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>> this is not the context that to bring to you. for those that don't know me, frederickson. i think all of you know, but acs aepeat it that lawyers,network of students, and policymakers who believe they can improve people lives. ater a slow start, we had turn. some might say they save the for last.

after the claims of jerrymandering and anti- laws.mination the bomb went off. we're a pivotal moment in our country. a moment we would be looking term, we can't come to question. court is already historically conservative with ruling that have undermined the to vote, undermined unions , and free of discrimination. how will another pick affect the development of the law advances the he litmus test that embraces over turning things like roe versus wade. many of us believe that our supreme court is the last justice for us. indeed president trump promised

voters. we must look back to see what is coming before us. mind, we'll take up the review to the questions. today, us to the review we are so glad to have tom goldstein. the nation's most experienced supreme court, he's no stranger to the crowd. he's served as counsel in rough of all of the court 's merit cases for the past years. in total,100 personally arguing 41. outrageous number, tom

since 2004 and previously taught sanford.subject at he's the co-founder and publisher of the only web blog peabody award. a name named as 41 of the most prudential people of the decade. welcoming tom in goldstein. thomas: thank you. thank you.

as the term wraps up, we'll cover both of the major term,pments of the past of course, and also to talk about the impliation indications of the kennedy retirement and of a new justice for each of the areas of the law that we're going to talk about. decided to, we've allocate more time for questions so we can cover a lot of the issues outside of the context of any individual case. and so we're going to start off everyone agreink ed with was maybe the major case of the term. the travel ban 3.0. about that is us shoba w argues dhia who is the at pennsylvania state university law school. shoba: thank you for the brief

introduction. any penn state alums in the room a double welcome to you. i'm deeply honored to be here. aneally come to the table as immigration lawyer and professor i alsote frankly because love the immigration statute. as a panelist to talk about the travel ban, and i'll hopefully end with some good new s and a good case. the supreme court entered a 5-4 decision. it.f justice robert wrote to were two concurrences, two dissents. reverses and remanded the travel as the law ofheld the land. how did we get here? there's less than linear in history that began in the hawaii and maryland court appeals to the appellate court and even before the appellate court made a decision,

the u.s. supreme court on 2017 strangely issu ed an order that reinstated entirety of travel ban 3.0 until and unless a different decision is made by the high court. we already know is playingvel ban out on the ground and devastat ing families and communities each and every day.g out this is a travel ban. the second one was the last one ordered adds a proclamation. a little bit of background on the statute. by immigration act passed 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 arguments in trump v hawaii. 1182f.st section is

it authorized the president to suspend the entry against any if such class of aliens entry would be debtment detrimental to the united states this is a non-discrimination clause. it was created by congress in 19 65. the same year that national origin quotas were dismanned mantled. that says there should be no onference or priority based race and place of birth and so immigrantissuance of visas end quote. on the statutory arguments, roberts found the follow ing. 1182f the dissension clause is broad and the president is well issues theauthor in prom limation just looking at the text of 1182f. thing he found is that

it is perfectly fine for the to supplement the immigration statute. proclamation doesn't supplant it. the counterargument, which is my view, is that the president far exceeded his author under 1182f. if you look at previous uses, were far more catered. it does deplant the ina. you look at the labyrinth of the immigration statues, we have of inadd mississippi ability grounds. they look at it every single day are individually vet ting the individuals and deciding should someone be issu ed a visa? is this person admissible? to exclude nationals from whole countries based on where they are prom, that's 22 plant

ing the i.n.a. the second thing that justice roberts found is that the proclamation is not cabined by the non-discrimination clause at 1182a. little time by how and attention this analysis was given in the opinion itself. very strong and important analysis. first looking at the legislative getting rid of national origin quotas and look explicit statute; right? right we have to look at the statue as a whole. have to have some type of atnciple when we're looking one section and seeking to harmonize it with another. true clashe was a between 1182f and the proclamation as well as 1152a. here justice roberts said there's no con nicks. here's why.

