chief justice roberts: justice kagan. justice kagan: mr. waxman, the will you talk about amateurism, it sounds awfully high-minded. but there's another way to think about what's going on here, and that's that schools that are naturally competitors as to athletes have all gotten together in an organization, an organization that has undisputed market power, and they use that power to fix athletic salaries at extremely low levels, far lower than what the market would set if it were allowed to operate. so, why shouldn't we think of it in just that kind of way, that these are competitors, all getting together with total market power, fixing prices? mr. waxman: well, i think, the first answer i would give you is this is not some product, some differentiated product that has just been created and we're now testing whether or not it was adopted in good faith. we're talking about a product that was created 116 years ago in response to abuses that were occurring as a result of instances of professionalism in athletics in order to restore integrity an

justice kagan: thank you. justice gorsuch: i'd like to talk about antitrust law for a moment and then pick up where i left off. normally in joint venture law, this court has recognized that we should not be fly stacking individual aspects among participants. they are treating a new product that would not otherwise be available in market. the rules of reason should be pretty light and the plaintiff bears a burden to shows it does not violate the sherman act. this case, the ninth circuit applied a searching inquiry on each individual aspect. what in your view as a matter of law -- forget about the facts for the moment -- makes that kind of searching inquiry appropriate? mr. kessler: i believe, your honor that the court has been , very consistent in every joint venture case prayed whether it's american needle, or broadcast music that the remedy for joint ventures is the traditional rule of reason even when they are doing things that would otherwise be subject to per se rules or quicklook rules or something like t

chief justics roberts: justice kagan? justice kagan: is the speech in this case school speech?> it is close to the line because it mentions school, it mentions cheer, but it also mentions softball. justice kagan: which side of the line doesn't fall on? >> i think it probably falls on the school speech line. justice kagan: that means anything that mentions the school would fall on school speech. this is pretty generic. >> it was sent to a wide audience and included a number of cheerleaders. it predictably reached the cheerleading team and coaches and the fact that there may be some indeterminacy about the first prong of the test does not get the school over the hump. the school may be able -- may be unable to remand it, that this speech would have a tendency to disrupt team chemistry. justice kagan: can i give you a few hypotheticals and you tell me school speech or not school speech full top let's assume all of these cause substantial disruption. student emails his classmates to the geometry homework every day after school. >> school speech. justice kagan: student emails everyo

chief justice roberts: justice kagan. justice kagan: mr. huston, you said earlier that nothing defines non-immigration status to include admission. and when i said something similar to ms. saharia, she told me that 1184a does just that. so could you tell me how you read that provision? mr. huston: certainly, justice kagan. i think the purpose of 1184 is to specify the conditions that the government may use to admit non-immigrants. of course, it's true that there many, many non-immigrants who come to this country abroad and enter lawfully through a port of entry, they get admitted. and it makes sense that congress, in section 1184, wrote a provision granting the service authority to set some of the restrictions and requirements for that admission process and then imposing some of congress's own. justice kagan: it does seem, though, mr. huston, that these phrases like admission as a non-immigrant, they arise repeatedly in the immigration statutes, so that, you know, congress seems to be assuming that non-immigrants are, in fact, admitted and

. >> justice kagan? >> mr. thompson, if i could go back to your answers to just as donna's, let us say i do not think this would count as an easement under california law for a variety of reasons just as tom is gave justice kagan gave -- justice alito gave. you keep talking about a discrete interest in property. i guess my question is what discrete interest are you talking about if not an easement as the valve -- as defined by california law? we are talking about the right of that out to be screwed third parties from our property. >> i do not think the denial of the right to exclude doubts as a discrete interest in property. the right to be screwed is one of the six and the bundled that a property owner has, but usually when people talk about discrete interest in property it is like a legal form, and easement -- a lab that easement, but you are not pointing to anything like that. >> what we are putting to is the same language this court use describe an easement. >> you talk a lot about background principles of

chief justice roberts: justice kagan. justice kagan: ms. feinberg, i'd also like to ask you about the petitioners' as-applied challenge. you lost that below and we -- in the district court, and its findings are reviewed only under a clearly erroneous standard. and the district court said two things. it said there was a pervasive recurring pattern of inadvertent disclosure by california, and it said that the donors would likely be subject to threats and harassment if their affiliations were disclosed. so given those two findings, given a clear error standard, how can you win on the as-applied challenge? ms. feinberg: justice kagan, we think that the district court's ruling was premised on its observation that california could not guarantee constitutional -- confidentiality even after bolstering its protocols. if the court disagrees with the ninth circuit's approach to considering the district court's characterization of the confidentiality measures, the appropriate course would be as the united states suggests, which is to -- would be to vac

