justice alito: no. mr. franklin: the pickering balance could come out differently in certain instances. i would grant you that. i do think, not to use garcetti again, but if mr. ceballos had been required to write a disposition memo and has said i won't do it, as opposed to what actually happened, which was that he wrote one and was disciplined for what was in it, nothing about the logic or the outcome would change. justice sotomayor: counsel, what is there -- what is there about compelled speech? i mean, our line has drawn a big difference between compelled speech and compelled subsidy. mr. franklin: i agree with that, justice sotomayor. i mean, if you look at the cases -- justice sotomayor: and -- and we've compelled people to pay bar associations, so long as you're not compelled or stopped from speaking when you disagree. we've said that's a compelled subsidy. mr. franklin: and all -- justice sotomayor: bar members can come out any day they want and say they don't take the same position on a policy quest

justice alito: suppose a group of people want to make a statement about a political issue. not a political it candidate but a political issue. and they say they're going to wear all-white on election day when they go to the polls. would that be allowed? mr. rogan: under the statute, yes. it's not a political badge, button or insignia. and insignia is a distinguishing mark. an article of clothing by itself is not sufficient to be something that would be under the statute understood as a political badge, button, or insignia. justice alito: so, if a shirt or button has #metoo that would be allowed or not allowed? mr. rogan: your honor that would be an insignia. and if that was an issue in the elections in that polling place, that would be political. justice alito: so if people -- justice ginsburg: how do we determine if it's an issue? mr. rogan: i'm sorry, your honor, i did not -- justice ginsburg: how do we know if it's an issue? mr. rogan: we know it from, from the campaigns that have, that have occurred, that this is not done in a vacuum. this is done on election day by ele

alito: the answer is yes. mr. kimberly: that could be a violation. jus. alito: you can't take all consideration of partisan advantage out of districting. mr. kimberly: our theory does not require taking all of this. jus. alito: i don't see how your theory is different other than a minimus partition advantage. there are two ways it is different. the range of considerations map drawers will take into account. they are -- jus. alito: you have protection of incumbents and preserving a has particular facility in it and a few other things. in my example, one of those apply. your answer is that favoring the political party of majority is a violation of the constitution. into circumstances that wouldn't be the case. we take the position that strict scrutiny applies. it certainly is the case that map drawers could consider this information. it is normally tailored to a fundamental interest which might allude to for example pursuing a balanced map or pursuing competitive districts. jus. alito: what would happen if you have the orange party and the green party? 55?

. >> samuel alito when he was on the third circuit. >> alito. impressive. so the president didn't let us down with the best and brightest. why don't we start with what does the secretary of labor do and then we'll get into the meat of it. >> when i describe the department of labor, i put into three buckets. first, in essence, we enforce the laws. we have workplace laws, we have workplace safety laws, we make sure that the labor laws are followed. and that is incredibly important. that's in essence a law enforcement function. the second part that's really important for the department of labor is we have a workforce education component. i know that secretary vas is speaking later today and she and i work closely together because she's at the department of education, i'm at the department of labor, but it's our job to provide workforce education to the men and women that are working. so we want to make sure that they're not just ready for today's jobs, but for tomorrow's jobs. so we're constantly upscaling. and then the third part is we set the labor policy fo

take it sam alito wasn't that way? >> nope, he was actively involved in the process at every step and was really concerned about making sure that each opinion was his, and that it said what it needed to say. he was definitely not phoning it in and definitely actively involved in every decision and every opinion that had his name on it, and every opinion that came through the court. whether he was the author or not, meaning even if it was an opinion assigned to another justice, he wanted to make sure that it was right. mark: i want to turn to something that's just occurred and that's this budget process and appropriation process in the united states congress. jim jordan has said that the congressman from ohio, and freedom caucus member, that they had 17 hours between the time a 2200-page bill, which had been written in secret by the leadership, was presented to the house of representatives, and to vote. and so really nobody even evelyn woods herself, wouldn't have been able to get through that in time. same thing should

