most of the courts that have confronted this issue, the lower courts had concluded that these -- obtaining this kind of information without a warrant doesn't violate the fourth amendment. there have been plenty of dissenting views along the way and this has been a hotly debated issue in the lower courts but as this petition came to the supreme court there wasn't really a circuit split, but the court nonetheless decided to take the case after about four months of relisting it. so all of that suggests that the court is, you know, pretty

concerned about this issue because it doesn't usually reach out to take an issue when the lower courts aren't actually strictly divide on it. so i think from that alone there's some concern probably if you're in the government's shoes, i think if you take this case also in the trajectory of recent cases from the court in which the justices have shown particular concern about how the fourth amendment is going to apply to technology in the modern age, that also would suggest that the government got some problems here. probably to me the most important of those cases to look at in terms of putting this in context is the joans case a few years back involving g.p.s. search and there, the court unanimously concluded that putting -- attaching a g.p.s. to somebody's car was a search. now what's interest about that

case is while the court unanimously reached that conclusion, there were very different views about how to get there you had a five-justice majority concluding that that was a search because it was a physical thing to attach the g.p.s. to the car and therefore you had an expectation of privacy based on trespass law. four other justices said people have a reasonable expectation of privacy in the information that is obtained from a g.p.s. device and that this is just totally different from anything his tore exly that you would have thought of as the kind of information the government could obtain without a warrant. and then you had concurrence from justice sotomayor who was in the five-justice majority saying, i do think we can resolve this case on trespass grounds, but i'm kind of with the four concurring justices in saying that i also think that there's a reasonable expectation of privacy problem here and in

particular, she noted that she thought the court might need to re-examine this third party doctrine that's underlying these cell site cases and we need toe think -- we need to rethink the idea that in the modern age every time we allow somebody, you know, our relationships with a cell phone provider or some sort of other technology provider to give them access to information, to give them access to our email, for instance, that we've somehow, you know, implicitly consented to that information being equally available to the government without a warrant. so you have a lot of indications here that make this look like a tough case for the government. but i do think it's a little more complicated than that. there are, you know, there's some difficulties here and i think that's kind of evident in the petitioners' brief which is written in a pretty narrow way. they have explicitly declined to

ask the court to overrule the thiffered party doctrine which i think a will the of people would like the court to do but they made a judgment call that makes a lot of sense to try and tell the court look, there's nothing wrong with this doctrine in other contexts. it just is something that shouldn't apply here because there's a stronger interest, a privacy interest at stake when it comes to revealing my location 100% of the time. i'm not sure that argument to me is completely practically satisfying. the court has allowed the third party doctrine to be used to obtain, for instance, all financial records and in this day and age, when very few of us use cash all the time, you can learn a heck of a lot about me from obtaining my financial records on a daily basis, not only where i am but exactly what i'm doing, wherever i am. is you know, that's not to say i don't think the court might latch on to that as an easy way to distinguish those case bus it's not simple. and the other thing -- the last thing i'll say really -- really

interesting, the information was obtained pursuant to a federal statute that while it doesn't require a warrant, did impose constraints on what had to be shown to a judge to get aned orer from the judge allowing the government to obtain these records. so the government has an argument that, you know, even if this is a search, even if there's a fourth amendment interest here, there's a statute and that statute makes this a reasonable search and notably the petitioners here, their first response to that argument is to say, maybe you should punt on that supreme court and kick it back to the sixth circuit and let them address in the first instance whether, even if this was a searching it was a reasonable search. so i think there's some complications in here that will make this an interesting case even though i think a will the of people have a strong instinct that the court is going to have a strong instinct that is very troubled by the idea that government can obtain this kind of information without a warrant.

>> excellent, thank you very much, erin. i hope we can explore this difference between political gerrymandering and racial gerrymandering on the other, maybe during q&a period. thank you very much. last but certainly not least, we'll hear from arti literman who will talk about the masterpiece cake shop case. >> before i do, i want to pick up on something erin just talked about in carpenter and the travel ban case, just to give you a sense that the resolution of both of those cases might be different from what you're expecting and erin sugg yes, sired, i think, at the end of er remarks, a very responsible splitting the baby in half sort of response. the question is if the cell site information is a search subject to some fourth amendment scrutiny? i do think there's at least five justices, maybe nor, meab nine

