2016 election. be sure to watch c-span's washington journal, live it and :00 eastern friday morning. join the discussion. coming up friday on the c-span 12:30, on c-span at journalists review the supreme court term. 3:30, chief justice john roberts will speak at the judicial conference at the fourth circuit. at nine :00 a.m., a discussion about recently imposed steel and aluminum tariffs and at noon, a discussion about legal challenges facing immigrants. >> next, a review of the supreme court's latest term and the retirement of justice anthony kennedy. the president's future nominee and how it might affect the balance of the bench. the american by constitution society. it is about an hour and 40 minutes.

[inaudible conversations] good afternoon. in a short 24 hours a lot has changed this is not the context of which i have hoped to greet you but yet here we are together after a very long week and the beginning of a very tough fight. for those of you who don't know me i am the president of the american constitution society and i would like to welcome you to our annual supreme court review. i do think that you know that just in case we are a national network of lawyers and law students, judges and policymakers who believe the law should be to improve people's lives.

something we have to keep repeating. after a rather slow start and a late sprint we finally got to the end of this year's term. some of us may say it was a rather terrible ruling on muslim man and reproductive health and part of the gerrymandering or religious exemptions now we are at a pivotal moment for our country and moment amply looking back at this term of what is to occur on -- to come. to acknowledge already conservative with rulings to undermine the right to vote and to be free from discrimination. how will another pick development the law especially

with the litmus test to overturn long-held rulings like roe v wade? so now we can all be clear on what is the potential impact on our legal system. many believe the supreme court is the last hope for those seeking justice against powerful special interest and indeed president chuck promised voters he would stand up for the forgotten in our country. will his nominee do the same? but his past is prologue we must look back to see and understand what might be coming before us. so with that in mind, we will lead us through the review today with a distinguished panel we are so glad to have when our nation's most experienced practitioners.

tom is no stranger to this crowd serving as counsel to the petitioner and roughly 10% of all courts merit cases for the past 15 years more than 100 total and personally arguing 41. that is an outrageous number but in addition tom has taught supreme court litigation at harvard law school since 2004 previously taught at stanford for nearly a decade also the cofounder of the only weblog ever to receive the peabody award and has been named by one of the most 40 influential lawyers of the decade. now we have an expert and wonderful colleague with this discussion so please join me

to welcome tom goldstein. [applause] >> thank you on behalf of my colleagues and the panel so as the term wraps up, we actually know almost everyone here is looking to hear one thing that this is a simulation into the real world. [laughter] so that the sixth port appointee will be as follows but in terms of what will be talked about to reorient a little bit with major developments over the past term and talk about the implications of the kennedy environment for each of those

areas of the law and in addition to allocate more time for questions so we can cover those issues so we will start off with the major cases of the term and the travel ban three-point oh and the director for the center of immigrants at the law school. >> thank you for the introduction i am is in state college at penn state university park a double milk into the alarm and i am deeply honored to and quite frankly because of the immigration statute. i am here to talk about the

travel plan and hopefully will and with some good news. so on june 26 the supreme court had the opinion that chief justice roberts wrote with the proclamation that was upheld as the law of the land i did beget here? why less than linear litigation and then were appealed and then to make that decision and then to issue the order in the entirety of the travel ban 3.0 and tell a decision is made in the high court we already know how that

plays out on the grounds affect families and communities each and every day. and those of the executive order as a proclamation. that immigration was passed by congress in 1952 it was second in complication there are two factions in the statute that are relevant against a wider first in 1182f to offer 2f to offer eyes the president of any alien or passive alien that the entry would be detrimental to the united states the second statutory section is 1152 a created by

congress in 1865 the same year that the quotas were dismantled. there shall be no preference based on rights -- race or someone based on the immigrant visa. and with those statutory argument, first the suspension clause is super broad for the president's authority anything with a proclamation just looking at 1182f it is perfectly fine for the president with the immigration statute so the counterargument from my view is he thought with his authority under 1182 as they were far more catered

it does supplant the ina with the labyrinth of the immigration statute have a network for the counselor officers every single day so those individuals decide is this person admissible? so to exclude nationals from all countries based solely over the air from to me is supplanting the ina. the other thing that justice roberts found is that the proclamation is not hampered by the nondiscrimination clause of t3 i was actually struck by how little time and attention this analysis in the

opinion because to me it is strong and important analysis. first looking at the legislative history behind getting rid of national origin quotas so we have to look at the statute as a whole to have some type of principal idea to look at one section to harmonize with another. in between 1182f and the proclamation as well as 1152 a. that there that there is no conflict and here is why. with that nondiscrimination clause it is very different whether someone can suspend entry so that is the analysis of the majority court but my own opinion that the

distinction was no different in fact administration actually said anybody covered by the proclamation we will use the visa that is what is happening anybody is excluded from the country they are denied the vis visa. so i was heartbroken with the statutory analysis and the way that it came through quite frankly the way those amendments were rejected. there was analysis around the constitutional argument that even on those grounds could prevail. and with those novel principles with the case of the rational basis to find it had a legitimate national charity contact and it was to show that to dan and chad were taken off the list but then

