let's start with the court itself.hemmembers, and seven of appointed by republican presidents but how did they align ideologically? --it was pretty much a 5-4 pretty much a 5-4 vote. there were several moderate republicans. souter, ruthd ginsburg, and stephen breyer were the four on the left. , but alsoconservative an interesting era. justice kennedy and justice were conservatives and you could not predict them in cases. you say more about chief justice william rehnquist and his approach to leaving the court? >> he had been on the court for a lot of years. he had strong, clear views. i got lunch with them every year. i found him very interesting but he could talk about all sorts of subjects. want to talk about sports or politics, the weather, whatever, he was a person who liked to get out and talk to people. he also was a very good leader. the justices really appreciated it. he knew people have different views, but he was a very good leader. really was an ideological leader. he had strong views about the separate state

let's start with the court itself in 2000. the rehnquist court.ine members of the court and seven of them have been appointed by republican presidents. but how do they align ideologically? david: it's sort of a 5-4 conservative court. rehnquist was a leader. justice scalia was a prominent figure. it leans right. there were several moderate republicans. john stephens, david souter and ruth ginsburg and stephen breyer, four on the left. so it leaned conservative. but it was also an interesting -- you know, the court -- the court is never 100% predictable. i found that justice kennedy and justice o'connor were middle of the road conservatives. and you could not predict them in all sorts of cases. susan: would you say a bit more about the chief justice william rehnquist and his approach to leading the court? david: well, he had, you know, he had been on the court for a lot of years before he became a chief justice. he was a person of very strong and very clear views. i got to know him. i would go to lunch with him. i always found him a most interestin

but it was also an interesting -- you know, the court -- the court is never 100% predictable. found that justice kennedy and justice connor were middle of the road conservatives. and you could not predict them in all sorts of cases. >> would you say a bit more about william rehnquist and his approach to leading the court? david: well, he had -- you know -- he had been on the court for a lot of years before he became a chief justice. he was a person of very strong and very clear views. i got to know him. i would go to lunch with him. i always found him a most interesting person. he could talk about a lot of interesting subjects. if he wanted to talk about sports, politics or the weather,or whatever, he's a person that liked to talk to people. he also was a very good leader. the justices really appreciated that rehnquist was very straight forward and clear. he respected their views. he knew people had different views. but he was a very good leader for the court. and he also had a sort of -- he really was a sort of ideological leader. he had strong views about the separate -- sta

court packing isn't all that popular. democrats are about 60% likely, they favor court packing. republicans are dead set against it. socialists aren't all that enthusiastic. independence are fairly strongly against it. even people who are poor or are receiving government benefits aren't particularly in favor of court packing. people who want the constitution to be made easier to amend are in favor of court packing. they are more excited about the possibility of a constitutional amendment. they want to preserve the traditional separation of powers. to not make the judiciaries supersede the executive branch. court packing wasn't the only time where roosevelt tried to challenge traditional constitutional norms separating powers across branches. another important controversy that gets largely overlooked is over roosevelt plan to gain more control over the federal bureaucracy. it was called the executive reorganization bill that he pushed. he wanted the president himself to be at the center of the making of bureaucratic decisions. even amongst independent agencies. agencies that are

the court ruled against him, and he filed an appeal to the state's court of appeals. as the case pended, the supreme court ruled that the eight amendment prohibited life without parole sentences "for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility." -- only those or permanently and cordial may be sentenced to life without parole. in montgomery about formal fact-finding has created confusion. but it cannot mean that no determination of permanent incorrigibility whatsoever is required, because that would obliterate the crux of the decision. any rule of law requires deciding if the defendant fits within the rule. but mississippi's courts have denied the permanent incorrigibility rule itself and , and the state continues that denial in this court. in remanding this very case for sentencing, the mississippi supreme court did not say a word about the permanent incorrigibility rule and affirmatively misinterpret the law by stating that elwok is unconstitutional if and only if the sentencing judge does not consider youth-related

court. he was the winning advocate in crawford v. washington. involving the hearsay exception in criminal prosecutions. in riley against california on smartphone privacy protection rights. and he was one of the plaintiffs counsel in obergefell versus hudson. jeff is a graduate of duke and michigan law and he clerked for the late stephen reinhardt on the court of appeals and for justice stevens. to his left is kathleen hartman. a partner in law 4 -- she has a private practice representing clayton and that plaintiffs and defendants and high-stakes litigation. during the obama administration -- and theas deputy department of justice. she is a graduate of harvard college and law school and andked for merrick garland as you may have guessed also for justice stevens. finally on the far left of the panel which is not a phrase he will hear very often is daniel breasts -- brass. who is nominated and confirmed to the u.s. court of appeals for the ninth circuit, finally getting through the hazing. he w