justices who might decide that the answer to that question ought to be yes, that governments ought to be subject to some limitations in term of how to collect day a ta bases of information that resleel so much about ourselves, however, there may also be a majority of justices within that group who believes that the standards that congress enacted in the scommune cases act, is -- communications act is sufficient because in particular it's a little more robust even than what the government would have to show in a grand jury subpoena for the very same information. and the grand jury subpoena issue, i think, is sort of the gorilla in the middle of the room that no one is talk much about in this case. and the court's dock run on that is old and hasn't been redoubt in -- rethought in a long time but it's verying very easey to use grand jury subpoenas to get any information from third party providers, third parties of all sorts, and there's some justices who might think that at least as long as that's true, the standard that congress set up

here suffices. so this satisfies the fourth amendment even though it's subject to fourth amendment constraints on the travel ban, i think it's very unlikely the court will reach the constitutional question. if it reaches the merits i think it's likely to resolve the case on statutory grounds. besides that he's right to suggest, i think, that it is likely that president trump will issue either an amendment or an extension of the executive order now that the whole review process is virtually completed in which they will either impose different constraints from maybe a different set of countries altogether, now that the review is virtually completed, or say that they are almost done with that review and so they need an extra 30 or 90 days or however many it is of the travel ban to stay in place. but they've obtained a lot of information from all the nations of the world in this review process and we don't know what that is yet. so i think if not mootness, a

very likely result either before or after oral argument is that the court remands the case for reconsideration or for refiling based on new facts and circumstances. after the president changes the executive order. just l probably be proved wrong in both of those case bus just so you're not surprised. masterpiece, i'm going to assume most people in this room know about masterpiece, it's one of the sexier tchines docket this term, involving the lufe cake and whether cake speaks. so i'm just, rather than going over the details of the lower court decision or many of the facts in the case which i assume you know or could know if you listen or view any of the other supreme court review panels that are all over the internet right some 'm going to give historical backgrounds in two respects. it's long been the case that the common law has required some

the common law has required some sorts of businesses and vendors to make their services available to everyone. , in the lastntly 100 years or so that has been complemented by a number of state statutes requiring antidiscrimination norms with respect to other sorts of vendors. on various grounds, most common of which are race and sex and religion. colorado statute famously titled actof the 64 civil rights list that places in public accommodation that covers hotels, restaurants, and the like, race and religion cannot be used as a ground for discriminating against customers. colorado has gone a little bit further in two respects. the applies its entire

determination law to all businesses and extends it to does commission based on sexual orientation. -- discrimination based on sexual orientation. colorado does not allow any of its commercial vendors to discriminate against their customers on the basis of sexual orientation. the historical context is over the years these antidiscrimination norms and common-law rules have constantly been subjected to constitutional challenge under property rights, contract rights, freedom of speech, freedom of association and the like. they have very rarely gotten any traction at all from the supreme courts,r from any other particularly when it comes to race and sex discrimination. these claims were uniformly rejected. university,b jones

runyan versus mcclary, a whole line of cases. this is one in a series. these constitutional claims for exemption from the antidiscrimination law might be treated the same way. let brings me to my second historical contextual point. when the court two terms ago decided there was a constitutional right to same-sex couples to be married, the court also in the majority opinion by justice kennedy went out of its way to emphasize that it did not view objection to same-sex marriage in the same way that it views racial discrimination. thinking that most people that object to same-sex marriage do so on long-standing religious grounds. i will quote from justice kennedy's majority opinion. "this objection has long been held and continues to be held in good faith by reasonable and sincere people. many deemed same-sex marriage to be wrong and they reach that

conclusion based on decent and honorable religious philosophical premises." that is not anything any justice would have said about race discrimination or opposite mixed-race marriage. thinkrity of the justices it is a very bad idea for states, at least in the short run until the nation becomes more reconciled to same-sex marriage across the nation. it is a bad idea to require commercial vendors to participate in same-sex marriage when they don't want to. the court thinks their objections are worthy of more respect than race or sex discrimination objectors. court were in state legislatures, i think they would build in exemptions into these statutes. a majority of justices think it is a bad idea that colorado did not do so. that is a far cry from saying there is a constitutional right

to exempt oneself from the state statutes. there might be a majority of justices who want to find a constitutional claim, but it is going to be hard to do so. it is hard when you start thinking about it to figure out what the limits are not don't bleed over into sex and race discrimination, but don't undermine a whole decade worth of doctrines in this regard. raisedendant here has free speech and free exercise objections. i will not talk about free exercise because i think most everyone agrees that will be a futile claim. the court will not overrule smith. even if it did, it would lose under smith. these claims lost unanimously in the pre-smith era. it is one of compelled speech. the shop is climbing over their religious objections they are being forced to say something with the cake.