with the proclamation there are waivers embedded and this was example justice roberts use. he was willing to admit the evidence also known as the president statement has a proclamation plus the authority to bring that to a conclusion. there were two concurrent thoughts that i believe in deference so justice thomas also issued concurring and by way we don't even need 1182 after is the inherent authority the president has two issued a proclamation like the one before us. justice breyer focused on the

waivers and was pretty thoughtful in how he carried out his argument and said if these assumptions and waivers are working then this could be a lawful proclamation but on the other hand if there is evidence that the exemption and the waivers are not working the matters when it sounds like a muslim band. so now as well as the example during oral arguments. so the one who had terrible policy and was denied the what i'm talking about when i talk about waivers is that if you are covered by the ban or not exempting me demonstrate your ability for the waiver to still be admitted on the visa

if you are denied entry and that there is no national security. that is the criteria. i have to say that those will will be with the immigration statute more of what we would look like statutorily to create a new standard that applies to people that are covered. and with the media airtime and as a violation of the establishment clause she gave a lot more airtime to the speakers to the speakers and was a little critical leading

up to one bad decision with another and in this case it was hawaii. what do we do now? the only thing as practitioners is to have a meaningful waiver program to ensure that it is actually working in that we have accurate information about what is contained in the proclamation so the next order of business will be community forums and information sessions and this ban is personal this is something i have been working on since january 27, 2017 when we got the very first band this is exhausting but it is a very long road and the supreme court failed us that now this road is even longer than we imagined.

so i'm usually a very optimistic person but i want to share what other cases got very little attention but actually there was a positive case in the immigration space i do love that statute so i can talk about that again but it was a decision issued eight/one majority. and the premise of that case if there is a notice to appear that lacks a date or time is insufficient for me for purposes of cancellation form in full? that is a lot of terminology. notice to appear. this is a document that immigration uses to put somebody into the system.

and with that notice to appear one-sided expires immigration court full or the proceedings are triggered but the notice to appear is not a document but it is very important to include information like you are from not from this country injured at this date and time you are deported for the following reasons come to the immigration court at 8:30 a.m. my 20th. so what happens when the notice to appear lacks a time? the justice wrote the majority opinion inside a notice to appear that lack the time or date is not a notice to appear so really it does put the agency on notice to stop issuing these notices to appear.

it made it so obvious to any of us that think about the basic procedural due process that here there is an awakening in the immigration state because they have been doing this for many years now it is getting the limelight and attention that it deserves so why does it matter to the immigrant? cancellation of removal is one way but if you have acquired the criteria then you have the protection called cancellation if you are certain notice to appear based on your physical residence then stop that is to say that that notice to appear does not count my time is up i am not a justice kennedy expert but he actually criticize the court for being reflexive on the chevron

deference so really a tale of two concurrences if you look at those cases one is the im not appear deference matters and be nice and the otherwise you really need to pay attention to our intentionality and our process as it were with the chevron analysis and truly finally because another area of research is around the role of discretion of immigration we a lot of credit and leadership to justice kennedy of his own opinion arizona versus united states because as an initial matter the federal agency has to make a decision whether to pursue removal at all. in those acts of prosecutorial discretion that will now be reinforced. thank you for your time and

look forward to your questions. [applause] >> before we move on i would love to get your reaction to the question what does a tweet by the president actually mean in terms of executive action? can he say whatever he wants in the white house counsel office and they can lawyer up and write something? is that the courts decision we never pay attention to that? or in the context of national security what is the relationship between messiah president says and what administration does looking at motivation or religious animus ? >> i agree with the ruling but disagree with the troubled man simply because it is different from carrera or other cases

with deference over national security versus domestic affairs but to your question tom, roberts and his majority opinion went through the case and said it is not good but in the day because there are other reasons and countries only had 8% of the muslim population with the waiver program and the rest that is only 3.0 so nothing is properly lawyered up but given the strong deference use that as a national basis which in national security security space with another discussion. it isn't complete deference but it is a smell test and when they lineup with

something when the president isn't so biased. >> this is 3.0 not the first version. >> that they are all the same thing. if i get ios for my iphone 3.0 it is still for the phone so at what point do you think kindly of what it says? that we fundamentally believe something else is going on? >> with a country that obama identified as national security risks with the supreme court through the process there were exemptions for those with familial ties or green cards it with that political discourse was with the interagency process with

the proclamation until the administration with a course of litigation we could have more justice kagan type of opinions. >> what are the chances they should be rejected on the statute? and with respect where i had what reach my ten minutes it is problematic with those waivers with the framework for the immigration law and to those waivers in the oral argument as well as in his

defense very little evidence to show it is actually working so the counselor officer by justice breyer called the process window dressing and actually don't have discretion and to that extent by the majority with the proclamation it is not alone. >> he also had an opportunity in the form of another case, to to scrutiny the court would give to allegations when it came to religion. some not be entirely dissimilar case and with the aclu focuses on lgbt. >> i'm glad you made that comparison that saves me 30 seconds out of my ten minutes.