any court including the supreme court would be loath to disqualify. you know 100000 votes that's just going to be a very difficult path for the trump administration to or the trunk campaign to overcome there's no doubt that if you're taking this election to the court you are in many ways you know this plane weakness it wouldn't you know that that position of strength is to actually win the popular vote when the vote in the state get the electoral votes and and claim the presidency clearly trump is on his back foot in places like michigan wisconsin if pennsylvania ends up going to court he's on a stronger footing end in places like nevada and arizona where you know it's a much tighter a result so let's see you know which changed sides to move forward on and what that case actually is but there is no doubt that donald trump is on the defensive here by trying to win an election by seeking legal redress we mentioned wisconsin that it didn't reset and cost our will so biden's claim victory in the state trump on the other hand is demanding a vote recount i

>> may please the court. this court pushes the line between the congress does rather than it what it may have intended to do. i'm congress limited -- delaminated the shared response ability payment it left standing the finding that the mandate was essential to the operations of other parts of the act. that has legal consequences ofther or not the members congress foresaw them. it is how this court should approach the aca here. i welcome the court's questions. chief justice roberts: your theory of standing is that a person who was not actually injured by part of the law can challenge that part of the law to strikeh that tried down other parts of the law that you challenge him, or do injure him. i think that expands standing dramatically. just in this accolade you were talking about most 1000 pages and you were letting someone not injured by the provision that needs challenging to roam around to those 1000 pages and pick up whatever ones he wants to attack. mr. wall: i think the reason there isn't a massive loo

supreme court. it's something that mcconnl has longed for, dreamed about, worked for during his enre career in the senate. mcconnell reached the president on air force one. >> mcconnell told him two things. he said, "first, i'm going to put out a statement that says we're going to fill the vacancy." second, he said, "you've got to nominate amy coney barrett." >> narrator: amy coney barrett, a 48-year-old nservative appeals court judge, mcconnell's way of securing control of the supreme court for years to come. >> to be able to say that, conservative court for another generation" is important to him. for mitch mcconnell, the court is everything. >> this is going to be a rough battle on capitol hill... >> narrator: mitch mcconnell's determination to transform the supre court had been his life's work. >> ...the dismay of several senators, u.s. supreme court nominee clarence thomas managed to elude... >> potentially ensuring a m conservatiority for decades... >> narrator: through bruising confirmation b

court changed its mind. it largely struck down new deal policies of unconstitutional and largely upholding them. inhappened in two cases 1937. one involving a minimum wage law of women for -- in march 1937. the other was the radnor act. that was down in early april. the waggoner act was the national labor relations act. the first time the federal government had provided protection for workers who wanted to organize labor unions and collectively bargain with management. what happened in those two cases was two of the swing justices, -- noe oren roberts relation to current chief justice john roberts. the other was chief justice charles evans hughes. they went from voting with the conservative bloc to wording with the liberal bloc. they were trying to send a signal to roosevelt that there was no need for court packing because there wasn't going to be any lingering controversy over the constitutionality over the supreme court. madeswing that the court was called at the time the switch in time that saved nine. it

first of all, there's no basis to go to court, let alone the supreme court.we all knew because of covid there were going to be mailin ballo -- mail-in ballots. if there's election controversy, maybe that gets litigated in the courts but i don't think that's going to happen this year. >> pete and jeremy, thank you so much. we have a lot more to cover ahead. we'll see what is going on there, including the votes are still being counted in some key states. and how are voters reacting overnight? this is a moment where we've seen a lot of tensions on the streets, we've seen boarded up store windows but we've had a >>> good morning you guys. 7:43. it's the morning after the election. the race, as you can tell by our big board right there still unsettled. president donald trump and joe biden split. it's 224 for biden, 213, each trying to get to 270. >> a lot votes remain to be counted. claire mccaskill and rich lowrie, editor of "the national review," both of them joining us and have been up all night as well. rich, let me start with you. you look at the map. there w