>> justice alito, that is not so far -- so far as this record is kerpd. not so far -- what actually happens. no one breaks up the e-mail into chardes. certainly not in this case. that's not what microsoft does and that is not, it turns out what, google does either. excuse me. that is not what the other service provider does either in the context of these other cases that are being -- >> we were told that's what g-mail does. that's not correct? >> no, your honor, that's not correct. >> the service provider wants to store it overseas. other than thu these procedures. >> your honor, the way to get the information is through mlats. the only evidence in in record about mlats that they do work. if it's urge et for the government, the governments respond urgently. >> there are two parts in my mind. one is the language, which i'll have to work my way through. you heard of the answer to that. the other is a practical way of dealing with the foreign law. now, the government suggested what's i mpractical about this, in any situation where, say, microsoft thinks that

north wind came alito the lover of zeus pregnant with the gods apollo went out in genesis he had a wife of zeus and decreed that she should not deliver on any land where the sun shone. but deal us was a floating i'm not glad. poseidon showed lito the way and she gave birth to to miss the goddess of the moon. nato's labor is you and for nine days and nights she toiled unable to deliver. he was detaining the goddess of childless at olympus. in had toll meant lito knelt and the one date palm that grew on the loss then came to her in the form of a bird and lito delivered upon. the goddess themis gave him nectar and ambrosia the food of the immortals on the fourth day apollo called for a bow and arrows the swans flew seven times around the island singing the last and last. and poseidon fixed the island to the sea bed on diamond columns. for two and a half thousand years a god of honor has stood here for the god of the lyre and the royal lions for apollo who knows what the future of. the gods had homes on deal us they climbed these steps to happen. the first people came to deal us five thousa

and scalia, alito being conservative but not a texturalist and you look at how they vote, they votealmost always in the same way. one of the terms in cases, 15 out of 16 they are together and with justice ginsburg it's one out of 16 where they are together. i think they talk the language but in case that is matters the most i don't think it's driving outcomes, i think ideology is, it always has and always will and the tool doesn't get us past the value judgments that all the justices make. let me be clear, i don't think justice scalia was less consistent than the other justice, i think they are inconsistent, we can point to all of the flaws, the difference is scalia set himself out, set a higher standard for himself, he was applying new real principles which he would follow and he set a higher standard which i think he did not meet. >> you make the very persuasive case, rick, that textualism which scalia said constrains judges, in fact, not terribly constraining, good lawyers can pick competing dictionary definitions and get to that place they wanting to while holding themselves out

i mean, do you want to accept justice alito suggestion? or do you want to draw the line at some other place so we know, okay, that's permissible, this is impermissible, how does this relate to that? that's the usual way overbreathe analysis goes? >> yes, uyour honor, it's hard o be able to put every item in the appropriate box. i thisnk it's hard to draw a lie other than draw a line through this particular sentence which would allow government to pursue interests but culminate free speech. >> well, if the court is concerned about reserving the dignity and decorum and solemnity of the voting process and the statute is as difficult as you say, isn't that an argument for allowing good faith determination on the case-by-case basis by the polling officials? >> no, i wouldn't say that, your honor, because in the meantime free speech would be chilled. all the conventional political association that no reasonable person would see as a threat to the polling place would be chilled in the process as it's being chilled right now and continue to be chi

i mean, are you -- do you want to accept justice alito's suggestion or do you want to draw the line at some other place so that we know, okay, that's permissible, this is impermissible, how does this relate to that. that's the usual way overbreadth analysis goes. >> yes, your honor, and it's very difficult given the range of material that's out there, and the number of interests the government has here, to be able to put every item in the appropriate box. i think it's very hard to draw a line other than drawing a line through this particular sentence, which would allow the government to continue to approximate pursue its interests but accommodate free speech. >> well, if the court is concerned about preserving the dignity and the decorum and the solemnity of the voting process and the statute is as difficult as you say, isn't that an argument for allowing good faith determination on a case by case basis by the polling officials. >> no, i wouldn't say that, your honor, because in the meantime, free speech would be chilled. all this conventional political expression and association that

