tonight at 8:00 p.m. eastern on c-span3. >> justice anthony kennedy's retirement brings a significant change to the supreme court. follow the story on c-span from president trump nominating a replacement, the senate confirmation hearings to the swearing in, all on c-span, c-span.org, or listen on the free c-span radio app. >> next, we'll take you to the american constitution society in washington for a look back at the supreme court's recent term. a panel of legal experts reslew the court's decision -- review the court's decisions and talk about the retirement of justice anthony kennedy. this is about an hour and 40 minutes. >> hello, everybody. good afternoon.

so in the short 24 hours a lot has changed. this was really not the context in which i hoped to greet you. and yet here we are together at the end of a very, very long week and beginning of a very tough fight. for those of you who don't know me, i'm caroline fredricksson, president of the american constitution society, and i'll like to welcome you to a.c.s.'s annual supreme court review. i think all of you know but i will repete it just in case that -- repeat it just in case that it's a national network of lawyers, law students, judges and policymakers who believe the law should be a force to mprove people's lives. after a rather slow start in a late we finally got to the end of this year's term.

some say the court saved the worst for last. after rather terrible rulings on the muslim ban, workers' right and women's reproductive health and after punting on gerrymandering and claims for religious exemptions from anti-discrimination laws, the bomb went off. we are now at a pivotal moment for our country. in a moment when we would be simply looking back at the term we can't help but question what is to come. the current court, as most people acknowledge, is already historically conservative. with rulings that have undermined the right to vote, join unions and be free from discrimination. how will another pick by donald trump affect the development of the law, especially as he advanced a litmus test that embraces overturning long-term rulings like roe vs. wade. now it's the senate to vet any nominees so we can all be clear on what is the potential impact

on our legal system. many of us believe that our supreme court is the last hope, often, for those seeking justice against powerful special interests. indeed, president trump promised voters he would stand up for the forgotten in our country. will his supreme court nominee do the same? but his past is often prologue. we must look back to see and understand what might be coming before us. so with that in mind, our review will take up those questions. to lead us through the review today with a very distinguished panel, we are so glad to have tom gold stein, one of our nation's most experienced supreme court practitioners. tom is no stranger to this crowd. he served as counsel to the petitioner respondent in roughly 10% of all of the court's merit cases for the past 15 years.

more than 100 in total. personally arguing 41. that's quite an outrageous number, to but in addition -- in addition -- there's more -- to practicing law, tom has taught supreme court litigation at harvard law school since 2004, previously taught the same subject at stanford law school for nearly a decade. he's also the co-founder and publisher of scotus blog, the only web blog ever to receive the peabody award, and he's been named by the national law journal as one of the most 40 influential lawyers of the decade. so we have an expert and a wonderful colleague to have lead this discussion. so please join me in welcoming tom goldstein. [applause] tom: thank you. on behalf of myself and for

everybody on the panel, i want to thank each of you as well as the folks watching at home for contributing your time to this. at the term wrap-up this year, we actually know with all these experts, everyone here is looking -- almost everyone is looking to hear one thing and that this is all a matrix-like simulation and in the real world hillary clinton is the sixth democratic appoint jt to the supreme court as follows -- well, that's my hope. in term of what is going to be talked about, we have reoriented things a little bit. our hope is to cover both the major developments of the past term, of course, and also to talk about the implications of the kennedy retirement and the appointment of a new justice for each of the areas of the law that we're going to talk about. and in addition, we've decided to allocate more time for discuss so we can cover a lot of those sorts of issues outside the context of any individual case.

and so we're going to start it off with what i think everyone agreed was maybe the major case of the term, the travel ban 3.0, and to talk to us about that is the director of the center for immigrant rights clinic at penn law school. >> thank you for the introduction. i am in state college at penn state university park. so any penn state alums in the room? a double welcome to you. ipe' deeply honored to be here and i really come to the table an immigration lawyer and professor and quite frankly i love the immigration statute. shoba: i was here to talk about the travel ban or trump v. hawaii and i will hopefully end with some good news on a good case. the supreme court issued a 5-4

decision. chief justice roberts wrote it. there were two concurrences, two dissents, reverse and remanded, the prom lamation or travel ban 3.0 was upheld as the law of the land. how did we get here? there is less delynn year litigation history that began in the hawaii and maryland courts, appealed to the aplate courts and even before the appellate courts made a decision, the u.s. supreme court on december 4, 2017, strangely issued an order that reinstated the entirety of travel ban 3.0 until and unless a different decision was made by the high court. and so in this way, we already know how the travel ban is playing out on the ground and devastating families and communities each and every day. this is a sad version of a travel ban. the first two issued as

executive orders. this last one as a proclamation. so a little bit background on the statute. the immigration and nationality act was passed by congress in 1952. it has been compared second in complication to the u.s. tax code. there are two sections in the statute that are relevant to the statutory arguments in trump v. hawaii. the first section is 1182-s, and it authorizes the president to suspend the entry of, quote, any alien or class of aliens if such entry would be detrimental to the interest of the united states. the second relevant statutory section in the i.n.a. is 1152-a. this is a nondiscrimination claws. it was created by -- nondiscrimination clause. it was created by congress in 1965, the same year that national origin quotas were dismantled. that nondiscrimination clause says there shall be no preference or priority based on

race, place of birth, and so on, in the issuance of immigrant visas, end quote. and so on the statutory arguments, justice roberts found the following -- first, 1182-s, the suspension clause, is is superbroad. the president is well within this authority just looking at the text of 1182-s. another thing he found, is it's perfectly fine tore the president to supplement the immigration statute. this proclamation doesn't supplant it. the counterargument, which is also my view, is that the president far exceeded his authority under 1182-s. if you look at previous uses of 1182-s, they are far more cattered. moreover, it really does sue plant the i.n.a. -- is up plant the i.n.a. -- supplant the i.n.a.

we have a network of the consular officers look at every single day when they're individually vetting individuals and deciding should someone be issued visa? is this person admirable? and so to -- is this personed a missible? and so to exclude people from whole countries based solely where they're from, to me that's supplanting the i.n.a. the second thing that justice roberts found is that the proclamation is not cabinned by this nondiscrimination claws at 1152 -- clause at 1152-a. i was struck by how little time and attention this analysis was given in the opinion itself because to me this was a very strong and important analysis. first, looking at the legislative history behind getting rid of national origin quotas and looking at the explicit statute. right. we have to look at the statute as a whole.