pertains to the issuance of visas. analysis of the majority court. my own opinion is it is a distinction with no difference. fact, the administration said for anybody covered by the proclamation, to refuse visas. when somebody is excluded from the country, they are being den visas. i was pretty heartbroken in the that statutory analysis came through and the way the legislative history quite frank ly behind the 1965 amendments were rejected. there was an analysis made on the constitutional argument. theound on those grounds plaintiffs were unlikely to

prevail. he applied a novel principle to case, a rational basis test proclamation has a legitimate national security purpose. showcased that was to show that look, chad, iraq, sudan, they've been taken off the list. there are exceptions here in the proclamation. look no more. there are waivers embedded. these are three examples that sayice rob betters used to that these are, in fact, securitye national grounds. take intoling to account the extensic evidence proclamation and the presidential authority to reach his conclusion. were two concurrences, made a kennedy concurrence i believe in the niecely; behavior

right? justice thomas issued a concurrence. we don't need 1182f. inherent authority that issue aident has to beforeation like the one us. justice breyer issued a dissent. he was pretty civil with how he carried out his argument. exemptions and waivers are working, this might be a lawful proclamation. other hand, if there's a suggestion or evidence that the the waivers and the proclamation are not working , that's when it starts smell more like a muslim ban. then he went on to offer some of 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 sought one. waivers? talking about they have a scheme. if you covered by the ban, if are not exempt, you may demonstrate eligibility for a admitted onll be show undue you can hardship and there's no national security concern. the threeere threshold criteria in the waiver scheme. find the say that i waiver scheme itself a class with the immigration statue. written ans already elaborate form of what waivers look like and here the president in to create a new standard that applies to people by the otherwise covered ban. justice, of course,

establishment the constitution u.s. gave more statements by the president both preand post inauguration. a little critical about the majority rejection and over and at the same time replacing one bad decision with trump v in this case hawaii. what do we do now? have a waiver claim and make sure the waivers are working and make sure we have about what is contained in the proclamation. the next order of business. ise with many, this ban

personal. this is something i've been work p.m. onince 4:30 we got 27th, 2017 when ban.irst i'm usually a pretty optimistic person. other casehare one with you that got very little attention. it was really a positive case in immigration space. i told you i love the immigration statute. that again.k about it was a decision that was issu 8-1 majority. and the question in the case is there's a notice to appear served in a non-citizen that or a time, is it sufficient to meet the stop time purposes of

cancellation of removal? of terminology. few terms here. notice to appear. this is the targeting document that immigration uses to put the system. so notice is given by serving the individual with the notice to appear. once that document is filed with the immigration court, removal or depoorerration proceeding are triggering. is not ace to appear marial document. you are from the country. timentered on the date and you are alleged to be in admissible or deportable for following reason. you should come to immigration court. easy to do. at 8:30 in the morning on july 20th. what happens when the notice to the type or date?

justice sotomayor wrote the majority opinion, 8-1, and said a notice to appear that lacks a is not a notice to appear it is really putting the stop issuingice to defective notices to appear. sound so obvious; right? to any of us that think about basic procedural due process. this where it is an awakening. we've been living with defective notices for many years. it has now gotten the limelight desevens.ion that it why does it matter to the immigration? cancellation of removal is one remedy in the immigration statue you required ten years, you can receive protection called cancellation. served with a notice to appear, the clock on the tenure physical resident present

stops. makes it significant to say an undated notice to appear. let me end since my time is up. i'm not a justice kennedy expert in the concurrence of the sessions, we criticized the being reflective over chevron deference. it is a tale of two occurrences. v hawaii, and one is i'm here. be nice. and the other is we need to pay intentionallyhe and our deliberate process and finally because my other the of research is around and of discretion immigration. we owe a lot of credit and leadership to justice kennedy his opinion in arizona v

united states. onliesthe seminole pass in that decision that as a matter, the federal agency has a deis significance about whether to pursue removal at all. an act of discretion that has been reinforced by the justice. jr. time.for i look forward to your questions on --before we move [applause] move on toe do another topic, i would love to get folks reaction to the know, whatf, you does a tweet by the president actually mean? reviewingtext of executive action? can this guy say whatever he to his base and the white house counsel's officer can up and write something? we're never going to pay attention to that? is it limited to the very narrow national security?