, not samuel alito, i'm sorry, antonin scalia said that that is a crazy idea to convene so it is and just critics on the left, its critics on the right. i know a lot of other people want to ask questions, let me refer you to the website of common cause that has done a lot of that this constitutional convention they have excellent information and got four states to rescind their authorization but the problem is at this point there's no more states they could get to rescind. >> i would encourage the dc report to read our piece on federalism and how jeff sessions has stood on its head. >> in your book you talk about buchanan going down to chile and how he absolutely destroyed their economy down there. could that translate into what might have been here? and also, we need to expose alec. >> one of the things that got me interested in buchanan after i found this report that he dated 1959 in the footnote is i learned in passing from some comparative political scientists mentioned that buchanan's virginia school have more impact under the pen o'shea dictatorship than the freedom of chicago

she was replaced by alito.the major players behind three justices, alito and gorsuch, is leonard leo, the long-time executive vice president of the federalist society. it is a group most americans haven't heard of but have been making a massive mark on the american legal doctrine. >> joining us is the author of the "federalist society," how conservatives took the law back from liberals. welcome. good to see you here. >> thanks for having me. >> there are a lot of federal vacancies. was this the federal society's long game all along, to have the vacancies exist so they can pile on and control the judiciary for a long time? >> they understood if you wanted to change the law, you had to change the judges. this was something that the earlier students, when they were, as you say, at chicago and yale, their advisers understood, and this has been a force and a very important thing for them. they've gone through the last 30 or so years now, 35 now. >> ronald reagan got the most federal judges since 1933. it was more th

>> so, justice alito, there's a lot there, and i just want to make a few points, and i think the third circuit's opinion in king does a nice job of this. the court's already talked about professional speech. it's often talked about it in the context of commercial speech, and it's lumped them together. but what we tried to do in our brief was to say, look, there's similar doctrines, they overlap. but they have somewhat different origins, and historically there are certain professions that are regulated. that wouldn't include fortune tellers, it wouldn't include economists or journalists, but it would include doctors and lawyers and maybe accountants. so we do think there is some room for the states historically in that area. what we've tried to say is whether it's an equivalent for professional speech, if it's a disclosure about what you're doing, that's a low level of scrutiny. and the more we shift away from that, we may not get to strict scrutiny, but it is heightened, scrutiny. and if the court goes all the way to strict scrutiny, every corrective disclosure that a manufacturer has

an oral argument it seems there are six votes for new jersey chief kennedy and scalia, thomas and alito, gore such andd breyer and gorsuch and they are saying there is a federal government it is just solely through the states.s.be but gorsuch thinks you could read the statute narrowly so the devil will be in the details even if new jersey wins i'm notth sure that that ruling will be as far reaching as people think it will be and as we hope it will be and if that is true if it is just blanket validation there will be complete including details for this room to work out. >> thanks for inviting me and for that great summary because now i can dive right in without explaining that complicated backdrop. i can't hear in the position to talk t to state attorneys general g why i think the antistate rights side of the case is the better side normally asat an advocate much more often i have been on the states right side litigating preemption cases so which prevails that background stigma regime and what is interesting about this case is the first time it will be confronting a clash and the doctor

it seems to me that there are at least six votes for new jersey, and that's alito, the chief, kennedy, thomas, gorsuch and breyer. and breyer seemed to be very hung up on the idea that there is no federal regime here, that what the federal government is doing is solely through the states. i don't know if there's going to be a majority for a constitutional ruling. gorsuch seemed to think you could read the statute narrowly. so the devil will be in the details here. i think even if new jersey wins, i'm not sure that the ruling is going to be as far reaching as people think it will be, as people hope it will be. and if that's true, if it's not just a blanket invalidation of paspa, there's going to be a lot of complicating details for everybody in this room to work out. >> thanks to nagg for inviting me and thanks to elbert for that great summary because it allows me to dive right in without explaining the complicated backdrop. i come here in the unenviable position of talking to state attorneys general about why i think the anti-states' rights side of the case is the better side and norm