we have to have some type of harmonization principle when we're looking at one section and seeking to harmonize it with another. and for me there was a true clash between 1182-f and the proclamation as well as 1152-a, but here, justice roberts said, there is no conflict and here's why. looking at the language of the nondiscrimination clause, the language pertains to the issuance of visas. that's very different fromed a military or whether -- fromed a missibility or whether -- from as missibles or whether someone can be suspended? in my opinion, it's a distinction with no difference. in fact, the administration actually said for anybody covered by the proclamation, we are going to refuse visas. i think this is exactly what was happening. when somebody is excluded from the country, they are being

denied visas. so i was pretty heart broken in the way that statutory analysis came through. and the way the legislative history, quite frankly, behind the 1965 amendments were rejected. there was, of course, an analysis made around the constitutional arguments and justice roberts found that even on those grounds the plaintiffs were unlikely to prevail. and he applied a somewhat novel principle to this cass, a rational basis test, and found that the proclamation has a legitimate national security purpose and the way he showcased that was to show that, look, chad, iraq, sudan, they have been taken off the list. look again. there are exemptions here in the proclamation. look no more. there are waivers embedded, so these are three examples that justice roberts used to say that these are in fact

legitimate national security grounds. he was willing to in fact take into account the evidence, also known as the president's statements, and the text of the proclamation, plus the presidential authority under 212-f to reach his conclusion. so there were window concurrences. justice roberts made a concurrence, i believe indifferent, the president behaved nicely. justice thomas issued a concurrence, we need to question these injunctions and by the way, we don't need 1182-f. there's inherent authority that the president has to issue a proclamation like the one before us. justice brier issued a dissent and really focused on the exemptions and waivers and he was pretty thoughtful and fizzle the way justice kennedy might have liked. in how he carried out his argument. he said, look, if in fact these

exemptions and waivers are working, then this might be a lawful proclamation. on the other hand, if there is a suggestion or evidence that the exemptions and the waivers and the proclamation are not working, well, that's when it starts to smell more like a muslim ban. and then he went on to offer some of the data points as well as the example he used during the oral arguments. a 10-year-old girl with cerebral palsy who was denied a waiver when she was sought one. what am i talking about when i talk about waivers? essentially the proclamation has a scheme that says, if you are covered by the ban, if you are not exempt, you may demonstrate eligibility for a waiver and still be admitted on a visa if you can show undue hardship if you're denied entry. that your entry is in the national interest. and there is no national security concern. so those were the three

thresholds, criteria that were in the waiver scheme. i have to say i find the waiver scheme itself a clash with the immigration statute. congress has already written an elaborate form of what waivers look like staff torle and -- statutorily and here a president has come in to set a new standard to apply to people who are otherwise covered by the ban. and then, of course, justice soto may yor's dissent which -- which was -- she gave a lot more air time to the statements that were made by the president both pre and postinauguration and she was a little critical about the majority's rejection and overruling. and at the same time replacing e bad decision with another, n this case trump v. hawaii. what do we do now?

we need to have a meaningful waiver process, right? and to ensure the waivers are actually working and to make sure that our communities have accurate information about what is contained in the proclamation. so the next order of business is going to be community forums, know your rights workshops and information sessions with affected communities and family members. and like with many, this ban is personal and this is something i've been working on since 4:30 p.m. on january 27, 2017, when we got our very first ban. it is exhausting but this is a very long road. and we were just told by the court, who failed us, that this road is even longer than we imagined. i'm ordinarily a pretty optimistic person. i want to end or at least share one other case with you that got very little attention but was actually a really positive

case in the immigration space. i told you i love the immigration statute so i get to talk about that again. correa v. sessions and it was a decision that was issued an 8-1 majority. and the question in that case is, if there is a notice to appear, served on a noncitizen, that lacks a date or a time, is it sufficient to meet the stop time rule for purposes of cancellation of removal? that's a lot of terminology, right? so let me define a few terms here. notice to appear, this is the charging document that immigration uses to put somebody in the system. so notice is given by serving the individual with the notice to appear. and once that document is filed with the immigration court, removal or deportation proceedings are triggered. so this notice to appear is not a ministerial document.

it's an important document. it includes information like, you are from this country, you entered on this date and time, you are alleged to be ined a missible or deportable for the following reasons, you should come to york immigration court, which is easy to do since it's n obtained docket, on july 20, 8:00 in the morning. what happens when the notice to appear lacks the time or the date? well, justice sotomayor wrote this majority opinion 8-1 and said notice of appear that lacks a time or date is not a notice to appear. and so it's really putting the agency on notice to stop issuing defective notices to appear. it may sound so obvious, right, to any of us who think about basic procedural due process, but this is where it's an awakening, right? in the immigration space we

have been living with this for many years but it's not gotten the lime light and attention that it deserves. and why does this matter to the immigrant? cancellation of removal is one remedy in the immigration statute that if you acquired 10 years of physical presence and meet other criterion, you can receive protection called cancellation. and so if you're served with a notice to appear, the clock on the 10-year physical presence stops. so that's what makes it really significant to say undated notice to appear doesn't count. so let me end since my time is up. i am not a justice kennedy expert. but in korea v. sessions, he actually criticized the courts for but refluxive over chevron deference. it's a tale of two concurrences if you look at trump v. hawaii and this one. one is i'm out of here, deference matters. and be nice.

and the other was, we really need to pay attention to our intentionality and our deliberate process when we engage in a chevron analysis. and then truly finally, because my other area of research is around the role of discretion in immigration. particularly prosecutorial discretion. we owe a lot of credit and leadership to justice kennedy in his opinion in arizona v. united states. one of the seminole packages in that decision is that as an initial matter, the federal agency has to make a decision about whether to pursue removal at all. and this is an act of prosecutorial discretion that has now been reinforced by the justice. thank you for your time. i look forward to your questions. thomas: so before we move on -- [applause] before we do move on to another topic, i would love to get

folks' reaction to the question of -- what does a tweet by the president actually mean in the context of reviewing executive action? i mean, can this guy say just whatever he wants to his base and then the white house counsel's office can just lawyer up and write something? is the upshot of the court' decision we will never pay attention to that or is it limited to this narrow context of national security? what is the relationship between what the president is saying and the administration is doing in terms of us looking at motivation, whether it's religious or something else? >> so i agreed with the ruling. i disagree with the travel ban as a matter of policy. simply because -- this is where it's different with other immigration cases. the deference offer national security versus domestic affairs. but to your question, tom, roberts in his majority opinion went through various statements

and said this is not good. ilya: but at the end of the day, because there were other reasons and the countries only had 8% of the world's population, yada, yada, the waiver program and all the rest of it, narrowing carveout. we are talking about 3.0 instead of 1.0, the stephen miller special. but given the strong deference, he used the phrase rational basis which i think is inept in the national security space. i would have rather preferred some other kind of discussion. but, yeah, it's not complete deference. it's kind of a smell test and does the rest of the document really line up with something that's, you know, isn't so biased? tom: and the view this passed the smell test? ilya: yeah. this is 3.0, not 1.0.

