justice alito? justice alito: yeah, mr. feigin, i do have a number of questions. rluipa, like rfra, like the pre-smith free exercise jurisprudence of this court requires an individualized determination. that's been the law for a long time. rfra's been on the books for a long time. it's a completely regrettable -- completely workable standard. it is regrettable it wasn't extended to the free exercise clause but it is individualized. and what would be most helpful here, i think, is if we could at least identify sort of a gold standard, not to preclude individualized variations, but something that will generally be sufficient to take into account religious demands regarding the two things that are at issue here, touching and vocalization, and accommodation of the state's interest. and we could look to the bop, doesn't get to specify what the first amendment requires or what rluipa requires, but it's a starting point. in so if you -- you've said what has happened in the past. if there are federal executions in the future, what will the bop do? will its policy be no to

justice alito? justice alito: yeah, mr. feigin, i do have a number of questions. rluipa, like rfra, like the pre-smith free exercise jurisprudence of this court requires an individualized determination. that's been the law for a long time. rfra's been on the books for a long time. it's a completely regrettable -- completely workable standard. it is regrettable it wasn't extended to the free exercise clause but it is individualized. and what would be most helpful here, i think, is if we could at least identify sort of a gold standard, not to preclude individualized variations, but something that will generally be sufficient to take into account religious demands regarding the two things that are at issue here, touching and vocalization, and accommodation of the state's interest. and we could look to the bop, doesn't get to specify what the first amendment requires or what rluipa requires, but it's a starting point. in so if you -- you've said what has happened in the past. if there are federal executions in the future, what will the bop do? will its policy be no to

justice alito: i mean, really? i mean suppose a legislature enacted a statute that said henceforth people of a certain race may not make any public statement, and someone brings suit under that. the judge begins to enforce that just by entertaining the suit? mr. hearron: i think, in - justice alito: -- even if it's certain that at the end of the case the judge is going to say no, this is an invalid -- this is an unconstitutional statute? mr. hearron: i think, in certain circumstances, that even the -- in a situation like s.b. 8, where the point is the filing of the suit and the point is the making you appear in courts all across the state over and over again, making you a permanent defendant, that - justice breyer: who - mr. hearron: -- in these -- in these circumstances -- yes, i'm -- yes? justice breyer: were you finished? because i'm -- i'm taking up his argument. look, you say a judge is, at least in many circumstances, an enforcer. there are 4 billion tort suits in the united states, okay? and probably in 3 bi

. >> justice alito. justice sotomayor. >> -- gives any person who has been unlawfully surveilled the right to seek damages punitive, and otherwise, attorneys fees. if i'm hearing your arguments, you say that if a party has standing, and very few have standing, because very few know they have been surveilled the way these plaintiffs do. i've had research done and the only plaintiffs that have -- where a court has found standing is the fourth circuit case. i think what you are saying to me is if these plaintiffs who appear to have reasonable grounds to believe they were surveilled, so they have standing, that they can't proceed. they can't have a judge look at this evidence to determine whether it was lawful or unlawful, because you say if a judge says it is unlawful, and i don't know how, because if a judge says it is unlawful, how are you injured? all they have to do after that is prove their damages. you have no defense once they have proven that. >> we don't believe they have established party status,

what does that tell us about alito?utside of that he obviously is a very strong supporter of the second amendment. prof. winkler: well, i think that justice alito buys into that nra argument that the only thing that's going to stop a bad guy with a gun is a good guy with a gun. and there are a lot of guns in america. a lot of bad guys do have guns. we can question whether it's true, that a good guy with a gun will actually do much to prevent the danger that's caused by a bad guy with a gun. but justice alito clearly believes in a very strong and robust second amendment, and believes that people should have the right to defend themselves with firearms almost anywhere they go. soledad: with the conservative supreme court, it seems pretty obvious to me, the way that they're both signaling that they're going to go, and thus lead the way they're going to go. what do you think? prof. winkler: it does seem like, as everyone predicted, that these new trump justices were going to make a big impact on the supreme court. it's goin