what's the difference between what the president is saying and what they are doing whether it at religious or something else. >> i agreed with the ruling. ban asree with a travel a matter of politics. simply because this is where it perriera andfrom other immigration cases. a deference over national security. robertsquestion, tom, in his majority opinion went through various statements and said this is not good. at the end of the day because reasons and the country only had 8% of the world yamuslim population and da yada and the waiver program about 3.0 rather than 1.0. it is not that you can do haveing as long as they lawyers up and have some clauses or what have you. strong deference, he

phrase national basis. it is not complete deference. small test. does the rest of the document really line up with something -- you know, isn't so bias? the view has just passed the smell test? >> we know. >> it is 3.0. not 1 pon. 1.0. >> when you say 1.0 and 2.0 and 3.0, it is the same thing. ios3.0, it is still for my iphone. timely?time is it enough times as it gets laundering through? or we believe something different is going on? >> well, he stuck to the countr that obama had

identified as national security risk. court andbut the partially throughout the process know, i wondered if they had seen. the court of litigation would have been different. they would have had more than the initial resistance. i have a very brief response to that. where i stand is i think the case should have been rejected on the statute. i think there are a number of to supportarguments that. with respect to exemptions and had alreadye i reached by ten minutes, those problematic for a few reason

s. we have a statute that includes waivers. have framework for our immigration law that congress 1952.in to the waivers and justice up in his orals argument during the oral argument as well as in his dis sent. there's very little evidence to show they are working. one sworn affidavit by an officer that was cited by calls the waiver process window dressing. don't have discretion. exemptionsnt that and waivers were relied opinion the majority to support at the proclamation is problematic.

you, tom. i'm glad you made the comparison that saves me time not to have the comparison. we know now they rule the in refused a bakery that a cake to dave and greg simply because they are a same- sex couple. it did so in the way the state civil rights commission handled this complaint. i think it is a way of saying

how narrow it is. it said as a general matter, objections that are applicable. it doesn't mean you can violate it. true in the context of anti-discrimination laws. and that's true in the context of anti-discrimination laws that protect people. at the end of the day, every colorado, including masterpiece cake shop has to follow the norm that the public hasen to the to serve everyone. this is a ticket for one complaint only. was the problem in the process? this is where i think many commentators have drawn comparisons to the muslim ban case. essentially the court and regularity -- the core piece of evidence was a statement by one that saidmissioners it is inexplicable saying rhetoric has been used to justice the holocaust and slavery. factually accurate

statement. it is also not the same as call religious itself dis speckable. upholds by say ing what is and attempting to use faith as a sword in the way. putting that comment in perspective makes the comparison decision evenban more -- we are talking about the from the american that was the sole decider. not only was he a member of the came soon her comments late, it could not have affected decision. investigated by the state rights. fulls then appealed to the commission which affirmed after hearing.c

it requires them to treat everyone equally. the comment is made of decisionbject it made in the context where had happened in public. chance the bias decisione affected the -making process. we have a transcript. we know this was the first time that anything that troubled the said.was oft sets the process very dramatic way. all of this means that the rul to of it itself was going andrberate for what it says

discuss not say. at the time it was supposed to blockbuster decision. the problem is artistic. wedding cake artistic? protected byow is the first amendment. that means that free speech justifies its decision couples iny same-sex the colorado anti-discrimination act. claim that the trump administration weighed in favor of. bakery and only the question and not even touch ing the free exercise is how thewhich court decided it. weaknessignal of the the administration saw in the free exercise claims after smith get outw to see how you anti-plying with an

discrimination law. in fact, sex discrimination and race instrument nation as well. unless they are saying something different about sexual orientation. deeply disturbed by the notion of a government of second class citizenship. the plan to not engage with at all. they do lay out two guise hosts that are helpful. agree with. the defew salthat to sell any at all is not protected by the first amendment it has nothing to do with art artistry. that's the fact of the case. dave mullins and charlie walk in no discussion of the cake. bakery refused to sell cupcakes for a lesbian couple. is not about artistry. at the other end of the spectrum required them to write a specific encryption,