>> they are all the same thing, right? ios-3.20, get -- it's still for my iphone. tom: at what point do you think what the supreme court is saying, like, enough time this thing gets longer through or we fundamentally believe that something different is going on? ilya: he stuck to the country that obama identified as national security risks, there was partially by the courts, including the supreme court, and partially through the 2.0, 3.0 process. there were exemptions with people with green cards, if a mealial ties. i wond -- familial ties. i wonder if they forgot the steve miller step and went to the lawyering up and we hadn't seen a proclamation until several months into the administration? i think the course of litigation would have been different. e might have had more kagan-

breyer type of decisions? shoba: i think -- where i stand is i think this case should have been rejected on the statute and there are number of a very clear arguments to support that. with respect to exemptions and waivers since i already reached my 10 minutes, those are problematic, right, for a few reasons. we have a statute that includes waivers and we already have four-seam work for our immigration law that congress wrote in 1952. to the waivers and justice breyer brought this up both in his oral argument, during the oral argument as well as in his dissent, there's very little evidence to show that they're actually working. evidence one sworn by a counsels lahr officer called the waiver process window dressing and consular

officers don't have discretion. to the extent exemptions and waivers were relied upon by the majority to support the legality of this proclamation, i think that alone is problematic. tom: well, one of the good things about the term, we had another opportunity in the form of another question to look at these questions how much scrutiny the court was going to give to allegations of improper mode when it comes to religion. we had masterpiece cake, not an entirely dissimilar case. talk to us about that. senior staff attorney with ucla focusing on lgbt issues. >> thank you. glad you made that comparison. that saves me 30 seconds out of my 10 minutes not to have to draw the comparison. so i think folks know by now that in the masterpiece cake shot, they decided not to bake

a cake to a same-sex couple. ria: and based on the peculiar case in the way they handled this complaint. i think -- at the outset, pete williams said this is a ticket to one good ride only. i hope this shows how narrow it is. of course, in the process of doing this the court has concerns what the civil rights commission did. it also said as a general matter, right, religious objections to a generally applicable and neutral law doesn't mean you can violate it. that's true in the context of anti-discrimination laws. and that's true in the context of anti-discrimination laws that protect those that are lgbt. every company in colorado, including masterpiece cake shop, doesn't have to follow the norm. this is a ticket for one complaint only. so what was the problem in the

process? this is where i think many commentators have drawn comparisons to the court's opinion in the muslim ban case because essentially the core piece of evidence the court found was a statement by one of the civil rights commissioners that eventually said it is despicable saying religious rhetoric was used to justify atrocities including the holocaust and slavery. that is a factually accurate statement. it's also not the same as calling religion itself despicable. it upholds the dignity of religion by what is saying, what is despicable? so i think putting that comment in perspective makes the comparison between the muslim ban decision even more stark because when it comes to muslim ban, we are talking about tweets and statements from the person who was the sole decider and in the case of the civil rights commission, not only was the commissioner one of a seven-member commission but

essentially her comments came so late in the process it could not have affected the decision. this was an administrative complaint that was originally filed by our clients. it was investigated by the state. it was then adjudicated by an a.l.j. who granted summary judgment in favor of the state and our clients. it was then appealed to the full seven-member commission which affirmed after a public hearing. and it was then in the context of bakery's motion to stay, the remedial order, which requires them to treat everyone equally, the comment is made after the decision had been made in a context where all of the decisionmaking had been made in public. there's no chance, as some people suggested to me after the fact, somehow this bias might have infected an earlier part of the decisionmaking process or may have been secret deliberations. the commission's deliberations are public. there is a transcript. we know this is the first time that troubled the court really

what was said and i think that step in the process actually contrasts in a very dramatic way to the court's willingness to overlook explicit statements of anti-religious bias by the person who was in fact the decider. so all of this means i think the ruling in masterpiece cake shop is quite narrow. the decision, of course, will reverberate. both for what it says and also for what it does not say. one of the most interesting things about the opinion is that at the start of the term this case had been expected to be a blockbuster free speech decision, whatever the outcome. i think many folks thought that would be how it is decided because the bakery said the product it sells is artistic which was a question, is a wedding cake artistic, so because the product is artistic, art we all know is protected by the first amendment, that means free speech justifies its decision to turn away same-sex couples. you know, that actually is a claim that the trump

administration weighed in in favor of. the solicitor general filed an a amicus brief addressing the -- not touching the free exercise question which is how the court decided it. there is a signal of the weakness the administration saw in the free exercise claim after smith. it's hard to see how you get out of complying with an anti-discrimination law particularly because the court had already rejected request for -- and sex discrimination. unless you say there is something different about sexual orientation discrimination. and so the speech claim really not engaged with at all. but the court does lay out two guideposts that i think are helpful in how thinking about speech. by which i agree with. one is simply that the refusal to sell any cake at all is not protected by the first amendment. because it has nothing to due

with artistry. that's the case. they were turned away right away. no discussion what cake they might have want. the baker refused to sell cupcakes for a lesbian couple's commitment ceremony. there is no question this is about artistry. and if the commission required them to write a specific inscription that might raise first amendment -- the anti-discrimination act is not about discrimination. it's about people. all bakers must produce cakes that says maga, we will see a lot of targeted expression. of course, this law did no such thing. those are the guides the court set out. those of course become highly relevant because this is not the only context which our opposition is seeking exemptions from anti-discrimination laws. we know the same lawyer that represented the bakery represents a flower shop in washington state.

an employer who ledges it is entitled to file a woman because she's transgender because of religious beliefs. and request for exemptions to exclude transgender people from places like rest rooms and locker rooms. this is not about wedding related services. this is about a bare face denial to the lgbt community. this is something they firmly reject. that's what it will be cited more for going forward. when we look at the court's lgbt docket in the coming term, you know, the court granted, vacated, remanded in the arlene flower shop indicate which is identical to masterpiece cake shop, whatever you make of the colorado commissioner's statement, whether or not you think it is hostility, certainly it's something. there is no there there in arlene flowers. there was no state administrative process at all. it was taken to the washington state court system.

unless they say the washington state courts somehow demonstrated hostility toward religion, you have at face that the decision to enforce the civil rights law against someone that's chosen to violate it because of their religious beliefs is it hostility to religion and that bucks up and i don't see apathy in the court to overrule that. of course justice kennedy has been a tremendous champion of lgbt equality. doesn't need to be said in this room. but he has been at the forefront of the court's trajectory in recognizing the equal dignity and really the common humanity of what it means to be lgbt. of course, from that perspective, it is devastating to lose him on the court. i do think that his journey reflects the journey that our nation has made over the past several years and perhaps decades towards recognizing what it means to be lgbt, what it means to be gay and lesbian and what it means to be transgender and those are not erased by his departure on the

court. in some sense, you know, in the very next term, i think the next issue to reach the court will not be one of constitutional magnitude but where justice kennedy made his mark but in the context that is erases the fact that only the federal government and 60% of states don't have laws that expressly prohibits -- what we o rohibits discrimination on gender laws. this question comes up in the title vii context and the title x context for schools who have attempted to exclude students who are transgendered from using locker rooms or wrestling. we have a finding that it does

cover sexual orientation but another that says it does not. those are being briefed. we are also expecting a petition versus harris se funeral homes where we represent a client who is suing a funeral home. what i think the statutory interpretation of title vii i don't know that justice kennedy was very much differently situated from other justices and in many ways the most important a finding that the

sex discrimination provision otects from all forms of sexual discrimination regardless of what the lawmakers intended when they made it. >> thank you. [applause] so the discussion of discrimination against transgendered individuals in employment is a natural ransition to workplace issues. we had two major issues in cases coming up. had to imagine

dismantling the ability of working people to demand and exercise rights you might imagine a case called epic janus and one called versus afscme. epic systems is about arbitration. the question in epic systems is whether an employer can require employees as a condition of employment to resan francisco all claims against their employer, one through arbitration, and two, as an ndividual. what the court said, using what was a relatively obscure statute that was meant to deal with arbitration between two businesses what the court says is yes, they can require that. and if there's a contract to that effect it has to be enforced. given the value of many work --