justice kagan. >> mr. thompson, if i could go back first to your answers to just thomas, let's say that i don't think that this would count as an easement under california law, for a variety of means that justice thomas gave and justice alito gave. let's just assume that could be true. you do keep on talking about a discrete interest in property, so i guess my question is, what discrete interest are you talking about, if not an easement as defined by california law? >> justice kagan, we're talking about the denial to the right to exclude third parties from our property for 120 days a year. >> i know what it says, but i don't think the denial as the right to exclude counts as dispute interest in property. the right to exclude is one of the sticks in the bundle that a property owner has, but usually when people talk about discrete interests in property, it's like a legal form, it's an easement, it's a fee simple, it's something like that, but you're not pointing to anything like that, am i right? >> that's c

the trick comes for me at least sort of where justice kagan was alluding to. which is here the agreement is really at the center of the case is an agreement on competitors fixed price with the labor market where you have monopoly control and that's unusual. the normal joint venture is in a competitive market but the ncaa has control over labor price there are other leagues in which it might compete with the mincaa that might allow payments and you could test consumer demand that way so why isn't the control over the labor market at least an appropriate basis for more searching rule of reason analysis. >> thank you justice gorsuch. let me be clear . given that this is the rare product that is defined by the restriction on competition. compensation. it is, were not saying that it's not appropriate for a court to examine in whatever detail is necessary whether product really is procompetitive. but if it is and in this case there is an agreement that the inquiry step two is our product differentiating and procompetitive, everyone agrees that the answer is yes . on

justice kagan. >> i would like you to assume a set of facts with me. there are some donors tucson charities that are genuinely concerned about disclosure for fear of harassment or threats but a substantial majority of donors and charities are not concerned about that. in fact they like public disclosure of their generosity. could you win a challenge quick. >> yes. for two reasons the first amendment context really need to show a number of instances. >> the great majority are not concerned about this. >> respectfully i would question your honor's premise. >> excuse me.d my premise is supported by a lot of facts. most charities disclose their donors in fact it is part of their strategy the more disclosure there is the more fundraising and association there is. so let's take my fact as a given there is a substantial majority of charities that disclose themselves and don't mind disclosure. >> this court and the city of los angeles needs to explain the proper analysis as to whether you have voluntary compliance that is outside of the constitutional analysis

and they were joined by justice elena kagan. 9-0 my dear friends. why? because the supreme court of the united states and we are talking about almost the entire membership of the supreme court was unanimously in favor of church autonomy in the face of the serious potential violation of civil rights a violation of the americans with disabilities act. >> i believe justice kagan joins the alito concurring opinion in the alito concurring opinion and as of this last summer the autonomy principle was re-articulated into catholics cool cases where thought we would win the forces of liberty would win but it was a very hard case because the low los angeles diocese didn't require the late teachers to be catholic and yet in certain religious duties that each teacher had and that was sufficient to carry the 7-2 majority. that autonomy, the ability of churches and church schools and church ministries to say hands-off ceasar even though the federal government may have a powerful interest as it does in the civil rights laws. no, you can't go here. thou shalt not enter.

chief justice roberts: justice kagan. justice: mr. schaffer, i would like you to assume a set of facts with me, and there are some donors to some charities who are generally concerned about disclosure for fear of harassment or threats. but there is a very substantial majority of donors, in the very substantial majority of charities that are not concerned about that, in fact, they rather like public disclosure of their generosity. if that is so, could you -- a challenge? attorney: for two reasons. in the first amendment context, we need only show a substantial number of instances. justice: the great majority are not concerned about this. attorney: respectfully, i would question your honor's premise, -- justice: excuse me, mr. schaffer. my premise is supported by a lot of facts. most charities disclose their donors. in fact, it is part of their strategy. the more disclosure there is, the more fundraising and association there is. anyway, let's take it back to the fact that are given. a very substantial majority of charities

there are three liberals, sonia sotomayor, elena kagan and stephen breyer.ut nowhere in the constitution does it say how many it should or must have. the first judiciary act set the number at six, but it's good luck candidated from 5 to 10. the last time a president attempted to change it, 1937, when fdr introduced a judicial reform bill that became known as his court-packing plan, seeking to ad more justices -- add more justices. the senate rejected it overwhelmingly. in 1983 then-senator joe biden, a member of the judiciary committee, had this to say about fdr's court-packing plan. >> it was a bonehead idea. it was a terrible, terrible mistake to make. >> reporter: and during the campaign, he opposed it. >> i would not get into court packing. we add three justices, next time we lose control, they add three justices. >> reporter: two of the most liberal justices share that opposition. the late ruth bader ginsburg and stephen breyer, who has been on the bench. since 1994. but now president biden has ordered a 36-person, six month bipartisan commission to stu