kneedler agreed with this they didn't dismissin the 1810 claims on the state secrets privilege so alitoed about structural questions in the structural argument in our favor is extraordinarily strong. they wanty they want to dismiss on state secrets they can dismiss it using the same attorney general declaration. those are our two arguments strongest arguments for the request to obtainat part of the argument. obviously the youth argument is different and if we win and that we don't have to get into that. >> thank you. >> at technical argument about the use provision. he is provision requires the government to give notice that it is going to use the information and that makes sense when the government wants to introduce it at a trial so he gives notice that he is going to use at trial and that allows the other party to move to suppress the evidence but what sense does it make to require prior notice when what the government is going to do is to invoke the state secrets privilege? he just invokes the state secret privilege. do we have to send a notice that say we intend to invoke statee se

i mean, i imagine sam alito saided like 1984 when he plugged four unarmed black people on the subway.unds like that. to put this in context, on monday we had conservative justices arguing that any hunter can regulate a women's reproductive choice. on wednesday we had the same conservatives argue the state of new york could not regulate a white man getting on the subway with an over -- with a loaded over compensation symbol to do whatever he needs to do on that subway. like, that is the hypocrisy that we are dealing with when we're talking about conservative control of the supreme court. the upshot of today's case is that new york's permitting requirements that require you to show proper cause, that's the first line of the second amendment, a well regulated militia necessary for a free state. proper cause is in the second amendment but the conservatives will take that and say new york state must issue gun permits to anybody who can fill out a form and that those people must be allowed to take those guns into public spaces like our subways and other bars. >> yeah. it's a bad combination

we had to estimate that from other information. >> justice alito? >> is it correct that the nonspeculative standard applies throughout the state? it applies equally in new york city and in the most rural locations in upstate new york? >> it has been -- the rule has been interpreted to mean that even though the experience of granting licenses is that it is apparently more readily satisfied upstate. >> so the individual officers have a degree of discretion. >> yes. they are asked like judges on many issues to take into account certain factors. they can be reversed if they took the wrong factors into account or they failed to take specified factors into account. it is not unguided discretion, but it is discussion -- it is discretion. >> what guarantees are there, if any, that a licensing officer is not taking into account improper factors? >> this is a question about the judicial system generally. if they correctly record the factors they took into account, they write letters or opinions, which may or may not fully disclose -- one will assume disclose

justice alito? >> yes. abortions have been chilled.e any way to determine the degree to which that is the result of the potential for the sba suits or to the degree it is attributable to the fear of liability if it is altered quick. >> i don't think there is a way to disaggregate that for those individuals engaging in protected and is protectedou conduct undoubtedly it is not attributable to theo states for everyone one —- anyone else for that matter. >> and word that have any effect on liability for abortions performed after the effective date? >> it would have prevention of liability but stop anyone from filing a lawsuit. but preventing someone does not prevent a state law from being effective in that they are not covered by the injunction. >> if the injunction were entered and abortions performed, would that immunize the abortion providers subsequently from liability>>? >> no. it would just be preventing the individuals had notice of the injunction but skipping over all of those problems they would not be able to dissolve in the abs

justice alito? >> if some abortions have been chilled, is there any way to determine the degree to which that is the result of the potential for s.b.-8 suits from the degree to which it is attributable to the fear of liability if roe or casey is altered? >> i don't think there's a way to disaggregate those, and undoubtedly individuals engaging in protective contact that bully the protection might be renewed for reasonably believe that there undoubtedly there's an expert shielding filter that's not a true bill to the state or anyone else to the matter. >> with the issuance of the injunction sought by the united states have any effect on liability for abortions performed after the effective date of this act? >> so it would prevent -- and would have prevention of liability that might stopping one from filing a lawsuit but, of course, the injunction prevent someone from filing a lawsuit doesn't prevent a state law from being effective and that they could file in another form or in some way not covered b

and you certainly know that justice alito, along with justice thomas are staunch in their -- i think justice alito made have been giving us a preview of what will here in the oral arguments just a month from now, in jobs versus jackson with this health organization, which is a challenge of the mississippi 15-week abortion ban. >> amy had extra miller, melissa -- thank you very much appreciate it. >> thank you chris. >> that does it for all in, on this monday evening now, rachel maddow starts right now. good evening rachel. >> good evening chris, am i gonna see you in person tomorrow when we're all doing electric coverage? >> we're gonna be hanging in person, it's very very exciting. >> i both super excited and i feel like i've never been around humans i've been worked with before. >> you know, we got the posse here right now, and he's pointing out my teleprompter. and doing his thing. so, we've got everyone. i've gotten everywhere i've gotten used to working environment with everyone. >> wow, you are always better with people than me, but tomorrow's gonna be the true. test i'm gonna