i'm going to be generous to the petitioner's brief. their strongest case is that they should prevail when both of two criteria are present. number one,the vendor in herself is him or engaged in some sort of creative first amendment activity. custom-made wedding cakes are that kind of activity. i think they are right about that. there is at least some constitutional protection for that. that does not mean you win the case. that won't be enough. everyone engaged in artistic and expressive activities are not entitled. you can imagine all the different cases. the second criteria is that in addition the products or services they create through this objective artistic activity

inherently conveys a message they don't agree with. not that anyone will miss attribute the message to them, but they don't want to have to say that message in the same way that jehovah was witnessed students did not want to pledge fealty to the flag, and motorists in new hampshire did not want to a test to "live free or die." a custom-made wedding cake they argue inherently says, celebrating this couple, a statement that jack phillips thinks is morally objectionable and religiously incorrect. i think that is where the heart of the case, where the justices might get tangled up. does a wedding cake inherently say anything itself, or does it really only celebrate a couple by virtue of what the couple does with the cake? if your wedding is anything like mine, my wedding cake did not say anything even implicitly

accept what the cake and "alice in wonderland" said, which was "eat me." people may have wanted to celebrate us, but not because of the cake. that will be the hardest part for the justices who want to recognize institutional exemption to try to articulate why a wedding cake is inherently expressive, and in particular why the cake standing alone rather than the use of the cake made by certain couples. is inherently expressive. and whether that is a positive limiting principle. i don't think the justices are inclined to issue a broad decision that will provide constitutional exemptions to antidiscrimination laws. it is hard to reach that result than you would think. having said that, you ought not to be surprised if there is a

majority of justices that get there in a narrow opinion. there are about 50 amicus briefs on the cake shop in this case, which is exponentially greater than the number of constitutional exemptions in any of the historical cases. it includes the united states of america, which has filed for the first time in its history against exemptions. they have antidiscrimination laws. they were not final battle. the first time in history the u.s. has filed in favor of a constitutional exemption. solicitor general has tried very hard to craft a narrow series for an exemption. although i am not quite sure what the limiting principles are quite yet in their brief. i think the challenge with those that would recognize the consumption is to figure out those limiting principles, which is easier said than done. these are smart and creative

justices and i don't put anything past him. >> angie's list for walking us through that. we have about 30 minutes for questions and answers. i have a full list of questions. i think we would rather hear from you. we have some roving microphones. if anyone has any questions for any of the panelists or panel entirely. front here please. >> hi, i am from aspen, colorado. i am aware of our hate crimes act. >> have you ever gotten a cake from the masterpiece cake shop? >> ina lesbian. i was arrested at my church. my case was documented at the supreme court, a habeas corpus case. i am alleging that the hate 241, may not45 and be enforced by our courts in

america from aspen, colorado to the court of appeals to the supreme court of colorado, 10th circuit, and now u.s. supreme court. my colleague on my right have discussed, what is hate? how are we interpreting the hate crimes act for violations? i don't see many cases where our rights as lesbians -- i would also include there could be a gender discrimination. you are so wise, and we appreciate your long hours in law school. any of you, i would address it to anyone that has a thought -- are we in america enforcing the hate crimes act that has been on the books? in 1973, homosexuality was no longer deemed a mental illness and yet the judge deemed to mean mentally ill.