exempt from this act, as are all nonprofit clinics that have general kind of practice that justice alito's russian described. as to the ad burden, the amicus heartbeat international on page 24 of the brief gave a mockup of what can and would look like when you're simply pregnancy questions and a phone number, and all the languages required in los angeles county. that's what it would look like and it's clearly burdensome. i think the last answer from california was correct, is it would be triggered if they were otherwise mandated by the law. i would last like -- >> the answer was that this was not brought up in this case intel now and it should be aired below. >> your honor, that's not correct. it was raised below as our reply brief sets out. it's in the complete. it's in the briefing in the district court. it's in the oral argument in the district court. it's in the court of appeals took . all those details are on footnote five of our reply brief. the good for the goose, good for the gander concern, here's what could happen is california's law is upheld. and pro-life state is going to find

as justice alito put it in the rjr opinion, one has to look at the focus of the statute. if the focus has to mystic and that in view, then it is a domestic application of the if it must occur abroad. >> why would that be the case that we would not take cognizance of the fact that information must be transmitted from abroad to the united states before it can be disclosed? there is a chain of activity required. why should we divorce the first half from the second? >> because i think the way the court has to approach this is to look at the language of the statute and the actual text and try to identify what is the focus. >> i understand your argument that in order to disclose, it anticipates certain antecedent conduct. to ignore that, i think is that -- >> i think it provides a test that says if the activity that is within the focus of the statute, the fact that there may be antecedents or other conduct detract. does not suppose a defendant in federal and orderedonvicted to pay a fine and the defendant said i cannot do that. they are located abroad. i am confident the courts

. >> juan: i think it was a mistake, a total mistake by justice alito to say the founders intended forgun. what you are hearing from justice stevens, a republican, this is a matter of an archaic law that was intended by the founders for a militia. that's exactly what it says. >> jesse: that's not what the supreme court says. >> juan: yeah, because -- >> jesse: the law of the land. >> juan: i am all for it but it was the wrong decision. >> greg: what i said was misinterpreted. i did not say all the students come i wasn't impugning their motives. i was talking about a select group of extremists that were there who did say they wanted to get rid of guns. that was there. if you saw the signs, you would know that. plus the idea that you cannot challenge someone over their beliefs because they are a teenager is precisely the opposite of what education is about. >> juan: you have a picture about young lady and you dr. the picture, have her tearing up the constitution. >> greg: i didn't dr. any picture. you are completing me with someone else. >> kimberly: is a lot of controversy surrounding a

there was also the approach in found a about how alito fundamental right. what do you think of the court's methodology and given how controversial the history is, other other methodologies the court could use to look at the second amendment? patrick: i wrote a book on this. no matter if you are on the dissent or majority opinion, they pick what history they want and they go with it and they take it to the next extreme. side'snore the other arguments. history is not so clean. history is complex. when we use history to make arguments about the law, we need to do so in a way that is honest and say why we chose x history over y history versus just saying x is right and you're wrong and admitting we are not answering a historical question, we are answering a legal question. the fallout from heller that has been troubling to me is that people automatically, that our , sayrights activists heller answered this, you are wrong. heller is not a historian. heller does not change the documents. it does codify that law but it does not change what you are doing. i would a

citing assisted tick that 1980 % are pro-life facilities, justice alito said when you put all this togethero very suspicious pattern. much of the discussion centered on the requirements, that many pro-life pregnancy centers would be forced to use a disclaimer, office and multiple languages, and as they run for about bart's websites. justices kennedy and sonya sotomayor questioned whether the disclosure portion of the law was overly burdensome. post argument, both sides said they are optimistic about winning offer at least five of the justices. california made the case that these fake women's helps womenh centers cannot operate without being reliant on lies and deception. >> it's one thing for government to ban speech, that is not acceptable. but it's even worse for the government to put words in your mouth and turn you into their marionettes, they can force you to say what they want you to say. >> two of the justices asked today whether the issue was even right to here as california noted, it has not been aggressively enforcing this law. bret, whatever they decide, the opinion is due by lat