you know, we had justice alito asking a question about the heldish subways of new york essentially aistaupe ya in his mind where everyone needs a gun just to be safe from all of the crooks and criminals lurking around every corner. these are very privileged people with very perversailles december about the perils of the world and seem to empathize with similar folks who believe they have to be packing at all times to defend themselves and their families. >> experts have suggested it is likely the court could issue a narrow decision by ruling against the new york gun law but not in a sweeping way as mark was just alluding to there. do you agree with that? could that mean we'll see similar narrow ruling on abortion? >> that is a great question. so a couple things to pick up on. mark points to this idea there are six other laws. even if the court writes a narrow ruling what does it really mean? it is worth emphasizing 25% of the american population lives in one of those states. that is still a really big impact even if a narrow ruling. could they write that language narrowly? i think it

are you going to see justice thomas justice alito saying no we are going big, i have been waiting forndment case. or you're gonna see justice roberts fall back and say a little more narrow. in terms of abortion, obviously when it comes to the subsequent question where do we stand on roe v. wade, that case will be argued on december 1st with mississippi's law. i increasingly suspect that because you hear the court defend itself so much lately, and public speeches. that it will write a fairly narrow ruling, but they will uphold mississippi's law, and it will totally eviscerate roe. >> while that is quite a production there. you do have to wonder if there is a pr push by the justice is going out in public and speaking in ten of these last couple weeks. mark, how conscious given the fact that they're all these public statements by the justices, how conscious do you think the core is, or seems to be, on the fact that is sweeping decision on any of these high profile cases could panic half the country, could alarm have the country, is that something you can get a sense of from the oral argu

justice gorsuch and justice alito. [applause] and i want to acknowledge even though she could not be here with us tonight, our newest justice who could not join last year, just as amy coney barrett. -- justice amy coney barrett. i was pleased when president trump nominated justice barrett and i was pleased to support her in the senate even though as some of you may recall, i was on the president shortlist for that very job. i still remember when he called me right beforehand to say, tom, they are telling me to put you on this list but you have got a great job. why would you want to go work in that boring court? i said, mr. president, you can only put me on the list if you promise not to nominate me. he said tom, only put you on the list if you promise not to serve. i guess the president thought i should stick to electoral politics given my famously warm and approachable manner. you know, it is ok i was not the president's first court -- first choice for the court. for all of our friends at the federalist society, jean,

as justice alito said there's a lot of history floating around this morning so i want to be clear i'm putting to the side all of the disputed debates about the statute and about the surety laws and i'm putting to the side of the laws that restricted concealed carry do not restrict open carry and i'm focusing on laws that prohibit to carry a concealable weapon like a pistol. tennessee enacted those in 1821. a texas followed in 1871. new mexico and arkansas enacted such laws in the years immediately after the ratification of the amendment and over the decades that followed, more than a dozen other states enacted other laws that were as restricted five new york's. i counted out 20 in total that fits that description. of those three main and forced in seven states today and more than 80 million live under their protection and are in short traditional and common regulations. i welcome the court's questions and i'm happy to continue. a. >> how do we determine which states we should look to? >> the rest is different. >> i agree and there might be reason to be skeptical. that is a problem and

. >> justice alito, i think the way i would put it, the where and the when are already known. but not the what. i would put it this way. you know, the government has argued that there is sort of a relevance issue. i would say, though, that the links to the site are already there. we're not trying to -- you know, there may be information that the polish authorities have that the government would not like them to have now. >> the subtlety of this is somehow escaping me. you claim you have everything and yet you have a need for this additional information. it does seem to me all you want is a more official link from these government contractors that what you say happened occurred in poland and not in some other location. otherwise i don't see what need you have for any of what you're asking for. >> with your indulgence, let me offer a hypothetical, maybe that would help focus this a little bit. imagine there's a murder on the orient express, all right? the train passes through many countries on the way to its ultimate destination. the prosecutor in budapest has determined already