that might raise first amendment s. it is not about discrimination, people.out if the state were to pass the says all of them must produce a cake that has to say this. it did no such thing. they become highly relevant. context in the only which the opposition is seeking exemption from anti- discrimination law. we know the lawyers of the bakery represents the flower washington state and also represents employers who is entitled because she's transgendered. using the attempt to exclude transgendered people public places. this is not about wedding-relat services. this is about america's denial. that's something the opinion rejects.ly that's what it will be cited more for going forward.

when we look at the court's docket in the coming term, you dvred arecourt mandated in the case which is essentially identical to the masterpiece cake shop. there's no evidence at all. whatever you make of the commissioner's statement is certainly something there's no there there. toess the court is willing state court.ngton it is simply the decision to en force the law because of has chosen to violate it because of religious beliefs is against -- i don't see a lot of that in the court overrule that.

justice kennedy has been recognized in what it means to be lgbt. i think his journey re president-elects the journey has made overn the past several years and perhaps decades toward recogniz means to be lgbt and what it means to be gay and transgender. in some sense, the facts that only the federal government and 60% of the states don't have law s that discuss the discrimination based on sexual orientation and gender identity.

laws thatve is discrimination based on sex. up in theions coming title vii context and also title attempted tols exclude transgendered students from the locker rooms that other use.nts there are three petitions. two have been filed until the context. finding title 7:00 does cover sexual orientation instrument nation. it doesn't. they are going to being debated over the summer. petition piled a e.u.c. versus harrison funeral homes who was fired for being transgendered.

it sets forward the transgender like everyone and also it a a defense.de kendyt know that justice was different from other justice s. on pointimportantly with an unanimous court. and that is one of the key decisions that lower decisions aligned on in finding the sexual orientation and gender identity is covered. when it comes to the question, there are justices in play. a growing sense that the liberal justices are prohibited. thank you.

so the discussion of against trans gendered individuals and on these sorts of issues. want to talk about it coming up. >> yeah. person byn optimistic nature. if you had to imagine a way of dismantling the ability of work ing people's demand and exercise rights, you might imagine the case called epic systems and one called janice versus assmay. of them this term. epic systems, as everybody knows , is about arbitration. the question in epic systems is an employer can require employees as a condition of all claimsto resolve

against their employer. through arbitration and two as an individual. what the court says using what a relatively obscure to dealthat was meant with arbitration between two businesses. what the court says is yes. employers can require employers can require employees as a condition of employment to do that. if there's a contract to that be enforced.s to given the small dollar value of many workplace claims, this mean workers will just have no way of enforcing many employment rights unless something changes. issue in thelegal epic systems was whether such a individualquiring arbitration was inconsistent with the national labor relation which is the federal labor law. why might it be inconsistent? says thatbor law

everybody has the right to engage in concerted activity for protection.nd that concerted activity includes traditional, union, organizing, and collective bargaining, and concerted activities for other mutual aid and protection. andnational relations board the united states supreme court has long understood the other mutualed activities for ly related protection to include concerted legal action. if you have a contract that says to worker's you have to pursue claim against me the employer as an individual, to waive the them national labor relations act concertedngage in activity. even in the federal arbitration enforce we don't arbitration agreements that are themselves illegal. relationsal labor board has said this kind of contract is like what used to be a yellow dog contract.

i agree as a condition of employment never to join a union are illegal contracts. because the right to engage in concerted legal action had the as the right to join a union, the arbitration and notwere illegal enforceable even under the federal arbitration act. the supreme court of course rejected that. damag so in a way that's ing. not only can class action be en forced in the consumer context which we know that italian color s and conception. the can be enforced in employment context. we're seeing an explosion of these things already. were on the rise. now they are exploding. so most workers, i think, very soon, will be subject to individual arbitration wherever pursue any claim

their employer. that's horrific. workers'perspective of rights. epic systeming that s does that very damaging but importantnent what the court -- the way the court reaches its holding is to there's no national labor relations act problem. with a class action labor employment act, there's no problem because the national labor relations act doesn't protect your right to engage in legal activity. are about is tradition al union organizing and collective bargaining.