-- deemed me mentally ill. >> these issues will not arise in masterpiece cake shop or any other court docket cases. i can tell you from experience that the obama administration civil rights division enforced the hate crimes act against sexual orientation based violence quite frequently. i have no idea what the trump administration department of justice is doing with such cases. i'm afraid that is a little bit far afield from this terms cases in court. perhaps there will be issues in the future that are raised before the court. >> thank you. question of the table in the middle? >> two questions about the muslim than case. -- muslim ban case. with the possibility of the president issuing an additional executive order, i was wondering if you could speak to the possibility of the court reaching the merits capable of repetition innovating review.

the second question i have is whether or not you think the trump administration, or the court rather would be willing to consider trump's statements on the campaign trail. on the second question, that has been a subject of debate in the lower courts. yet as to a good read how the justices would engage that. my own view is that motivation is relevant to the doctrinal claim, and therefore you look to evidence of motivation. it is not just statements on the campaign trail. there is evidence of religious animus plaintiffs have pointed to on the order itself. there have been statements ongoing during the term of the administration. up.agine that will come

it has to been needed -- it has been debated among lower courts. i am sure there are other panelists who may speak to that as well. one question may be better they choose to hear it. it's possible they could hear it and choose not to, especially in the immigration context i have been describing, the tension the court over a long time has look for ways to invoice engaging constitutional questions. one option would to reach the merits on statutory grounds. hello there be to address them on procedural grounds. another would be to not hear the case, even though if it sounds like it will return to them in some type of form. >> it is not incapable of review.

the new executive order could be challenged. we will have different terms and conditions and perhaps different countries than the current one does. >> i think a good deal will depend on what united states is saying. if they are taking the position of, we want you to deal with this stuff, then i think the court will deal with it. we don't know at this point what their approach on all of that will be. >> if they don't say anything more about what the review has demonstrated, they are putting themselves in a bad posture before the court. either the review has shown there are risks to national security or it hasn't. >> i don't know if their view will be, we have something new so let's figure out in the lower ,ourts, or their view will be these lower court decisions are so damaging, we need you to say something now. there is a lot that will happen between now and the argument how

the court will think about be mootness issue. >> to the extent that that involves factual assertions, it may be that remanding is the better course. this goes back to rodriguez. rodriguez involves prolonged detention for a particularly long period of time. when the court reviewed issues, the information presented to the went in the first instance to how long the detention of people affected at that time were, the detention was relatively short. the solicitor general went to -- the yearst year it was granted in rodriguez and said those statistics were wrong and were never tested by adversarial process.

that is in the air right now. that would be a good reason if there are factual assertions being made, the court might want to remand before taking it up initially. >> continuing on this theme, if i could ask a question for anyone who wants to weigh in. you mentioned the statutory component of this piece. i am wondering if you can talk more about that. in particular the president's exercise of authority to halt immigration in the national interest and the evidence that goes to national interest, which was based on the ninth circuit. >> the statutory argument in brief -- the president purports to be acting primarily upon the statute that was part of the mccarran walter act, a mccarthy era statute that afforded executive branch officials in many different areas of immigration very broad discretion to exclude people from the united states to prevent passports from being given to certain people.

, by itsute itself terms, gives the president virtually unbounded discretion to exclude the entry of any persons or classes of persons based on any finding that such entry is necessary to advance a national interest. one question is, is that really as broad as a television as the president is claiming it is? weekogan brief filed this makes a pretty compelling case case thatthe passport the court decided in the 1950's, this should be viewed against the backdrop of practices that preceded this statute and limited to certain claims by the president. then there are a bunch of statutes enacted after 1952 in which congress seems to have demonstrated distaste for it. at a minimum a distaste for natural orange and based proxies

-- origin based proxies for exclusion rather than diving down more particularly in whether a person or group of persons is dangerous or otherwise a problem if they were to enter into the united states. i think the establishment clause questions are very complicated and difficult and novel. i don't think the court will have much stomach to resolve them one way or the other. saying that 1182 doesn't give the president the authority to give what he did here will be tempting to at least certain justices. i have no idea if it will be a majority. i doubt this will be in the court's opinion, i think some justices must feel as i do that although president trump made a finding that the entry of all persons from these six nations would be detrimental to the united states -- that was based on no evidence and no review of any problems that have occurred

with the entry of these individuals under the extraordinarily strict conditions that are already present with respect to entry into the united states. it seems by all accounts to only be explicable as making good on a promise that he made in the campaign. not necessarily that he has muslim animus, but he is showing his supporters, as politicians often do, that he's making good on a promise to keep muslims out of america. i don't think that will be in the court opinion, but i think the court might well fall back on this statutory ground if it reaches merits. i think the most likely result is that it doesn't reach merits. >> the department of homeland security issue studies as the ninth circuit pointed out that undermined the national interest conclusion in the executive order. >> it does. i am expecting more comes out of this review will be much more tailored and premised on what they will say as a much more robust evidence year he predicate.