because they take that in favor he of a bakery and with the wedding reception simply because they are same-sex couples but in the history of the civil rights commission handles that complaint so we could characterize that ruling but to have a very hopeful way how narrow that is but the court has concern but it also has as a general matter that you cannot violate that we know that and that is true in the context of antidiscrimination laws and that is true of antidiscrimination laws so at the end of the day every business in colorado doesn't

have to follow the norm so this really is a ticket for one complaint only so with that process is is where many commentators have drawn a comparison in that case because virtually the evidence the court relied on essentially said it is inexplicable the rhetoric has been used actually is a factually accurate statement to compare that to the holocaust but in fact in many ways it and pulled what's is applicable to use the space in this way so putting that, into perspective makes it even more

stark because with the muslim man we talk about the commission with that seven-member commission that was late in the process to have affected his decision with those complaints that were originally filed by our clients to have non- probable cause and was adjudicated it was the full seven-member commission in there in the context to treat everyone equally that the comment was made in the context where that had happened in public that somehow the bias and that we

have the transcript for something with the court has said that was said in a very dramatic way with that religious bias. so all of this means that ruling with that decision will reverberate on something that it does not say that the one third of the term this case was expected via blockbuster repeat decision and many thought that is how it was decided because they said essentially it is a wedding cake and it is artistic and we

all know that art is protected by the first amendment so free speech somehow justifies their decision to deny that couple violation of colorado's act so that is the claim the trenton administration played for us. with the amicus brief it isn't only the free speech questioner free exercise question but also the weakness that the administration saw in the free exercise claim and then to comply with the antidiscrimination law when they already rejected the request for exemption as well miss you are willing to say something different about sexual orientation but of course you know with jurisprudence kennedy was deeply disturbed as a second-class citizenship so the speech claim really doesn't engage at all but those two votes that i hopeful

our thinking is what i do agree with and one is simply that it is not protected by the first amendment and of course that is the fact that they walk into the store no discussion with kk what have wanted actually we actually have evidence that they could have wanted cupcakes. but if they say the commission required them to remedy the inscription on the cake maybe that would raise questions with the antidiscrimination act if they would pass the law to say all bakers now have to write this now it looks like a more targeted discussion and that are the guidelines that the court set out now it is highly because this is not

only the context are opposition seeks exemption under the laws that bakery represents in washington state for those with the woman that is transgender and then people from restrooms and locker rooms are to be excluded but this is about to delegate the lgbt to a second-rate status and that i think it is cited more going forward but looking at the lgbt docket, the court we demanded what was identical that there is no evidence at all by the state would have

remake of the colorado commissioner statement certainly it is something in the fact there was no state administrative process at all unless the court is something to say that somehow demonstrates hostilities in what you have is the argument to force the civil rights law because of their religious beliefs. and that is in a very direct way and i don't see a lot of appetite in the court to overrule that. justice kennedy has been a tremendous champion of equality lgbt but also the forefront of the trajectory to recognize the common community of what it means to be lgbt

and from that perspective it is devastating to lose him on the court but i do think his journey reflects the journey of our nation over the past couple years or decades to recognizing what that means to be gay and lesbian and transgender but in some sense in the very next term the next issue to reach the court will not be constitutional mark but the federal government as those laws that expressly prohibit discrimination based on sexual orientation but what we do have is based on sex so there is a growing consensus that discrimination against somebody because of the sexual orientation and or gender identity will come back with a title vii context also title ix with transgender from what the other students use.

those positions were already filed as a second circuit decision and with that 11th circuit case and those are free over the summer we are all expecting a petition with those funeral homes amy study stevens was fired for being transgender and she wanted then to combine these issues and said transgender people are like everyone are protected from sexual discrimination under title vii and it doesn't provide a defense and justice kennedy was situated from other justices and was the most

important precedent with a unanimous court with the opinion for scalia showing that title vii is all forms of sex discrimination whether or not that is what the legislature intended and that is one of the key decisions or gender identity going forward. there are certainly other justices in play with that growing consensus but that is evident tremendous. thank you. [applause] >> the discussion of transgender as a natural transition to the labor employment question so how focus on these sorts of issues do you want to talk about those coming out?