you had a brief interaction in conversation with kagan way is that right. yes based on that what they told you you took some additional steps were you able to communicate with the other officers that you directed to come to the seeds that provide them direction yes what did you ask the other officers. a number of the officers i asked to canvass the area as i explained before that just means. pretty much the old order door see if there's any potential witnesses that may have been there when the incident a courier and. chain of snob says of what they saw and to get their name information. is just searching for any potential witnesses and getting their story if we could publish exhibit 83. another image from your body were a camera you see some of the other officers from your shift to you call to help you with the see you sir i asked you to stay down if i saw the folks in the picture will start. here was that saucer lane. and this individual. this person stops or kate. this person. and this person. and officer ariel that was a fairly new officer at the time ye

quiz to interstellar veterans on what's changed since kagan achieve the impossible many moons ago. ok what does the typical day of the cosmonauts preparing for flights look like the 1st one for example what is the cause and we have every day there is a person responsible for it who monitors whether you pass an exam when each subject and go through all the necessary training the shuttle is very diverse you could be sitting in a classroom diving underwater skydiving or studying computer techniques that variety makes the difficult training that a cosmonaut goes through exciting we have to be multiskilled specialists and know how to do everything yet when you are in your course of a couple of i get it it sounds like spaceflight preparations are now piece of cake but for lazy people chinup you can go into space without such conflicts training it's easy you just need to be an actor the space race has continued in an expected ways nasa has said it's planning to make the 1st ever movie filmed in space and at the same moment cost was decided russia needs to make such a movie to do. it but w

. >> reporter: justices elena kagan and amy coney barrett did question potential threats of violencem a student that could take place on social media off campus but justice sonia sotomayor wrestled with where to draw the line. >> can you punish the student for cursing at home or at her parents? >> absolutely not. >> if you can't punish them for doing that, you're punishing her here because she went on the internet and cursed -- and used a curse word related to what? >> yes, she berated her coaches, the sport and other teammates. >> i'm told by my law clerks that among certain population, a certain large percentage of the population, how much you curse is a badge of honor. >> reporter: justice stephen breyer acknowledged the significant stakes in this case for schools, parents and students. >> i'm frightened to death of writing a standard. >> the court is expected to rule by the end of june. >>> coming up, the ancient discovery in las vegas when a couple was installing a pool. >>> also ahead, the invasion of the birds. was that your great-grandmother, keeping the family together? was

the worst when people go to worship but assume the best when people go to work for in this, elena kaganits religious gatherings and homes to three households. at the state limits all secular gatherings and homes to three households, it's complied with the first amendment and the state does exactly that, it's adopted a blanket restriction on at-home gatherings of all kinds, religious and secular alike. california does not need to treat at home religious gatherings the same as hardware stores hair salons and that the law does not require that the state equally treat apples and watermelons. lawyers for the state reportedly have said it's policy is neutral and limits gatherings for any purpose, secular or religious and say strickland will change next week on the 15th of april and allow as many as 25 people at services. eric: thanks so much. arthel: severe storms in the forecast, parts of the u.s., a closer look at your weekend weather coming up next. parts of the south bracing for bad weather, severe thunderstorms, heavy rain, high wind and possible tornadoes to areas raining from southeast

there are three liberals from elena kagan and stephen breyer but the bench hasn't always had a totalwhere in the constitution doesn't say how many it should have. the first judiciary act of 1789 set the number at six but it's fluctuated five to as many as ten the last time the president changed it, 1937. when fdr introduced judicial reform bill that became known as his court packing plan seeking to add more justices to obtain favorable rulings regarding the new deal. the senate rejected it overwhelmingly. 1983, then senator joe biden, member of the judiciary committee had this to say about fdr's court packing plan. >> it was a boneheaded idea, a terrible mistake to make. >> during the campaign, he opposed it. >> i would not get into court packing. we have three justices, next time we lose control, they have three justices, you lose credibility the court has little. >> two of the most liberal justices of the modern court share the opposition. the late ruth bader ginsburg and stephen breyer who's been on the bench 1994 but now president biden ordered a 36 person six months bipartisan c