i have no idea what it will be or if it will be compelling or persuasive, but it won't be the virtual box box we got in january and march. >> up in front please. questions?i have two can you bore down on kennedy and the travel ban, what we should look for if this doesn't get to the merits? and does anyone have any thoughts on evidence that progressive groups or liberal justices have been aggressive getting things before the court, or granting in certain cases because they may be fearful that the president would get another vacancy in the next couple years? >> on justice kennedy and the isry ban, one starting point opinioned a concurring

a few years ago which goes to review of consular decisions primarily and building upon an earlier case. there is a certain amount of criminology involved in reading justice kennedy's opinions. the language in the opinion goes to whether or not -- the baseline rule is that review of substantive immigration decisions is deferential. kline provides for an exception. decision facially legitimate and bona fide? justice kennedy refers to if the decision is made on that space, then that might be an exception to that general rule. that might be the starting point for thinking about that. -- he been one to also

has been in the majority in cases where the court has engaged in constitutional avoidance to rest on statutory grounds in the immigration context. he joined the majority in the opinion. that is where i would start. >> are progressives trying to get to the court now because they think it is going to get worse? no. [laughter] when was the last time organized labor filed a petition? >> i don't think so. loss is just as much as a 6-3 loss. anything can happen, as we saw last year with justice scalia's death. >> did anybody else want to

weigh in on those? thank you. >> i have a question for clair. specifically you mentioned the janice case. you said you felt more comfort after reading the filings. could you elaborate on that? >> the case is still at the circuit stage. what i felt is that there are more reasons to deny cert in this case then i knew about before i read the papers. i think that the jurisdictional issue -- the case was originally filed by the governor. he never had standing. then there were interveners who were going to take the case. there was some supreme court

case law about how you can't remedy the absence of the jurisdiction that way. work isthat right to making in this case -- there is what they want is explicitly the overturning of long-standing precedent. it is not like they are saying there is a way they can win without it. that is what they want. there may be ways they could win little things without that they are trying to avoid they are trying to avoid talking about the cars they want the big win. if you are confident that this issue will come up in another vehicle because there are tons of these cases, then why go with this one? >> you think the court will come to this issue sooner rather than later?

claire: it is hard to say. from tracking all of these cases, there are 20 of them out there. -- are plenty of them out there. >> this is a when, not if question. you might be totally right. i don't know enough about the petition to know that it is a bad vehicle. they will want a good vehicle in which to address the issue. they took the case and were clearly ready to reach a result. i think they will be looking for another opportunity to take it up and reach a result. front?he >> on political gerrymandering -- of course as a matter of constitutional law, race and political affiliation are not the same. but participation in a political

party is an association which is of course protected under the first amendment. herds have a plan that members of a party into a way met dilutes their vote, to that would seem to surmount the distinction between race and political affiliation that you mentioned. could you speak to association and how that might come into the case? >> you are touching on one of the theories that has been identified by people. there is an implicit acknowledgment by the fact that the argument is not made to make it like race. you have to have a different theory for getting there. one of those is the idea that while the interest is more of a first amendment associational interest and less of a pure voting or equal protection

interest in the sense of discrimination -- i think part of the problem there is how you think about the extent of the burden on association. it is not like people don't have the ability to associate and to participate in the political process just because they don't get the outcomes they want all the time. one of the interesting facts we have seen in history on some of these gerrymandering cases, there are multiple instances where the lower court was quite confident there was this blatantly unfair system that was going to perpetuate a forever bias in favor of one party. then the very next election after the court issued the decision, it flipped completely. the reality is that politics is affected by a lot more than where we are located and where we get to vote.

change -- things change. you are right there is an interest being articulated here. --hink that is part of why this really is a different animal. court'st take the existing gerrymandering doctrine and make it work the same way in this context, to the extent it works even in the context where it has been developed. [laughter] i think people on both sides would debate that a little bit. it is one of the difficulties in this case. you see a lot of attempts, this is where i think it is light doctrine, but at the same time saying it is not quite like existing doctrine. that is the struggle that is why the court has not reached on this for a long time. >> i agree -- this is something