>> i am normally the optimistic person by nature or the way to dismantle the ability of working to demand and exercise rights you might have an ethics systems or tee10 and both of them were this term. ethics systems is about arbitration it where the employer can require employees to reside all claims against their employer one is through arbitration or to an individual. and what the court says has the secure statute meant to do with arbitration between two businesses, the court says

yes. employers can require employees a condition of employment to do that and to that effect but given the small dollar value, this means that workers have no way to for injection force so the specific legal issue an ethics system is the contract that requires individual arbitration is consistent with the nlrb with federal labor laws. while federal labor law says everybody has the right to engage in concerted activity for protection. that concerted activity includes traditional union organizing and collective bargaining but also other concerted acts for mutual aid and protection in the nlrb has long understood under these

concerted activities to include concerted legal action and those who that say you have to pursue every legal claim as an individual without asking the employee to leave the nlrb right when engaged in concerted activity and to say we don't enforce arbitration so the nlrb board has said this type of contract it used to be called the yellow dog contract that i agree as a condition of employment never to join the union but those are illegal in the right to engage in certain legal actions is the same as the right to join the these were not enforceable even under the terms of the federal arbitration act supreme court

rejected that and did so in a way that is exceedingly damaging. the holdings says that now not only can class-action waivers be enforced in the consumer context which we know from previous rulings but also be enforced in the employment context and we see that it explosion already. they were on the rise now they are excluded so the most workers i think will be subject to individual arbitration whenever they want to pursue any claim against their lawyer. that is horrific from the perspective of workers rights. the other thing that the systems does that is very damaging but portends with the

way the court reaches its holding is to say there is no national labor relations act problem in a mandatory arbitration agreement in the employment contract there is no problem because the act does not protect your right to engage in concerted activity. the national labour relations act is traditional union organizing and collective bargaining. why is that a problem? because a lot of workers today don't have the opportunity to engage in traditional organizing and collective bargaining. the hope for the labor movement's other activities in itself. online organizing, facebook, forms of collective activity and with the court is doing it

is laying the groundwork for a movement the direction to say the federal law protects traditional collective bargaining when you can't do anymore. what you are trying to do that is not protected okay. now on the last is a term we have the tee10 case everybody knows this case is about public sector require employees who are bound by collective bargaining to pay a fair share

for what they receive from the union? union as a matter of law must represent every worker equally in a bargaining unit whether or not that worker decides to become a member of the union. when the union negotiates pay increases or benefit increases or dismissal policies and with representation or arbitration representation the union has to provide those services to workers irrespective if the worker joins the union as a member unless there is some way to require them to pay for that they have what justice kagan calls a collective action problem of nightmarish proportions. imagine as the analogy the u.s. government decide that taxes are voluntary. now you know as a citizen that whether or not you pay a dollar in taxes you have the

same roads, same schools, same police and fire protection and a military and military and it is just up to you to pay or not, you know anyone in particular in this room would do but fewer people would pay this tax that is the situation that is now foisted onto the public sector unions by the supreme court. every public sector worker has the right to receive every ounce of union representation and to do that without paying a penny. that is very difficult to sustain. i think we are in for a period of severe challenge for public sector unions and therefore

public-sector employees. i haven't mentioned too much about the doctrine i am not sure this case is about doctrine to be perfectly honest with the tweets on janus the moment it was decided it will be tough on the democratic party's coffers and that is true public-sector unions are a way to aggregate their political voice and they have done so now they will have a much more difficult time to do that. i said i am optimistic that i am in out of time there is a villain congress to help deal with ethics systems it would make illegal the times class-action waivers to be damaging to the ability to assert their rights. what we do about janus?

the bad news about janus it is a first amendment holding nothing directly that congress or state government can do about the whole thing there are ways and i'll be happy to talk about this more but state can amend their labor laws to enable unions to find other ways to finance themselves. justice kennedy. he has not been as good a friend of workers in as the lgbt movement and community i don't think that means things won't get worse. [laughter] and just to take janus in the union context, there are more steps we should be concerned about that this is a compelled speech unconstitutional under the amendment and now cases are pending that challenge the very idea of exclusive representation as compelled

association under the first amendment so it is just a system of bargaining we have had 1975 51% of workers of workers have everybody covered by the contract. that is now susceptible to attack the first amendment. they make is that both public and private? great. another problem is that janus applies to the public sector because it is a constitutional holding. i think there will be an effort to extort janus to the private sector that will happen in congress that also in the court. you might think that's crazy

he have the requirement of the state action and there is no action when they decide to negotiate collective bargaining agreements but i am more worried about the prospect of erosion of the state action doctrine with the fifth justice replaced from kennedy. we may see a constitutional path to export both the agency and its use of our presentation and terribly devastating there are breadcrumbs in the janice opinion that you think of retroactivity that justice alito has a number of lines that he talks about billions of dollars of agency fees to

be extracted over the last couple of years but that was set up janus very skillfully sees that he harvested years later in what is happening with janus potentially is a signal that unions should be on the hook for fees paid and spend over the last handful of years. and mice and that these were moves could be more comfortable for justice kennedy van kennedy himself.