why is that a problem? a lot of workest don't have the opportunity to enimage in traditional union organizing and collective bargaining. labor movemente is in the other concerted activity stuff. right? organizing. facebook organizing. novel forms of activity. what the court is doing hadn't gotten there yet. lay the court is doing is ing the ground work for the move in the direction of saying law onlyfederal labor protects traditional labor organizing and collective bargaining, it only protects the you can't do anymore. the thing they are trying to do, protected. okay. systems. epic then on the last day of the term we have janus versus assmay. everybody knows what the case is about. is can public

sector unions require employees covered by a collective bargaining employment to pay a fees for the representation they received from the union. why is this important? unions has 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. when the union negotiates pay or benefits increases or just cause dismissal policies the union does grievance representation or arbitration, the union has to provide those services to work ers irrespective of whether they join a worker. unless there's some way to require workers to pay for that. action a collective problem of nightmarish pro portion. analogy, the u.s.

government decides that taxes voluntary. okay? as a citizenow that whether or not you pay a thear in taxes, you get same roads, the same schools, the same police and fire same military; right? and it is just up to you. or not. i don't know what anyone in particular would do. people wouldewer pay their taxes. every public sector union has right to receive every ounce representation and to do it without paying a single penny. to sustain difficult

period of're in for a severe challenge for public sector unions. public sectorfor employees. i haven't mentioned much about doctrine. i'm not sure the case is about doctrines. i liked president trump's tweet wast it the moment it decided. he said this will be tough on caucus.cratic parties that's true. public unions are a way for people to aggregate their political voice. they've done so. they are going to have a much more difficult time doing that. an optimist. i know i'm out of time. there was a bill in congress help deal with epic systems.

the kindsake illegal of arbitration that's so damag to insert their right. what do we do about janus? is aad news it constitutional holding. it is a first amendment holding. nothing that congress can do about the holding. there are ways that state -- i would be happy to talk about this more. there are ways that state and the public sector laws. and justice kennedy. justice kennedy has not been as good of friend as workers and he has been of the movement and community. things think that means don't get worse. i think that just to take janice

the union context, there are think we needt i to be concerned about. janus is a holding that's held unconstitutional under the first amendment. are cases pending all over the state unconstitutional on the first amendment. it is just a system of union bargaining that we've had since 1935. it manes that 51 e% or more of workers in the union look for the union and everybody is thered by the union and by contract. okay? that's now susceptible to an the first amendment >> that true in the private sector? problem is janus ap

plies to the public sector because it a constitutional hold ing. there will be an effort export janus to the private succor. that will happen through congress and it will also happen in the court. crazy.ht think that's worried about the prospect in the union context fifth justice who replace s justice kennedy. public tot see the the private sector. and then in some ways more and terribly devastating.

thee are bread crumbs in what younion about might think of the metro activity. he talks about how many -- i think he uses the phrase billion dollars in agency been extracted from members over the last number of years? know why that's in there callset up janus in a case ed knox. i think what's happening is unions should be on the hook for and, of course,

spent over the last handful of years. it might be more comfortable for the justice than kennedy himself >> thanks so much. at kato.enior fellow he's veteran and chief. i feel like whatever it is at the party like the fisher cat in a wake. i'm not sure. major case i disagree is way fairer.

we haveto understand top understand the difference between public and union. i think we'll agree it is important. wasn't brought by that it was brought by a teacher in sector claiming two things. first i don't like what the forn of collective bargains me. i'm forced to pay. i don't want this. as they pointed out, we can't private sector organizations or member unions thesupposed to be not government.

illegal. is we don't allow compulsion of people to pay for stuff they don't want. that's the government acting directly. unions can't to that. we agree, that would be a problem. moreover the border somebody is inherently everything the union does. at the education policy and everything that the union does has publicic sector policy. that's why this is very different. labeled, there are more ways. the 28 statest in that don't have the kinds of arrangements.