that's where the supreme court majority seemed to be struggling today just as samuel alito says once open that door, then you are going to get the courts involved in every legislative redistricting unless partisanship is never an issue. that doesn't seem very practical. you mentioned the fact the supreme court heard the wisconsin case in october. we assume that they were holding a decision for that case until they heard the maryland case. well, it didn't seem from today's argument that they're any closer to finding that answer, that test for deciding when partisanship because too much, so blatant that it is unconstitutional. they seem to say that maryland has gone too far but unsure what to do about it. >> fascinating case that could have major implications for our political system. pete williams, thank you for tracking all of the developments from the supreme court. really appreciate it. >>> and coming up -- under oath? could the lawyer for stormy daniels really call the president of the united states into court? one of the country's leading constitutional experts joins us next righ

for example, justice alito said that the law has so many exemptions, that when you finally put aside the exemptions, the onl wy oneho seem suspiciously to be targeted are these antiabortion cenrs justices sotomayor and kennedy raised some concer about even the unlicensed center notice, that if you advertise as anun censed center, you have to put in large print that you are not a licensed medical facility, and you have to put that in 13 different languages. at the same time, justice sotomayor said that she had gone on the web to look at me of these centers to see how they advertise, and even though tese unlicensed centers claim they do not provide medical services, she said some of them are showing women in nurses'o uniforms in nt of ultrasound machines, in an examining room-- which could be quitele mising. on the other hand, justice kagan point out what california's law here is doing is almost the flip side of whamet the supourt has said states can require docts who perform abortions to ents.o their cli she noted that some of the statements that state require those doctors to give to

justice alito was skeptical. he said that he felt unr that legal theory, a legislature would never be able to redistrict, if there was just a trifle bit of partisanship, there could be a constitutional violation. justice kennedy seemed a little more open to it. in fact, he said he felt that, you knobew, this mighhe kind of case where the first amendment does fit. so you came ay thinking, well, you know, here we go again. they seem decided unsure as to whether the first amendment is the right teswnt. >> band the political implications are pentially major. >> absolutely. whatever the court decides, especially if it finds a test, could revamp how districts are drawn across the country. anit's als very important for your right to vote. i mean, if you liven a district that has been regeorgiad, its lines rejiggered so that the outcome i fore ortained are, you going to vote? do you feel your vote has any value? and i think that'st the oher big consideration here as to why the justices are loking at this. >> brown: they'

. >> bill: if they go to the supreme court roberts, alito, gorsuch and do they challenge in californiaes the administration win? >> i think we do. we're right on the facts. california and other jurisdictions -- now we're seeing local municipalities pushing back. they don't want to be part of sanctuary cities. now they're being threaten the state that somehow they're going to be held to account within the state if they violate the sanctuary city laws. we shouldn't have the supreme court acts as a legislature. we did that for eight years under obama. that's not the purpose of the supreme court. we should be legislating. we need to start enforcing laws and not be bogged down in unneed and unnecessary litigation. >> i must tell you, bill, i see this quickly -- the sanctuary city law is clear. have federal preemption but for the census we count all persons. i don't see any benefit in asking citizenship. in fact i think it will retard the count. i think these issues can and should be decided issue by issue rather than with a political litmus test. >> bill: thank you both. thank you, doug. th

states it does not come naturally from federalism that is why conservative jurist such as berger and alito'm sorry i'm sorry said it is a crazy idea it isn't just critics on the left i will refer you to the website of common cause a group that has written a lot about this constitutional convention they have four states including new mexico to resend their authorization but the problem is there is no more states to resend. >> and go to d.c. report to reader piece on federalism how jeff sessions has stood that on its head. >> in your book you talk about buchanan going down to chile and how they destroy the economy down there. does that translate what could happen here? and also we need to expose alec. >> one of the things that got me more interested in buchanan is that i learned in passing that buchanan virginia school had more impact on chile under the pinochet dictatorship than chicago there has been a time written about friedman in the chicago school but nothing else about that snippet with buchanan so i found out indeed he did have a more lasting impact because he was brought in to advis