[applause] i thank you so as a senior fellow at the cato institute with the supreme court review, i feel whatever the opposite of the garden party if you like the cheshire cat had a week the only major case i disagree with was way fair with that physical property taxation case with the commerce clause i disagree with justice gorsuch but regardless on janus i think to understand this case we have to differentiate to understand between interest of workers and unions and the public versus private sector and i think we will agree that the differences the president but this was not bought by the chamber of commerce it was brought by a worker from four

years ago and teacher in the public sector. claiming two things. first, i don't like what this union is doing for me i am forced to pay forget the free ride for the merit pay rather than seniority protection. i don't want it and justice alito correctly pointed out we cannot even compel private sector organizations that unions are supposed to be not the government it is a legal fiction even california has that collusion very closely but we don't allow compulsion of people to do something they don't want other than taxes that is the government acting directly but moreover that broader problem in the public sector inherently everything

the union does collective bargaining is part of public policy not just electioneering but also state budget, education policy, transportation policy, everything they do in the public sector and that is why this is very different and in the interest of labor fees there are ways to achieve that and we have seen that for those that don't have those agency fee arrangements. to have them completely disappear but they are effective and responsive to work her concerns rather than be involved in issues that are unrelated to employer and employee relations so well that is absolutely true that is detrimental to union coffers and democratic party

coffers, that is not a legal interest looking at starry decisiveness but also this is just as important from the legal perspective just like john roberts concurrences with citizens united that is a key part of that decision. that is when i want to say about janus. >> now to take on an even greater role of stare decisis so what do you take away from janus to revisit the warren court era those decisions that is the bedrock of civil liberties x or things like

that? >> i think it is its own category talk about the precedent it really depends what is the quality of the wheezing with the narrative with the labor law and what it was developing. so those who have structured businesses and their lives around the rules that the court has established in the same way that judge rehnquist declined to overturn miranda so very much into not making waves unless absolutely necessary i would like the court to overturn more bad rulings i'm with thomas in that regard but i would not worry about the stupid people precedent that we could see reconsideration yes that was

overturned in way fair was a pretty big deal so setting aside the culture war and to mention the ncaa and about federalism and they were using the states and going back to the area of law the anti- commandeering doctrine says no you cannot do that. but then to say yes you can to avoid the constitutional problem but that is important because i'm sure folks in this room without federalism it is a healthy thing so the only way we can defuse tension is to push down decision-making

as much as possible and then to create a market . . . . >> waiver has opened up opportunities create states and i think we will see different experiments with different

states opening up. there will be litigation over what happened in place are out-of-state teams. for these type of things. it is not often that the court legalizes something that has been closed off. it is a bit in the true lavatories of democracy in this area. i hope that will flow over into drugs, immigration and drugs. >> thank you. [applause] >> kennedy, he is a justice i probably most agreed with but i was still infuriating in terms of how he got there. he was good on the first amendment and the biggest

offender of speech that probably we have ever had. it was a bit of a philosopher in the sense that he struggles with every case but it did not fit into that mode. i think that's problematic for the rule of law. you don't want everyone just putting their arguments into the dignity clause or whatever the latest writing that he may have done. you cannot even make blanket statements that he was great on constitutional structure for individual liberty. sure, he had that great concurrence on things like lopez and a bond about federalism but maybe because drug users should not be as respected as a

different community says you cannot regulate science that said property rights are not as important. for many things i like it and for the things it was frustrating. going forward i will adopt the line that jan crawford use that it was democrats biggest political blunder to use the filibuster against gorsuch because now they can't use it in a place that matters. now it's moving the courts more to the right. one thing we know is we are not going to get a crappy judge. i don't think were going to have judge judy or rudy giuliani. i think that lists would not

have been different if ted cruz is president or anyone else. i'll be looking for different things. i look at his list of 25. i am optimistic about that. it will be a different court not only in terms of what's right but the chief justice been the median justice. >> i didn't really have the understanding that we had about the filibuster. do you want to take us into another area that we had found that justice kennedy is deemed to very important. one of the nation's leading experts on voting and campaign finance. >> that's the problem to be much more pessimistic over the love's firm. what i would say until yesterday's set there are three significant cases of the term

but i now think we have other victories looking at it in hindsight. the most important by far was the whisper which was the partisan gerrymandering case out of wisconsin. it was the second case granted, benefit which was a case out of maryland which involves the democrat gerrymandering. but the main action and the question was whether or not there is areas about -- at this says that gerrymandering has become so effective now that legislators choose their voters instead of the other way around. the supreme court addressed this issue in the most significant way and they are the court

divided for one fourth. therefore justices led by justice khalifa said it was none of their business. and then there were four liberal justices who said there were standards i think another way of doing beauty pageants in the middle was justice kennedy. he is trying people and try the first amendment, try looking at history, try looking at computers. for the last 14 years there've been cases where they been trying to please justice kennedy. here there was a new standard for measuring the amount of asymmetry and partisanship, what was added by taking the maryland cases that it raised justice kennedy's favorite theory. that may be rather then taking the protecting cases there are better thought of as first

amendment cases were some is being penalized based on who they are and what they believe like where janitors fired for -- is so everything there was this huge punch where the court came up with an opinion by chief justice robert that decided in strange ways of stating grounds that rather than addressing the entire state they have to go district by district. it was odd and what was even hotter was that chief justice roberts and paid no attention to what is going on in justin kagan's concurrence was basically the roadmap is said here's how you bring the the claim. justice kennedy was silent. looking back now, and in light

of what justice kennedy said about the travel ban case which was that everyone can a public constitution he was not willing to take a side. he left the stage without making his determination. this means the next justice to come in is likely to be in the scalia road. and likely roberts which these cases will be -- that means the next case coming up with a course the pontiff to the punt the court will take that for next term and take it, that's where north carolina 5050 state after the lines worse found to be a racial gerrymander in a 5050 state they made ten of 13 districts majority republicans.