. >> justice alito, i think the way i would put it, the where and the when are already known. but not the what. i would put it this way. you know, the government has argued that there is sort of a relevance issue. i would say, though, that the links to the site are already there. we're not trying to -- you know, there may be information that the polish authorities have that the government would not like them to have now. >> the subtlety of this is somehow escaping me. you claim you have everything and yet you have a need for this additional information. it does seem to me all you want is a more official link from these government contractors that what you say happened occurred in poland and not in some other location. otherwise i don't see what need you have for any of what you're asking for. >> with your indulgence, let me offer a hypothetical, maybe that would help focus this a little bit. imagine there's a murder on the orient express, all right? the train passes through many countries on the way to its ultimate destination. the prosecutor in budapest has determined already

people from washington, luminaries such as clarence thomas, scalia, steve williams, doug ginsberg, sam alito, lieberman notice, rate randolph, the list goes on and on. i have to stop. i cannot forget that the real in your young faces when you came face-to-face with bob moore or clarence thomas scalia. today i encounter lawyers all over the country including members of the cabinet, public secretaries, prominent lawyers who attended those summer parties as young students. they cannot wait to tell me what an inspiration that afternoon was for them. many of you are here tonight. this is just a part of barbara's legacy. i never cared for the term lecture. it sounds too much like colonoscopy or any recent speech by president biden. [laughter] [applause] so i prefer to think of this as a remembrance. so in preparing for this evening i thought i might try to channel barbara and what she might think and say about the state of politics and society in america today at her life not been so brutally ended on september 11. i have no doubt she would have a lot to say to us so i limit these imaginary inside

. >> justice alito?> suppose this happens, a woman shows up at the clerks office and says i want to file a complaint against the doctor who performed my abortion because it caused me physical and emotional harm. i want to sue under sb 8 because i want damages. i also want the $10,000 in liquidated damages. he said they clerk should say what? -- you s said the -- you said the clerk should say what? >> they should deny the lawsuit. >> any other lawsuit based on common law torts, breach of contract, medical malpractice, whatever else was available was still be available to that woman? >> if there is a common law tort lawsuit that is not a sb 8 lawsuit, yes. >> thank you. >> if i could turn technical for a minute. should one of your arguments prevail? or another argument in support of your position available -- prevail, what exact relief are you requesting? >> we are requesting an injunction. we have a pending class certification for defendant class against the clerk. we would be requesting an injunction aga

quite inpatient to get things done if he'd like to get them done so he kind of in a way he and justice alito the two of them control the chief justice i think and tweet him and tease him and just don't show him much respect and i think that's because they are impatient. they don't want to miss an opportunity to go as far as the could possibly know is what i think. >> do you think that justice thomas is now in some ways at the right place at the right time or do you see him as having driving the agenda among the nine conservatives? >> well, i think his influence, i never viewed him as particularly being intellectual inside the court that the court did they think is intellectual outside of the court. it's astonishing how many law clerks during the trump years have ended up on the federal courts or in other very significant opinions and recently appointed solicitor general in the state of mississippi and is taken over the litigation in the abortion case. justice thomas has a way of identifying issues and signaling to the base and it's incredibly loyal base outside the court and all kinds of iss

been on the pro life side and i think she is seen as an anti-abortion justice and likely to side with alitot and swing voter is kavanaugh. for those that want to see the law struck down they have to rely on him to swing with roberts and roberts stays where he is. kavanaugh voted with roberts. there's an indication for him to be chief justice himself. >> donna, my question is similar to the brickyarder conversation around the voting rights act. is roe versus wade in danger here? how concerned should people be? the point is that the supreme court gutted the voting rights act by removing the preclearance procedure if you will or provision within the voting rights and seen what that's done in this country. could what we see play out with this texas if not overturn roe v. wade gut the protection for women and the template for other states to pretty much again not officially overturn but render it null? >> i think certainly the two texas cases that if the supreme court were to allow them to stand we have already seen other starts begin to look at ways to replicate what's been done in texas to avo