the small dollar value of many workplace claims this means workers will just have no way of enforcing many employment rights. unless something changes. the specific legal issue in epic systems was whether such a contract requiring individual arbitration was inconsistent with the national labor relations act, the federal labor law. why might it be inconsistent? federal labor law says everyone has the right to engage in concerted activity for mutual aid and protection. that concerted activity includes traditional union organizing and collective bargaining but also involve what is the statute calls other concerted activities for other mutual aid and activity. the national labor relations board and the united states has long understood other activities to include concerted legal action. and so if you have a contract that says to workers, you have

to pursue every legal claim against me, the employer, as an individual, that is asking the employee to waive their national labor relations act right to engage in concerted activity. and even the federal arbitration act says, we don't enforce arbitration agreements that are themselves illegal. so the national labor relations board has said this kind of contract is like what used to be called a yellow dog contract a contract that said i agree as a condition of employment never to join a union. those are illegal contracts. and because the right to engage in concerted legal action had the same footing as the right to join a union, these arbitration clauses were illegal and not enforceable even under terms of the federal arbitration act. the supreme court rejected that. and it did so in a way that is exceedingly damaging. i'll say two things about that. holding.

the holding says that not only now can class action waivers and arbitration agreements be forced in the consumer context, they can also be enforced in the employment context. we're seeing these. they were on the rise, now they're exploding. most workers, i think, very soon, will be subject to individual arbitration whenever they want to pursue any claim gainst their employer. that's horrific from the perspective of workers' rights. the other thing epic systems does that is very damaging is less prominent but important. what the considerate -- the way the court reaches its holding is to say there's no national labor relations act problem with a class action labor in a mandatory arbitration agreement

in an employment contract. there's no national labor relations act problem because the national labor relations act doesn't in fact protect your right to engage in concerted legal activity. what the national labor relations act is about, says the epic systems court, is traditional union organizing and collect i bargaining. now why is that a problem? that's a problem because a will the of workers today don't have the opportunity to engage in traditional union organizing and collective bargaining. the hope for the labor movement is in this other concerted activities stuff. right? online organizing. facebook organizing. worker centers. novel forms of collective activity. and what the court is doing, although it hasn't got therein yet what the court is doing in epic systems is laying this groundwork for a move in the direction of saying that the federal labor law only protects traditional labor organizers and

collective bargaining. it only protect this is thing you can't do anymore. the thing you're trying to do, right, that's not protected. so that's epic systems. then on the last day of the term we have januss vs.s after -- janus versus afscme. everybody know what is this case s about. the question is, can public sector unions require employees who are covered by a collective bargaining agreement to pay a fair share fee for the representation they received from the union? why is this important? unions as a matter of law must represent every worker in a bargaining unit equally whether or not that worker decides to become a member of the union. so when the union negotiates pay increases or benefits increases or just cause dismissal

policies, when the union does grievance representation or arbitration representation, the union has to provide those services to workers irrespective of whether the worker joins the union as a member. unless there's some way for the union to require workers to pay for that, we have what justice kagan calls a collective action problem of nightmarish proportions. imagine, as an analogy, the u.s. government decides that taxes are voluntary. ok. so now you know as a citizen that whether or not you pay $1 in taxes you get the same roads. the same schools. the same police and fire protection. the same military. right? and it's just up to you. pay or not. now, i don't know what anyone in particular in this room would do but i'd hazard to to say that fewer people would pay their

taxes. that's the situation that's now been foisted onto public sector unions by the supreme court. everybody, every public sector worker represented by a union has the right to receive every ounce of union representation and to do that without paying a ingle penny. that's difficult to sustain. and i think that we're in for a period of severe challenge for public sector unions and therefore for public sector employees. i haven't mentioned too much about the doctrine, i'm in the sure this case is about doctrine, to be perfectly onest. i liked president trump's tweet -- about janus, as soon

as it was decided he said this will be you have to on the democratic party's coffers. unions are a way to aggregate the voice and they've done so and now they'll have a more difficult time doing so. i know i'm out of time. there's a bill in congress that would help deal with epic systems. it would make illegal the kinds of waivers that are so damaging to employees' ability to assert their right. what do we do about janus? good news about -- the bad news about janus is it's a constitutional holding, first amendment holding, so there's nothing congress or state cans do about the holding. i'd be happy to talk about this more but there are ways state cans amend their public sector labor laws that would enable

unions to find other wifes financing themselves. on justice kennedy. justice kennedy has not been a good -- as good a friend of workers and unions as he has been of the lgbt movement and community. i don't think that means that hings won't get worse. and i think just to take janus and the union context, there are more steps that i think we need to be concerned about. so janus is a holding that fair share fees or compelled speech is unconstitutional under the first amendment. there are cases now pending all over the place that challenge the very idea of exclusive representation as compelled association unconstitutional under the first amendment. so exclusive representation is just a system of union bargaining that we've had since 1935. it just means that 51% or more

of workers in a union, for a union everybody is covered by the union and by the contract. ok. that is now susceptible to attack under the first amendment. another problem -- >> is that true both in the public and private context? or is still just in the public? >> ok, great. another problem is janus applies to the public sector because it's a constitutional holding. i think there will be an effort to export janus to the private sector. that will happen through tissue in congress but it will also happen in the courts. and you might think that's crazy because we have something calls the state action requirement, and there's no state action when a private sector union and a private sector employer decide to negotiate a collective bargaining agreement. i'm more worried about the

prospect for erosion of the state action doctrine exclusively in the union context with a fifth justice who replaces justice kennedy. so we may see a constitutional attack on exclusive representation and exporting of both the agency fee and the exclusive representation rule from the public to private sector. and then in some ways more narrow but also terribly devastating, there are bread crumbs in the janus opinion about what you might think of as a retroactivity problem. justice alito has a number of lines in which he talks about how many, i think he uses the phrase billions of dollars in agency fees have been extracted from members unconstitutionally. over the last number of years. i don't know why that's in there

but justice alito set up janus in a case called knox where he very skillfully plants seeds they can harvest years later and i think what's happening potential sli a signal that unions should be on the hook for fees that have been paid and of course spent over the last number of years. these kind of more ambitious moves might be more comfortable for the justice that replaces kennedy than they would have been for kennedy himself. tom: thanks so much. [applause]

from cato, their editor in chief. >> i feel like whatever the on soist a skunk at a garden party cat at a wake maybe. the only case i have problems with was the wayfair case. i disagree with justice gorsuch. but on janus, i think to understand this case we have to differentiate and understand the difference between the interest of workers and the interest of unions and the public versus the private sector. which is why i think we'll agree as advocates if this is exported to the private sector. first of all this case was not brought by the chamber of commerce or a collection of companies or anyone standing in for those kinds of interests. it was brought by a worker. the previous one four years ago, the previous case that deadlocked 4-4 was brought by a teacher in the public sector. claiming two things. first, i don't like what this