when asked why they said because they couldn't pay -- this is what is coming. that is one of the cases. that's not even the law. the lawsuits came in one case out of ohio involving voter purchase. the case out of testatrix called paris versus abbott. both cases featured a 5 - 4 republican appointed. if they both featured a nasty back and forth between justices alito and soto moyer. they're now taken the lead. both of these cases are cases where you see the conservative majority pulling back on voting rights. their technical but the message seems to be, give states their

breathing room to pass laws that might make it harder to register and vote. the texas redistricting case half were spent on deciding if there was something with the court. it was obviously julie. the court essentially shut down the path but five years ago they came out promise that there are bad actors know bad actors would be put back under federal supervision for ten years. first potential racial discrimination in voting. what the opinion did was to say, no there's not enough proof in a way that's going to make it difficult to prove in any case.

this is what were looking at. after kennedy, the first three worst opinions were written by justice kennedy. shelby county, citizens united and bush versus gore. i'm lamenting the day that justice kennedy retires. partisan gerrymandering will be non- judicial. avoiding at voting rights law could be overturned there's going to be the court stepping away from trying to police voter id laws and i think they will be more likely to go in the scalia

path to say if they do not bird most people does it matter that they burden some people. i think we will see contribution limitations and campaign finance ducked down. the other part of the mcconnell case and the other part will fall it is pretty clear that we now have a course divided, course divided and it will be much more common to talk about what the republican justices did and this is going to further undermine people's faith in the process especially when opinions will come out written by justices that are going to favor the republican party when it comes to issues about voting and democracy. >> let me ask about the contributions question.

in the context of janice and the law that they could have partisan political implications i wonder what makes you think this bright line with expenditures going out buying an ad which are significant contributing to candidates. the supreme court will say they have a constitutional right to give an unlimited amount for office? >> that is most likely place to go. just like we heard about seeds being planted i think they had been planted in the case that's coming up with the ninth circuit. it's the montana contribution limits. there's a very strong denial by

the judge very well restricted judge. the judge basically said the ninth circuit is applying the wrong standard. you need to come up with a list of corruption. that would be a way to basically strike down contribution limits without striking them all down. again, death by thousand cut seems to be the favorite motor proceeding. >> thank you. [applause] we save the good news for last. we have an expert in all of these to come along.

one involves the fourth amendment. >> thank you for coming. the carpenter cases commonly known as the cell power case. we are in this post jones riley era of this meta- data being collected by some of the third parties. the introduction of this error of law seems to be the chance case. although, we have the seeds planted and teeing up for others to come. i remember seeing something like this. i'm going to do what we all do. scalia basically he chastises

colleagues for not taking on the technology of the day or deciding each case that there thinking about the broad general constitution going forward. parents funny where the court decided to take on this post case. not even five minutes into the oral argument, what does scalia do he said, i think they it was wrongly decided.

but it's okay, were not can overrule today. however that struck me particularly because it seemed to be out of nowhere discuss. >> do a talk about the whole thing you're talking about. >> so the understanding that we operate under with the fourth amendment this currents concept of what this protects and actually i was alarmed by the dissent and even a little bit of roberts writing in the majority. this notion is based on the fourth amendment concept from unreasonable government and chooses search and seizure. what cat did was was

inappropriately expanded name added attacks that basically came from the concurrent theme of justice harlan we have a two prong assessment the first prong -- the second thing is is it reasonable. the question of this expectation of privacy it seems like some of these and some of the justices critical attack have part lobes with this concept of reason expectation of privacy is not tied to, my understanding of property law property right. to the extent that scalia was in

trouble, he said i am troubled by it and it was wrongly decided but we are not going to overturn it today. he said that at the outset of the oral argument. so in carpenter we get jones and gives us his understanding of who we are now in this modern digital age. in this is not the language they're using but they're essentially saying you to have a reasonable expectation of privacy the entirety of one's movement. in the entirety of the words physical location. government is in fact trying to get information about your location particularly in the case of jones and 28 days of data bandsaw.

it's just acting under the fourth amendment and this is the fourth amendment implicating activity and to the extent the government needs a warrant the government needs a warrant. i hesitate to say there is not one particular understanding. a majority that agreed there was a fourth amendment interested in this whole movement. they all came down on different spaces and places under the fourth amendment. you see this rearing its head. some justices believe that by virtue of looking at the vehicle on jones there is a trespass committed. under traditional common law property notion was sufficiently problematic for the government.