endorse court packing. she said, no, we need to maintain the traditional norms of the separation of powers. she wrote, mr. president, i urge you to let the supreme court alone. the considered judgment of the people through the orderly process of amendment is the nation safeguard, even at the expense of time. nothing valuable can be lost i taking time. you can see this reflected in public opinion polls. axis, you can see how republicans and democrats, socialists, and independents, what opinions they have -- they standings from above average to poor, those who are subsistence, and at the bottom there are those who believe that the constitution ands to be easier to amend we do have the hardest constitution in the world to amend. going from left to right, we have predictive probability. support that 50% would a given policy. they have the percentage for in almosting and every instance what you will find -- amongs more popular republicans and democrats. differentross socioeconomic statuses and even those who thi

he respects the court he is one person on a nine-member court. i jump the qb happy with the moniker, but this gets back to another way of thinking about it which i think he would embrace. i think he learned early on probably setting around that term, he realized he wasn't just writing for other lawyers. he wasn't just writing for his colleagues pretty wasn't just writing for lawyers in the case of the party. he wasn't writing for the supreme court bar. he realized pretty early on i think this may have affected his writing style that is audience was the law student. so back to me again. he thought that was his audience. he wanted to write so that when people they cannot take these end of u.s. reports they were going to be there. if the professor was not teaching his defense it would be noted in the majority in the student could read or they were teaching at hand come to grips with it. and so i think for him that was a way to feel a little better about cases where sometimes he was disappointed, it would come out the wrong way. you know, i personall

look at the fdr court. he put eight members on the court. the only one he didn't put on was stone and he was a fellow traveler. they called the scorpion court. you can't be too sure about -- so the next justice scalia won't happen. he did lay down some markers and maybe this is the very best thing he did as a judge and maybe the thing tried to do the most in my capacity as a judge is he let the world know what his score card was. which is another way of saying he let the world know how he should be judged and that's what matters. in other words he writes a dissent or majority and you can look at it and say, that's following textualively, that's following originalism, or you look at it and go, well, wait a sect. that doesn't look as originalist as i'm used to seeing and that becomes a fair part, point of criticism. and so we're going to have -- we have in justices, all be having new justices and they may or may not have score cards. hope they do if they do and justice barrett says she is an originalist and a textualist and i strongly suspect

child courts to make a finding of permanent and court ability. this -- of permanent incorrigibility. whether a crime reflects transit immaturity is not separate from the inquiry miller first prescribed. under miller, a court must consider whether the district if attributes of youth diminished the penological conditions for parole. if the court has determined that it is not, that is a determination that the crime does not reflect transit -- transient immaturity and no further finding is required. even if transient immaturity required a separate finding, the court made a finding here when it found a transient immaturity argument insufficient. for either reasons, the judge below should be reaffirmed. chief justice roberts: i would like to ask you the question that i understood justice kagan to be asking your friend from the state. i understand your submission to be that the requirement here is purely procedural. in other words, looking at page 15 of your brief, the sentencers have the ability to take in account youth attending characteristics and if

the court has options here. we think that that is the better rule that requires some sort of explicit statement, not magic words, but given the gravity of the constitutional interest or the deprivation that is occurring here, we think that is the better rule. the other option the court has is to say there is an implicit finding rule that ordinarily, you presume the judge understands the law, understands the permanent incorrigibility rule, and that the life without parole sentence reflects a determination that the defendant is permanently incorrigible but that presumption does not apply here because of the affirmative misstatements i have alluded to. either way, the court could make it clear that there is plenty of room for state experimentation and innovation as to the procedure, as to who bears the burden, what is the standard of proof, what is the standard of review, etc. review isit has to the permanent incorrigibility. . >> good morning, mr. shapiro. if you have it in front of you, could you repeat the first

guest: that case went to the united states supreme court prior to the election and the court split 4- what this comes down to is the elections clauses lodge the power that said over elections in the state. it uses the word legislatures. the argument is we are in the midst of a pandemic. we have seen changes across the country to make it easier for people to vote in a pandemic. we have seen, primarily on the republican side, challenges and hundreds of lawsuits to stall those efforts to make voting access more available. the argument is, and the conservatives on the supreme court generally agree, that unless the changes were made by the actual legislature, then they cannot stand. if the changes are made by an elections board that has power that is delegated from the legislature or the changes are made by a federal court under the constitution or even if it is via state court, under the state constitution, that is the argument. the argument is that if it is not the actual legislature passing a new law so that people can vote without actually physically going into the polls, unless the le