union is collective bargaining for me. forget free ride, i'm a forced rider. i'm forced to pay for merit pay rather than seniority protections or vice versa. i don't want this. out we ce alito pointed can't compel private sector organizations, or member unions, not the government, even in the public sector, i know it's a legal fiction especially in places like california that try to have union an state collusion ery closely. we don't allow come pulse of people to pay for stuff they don't want. except for taxes. even if we agree that would be a problem. the broader problem in the public sector, which doesn't exist in the private sector, inherently everything the union does has salience in public policy. not just the election nearing. but also -- electioneering but

state budget, education policy, contracting, everything that the yuvene does in the public sector has public policy salience. that's why this is very different. and if the interest is labor, there are more narrow ways of achieving that. you don't need to compel these fees. we've seen that in the 28 states that don't have these kinds of agency fee arrangements. there, unions haven't completely, you know, disappeared. but they've been forced to become effective and responsive to worker concerns rather than getting involved in larger national issues that are unrelated to employer-employee relationships. so while it's absolutely true that this will be detrimental to union coffers and democratic party coffers, that's, as justice alito pointed out, is not a legally recognizable interest for the purpose of and i at stare decisis

think the stare decisis aspect is just as important as anything lse. tom: can i stop you? stare decisis takes on a greater role here, what do you take away from janus about the current court majority's willingness to revisit warren-court era, earlyburger court decisions that are treated by some as bedrocks of civil liberties, rights of criminal departments and things like that? >> roe v. wade is its own category. we talk about more run of the mill precedents, it depends. sit working. what's the quality of the reasoning there?

is it made up out of thin air or does it follow from the way the law had been developing? is there actual legal reliance? have people structured their businesses they lives, what have you around the rules that the court established in the same way that chief justice rehnquist designed to overturn miranda. chief justice roberts is very much into not making waves unless it's absolutely necessary. i would like the court to overturn more bad precedent, things sed on certain in that regard but i wouldn't quout-ununquote super duper precedents but we could see quill that was overturned and wayfair was a big deal. putting aside the huge cultural war sort of things, maybe we'll see.

a case i don't know if anyone else is going to mention, murphy, this is going to be major ramifications. it's about sports gambling and about federalism more than that. the point is congress is trying to use the states to regulate sports gambling and going back to an area of law the court hadn't seen in about 20 year the anti-commandeering doctrine, the court majority, seven justices said you can't do that. the other two didn't say yes you can. they said we could have interpreted the statute in a way to avoid the problem. i'm sure in -- in this room are becoming fans of federalism and that's a healthy thing. the only way to defuse tensions in washington is to push down decision making as much as possible. tom: do you want to explain exactly what the statute is? >> congress said states cannot facilitate gambling, sports

gambling. new jersey wanted to repeal its restrictions and impose certain regulations to create a market to allow for sports gambling. there was a vigorous debate about this and -- >> tom is a big gambler, i know he's curious about this. the court said we leave it as an open question about whether congress itself could regulate or criminalize gambling in the state, that's an open commerce clause question, i suppose. but congress can't do a work around and cruise the states to do what it wants to accomplish. i doubt there's much appetite in congress to pass a broad new criminalization or what have you. much as wayfair has opened up opportunities for states to have different tax eags regimes, we'll see different experiments with different states opening up sports gambling in different ways. there will be litigation of what happens if you're platesing bets on an out of state game or in-state game, these sorts of

things. it's not uven that the court legalizes something that's been closed off. so we're sort of a bit in the true laboratories of democracy in this area and hopefully that will spill over into these other fights over drugs and imgreags and guns an whatever else. tom: tremendous. thank you so much. [applause] >> can i say something about kennedy? >> please. kennedy is the one i most agree with in terms of results but still infuriating. very good on the first amendment. probably the biggest defender of the freedom of speech that probably we've ever had. but was a bit of a philosopher king in the sense that he

struggled with every case. it's not that he was swinging back and forth at random but didn't fit into convention at jures prudential roles and i think that's problematic for the rule of law. you want consistency. you don't want everyone aiming their arguments to try to fit into the equal dignity clause or whatever the latest writing that he might have done. and you can't even make blanket statements that he was great on constitutional structure or individual liberty or something, things like that. he had that great concurrence from my perspective on the commerce clause in a case like lopez and in bond about federalism and individual rights, structure for federalism protects liberty but he also in rh, i guess because drug users shouldn't be as respected as the lgbt community, i don't know why, said that they can regulate plants you grow in your backyard. and in another case said

property rights aren't as important as other types of fundamental rights. so you know, it's -- i liked him a lot for many things, i didn't like him for other things. he was frustrating. going forward i will adopt the line that january crawford used as cbs news that it was the democrats' biggest political blunder to use the filibuster against gorsuch. now they can't use it in a place where it matters. gorsuch vs. scalia was like for like. now it's moving the court more to the right. one thing we do know is we're not going to get a trophy judge. meaning, i don't think we're going to have chris cries tee or rudy giuliani, judge judy, jeanne shapiro. he's going to go from the list. and that list would have been no different if ted cruz had been resident or anyone else. i'll be looking for different thicks.

i'm optimistic about that but it's going to be a very, very different court. not just in terms of left-right but in terms of the chief justice being the median justice. we haven't had that in a very long time. tom: i didn't have the understanding that you did that the filibuster of gorsuch accomplished a lot. rick do you want to take us into another area where we saw justice kennedy was seen as being important? vick one of the nation's leading experts on voting, campaign finance, elections. >> i'm a pessimist by nature. i've become much more pessimistic over the last term and last few days. what i was going to say until yesterday was that there were three significant election law cases of the term. i now think we had three conservative victories in hindsight. the most important case by far was the partisan gerrymandering

case out of wisconsin. second case that is granted benicek out of maryland which involves a democrat engaged in partisan gerrymandering. a mystery why they took that. but the main action was the gill case this equestion was whether or not there were judicially manageable limits to subpoena rate permissible from impermissible party consideration. they say it's been so effective now that legislators choose their voters. it gos back 14 years to another case where the supreme court addressed this issue in the most significant way and there the court divided 4-1464. four justices led by justice scalia that said this was not the court's business, there are no standards. there were four liberal justices who said there are standards and

in fact came up with four different standards. the justice in the middle, justice kennedy said, i think these stan dards are bad, try the first amendment, try looking at history, try looking at computers. so for the last 14 years there have been cases that have been trying to please justice kennedy and deer was a perfectly keyed up case because there was a new standard for measuring the am of asymmetry and partisanship in plans, what was added by taking the maryland case is that it raised justice kennedy's favorite theory in this area, maybe rather than equal protection cases they're really better thought of as first amendment cases where someone is being penalized based on who they are and what they believe. like in the cases where a

janitor isen fired by this egovernor because they're a democrat rather than a republican. everyone was teed up and then there was this huge punt where he court came up with an opinion but chief jus -- by chief justice roberts that was a punt that decided in a strange way that rather than addressing the entire state districting plan in wisconsin which was alleged to be a plungerry mander, you have to go district by district. as a mat ore standing it was odd, what's even odder is chief justice roberts said pay no attention to what's going on in justice kagan's concurrence. and kagan's concurrence was, here's how you build a claim that jusity den -- kennedy loves, isn't it wonderful, and justice kennedy was silent. looking back, especially in light of what justice kennedy said in the travel ban case, which was that the government government has to uphold the