they trespass information. others went along with the other notion. the discussion of the literature guidon law and at conferences about the concept of do you have a reasonable expectation of privacy when movements. is it reasonable given that were given the information to the cell phone providers and internet providers? this brings us to the carpenter decision. it basically leaves us at this intersection of this notion of having some notification of privacy in one's movement, but also looks at the concept of disclosing one's information to some third party. that would be the provider. there is a dr. and as you know

that basically says that you disclose information to certain party, you don't have a fourth amendment interest in it. there is a long buyback unit to the extent that one speaks to claim some interest in. you do not have a fourth amendment interest in the business records of the self provider. this was almost a set up so i keep trying to the case involved the fbi requesting requesting information. and for carpenter cell

providers. and this was done because they had consisting in co-conspirator carpenters. they were investigating a string of robberies against michigan and ohio. do you remember this place, radioshack and t-mobile four. so this spirit or implicated carpenter and gave up carpenter's phone number and then the fbi went to the cell providers to get the data from the cell tower to to look at the opportunity to commit the robberies.

i think there are seven other co-conspirators who pointed the finger saying he was the mastermind. this is not done by a warm, it was done by a court order. they have different antecedent justifications i won't waste time on this now that they look to suppress the data child's were denied he was convicted since over a hundred years there is mandatory minutes involved in that. on the appeal circuit they said you don't have the interest in this information. they turned it over voluntarily. at the supreme court it's interesting what happened.

the court seems to be fascinated in some respects. the court says this is such a new phenomenon and we're so dependent on her cell phones. justice soto moyer is doing this for many decisions now. when trying to fit this new technology and new phenomenon into this. there been saying for a long time that we need the phone. we are attacking them and in fact the court has like in the cell phone to an appendage. i don't know the last time a friend a supreme court that they've even looked at how an appendage was. he she meant -- they know of

young people who take their phones to bed with them. this notion of, we cannot get away from these wonderful bits of technology. by the way, they are communicating with the third party. sell power constantly without engaging. i think that was instrumental. at least for some of the rationale in the distinguishing the data and technology from this dinosaur round. i say that because what the court said was you did turn over the information but there is no ability to do anything other than submit to a few will to the board. because why give their

volunteering then though lead to stay another day. there is some voluntary disclosure of information the court says to connect and receive calls. the data will be collected without our engaging the phone. this is for purposes of the cell provider and business records to see when they can charge you more. the court is saying we cannot help and we cannot help ourselves. and because this is where we are now as opposed to where we are then, they're saying this phenomena needs to be treated in

a specific way. it says a lot and the decisions but it speaks to the ability of the government to get to the information without probable cause. it almost seems like pedestrian holding given what the court is saying in their decision. that warrant could have in fact the government contacts. so that is the one category. . .

>> but to understand how they had characterized some of those decisions before the announcement to say i am not here i don't care and i think he dissented to focus primarily in that you were turning us over if you and that over we have something for that so the newness or

dependency or pervasiveness when the court start to say there are more accounts than people in the united states the understanding that kennedy readings i agree but in the context of the fourth amendment particularly that you would expect kennedy to be a little bit more forward thinking. and actually he was a bit retro and .1 -- prove that with his decision to after the announcement to understand what might have been gone - thank you very much.

[applause] now with robert's opinion and now with t5 dissent for how you can drive one -- attract one of the conservatives to combine t5 with the writing from justice or i hope that is because to overturn that path that is the analog decision we need another ruling. >> and with justice gorsuch dissent and with converse and then justice alito and i thought that the notion that if justice gorsuch is occupying a stolen seed and is joyriding in his dissent there

were some great points of the jurisprudence of the fourth amendment but at the same time he leaves us with nothing and seems to say i have superior interpretation of the fourth amendment but you cannot have and i will keep it to myself to make it known to you and i am worried that moment will come. because another sentiment on the timeline so now please identify yourself if you have questions and we have microphones. and with the exclusionary rule that justice kennedy was that this boat and now the turnout.

>> for 20 years i was a union president which could arguably be the model on janus but in the private sector most recently with real law you could argue what trump did with the three executive orders would destroy. >> please focus on the question. >> we were given the official time that is gone and with the result of the travel ban decision the court challenges will be dismissed because of the executive order and the difference i want your comments on that i'm sorry on what? >> the three executive orders that basically destroy federal unions as the rights with the

potential challenge which are now enforced to be dismissed as a result of the difference of the travel ban. >> so where litigation goes from here? >> it sounds like your question is really deference to the travel and paste instead of labor law? >> but where do you see for example public-sector unions and the ability to survive? is that a wider range of challenges for collective action? >> yes. we see a challenge to the principle of exclusive representation under the constitution and likely is the next step on the attack. >> will there be a carryover