supreme court to step in. think it's doubtful the supreme court will do anything. >> michael kang, you and i were here a year ago. there was breaking news out of pennsylvania a different court, very much the same result, though. at this point is there any legal strategy that could work for the president? >> i agree with pete. i think it's all over now. i think, really, these two decisions today by the pennsylvania supreme court and the third circuit decision yesterday basically shut down these election challenges by the trump campaign by associated parties. i think donald trump has had this idea that the supreme court and his appointees will save him at some point in this process, but i'd be shocked if the court took this case and did anything that would affect the election at all. >> i want to bring back in melissa murray to get her take on this breaking news. melissa, i have to ask you, it is the understanding of a lot of people that the ultimate goal here is to get this to the supreme court. i wonder if you

the court shouldn't have taken that case. the court should have come out the other way. there are 15 to 25 to 4 decisions per year from the supreme court. so i believe that justice o'connor was reflecting and thinking about something like that, but i think the supreme court did the right thing and it reallyad no choice. >> in 2000, david, it took 36 days for the election to be finalid, and while it hasn't been that long now, the trump campaign appears to be following a strategy of claiming fraud without evidence. there has been at least a dozen cases, five of them have been rejected or dropped. nothing has been filed that would change the outcome of the election. what kind of legal action, david, if you were the strategist for the trump campaign, would president trump need to pursue to change the election results in his favor? >> sometimes when clients come to you and want you to bring a lawsuit, the only advice you can give them is there is not a lawsuit there to be brout. and i think if i were contacted by president trump, that's what i would tell him. >> do you see a

system, and that is why i'm focused on "take back the court." - what exactly is "take back the court a two-year-old project focused on expanding the size of the u.s. supreme court, and thereby restoring and preserving democracy. - isn't it against one of the long-standing pillars of the democratic party of being total pussies? - i can agree that i have shared the frustration of many. we have to stop reacting as if the sky is falling, but not doing anything about it. - but this idea isn't popular with everyone. even rbg herself spoke against it in 2018. - but she's an institutionalist. i'm certain that even in her worst nightmare, she did not imagine that mitch mcconnell and the gop senate would ram through an utterly unqualified successor to her seat. - would this be stooping to their level? - the only reason to respond to the theft is to stop bringing cotton candy to a knife fight. we need to get in the ring, we need to go toe-to-toe, and we need to take the steps necessary to restore democracy. - cotton candy to a knife fight is not helpful. even worse, bringing a knife to a cotton

here's the court at the time. one justice, justice duvall, was absent and didn't participate, but these six guys did, and they split three ways in cherokee nation versus georgia, over this jurisdictional question. the two guys on the right -- let me back up. the two guys on the left, smith thomas, and in the upper left-hand corner, joseph story, said wirt's right, they're a state, they're foreign, they're a foreign state, and so, we can go ahead and hear this case. the two guys on the right, henry baldwin and william johnson, said, no, it's neither foreign nor a state. and johnson in particular said, if we, you know, if we admit these guys to be a foreign state, then every tribe is a foreign state and we're just going to become an indian law court because every tribe everywhere is going to sue for something or other and we're going to have to act as a tribal court and it may have been the concern of caseload that involved him. baldwin was a jackson appointee, and we're going to learn more about baldwin momentarily

he did that for the court. but they did make them better in the reunions to bring them back once a year in the spring and that clerk class will present to him which was the us reports volume and each year he would tell you that was a good or bad year. that was a thin volume because he wasn't writing a lot of dissents a bad here was that the volume i was there for a very thick year. [laughter] i was not a very good clerk. [laughter] i should point out i clicked the same year as ed whelan and that's how we got to know each other he has been at the center of this one was speech and then so i only came in for this one. but if we can go to the two of us and he said something i didn't quite understand and said it's arrant it's the night to has look after me and he was not referring to me he was referring to ed whelan and in fact now i think about it he ignored me. but ed has been a defender justice scalia's work just as uncompromising everybody needs a friend like that. >> you certainly done a lot of good work. >> ag