i agree with erin on. the contexts are not analogous. there are some aspects of the racial gerrymandering cases, particularly when you are trying to assess evidence. both of these kinds of cases involve questions about process, motive, what factors were taken into account. of evidence year tests intonciary the gerrymandering context. that theith erin theory underlying these cases is very different. racial gerrymandering cases are cases about improper classifications. the consequences of those classifications is immaterial to the constitutional harm. that oneent is not racial group was deprived of political power or had an outside level of political power, it is that a

consideration that is verboten in our politics, that the theory underlying these race, predominated. and that's consideration expresses some racial differences that itself is problematic for politics. that is the theory anyway. there are both sides of the debate that would question some of the assumptions of that theory. your political affiliations are changeable but that is precisely the point. people's preferences in terms of candidates and political parties may shift. they have a right to associate with those candidates and that entails a notion that you cast the ballot and express your views but your views

manifest themselves in some way in the distribution of political power in a meaningful sense and if you draw lines in way that negates those, that - if you think about -- if the redistricting process went this way. people voted for their preferred candidates or their preferred parties and after the ballots were cast rgs the government came in and drew the lines to decide which votes were in which districts in order to achieve a pre-determined outcome of locking a political party into power. no one would agree that is personal is i will and if a political party decides to do that before the election and achieves that result. and we think not. >> but this is hard to explain

to the students and the public. it may not be immuteable. but in virtually every other area of constitutional law and justice kennedy said if the state came out, we are trying to entrench the democratic party control over these seats, that would be ain illegitimate motive. the government doesn't structure to entrench one party's power. that is never supposed to be ok. ustice steve vens' idea that one party is having control over seats or districts rather than in others. but illegitimate basis under equal protection of the law. justice kennedy didn't buy that as a theory he was willing to accept in the cases. and that's why everyone is obsessed not with motives or intent test but effects test of

the sort that eric is talking about. there is something weird about that, because we naturally think that why is the wisconsin legislature trying to secure power for the republican party. why is that a legitimate state interest at all. but justice contendy has said he is not willing to make that the basis of the doctrine. >> we may have time for one more question. n the middle, please >> we heard about justice gorsuch and i would like to hear thoughts on what to think about our new justice. >> he is very timid. he issued seven separate opinions in the course of four kagan ich took justice

to do 3 1/2 years to do. he is not shy about expressing his views. i'm not sure why or how that will be received by his colleagues. but he seems to want to -- in a way like justice thomas but with a different balance, i think. wants to set out his views whatever they may be and regardless where the rest of the court is or the doctrine is in each case. he sees himself as an iconic class, based on one month in office. justice stevens issued separate opinions all the time. seemed like he refused to join any opinion that he didn't 100% with and over time that changed and perhaps justice gorsuch will be a team player than he demonstrated in april of 2017.

>> i think one of the interesting cases on will be the carpenter case because that's 4th amendment and criminal in germ is one of the areas you do get disagreement among justices who are inclined to the same outcomes and that will be an interesting case to get more of a sense of his approach to constitution analysis, his approach to criminal issues in particular. i think it will tell us some things that will be applicable beyond the context of that particular case. >> thank you. >> i'm the only panelist from outside the beltway, so this is an outside the beltway observation. it's not a substantive point. it's descriptively the case. but justice gorsuch was a

polarizing nomination for all the obvious reasons. when i talk to people, there are people who fully accept his nomination as normal and legitimate, but there are a lot of people in the country that paid attention to that process than other supreme court nomination processes for whom there is a cloud over his head. and one of the things i was struck by, i wonder to the extent to which that actually serves his long-term interests in alleviating that cloud, letting that cloud move off. and it contrasts in some ways to the way chief justice roberts has thought about his role as chief justice and i'm wonder if that may emerge or not emerge. something that marty is alluding to is something that struck me. >> maybe next year at this time. we will have more time on this.

we had an hour and a half discussion. but i don't think we mentioned the word gorsuch once until your time question. thank you very much. and thank you for coming today and participating today and thank you to the panelists. [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

>> c-span's "washington journal" live every day with news and policy issues that impact you. coming up friday morning, "washington times" reporter on the progress of congressional investigation into president trump's alleged ties with russia and russia's involvement in the 2016 election and the latest bureau report on poverty and income with the center of law and policy and heritage foundation. and we're live in dover, delaware, kicking off our c-span bus 50 capitals' tour and speak with the governor about his priorities and how policies in washington affect his state. watch friday morning. join the discussion. >> house speaker paul rhe