is absolutely constrained, and seasonal demand is going to go much higher by december, soap resume alito'shortages of product -- so presumably those shortages of products will become even more so. there's sectors that are bottoming could become -- so that could lead to a pickup and demand. i think there's a good pressure that we actually see a 5% handle on core cpi as early as december. alix: that is going to be seriously hot headed into 2022. so the market is currently pricing in another 13 basis points of rate hikes by mid-2023. is the market too complacent in that? aneta: this is where it gets tricky because the fed obviously has laid out what they call a very stringent test the talks not just about inflation, but the employment situation. i think we can all agree that we are not quite at maximum employment yet. it is a debate where maximum employment is, and i think that getting back to the pre-pandemic employment to population ratio is just too ambitious of a goal that the fed will probably have to abandon at some point. i just don't think they are ready to throw in the towel any time

there is real evidence of, that there's a moment today in the arguments, were sam alito, made it seeme, the subways of new york were, it was like from the film the warriors or the wild, west and said we people need to carry guns on the subway, to defend themselves. i have to say if someone just took the subway here, it's perfectly safe, and happy to not have the whole subway car armed, but, the conservative justices sound very sympathetic to this argument. >> i thought about that chris, i'm sure that they were referencing back to vigilante justices. this notion this seems to be under guarding some of the more conservative justices, that somehow in the constitution, there's a right, and it's not found in the second amendment, it's not found anywhere, else for vigilante justice. it doesn't exist. in fact, it's quite the contrary. so it is alarming. i'm just hoping that in the, and people recognize that we have an epidemic of gun violence, that the laws we have, work and they are well regulated militia, is completely separate and apart from our ability to protect ourselves, and our kids.

justice alito actually asked the question of the lawyer saying, well, everybody on the subway in newdn't, quote, law-abiding people also go on the subway armed? well, first of all, it isn't true that everyone's armed. the subways are very safe but that is a recipe for violence and for racialized violence. >> now, it's been a busy week in the world of criminal justice. on thursday, the governor of oklahoma commuted the death sentence of julius jones. instead, sentencing him to life without the possibility of parole. for a crime that jones insists he did not commit. and if jones's advocates successfully prove his innocence down the line, he would hardly be the first black man exonerated years after the fact. indeed, the same day as jones's commutations, two men wrongfully committed -- wrongfully convicted, i should say, of the assassination of malcolm x in 1966 were officially cleard of wrongdoing by a new york judge. mr. waldman, what do these cases, these -- particularly, these two cases -- tell us about the state of our criminal justice system? >> well, they tell us, i think, someth

on what we know of the history of these new trump appointees to the court and, of course, justice alitoe a hostile position to roe v. wade and find a way to uphold this mississippi law even if that means that they will hold the structure of roe in place. i think essentially they'll be gutting its viability standard as jeffrey mentioned, and it's very likely that we're going to see an extreme rollback if not a complete rollback of abortion in states where states are hostile to that constitutional right. >> wendy davis, jeff toobin, i appreciate you both being here. thank you. >>> up next, from a pilot venting politically on the p.a. system or a flight attendant punched in the face, a look at the state of what increasingly seems like our distinctly unfriendly skies just in time for the holiday travel season. wooo vaporize sore throat pain with vicks vapocool drops. (man 1) oh, this looks like we're in a screen saver. (man 2) yeah, but we need to go higher. (man 1) higher. (man 2) definitely higher. (man 1) we're like yodeling high. [yodeling] yo-de-le-he... (man 2) hey, no. uh-uh, don't d

. >> there was an exchange with justice alito and new york's solicitor general barbara underwood thatides of this argument. let's listen to that. >> all these people with illegal guns, they're on the subway. they're walking around the streets, but the ordinary hard working law-abiding people i mentioned, no, they can't be armed. >> the idea of proliferating arms on the subway is precisely, i think, what terrifies a great many people. >> jonathan, what was your reaction to that exchange? >> well, he seemed to be channelling ernie goetz who gunned down four young black men on a subway several decades ago, which shows the danger of having guns everywhere, and there is this sort of fantasy that people walking around with guns can, you know, defeat crime. well, my organization is named after jim brady who was walking beside perhaps the most well-protected person on the planet, president reagan, and he was almost killed with had heavily armed detail. i mean that, shows you that guns are not the answer and jim and sarah brady's lesson from that experience was that we need less guns, and stro