he was not willing to take a side after 14 years of playing justice hamlet he left the stage without making his determination. this means that the next justice to come in likely to be in the scalia mold and we know with scalia and gorsuch and thomas, these cases will be seen as john justice rble. that means the next case after the punt, the north carolina partisan gerrymandering case, they could have taken that for next term but didn't. that's where north carolina, 50-50 state after the lines were found to be racial gerrymander, the north carolina general assembly drew the lines again in a 50-50 state they made 10 of 13 districts majority republican. when asked why he did that, he said he couldn't figure out tow thou draw an 11th republican

district. that's the punt. not even the loss. the losses came in a case about voter purges. huff set versus philip a. randolph institute and a case out of texas involving texas redistricting, both of these cases feature the 5-4 liberal -- 5-4, conservative-liberal split. one featured a nasty back and forth between justices alito and sotomayor. both of these cases are cases where you see the conservative majority pulling back on voting rights. the ohio cases are technical involving how to read a certain provision of the national voter registration act, the motor voter law but the message seems to be give states their breathing room to pass laws that might make it harder to register and vote. and in the texas redistricting case which i didn't expect was

going to be a big deal, half of the opinions were spent on whether or not there was an issue before the court because no injunction had been issued by the court. when the court got to the merits that i shut down a path that the supreme court in the 14el8by county five years ago, exactly five years ago from the day the opinion came out, said if there's a bad actor, bad actors like texas could be back under federal supervision for up to 10 years. this is section three of the voting rights act. you have to show intentional racial discrimination. and what justice alito's opinion did in the texas redistricting case was to say no. there's not enough proof of intentional racism. in a way i think is going to make it difficult to prove in look e he said you must at the state when it passes law. after kennedy, inthe three worst

opinions that the supreme court issued in two generations, two of them were written by justice kennedy and one he was in the majority. shelby county, citizens united and let's not forget bush vs. gore. the vote relenting -- i am lamenting that he's retiring because thierry andering cases will be onjusticeable. there's going to be the court stepping away from trying to police voter i.d. laws where they kind of tried to take a middle path. i think they're going to be much more likely to go the scalia path of saying if the laws done hurt most people it doesn't matter that they burden some people. i think we're going to see contribution limitations in

campaign finance struck down. the other part of the mcconnell case, the part that the court didn't strike down citizens united, the other half will fall. and i expect we'll see more partisanship on the court and it's pretty clear now that we not only have a court divided conservative versus liberal, we have a court divided republican apointed versus democratic appointed and it's going to be much more common to talk about what the republican justices did and what the democratic justices did and this is going to further undermine, i think, people's faith in the process especially when opinions are going to come out written by republican appointed justices that are going to favor the republican party when it comes to issues about voting and democracy. tom: let me ask about the contributions question. so we saw in the context of it s the implication that could have partisan inch cailingses. i wonder what makes you think that this kind of really bright

line that has existed in campaign finance law for a while between expenditures going out and buy an ad which are significant and actually contributing to candidate, your view is the supreme court in the next couple of years is going to say, off constitutional right to give an unlimited amount to candidates for office? >> i won't predict 100% but i think that's the most likely place to go. just like we've heard about seeds being planted, i think the seeds were planted in the mccutchen case. i'd point you to a case coming up out of the ninth circuit which no one is paying attention case lare vs. modal, a involving montana's contribution limits. denial of consideration by the ninth circuit with a very strong dissent from denial by judge akita a well-respected judge. this is going to get a lot of attention. the judge said you have to come

up with actual evidence of corruption, to justify any contribution limit that would be a way to basically strike down contribution limits without strikes them all down. you say we're going to send this back to the development of evidence if it doesn't happen then this particular contribution won't be struck down. death by a thousand cuts seems be the median justice roberts' favored mode of proceeding in these cases. tom: ok, thank you so much. [applause] we saved good news for last. r next speaker is one of the this about the fourth

amendment? >> the cell phone, g.p.s. case. we are in this post jones, post riley era of this metadata being collected by third parties. and the introduction of this era of law came via the jones case and reilly. although you talk about seeds planted and teeing up cases to come. i remembered seeing something like this way back, since i'm speaking in front of a group, i'll do what we all do, i'll blame scalia for all of this. back in quan, scalia basically in a concurrence which sounded like a dissent in some points , he chastised his colleagues for not taking on the technology of the day. and sort of deciding each case

on the very narrow, specific bases without thinking about the broad general constitutional jurisprudence and the law going forward. but it's funny when the court finally decided to taken this era case t-internet of jones, jones being the g.p.s. case, not even five minutes, i went back and looked at the time. not even five minute into the oral argument, what does scalia do? he says, well, listen, i know we're supposed to be talking about carpenter but i'm going to be talking about cass. he said i think it was wrongly decided. but it's ok. don't worry about it. we're not going to rule today. however -- and it struck me, particularly because it seemed tom: can of no wrfment

you give us 30 seconds on that case you're talking about? >> it's the concept of what does the fourth amendment protect. what happens in carpenter which i should be optimistic about but i was alarmed by the dissent and even a little bit of roberts' writing in the majority. this notion that the fourth amendment is based on the understanding of privacy and protection is based on the fourth amendment concept of protecting one's house, paper, from unreasonable government intrusions via search and seizure. what cass did was some say augmented, some say added, some say inappropriately expanded and by inappropriately expanded even constricting some of the traditional notions of privacy, it added a test that basically came from the concurring opinion

of justice harlan which says that we have a two-prong assessment we're going to make with respect to fourth amendment protections. the first strong the manifestation of an expectation of privacy and two is the expectation that society is prepared to accept as reasonable. so the question is, this notion of this expectation of privacy that it seems that some of the descend -- dissenting justices in carpenter and some of the justices critical of katz have problems with this concept of this reasonable expectation of privacy that's not tied to some common law understanding of property law and property rights. and so to the extent that skea looa seemed troubled by it, he said i think it was wrongly decided but we're not going to overturn it today. we said that again at the outsoast the oral argument in

jones. and so in carpenter, we sort of get -- so there's jones and jones of course gave us the understanding of who we are now in this modern digital age, this notion that the -- and this is not the language the court is use bug there's an -- i'll use the language the court use which is is essentially you do have a reasonable expectation of privacy in the entirety of one's movement and in the entirety, the whole of one's sort of location, physical location and to the extent that the government is in fact trying to obtain information about your location, particularly in the case of jones, about 28 days of data that was being sought, then the government is in fact conducting -- is acting under the fourth amendment and this is a fourth amendment implicating activity and certainly to the extent the government needs a warrant, the government needs a warrant and should have a wancht.