current makeup of the high court, the six conservatives, and the three liberals, sotomayor, alana kaganyer. this is a far cry from his views when as a senator of the judiciary committee had this to say about it. >> it was a bonehead idea. it was a terrible terrible mistake to make. >> as recent as the campaign trail in october of last year he wasn't willing to embrace it. >> the court packing when the election is over, there's never been a court appointment once an election has begun. >> the idea doesn't sit well with justices. in 2019 justice ruth bader ginsburg, liberal icon famously said 9 seems to be a good number and last year justice breyer shot down the idea thing structural change motivated by politics would erode trust in the institution. last night jim jordan had this to say. >> they don't have control of the supreme court they will add four people to the court, they control everything. this is a radical takeover of our country and we better stop them. >> stopping it may not be that difficult because if this were to get off the ground and get the senate, 50/50 split senate and

conservatives, brett cavanagh, neil gorsuch, thomas, chief justice roberts and 3 liberals, sotomayor, alana kaganyer, the change of heart a significant, as a senator on the judiciary committee he had this to say about the idea. >> it was a bonehead idea. it was a terrible terrible mistake to make. >> reporter: as recent as the campaign trail, october of last year he wasn't one to embrace it. >> you will know my opinion on court packing when the election is over. there has never been a court appointed once an election has begun. >> reporter: doesn't sit well with former and current justices, ruth bader ginsburg, liberal icon famously said 9 seems to be a good number and last week justice stephen breyer shut it down, saying politics would erode trust in the institution. last night republican congressman jim jordan blasted it. watch. >> the left controls everything because they don't have control of the supreme court, they will add more people to the court, they control everything, this is a radical takeover of our country and we better stop it. >> reporter: how likely is this judiciary act in 2021

kagan also said the law does not require that the state callly treat apples and watermelons. policy is neutral and that it applies limits on gatherings for any purpose, secular or religious, they also say that the restrictions will change a lot next week on the 15th of april that will allow as many as 25 people at invests. kristin? kristin: jeff paul live in los angeles, thanks. gillian: prince charles is now speaking out about his late father for the first time since his passing. we'll tell you what he has to say, coming up next. ♪ ♪ we look up to our heroes. idolizing them. mimicking their every move. and if she counts on the advanced hydration of pedialyte when it matters most... so do we. hydrate like our heroes. ♪♪ a lot of people think dealing with copd is hyda walk in the park.s. if i have something to help me breathe better, everything will be fun and nice. but i still have bad days flare-ups (coughs), which can permanently damage my lungs. my lungs need protection against flare-ups. so it's time to get real. because in the real world our lungs deserves the real prote

justice kagan said in her confirmation hearing in response to a question she would favor the constitutional -- justice breyer joined justice ginsburg when she was on the court in taking the view in his dissent that the death penalty was very likely unconstitutional, so i think he is certainly one vote against the death penalty. justice sotomayor conspicuously did not join justice breyer and ginsberg's dissent, but i cannot remember the case in which she has ever voted in favor of actually going forward with an execution. i think if the question were squarely presented, is the death penalty outlawed by the constitution, the answer would be 7-2, it is allowed. professor steiker: i would just say i agree that this current court would absolutely uphold the death penalty, probably on some version of original-ism, which is one of the more recent decisions by some of the more conservative members of the court. i tend to think the vote would probably be more 6-3. i think the vote would go along strictly party lines of appointing president, would be my guess, though we don't really know. only justic

justice kagan pointed out in her dissent that the majority was essentially comparing what she said were apples and watermelons. a bad comparison, saying hardware stores or grocery stores should be compared with churches, because when you go to those retail establishments, you're essentially just going in for a little while, these enterprises are likely better ventilated and people are wearing masks. where if you're in a home for these bible study or prayer services, you're likely there for a longer time, perhaps maskless and socializing and speaking more. >> so interesting that chief justice roberts once again sided with the liberals. just fascinating to watch this play out. j joan, thank you so much. >> thank you. >>> well, cnn gets an exclusive look inside myanmar for the first time since the deadly coup nearly 2 1/2 months ago. our clarissa ward gives you a first-hand look at some extraordinary acts of courage. you will not want to miss seeing this story. >>> plus, week two of testimony in the derek chauvin trial, finished with accounts from medical experts about what led to george f