the court sets a hearing for callsthinking my morning for the court of appeals would be done by then. unfortunately one of my colleagues had no power. it took us until about 10:40 to even begin the court of appeals docket and it just concluded. and apologetic about that appreciative of the patients of all parties in this case. read of thea speed multiple pieces of paper that were filed. file aendant did response to the request for injunction. ago, -- filedtes papers which i can tell you i have in front of me but i have not read. the way in which i am going to proceed today, without affording the proposed intervenor, interventions. this has to be managed today and quickly. i'm going to give them the courtesy of brief oral comments. i will give them that courtesy after the named party has spoken to whatever issues they deem appropriate. are we clear on how we are going to try to get through this? >> we are. counsel forn with the plaintiff. >> thank you. good afternoon. are our perspective, we asking the relief the court to grant is simple. direct the secretary benson that the election c

and i was doing it after off the court. i would read all of the court opinions. that's the first place i would go often party to because i wanted to see what he said party would also put it clearly. you feel like you knew what was going on. it so i wondered where this came from. i wonder this i was cooking for him. i was the one thing that i wanted to get out of the year is what is the secret to his writing. and is there any way to acquire it. he did have advantages, has father was a professor and spoke several languages. his mother was an educator as well. maybe an only child, not just in family with the whole generation. a lot of love funneled in. whenever he wanted to god. maybe it helped i don't know. i will say this. i was on a collison friends some friends the other day about it. and i found myself wondering, i wonder if one reason he became such a great writer is that he started out the such a as such a great speaker. he did a lot of acting in high school. so he really loved theater. it i think he loved the stage. he could be a bit of a ham. and if you saw

in every court of claims case, there has been two federal cases. there was a case filed regarding a mailing of absentee ballot applications. there was a case filed regarding the processing of absentee ballot application signator's, and a few others. i don't know what that case was about, but every case that i have had has been acknowledged, and it is my understanding of the law in the state of michigan that while she does provide supervision in a broader sense and while she does provide direction that it is not she who would be saying at precinct five you may approach the poll booth -- book and take it in your hands. you may not. she has issued a directive for what was described as meaningful access which enumerated the functions of of challengers and poll workers. she has issued that. >> that's correct. >> at best, what you gave me, the plaintiff says he was a credential lysed official and says he was ousted from a polling place but does not say where or when or in which circumstances. your affiant says another person came to her and told her that

courts below. the court in cases like trinity lutheran and espinoza looks to traditionsistory and of the free exercise clause. smith has caused negative results. development since smith was decided make clear that its prediction has actually not borne out, that it is possible for theit government to accommodate and partner withrn religious organizations to do religious exercise. >> but would you replace smith with? we just want to return to sherbet versus werner? >> i believe that the courts for exercise jurisprudence gives us some guidance there in cases like the minister exception or church autonomy, the court doesn't even look at the smith lukumi line of cases in cases like lukumi and trinity lutheran, the court has look at the non-neutrality or targeting but in other cases i think the question should be pretty simple, is the free exercise of religion being prohibited? if so, doeson the government hae a compelling reason for doing so? here the government does not. >> last question. if we did ove

supreme court decisions.dn't these news organizations and others give this time to play out a little bit? the way they did in 2000? that's my question to you, your answer when we return. history also destroyed the lives of thousands of jewish survivors still suffering today. god calls on people who believe in him to act on his word. "comfort ye, comfort my people." especially during this holiday season of hanukkah. when i come here and i sit with lilia i realize what she needs right now is food. these elderly jews are weak and they're sick. they're living on $2 a day this now, is how god's children are living. take this time to send a survival food box to these forgotten jews. the international fellowship of christians and jews urgently need your gift of $25 now to help provide one survival food box with all of the essentials they critically need for their diet for one month. your special holiday gift will provide everything they need to celebrate the miracle of hanukkah. this is the first time in over 70 yea

it is how this court should approach the aca here. i welcome the court's questions. chief justice roberts: your theory of standing is that a person who was not actually injured by part of the law can challenge that part of the law, and through that, try to strike down other parts of the law that do challenge him, or do injure him. i think that really expands standing dramatically. i mean, just in this act alone you are talking about almost 1000 pages and you are letting someone not injured by the provision that needs challenging to roam around to those 1000 pages and pick out whatever once he wants to attack. mr. wall: i think the reason there is not a floodgates problem, a massive loophole in the reason we had not seen claims like alaska airlines is because on its merits, it is just very rare that you are going to have the levels to overcome the presumption of inseverability. these claims go out and are dismissed, if they are ever brought at all. and the theory, and justice alito was pressing earlier, if you imagine a statute that had a clearly racial discriminatory