same with justice alito.k it is going to be interesting to see the dynamic between justices kavanaugh and chief justice roberts here. we know chief justice roberts is not a friend to abortion rights. he has never voted substantively in favor of abortion rights. all of his votes in favor of upholding precedent have just been that. the conservatives in reality don't need him on his side. he could join the liberals in dissenting on this case and the conservatives could still win. i do think we need to be very clear-eyed about the fact there is an antiabortion majority on the supreme court and they have their sights set on this case for a reason. so tea leaf reading about which conservative might switch sides -- we can do that but i think we need to be very, very real about the fact that even if the supreme court were to side with jackson women's health organization in this case, the status quo is unacceptable. that means there is one abortion clinic in the state of mississippi that means the texas six-week ban i

based on what we know of the history of these new trump appointees to the court, and of course justice alitoce thomas, it's very likely that they'll take a hostile position to roe v. wade and find a way to uphold this mississippi law. even if that means that they will, um, hold the structure of roe in place, i think, essentially, they'll be gutting its viability standard as jeffrey mentioned. and it's very likely that we are going to see an extreme rollback, if not a complete rollback, of abortion in -- in states where states are hostile to that constitutional right. >> wendy davis, jeff toobin, appreciate you both being here. thank you. >>> up next, from a pilot venting politically on the pa system or a flight attendant punched in the face. a look at the state of what increasingly seems like our distinctly unfriendly skies just in time for the holiday-travel season. football, is a game of inches. but it's also a game, of information. because the nfl is connected. and at any moment, the fate of the season can come down to this. billions of secure connections, per second. when the game is on

. >> ended another point -justice- at a another point justice samuel alito push the u.s. general about the remedy they are seeking which is to bar texas state judges from even hearing these cases. let's take a listen. >> it is unprecedented and it is contrary to our system a state -- our a case. how can you enjoin a judge from performing the adjudication of a case that can be filed before the judge >> the state court judges in texas are being utilized by texas to effectively create an apparatus that is so lopsided, so procedure related anomalous and hostile to constitute the protected content that the mere assistant of the suits -- existence of the suits creates a constitutional harm. >> this, again, is going to who can be sued under this law. and the united states sued tex as. but it did get an injunction in the lower court that included no only the state of texas but state court judges, state court clerks, individuals who may be involved in trying to enforce the law through civil suits. and i think the solicitor general here was trying to show how the state can't say, i

but justice samuel alito said think of somebody who works at night and lives in a high crime area andey be able to carry a gun? that's giving you a range of the views today, but it seems like the new york law is in trouble. >> pete williams, thanks so much. appreciate it. that's it for me today. hallie jackson picks up our coverage next. coverage next. this is art inspired by real stories of people living with bipolar depression. i just couldn't find my way out of it. the lows of bipolar depression can take you to a dark place... ...and be hard to manage. latuda could make a real difference in your symptoms. latuda was proven to significantly reduce bipolar depression symptoms and in clinical studies, had no substantial impact on weight. this is where i want to be. latuda is not for everyone. call your doctor about unusual mood changes, behaviors, or suicidal thoughts. antidepressants can increase these in children, teens, and young adults. elderly dementia patients on latuda have an increased risk of death or stroke. call your doctor about fever, stiff muscles, and confusion, as thes

alito and roberts. and filibuster and post fall and post fall and we had breyer was next. and knew we had him. worked for kennedy. nice guy. liberal. but the constitution gives the president right to qualify to make the appointment. got 97 votes i think. just shows how to change in 15 years. >> you know, that's leads to a huge question. but, you know, as we've been working on this and i thought for 30 years about this. if you look at your -- you go back to '76, or --. two guys from the midwest. republican party has a mid west phase. it was conservative but mainstream conservative. >> yeah. >> economic conservative. it had a healthy skepticism about government but not nihilism. it wasn't libertarian. it wasn't reflectively hostile. lot of people needed help and couldn't get help from anywhere else. it was open to that at least. it wanted to keep government out of the classroom, the boardroom and the bedroom. a whole generation who grew up in the depression and world war ii who were accustomed to shared sacrifice and that meant as eisenhower famously said in his farewell add