there they haven't disappeared. forced to become ineffective rather than getting involved in larger national issues that are un employer-employee relationships. while it is true this will be unions, coppers, democrat party coppers, it recognizablelly interest. is more important from the legal perspective. citizens united is a key part of that decision. to say's what i want about janus.

role.ake on a greater what do you take about the will to revisit the decisions that are treated by bedrocks of civil liberties, the right to criminal defendants, and things like that well, we have roe v wade as category. really dependents. is it working? legal reliance? have people structured their whatesses and lives around are the rules that the court established?

i think chief justice roberts is making waves until it is necessary. overturnike them to with thomas on certain things in that regard. quotedn't worry about the s.quote super duper precedent maybe we'll see. i interrupted you. it is about more than that. the point here is congress was the state to regulate gambling. area of law the couldn't had not seen, they said do that.

the two others didn't say you can, they said you could have statue.ted the healthy thing. the only way is to -- sure. yeah. yeah. congress said that states cannot gambling, sports gambling. repeal jersey wanted to it's restrictions and impose the marketions that create a to allow sports gambling. there was a big debate about this. look, they can regulate or criminalize gambling

but congress can't do a work around and use the state to do it wants to accomplish. pass a there's much to broad new criminalization. has opened up the states see different experiments with different state s opening up sports gambling. be litigation on what if it is out of state game or had in-state games. it is not very often that the legalized something that's been closed off. a bit in the of of democracyries in the area. hopefully that will spill over. >> tremendous. thank you so much. >> should i say something about kennedy? >> i'm sorry. say something about

kennedy? >> please. is -- he's a just it is i probably most agreed results. but it was still infuriating in terms of how he got there. but he was a bit of a philosopher king. struggled with every case. conventionalt into modes. consistency. latest clause the

you can't say he was great on individual liberty and things like that. sure, he had the great concurrence on at the commerce a case like lopez and about federalism and individual rights. rate, becausen drug users shouldn't be as as the lgbt community said they can regulate plants grow in your backyard. they said property rights aren't ofimportant as other kinds fundamental rights. know, i, it is -- you for many things. i didn't like them for many things. i'll adopt the line that jan crawford used. used a filibuster. a place can't use it in

that matters. you know, moving in the court the right. one thing we know is that wii trumpy judge.et a meaning i don't think we're it's going to be a very different court in terms of the chief justice being the median justice. we have not 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 what we saw justice kennedy was seen as being important? rick is 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. 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] journal"'s "washington live every day with news and policy issues that impact you. coming up this morning, weekly standup reporter andrew and jamie discuss political news of the day. laura miller talks about the u.s. role in afghanistan and the military and political stability of that country. be sure to watch it c-span's "washington journal." live at 7:00 a.m. eastern this morning. join the discussion. >> a syndicated columnist talks about her book. >> we send it such confusing messages to young people. i don't envy them.

this was a story that i put in the book about a number of women athletes who have opposed topless are semi-topless -- posed topless are semi-topless for sports illustrated. several have quoted that they are proud of their body and they want to help younger women with body issues. my feeling is, that is a crock. women should be dignified. they should remember that when you disrobe, it's very hard for people to take you seriously. amanda looking at a picture of a topless woman is not going to fantastict that athlete. isn't it wonderful that she doesn't have any problems with body image? no, he is quick to think about sex. he's not quick to think of her in a respectful way, either. that is why i said, angela merkel who is the chancellor of germany, would not take off her

glasses to prove she doesn't have body image issues. she wants to be respected. if women want to be respected, they have to behave in a way that will elicit that. >> tonight at 8:00 eastern on c-span's q&a. now, housing and urban develop an secretary ben carson testifies at an oversight hearing of the house financial services committee. it's three hours and 15 minutes. texas congressman jed hencerling cha chaired the hearing. the committee will come to order. >> the chair is authorized to declare a recess to the committee at any time.