not state courts.nthe state legislature pennsylvania wanted to set those kinds of rules for absentee ballots, they are fully empowered to do so. the courts cannot do that. they do not have authority to do that. campaign,e trump potentially, has a strong argument. they have to go to the u.s. supreme court with it, that any ballots that were received after the state law deadline of election day are invalid. ast: the supreme court took look at this our previous guest talked about it. it did not look at the merits of the actual case if i understand it correctly. correct me if i am wrong. guest: that is right. the state legislature filed an emergency appeal with the u.s. supreme court, asking for a the -- stay.y what what the supreme court had done, -- the rules the state supreme court set in place would stay in place for the election. that does not prevent the campaign or the state let's later going back to the supreme court and saying you need to take the case on the substantive merits and make a decision

up in court decisions.nizations and others give this time to play out a little bit the way they did in 2000? that is my question to you print your answer when we return. ♪ you're quite the investor. i like to trade. well, td ameritrade has pros ready if you need help, say talking through a new strategy... ... just in case things, you know, get a little rocky? i'm sorry on the upside i think that's waterproof. maybe not... ♪ ♪ mark: welcome back. cons of von spakovsky, experts on election law. former committee of the federal election commission and former prosecutor in the oval rights division of the apartment of justice and forcing of all things voting rights laws. that is an important concept, enforcing voting rights laws. my question to you is this, there is litigation going on and in some states they will re- campus and also the president's campaign depending on the state like in wisconsin and so forth, because they were so razor then they have the right for potential recount. what is really can mean? >>

is that true also for the supreme court? katie: that is not true for the supreme court. i think the concern here is that they would make a decision on legal grounds that has the impact that you are talking about. it would make it harder for people to get the prescription drugs that they need. there are many studies that show having health insurance does help stabilize. it is not necessarily something the court would consider. i assume they are paying attention to health care needs like you just brought up, and the pandemic, and the destabilizing effect it could have on the health care market. at 10:00l arguments a.m. eastern and live coverage coming up as well. 10:00 a.m. on c-span, c-span radio, and following along at c-span.org. we have been speaking with katie keith.

and circuit courts. is a factual decision forjudges to make. one, thank you so much returning joining us here on bbc news. what a pleasure, thank you. stay with us on bbc news. still to come: much more coverage as the us and the world waits for the results of tuesday's presidential election. the israeli prime minister, yitzhak rabin, the architect of the middle east peace process, has been assassinated. a 27—year—old jewish man has been arrested, and an extremist jewish organisation has claimed responsibility for the killing. at polling booths throughout the country, they voted on a historic day for australia. as the results came in, it was clear — the monarchy would survive. of the american hostages, there was no sign. they are being held somewhere inside the compound, and student leaders have threatened that, should the americans attempt to rescue, they will all die. this mission has surpassed all expectations. voyager one is now the most distant man—made object anywhere in the universe, and itjust see

the biden team, they're responding to this court decision by the appellate court saying that joe biden got 306 electoral votes. this election is over and on january 20th of next year he will be sworn in as the duly elected president of the united states. >> yep. okay. i think everyone's pretty much counting on that, except for a select few in the building there behind you. thank you very much. now to the latest from the biden transition to vote recounts in wisconsin. paid for, by the way, by the trump campaign. they're almost over and joe biden set to receive his first presidential daily intelligence briefing on monday. go to alli vitaly joining us from rehoboth beach with a welcome to you. quite a holiday weekend on the outside but still a lot going on inside the biden camp. >> reporter: quite a holiday weekend here in rehoboth beach, rhode island. joe biden spent a smaller thanksgiving than usual here at his beach home, but you're right. monday is a pretty significant day for this transition, because after spending the first few weeks in limbo because of the lack of ascertainment fro

they went into the court and got it from the democrats on the supreme court.e three blue all states to present one in 2016 they wrote, michigan, penciling at her most johnson judges have recently issued rulings that extend the deadline for mail ballots to be received. judges. the text of the constitution says that's unconstitutional. judges don't get to make that decision whether state judges or federal judges. that's in michigan, pennsylvania, wisconsin. in michigan a quart a claims judge, the lowest judge there is in the state ordered clerks to accept ballots that are postmarked by november 2 and received within 14 days of the election paid the deadline for results to be certified. these ballots have to be counted as provisional ballots. legislator did not pass that. the republicans do not agree to that. it was u.s. federal district judge ruled that ballots postmarked by november 3 can be counted as long as they are received by november 9. the legislator did not do that in wisconsin. in pennsylvania -- these are republican legislators being overruled by cour