from the travel ban context to see the executive branch gets enormous deference? is that in the national securities fee or will play out other areas of the law to defer to executive orders in respect to organizing? >> potentially i'm not sure they will need that. >> also from the local aclu but after t10 do you think the union now has a first amendment right to say we will not refuse -- represent nonunion members? now that prompted the same thought which is part of the holding if everything a public sector union does is political speech, that would seem to imply a robust set of

protections for public-sector unions so what comes up more directly in the opinion is the idea more robust protection for individual public-sector employees or with the version of justin montes justice kagan what about those engaging in protest activity to raise wages now that should be protected by the constitution. the truth is of course in multiple areas of law we have a union specific set of doctrine and that rule is the union and that will be the case. so in theory should public-sector unions now have more constitutional value? yes but they will not use them. >> so now with the step back to the impending confirmation

fight asking a lightning round set of questions does any panelists believe there is a real cause and effect that a nominee, assume nothing crazy with any personal craziness is discovered? see a path by which democrats in the senate have any chance to block the nominee? >> it is a very long shot. i wrote about this last night that all the effort has to be on murkowski on the question of abortion and women's rights to try to peel off the justice or two but that of course depends on democratic senators like mansion or donnelly or mccaskill democratic senators

running for reelection. >> it also depends on the administration tripping up to nominate someone who has said something about abortion? >> is and that the other view? >> yes it has been called an abomination but they don't do that then to say that a republican president can appoint anybody to the supreme court? >> so the abortion issue but others might be to put pressure on my colleagues you have to have massive street protest i think that will come but i think it will be after we start getting some of these opinions that everybody is afraid of. >> what about timing? does anybody believe the hearings would go past the midterm elections is that a

motivating tool? that we will have somebody on the supreme court? >> i bet jonah goldberg a bottle of liquor there will be a justice by the start of the next term. [laughter] >> a will be on the court by the time the next term starts in october at which point all the new challenges begin. the last question i have is how aggressive will the courts conservatives be or business groups libertarian organization organizations, cato institute as an example to push a new generation of cases to the court and to adopt restrictions on abortion so do you feel with that inevitability with these new issues strapping rockets to them? or what the new justice will

do? >> and that the chief justice was courting that challenge in the fourth amendment context. >> we are not asking to overturn that today in this case or throughout the opinion but i imagine that is coming. >> i think with lgbt that challenge is already there they have been planted around the country and percolating so there was some expectation of the finding that they thought at least with the lgbt for example as they walk into a shop to refer to the event planner with the cake and then to experience that to have real devastating harm and

those that have never been approach for those that are simply seeking the right to advertise and that is been in a number of jurisdictions so really that is a way to get to the court in a way they cannot control unless they happen into a shop but also with transgender and to understand why they are in the boys room also to say wait a minute. my school is violating my constitution rights to allow you in the same bathroom as everybody else so these are not coming up we are seeing a real push to these challenges and it is questionable because the goal is to have people ready for when the next justice is in for the next

term. >> so to bring about by a individual worker that is formally true but there has been a lot of great reporting on these cases and legal representation is consolidated and there are numerous cases all around the country waiting to come up on this. it would be terrible if we left the room but the mobilization changes political fact on all of us hit the streets and to put pressure on the senate to do the right thing and not to assume that it is over. [applause] >> with criminal procedure really depends with tee5 i think we are fine because that is the brand constitutional

protection but why do battle in you and he was the only conservative joining the liberals and strike down that vague catchall provision? but not everybody on the list is. so there are some with respect to criminal procedures very much a civil liberty oriented and then some who are more law and order with law enforcement so that definitely is a difference in until we know the nominee we cannot know for sure. >> that with roe v wade we don't have to wait and see the nominee the president has said after he appoints justices it will be overturned and it will happen automatically. the one take away is that the president does what he says he will do. he promised to shut down

muslims and that is what he did. we'll be foolish to wait to hear a name we know his intent with respect to row v wait -- roe v wade. >> and then with the nest on -- the next justice but how john roberts wants to move? asking what kennedy had for breakfast now is what roberts had for breakfast now it is an entirely different menu. >> we are out of time. thank you. [applause] >> friday on this is a network, we review the c-span term. -- supreme court term. c-span2, at 9:00 a.m., a

discussion about steel and aluminum tariffs. at noon, a discussion about the legal challenges facing immigrants. with usn journal, live issues that impact you. discuss the high court's ruling this week. malcolm talks about his new book that examines the tactics and rationale a kind russia's -- kind of russia's interference in the 2016 election. watch washington journal live on c-span. join the discussion. deputy attorney general rudd wasn't time and effort the i director christopher wray -- fbi director christopher wray, focused on the 2016 clinton enough investigation.

the committee voted to waive the seven-day notice rule, which required seven days notice of the hearing to be sent to all members of the committee. the chair of the committee and ranking member gave their opening statements. the committee recessed for votes on the floor. this portion is 30 minutes.