when engaging. and i hesitate to say the whole things were because there was not one particular understanding that came from jones. there were sort of -- a majority of five that definitely agreed that there was a fourth amendment interest in one's whole movement, entirety of movement but aall came down in different little spaces an places under the fourth amendment. again you see this sort of rear its head in carpenter but not so much. some of the justices believed that by virtue of attacking a g.p.s. monitor on the vehicle of jones that there was a trespass committed. and that under traditional common law property notions was sufficiently problematic for the government. they trespassed to get information. others, though, went along more with the katz notion of reasonable expectation of privacy. there's discussion in the literature, online , in conferences about this concept

of do you have a reasonable expectation of privacy in your movements , in your location, is that something that society is prepared to accept as reasonable given that we're all giving information to the cell phone providers and internet providers? and so this brings us up to the carpenter decision and carpenter is interesting because it basically meets us at this intersection of this notion of having some reasonable expectation of privacy in one's entirety of movement, the whole of one's movement but it's also -- it also butts up against the notion of disclosing one's information, particularly location information, to some third party, the cell provider. there's a doctrine as many of you know that basically says you disclose your information to a third party under the fourth you don't have a fourth amendment interest in it. there's a long -- the

miller-smith combination of cases to the extent that one seeks to claim some sort of fourth amendment interest in another's entity business records, here the cell provider's records you don't have a fourth amendment interest in the business records of the cell provider. so getting back to carpenter, because again this is almost a set up and it seemed to, i know we're in the world cup time so i keep trying to use the flaze set piece here, i don't know enough about socker to do it correctly. carpenter is a case that involves the f.b.i. requesting four month's worth of location information, cell site location information from carpenter's cell provider. pcs and sprint. this is because the f.b.i. encountered a cooperate, confessing co-conspirator of carpenter's because they were

investigating this string of robberies across michigan and ohio of, do you remember this? radio shack. and tmobile stores. so this conspirator, who is a cooperating witness who also confessed, implicated carpenter. and gave up carpenter's phone number and from the phone number information the f.b.i. went to the cell provider to get the information and location data from the cell towers to sort of place carpenter on, actually in the space and time to sort of prove the opportunity for him to commit these robberies. and laettner fact at trial there was i think seven other co-conspirators who pointed the finger at carpenter saying he was the mastermind. so the providers turned this over and this, by the way, was not done via warrant. it was done by a court order.

pretty much a subpoena. we've got different standards, this is one of the discussions in carpenter, different entities and justifications required for subpoena as opposed to a warrant. that became a topic of discussion. i went waste time on it now. but een-- essentially carpenter moved to suppress that data at trial. trial court denied the motion to suppress. he was convicted and sentenced to over 100 year, there were mandatory minimums involved in that. on appeal they said you don't have fourth amendment interest in this information and you tushed it other voluntarily. so at the supreme court it's very interesting what happened. the court seemed fascinate, roberts wrote the majority opinion, it was 5-4. the court said essentially -- essentially, this is such a new

phenomena and we are so dependent on our cell phones. justice sotomayor has been doing this for decisions now, this notion, we have the doctrine already of katz and trying to fit this new technology in this new phenomena, this cell site location information into it. she's been saying for a long time, we need these phones, we are attached to them. the court has likened cell phones to an appendage. i don't know the last time i read a supreme court opinion where appendages are described the way cell phones are described by the court. it's like we can't live without them. she drew laughter in the oral argument. she knows young people who actually take their phones to bed with them. and so this whole notion of we can't get away from these wonderful bits of technology

that by the way are communicating with that third party. cell tower, cell service, internet service provider. constantly. without us engaging the item. i think that was instrumental. at least for some of the rationale in the distinguishing of this case, this data, this technology, from the miller-smith line. the sort of dinosaur rem. and i say -- realm and i say that because what the court said was , he did turn over the information but there's no ability to do anything other than submit. submit or perish. why? because if in fact we are talking about voluntarily turning over one's information miller rd party, then lives to see another day and be

precedent elsewhere. this is not the case when it comes to cell phones and cell providers there is to an extent some voluntary disclosure of location information. the court says to basically connect, to make calls, receive calls. but there is data, the data will be collected constantly without our even engaging the phone. and this is for, you know, purpose os they have cell provider, for sure. they have business records to see where you're roaming, where they can charge you more. but this is something the court is saying we can't help. weand can't help ourselves. and because this is where we are now as opposed to where we were then, the court is saying this new phenomena needs to be treated a specific way. so it says a lot in the decisions, ultimately the holding really specifically speaks to the abilities of government to get this information without a warrant based on probable cause.

and it almost seems like pedestrian holding given what the court is saying. the court is a saying there should have been a warrant obtained and that warrant, it would have covered the contact but the warrant was not obtained. the document, the subpoena, the order they received wasn't sufficient. that's one subcategory, my time is up. one category of sort of what the court held. -- what he phenomena was phenomenal to me was the understanding before this announcement by justice kennedy hat there might be a sort of conservative-liberal alliance on the court when it come tots technology. not so fast. not so fast. because when you think about some of the other decisions that were announced after this,

justice kennedy was in the dissent here. kennedy's dissent was, and i couldn't understand it again now understanding sort of how my co-panelists have characterized some of the decisions, these late decisions, these last decisions before the announcement. i can kind of see the sort of, i'm out of here, i don't care, analysis in this decision he dissented he -- i think he dissented, yeah, he dissented nd he focused primarily on the smith-miller line of cases. it's like, it was almost stubborn with it. you are turning this over, you're turning this information over and fine if you're turning it over we've got doctrine for that. and so this newness and the dependency and this pervasiveness. the technology per vids -- when the court started off saying that there essentially are more cell phone accounts than people in the united states i hue it

was over then. so the understanding that kennedy brings to this line of cases, i agree, it's a mixed legacy to be sure. but i would say in the context of the fourth amendment, it's a little less than mixed, particularly when it comes to some of the area you expect kennedy to be more forward thinking on. in fact sometime he is seemed a bit retro. he certainly proved that in this decision. it was almost -- there are points at which it seemed he was eing unnecessarily dramatic. and i just again couldn't understand it but now after the announcement, i'm starting to get a better understanding of what in fact might have been going on. tom: thank you so much. [applause] it's interesting to see as people try to mine roberts' opinions and justice gorsuch's dissent, for how you can attract maybe one they have

conservatives in different areas of the law as they become the median justices. >> combine gorsuch's dissent which was a concurrence in all but name and sotomayor's writing in jones, i think that's the future, at least i hope it is. because i think we need, not an overturn of katz but that's an analog decision. we need some sort of other rubric. >> can i just add this too, gorsuch's dissent, it was mind boggling at points because essentially what you saw, first of all, you have thomas, alito and there seemed to have been, i saw this on my timeline on twitter earlier today and i thought, this is a concept this notion that if in fact gorsuch is occupying a so-called stolen seat, he's joyriding in this dissent when he essentially sort of threw -- brings up some great points act the sort of catch as catch can jurisprudence of the fourth amendment but at the same time leaves us with nothing.

he seems to be saying, i've got some superior interpretation they have fourth amendment but you can't have it. and i will keep it to myself unless i decide at some magical moment to make it known to you. and i'm worried that magical, mystical moment will come with this next justice. because another sentiment on the timeline, justice roberts is the swing vote. >> let me just make sure we get to questions. let's do that. identify yourself, if anyone has a question you want to ask. we'll start with any member of the press who are here. we have microphones. i'll mention, as we're getting to someone, something that may be on the chopping block, the exclusionary rule. justice kennedy was the fifth vote for preserving the exclusionary rule so it may be thrown out. >> my name is ed, i was for 20 years a a union president in the

federal sector which could arguably be the model for janus for union shop. in the federal sector most recrenly this is the third real law and you could argue that what trump did with three execive -- executive orders was -- >> can you focus on the question. >> yes, i'm sorry. we were given official time and that's all gone. arguably a result of the travel ban decision is that the court challenges will be dismissed because of the executive order in deference to the executive. wanted your comments on that. tom: comments on? >> the three executive orders that destroyed federal unionism potential s to the challenges will be, which are now in court will be arguably dismissed, a result of the deference in the travel ban.