and the court rubel in those states so i think you've seen a court case after court case after court case get thrown out i tweeted out you know kind of mockery of it saying another one bites the dust in terms of the complaints you had rudy giuliani saying about philadelphia and about pennsylvania voters that they didn't know who who were casting all these votes they didn't know they were if they were martians canadians or dead people and so it has a kind of comedic element there's no james baker the former secretary of state and kind of the conciliar ery to george h.w. bush who really was the one who set the discipline in frame for the florida outcome for president george w. bush and so in my view when you kind of see the white house saying the arizona count must keep going on that georgia count must stop where the pennsylvania they have not had a consistent message and in that i think it's kickoff finished and highly unlikely that that any of these legal claims will get that and i've really tried to find a path and talk to a number of legal experts saying what is the way in which th

i mean, look at the fda court. fdr put eight members on that court. the only person he didn't put on was stone, and he was a fellow traveler. and, you know, that's called the scorpion court, all right? so you can't, you can't be too sure about, you know, the next jus that scalia, that's not going to happen. i think what is interesting is, you know, he did lay out some markers, and maybe this is the very best thing he did as a judge and maybe the thing i try to do the most in my capacity as a judge is he let the world know what his scorecard was, which is another another way of saying he let the world know how he should be judged. and that's what matters. in other words, he writes a dissent or a majority, you can look at it and say, oh, yeah, yeah, yeah, that's, that's following textualism. finish that's following originalism. or you look at it and you go, well, wait a second, that doesn't look as originalist as i'm used to seeing. and that becomes a fair part, point of criticism. and, you know, so, you know, we're going to have, we have new justices,

decided on before the election took place it went to the supreme court the supreme court said because of the narrowness of time it would not allow the motion by the republican committee in pennsylvania so it pushed it back to the court and allowed to the counting of votes after election day to go ahead but 3 of the justices on the supreme court at that point said it's something they may have to revisit and indeed now the trump campaign has petitioned the supreme court the supreme court has now sent a letter to the pennsylvania secretary of state instructing her to respond to the trump campaign's requirement to be added as a successful petitioner by 10 pm tomorrow night now whether this is significant or not we'll see basically it would open up that case again in the pennsylvania supreme court should the tram campaign succeed. in its attempt to be put on as a petitioner so it could indeed go back to the supreme court at some stage however and this must be stressed there is a legal position here so which is very very important in this and was mentioned in the original supreme court deci

general wall: the court would have to conclude in order to say that, as the district court did, that the president does not have the discretion to exclude any illegal aliens from the apportionment base, even some subset. the injunction prohibits him from getting any of the information he needs to include any subset. he did make clear in the memorandum that as a matter of policy he wanted to include -- exclude the entire set, that he had not made a judgment on whether he had the legal discretion to do that for the entire class. chief justice roberts: justice kagan? kagan: i like to go with a line of questioning that the chief justice and justice alito talked about, as to what categories we are talking about. you are saying there is this small category of ice detainees that is pretty feasible, but that is just tens of thousands of people, so how about a few others? as i understand it, there were almost 200,000 persons subject to final orders of removal. will the bureau be able to report on those? general wall: it is working hard to report on that subset, yes. justice kagan: there are 7

the challenges in state court -- nobody is trying to stop state court, but in federal court, there's limitations, and i don't believe they have satisfied, judge. interrupt want to this flow of argument, but with regard to mr. giuliani, just orient me -- how many matters are pending in pennsylvania state courts? donovan: the one i quote in the pennsylvania supreme court currently is the one mr. refers to as it canvas under state law is a six-foot or 12-foot issue. some in theave been state court have already been adjudicated. there are some ongoing -- quick scan he better answer those questions? them as he will answer part of his argument. go ahead. mr. donovan: ok. it fails to state cognizable claims. again, i just want to emphasize this because it is the current complaint. the plaintiff's claims that certain counties permitted voters to destroy mail-in ballots and have those votes ballot and that certain initiatives -- this alleged violation of state law cannot establish the federal equal protection clause. the complaint continues to try claimate a constitutional out of garden-varie