tom: ben, do you have a sense of kind of where litigation goes from here? >> i mean it sounds like the question is about deference to the executive under the travel ban case is that? if i understand it? does that affect the labor law? >> in terms of, for example, public sector unions, and their abilities to survive, do you think that there's going to be a wider range of challenges beyond the abude question to just the notion of collective action. >> yes. i think that we're going to see a challenge to, and we're seing a challenge to the principle of exclusive representation under the constitution. and i think that is likely the next step in the attack on public sector. >> and do you think that there will be a carryover, from the travel ban context where they simply say, you know, the executive branch gets enormous deference. do you think that that, which is articulated in the national

security sphere, will play out across other areas of the law. so they would defer to executive orders with respect to organizing? >> potentially, i'm not sure hey're going to need it. >> victor from the local aclu. after janus, do you think a union now has a first amendment right to say we're not going to represent nonunion members in rievances and arbitration? >> something he said prompted the same thought in me. if everything a public sector union does is political speech, that would seem to imply a more robust set of protections for public sector unions. you know what comes up more directly in the opinion is the idea of more robust protection for individual public sector employees or in justice kagan's

articulation, what if a nonunion group of public sector employees engages in a protest activity to raise their wages? that ought to be protected now by the constitution. the truth is, of course, we -- in multiple areas of law we have a union-specific set of doctrines and that -- the rule is that the union loses. and that will be the case. so in theory, should public sector unions now have more constitutional protections? yes. will they in fact have them? no. tom: let me make sure we do take one bigger step back with respect to the impending confirmation fight in the last few minutes we have. i'll ask a like thing round set of questions. do any of the panelists believe that there is a realistic prospect that a nominee who is not, assume nothing crazy is discovered about the nominee

beyond ideology, any kind of personal craziness is discovered, does anyone see a path by which democrats in the senate or otherwise politically have any chance of blocking the nominee? >> it's a very long shot. atrote about this last night slate, that all the effort is going to have to be on collins and mruczkowski and all about the question of abortion and women's rights and to try to peel off a justice or two. but that -- a senator or two. but that of course depends on democratic senators like nnelly and manchin and mccaskill not folding. democratic snars running for re-election in trump states. >> doesn't it also depend on the administration tripping up and nominating someone who has said something about abortion? >> right, i mean -- > isn't the other view that --

bill require who called roe an abomination. assuming they don't do that, the strategy is get a republican senator to say a republican president can appoint anybody to the supreme court? >> the question is how opaque the abortion issue or other issues might be to people. i said in order to tough to have massive street protests and i think it's going o come and come after after we start getting some of these opinions that do the things that everyone decides on the panel is afraid of it. >> what about timing? does anyone believe that the hearings would go past the mid-term elections or motivating tool? by the fall, will we have somebody on the supreme court? >> there will be a justice by

the next start of the term. >> i assumed alcohol would be involved. no matter who it is and will be on the court by the time the next term starts in october, at which point all of these new challenges begins. the last question i have how aggressive do you think the court's conservatives will be, business groups will be, libertarian groups will be now starting to push a new generation cases of court. attacks on affirmative action, you feel these new issues strapping rockets to them or is there still a delay. >> it seemed as if the chief justice was courting a tax challenge in the 4th amendment.

we are not asking to overturn it today and there seemed to be some sort of courting. i imagine that is coming. >> i think it's yesterday. the challenges are already there and we all know this day was going to come and timing more favorable audience. we see, for example [indiscernible] turned photo they were away and devastating harm. our opposition has filed vendors t simply to advertise -- [indiscernible] >> clearly this issue up.

they can't control and happen into a shop. same thing when it comes to gender. students are getting courts why it's ok and our opposition has filed cases saying wait a minute. my school is violating my constitutional rights by allowing transgender students. those cases are filed across the country. we are seeing a real permanent push to look for these challenges. and unquestionable and have the number of vehicles ready. >> two quick things. that is formerly true. great reporting on the funding of these cases and the legal

representation is consolidated and numerous cases all around the country just waiting to come up on this. i want to highlight something rick said. it would be terrible thinking this was over and done. mobilization changes political facts. and it's on all of us to hit the streets, as it were, and put pressure on the senate to do the right thing here and not to assume we can decide today that it's over. [applause] >> it depends. if it is another gorsuch, i think we're fine. even more than scalia, gorsuch is a big friend of constitutional protections for criminal defense. look at his opinions. he was the only conservative joining the liberals in striking

down a big catch-all provision. he is of that mold. but not everyone on the left is. so on trump's list, there are and like gorsuch and scalia very civil-liberty-oriented and there are some more law and order in deference to law enforcement. that is a difference that plays out. until we know who the nominee is, we can't say how the criminal procedure wins. >> and the president has said openly, after he appoints roe v. wade will be overturned. one take-away from the muslim ban, the president says what he is going to do. he promised a complete shutdown of muslims entering the united states. we would be foolish to wait for a particular name. we know what the president's intent is and we can stop it

now. >> waiting to see what the next justice is like. the question is how john roberts wants to move. spent the last 11 years asking what he had breakfast and now asking roberts had breakfast. >> join me in thanking the panelists. thank you all. [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 >> here's a look at our prime time schedule on the c-span networks, starting at 8:00 p.m. eastern --

>> former first lady talks about her memoir. she is joined in conversation by at the an of congress annual conference. >> people think i'm a union unicorn. and i know there are so many people in this country who feel they don't exist because their

stories aren't told or think their stories aren't worthy of being told. in this country, we have thought there is a handful legitimate stories that make you a true american. and so if you don't fall into at narrow sort of line, it's like, you don't belong. but we all belong. and i think my book is just -- it's the ordinaryness of a very extraordinary story. >> watch at 7:45 on c-span's book tv. syndicated columnist talks about er book. >> we send such confusing messages to young people and young women -- i don't envy

them. so this was a story that i put in the book about a number of women athletes who have posed opless or semi-topless for "sports illustrated" and one said i'm proud of my body and i want to help young women who have body image issues. and my thought is that is a crock. women should be dignified. they should remember when you disrobe it's hard for people to take you seriously. a man looking at a picture of a topless woman is not going to say, oh, look at that fantastic athlete and she doesn't have any problems with body image. no. he is going to think about sex and not think about her in a respectful way either. angela merkel would not take off

her blouse to prove she doesn't have body images. she wants to be respected. if women want to be respected they have to behave in a way that will elicit that. q sunday night on c-span's and a. >> there was a discussion on mandatory fees following supreme court's 5-4 court decision that states cannot require government workers to pay union fees saying it violates the first amendment. we heard comments from senator schumer and house minority leader nancy pelosi during this 45-minute briefing.