. >> kagan -- depends on if their recent career but i don't to get derailed. everything is -- justice system move to the left later in their lives supposedly if you ask conservatives. >> supposedly but i guess my point is like -- if you were 80-year-old conservative lawyer you still remember the day when roe v. wade was handed down and it hurt and made you feel pain of what the judiciary does and that really doesn't like and that gets you kind of a heat fear of judicial power. roberts is i think the one remaining bridge to people who still think that way not because he's 80 years old he, you know, is 60 something but because he's at the knee of the people who were the big deal lawyers in the reagan administration, and they sort of with certain values of judicial restraighten. on the other end of the extreme if you're neil gorsuch neil gorsuch has never been mad because the courts -- because he thought that the courts did too much. no gorsuch entire life has only been mad with the possible extension of the marriage equality decision but like -- i don't think ne

alito, gorsuch and kavanaugh, connie barrett but we are going to get rid of roberts and sotomayor and kagan and breyer. can you imagine what they would say? that's exactly what they're going to try to do starting tomorrow when they introduce the bill on top of all that you just said, it's frightening where they want to take the country. i keep saying this is why we've all got to speak out. we've all got to keep doing this. it's a dangerous, dangerous direction where they are going with immigration policy, the court policy. they want to control everything and it's scary. >> sean: republicans need to, especially mark meadows, in the senate, they need to hold the line. kamala harris. they need a quorum. the democrats. if they want to end like the legislative filibuster, any of the things they want to do, they need a quorum. it's not a tiebreak vote that kamala harris can cast. all 50 republicans, that would include mitt romney and ben sasse and lisa murkowski, that means they would have to go along with mitch mcconnell and make sure that they don't give them the quorum when they want to pull t

john: justice elena kagan. >> you can only ride on the history for so long. deal has changed since 100 years ago. the way that student-athletes are treated. john: at the same time, justices seemed worried about where siding with athletes could lead. >> you've got this nice, solid block that protects the sort of product that the schools want to provide and you pull out one log and another and everything is fine, then another and another and en the whole thing comes crashing down. john: sonja soto meyer expressed concern. >> how do we know that we are not just destroying the game as it exists? >> the supreme cou doesn't answer a question for a particular case. it always has its eye on what may behe next case, what is coming down the road. john: marcia is the chief washington correspondent for the national law journal. >> we have on that court a number of sports enthusiasts. i think they are very much aware of the games and how they are played as well as how the ncaa and the game has changed since the last time the supreme court had the ncaa before it, which was

three liberals, sotomayor, kagan and breyer.dent biden's sudden change of heart on their about packing the court is far cry from his views when he was in the 180s a senator on the senate judiciary committee and even as a candidate last october. watch. >> it was a bone-head idea. it was a terrible, terrible mistake to make. >> it you will know my opinion on court-packing when the election is over. there has never been a court appointment once an election begun. will. griff: make no mistake this is a progressive dream to take this action. but conservatives, republicans are staunchly opposed. last night the former white house chief of staff mark meadows had this to say. >> they have gone so far left they have gone from incompetent behavior to intentional behavior. americans are sick of it. griff: now the bill, i have got it advanced copy of this here. it's literally like two paragraphs simply changes it from that 9 to 13. is it going anywhere? well, it's going to have a high bar to cross because in the senate where it is split 50/5

was for many years a member of this faculty and his students included his future colleague, elena kagan. one of the reasons i am delighted justice breyer is here is that he and justice scalia disagreed pretty vehemently on issues of statutory interpretation. justice scalia was a texture list. -- textualist. when they disagreed, it was with respect and friendship. they listened generously, learn from each other, and i think each was better at his job because the other was there. their warm and productive relationship was a wonderful example of how differences can be a source of strength and not a division, a way of productively working out the law's complexity together. although i am in the textualist cap as well, i have learned so much about interpretation from justice breyer. he is brilliant, thoughtful, sensible, inspiring, and a great human being. i would be remiss if i failed to mention his terrific sense of humor. there is a law student who goes through the court's transcripts every year and counts the number of times the courteney ross into laughter. consistently justice breyer le

the case at hand and allowing the political process to take its place with pragmatist like justices kagan and breyer. they believe that the function of the court is to function as a court and reach practical solutions that both sides can converge around in a madison sense. and then justice sotomayor who is a inspiring crusader for her vision of the correct constitution in the tradition of justice brennen regardless of its practical consequences. so here are the -- i really want to work with you to teach these methodologies. first, text, and original understanding, second, history and tradition, third, precedent, four, pragmatism. fourth natural law. justice kennedy believed we have certain rights that come from god or nature and not from government and should be enforced by the government -- by the court regardless of whether they're enumerated in the text of the constitution. both the right to privacy and autonomy which justice kennedy summed up in saying that the heart of liberty is the right to define one's own conception of meaning of the universe and the mystery of human life. justic

with pragmatists like justices kagan and breyer, who have joined justice roberts in a series of 7-2 decisions over the dissents of justices sotomayor and ginsburg because they believe that the function of the court is to function as a court and to reach practical solutions that both sides can converge around in a madison sense. and then justice sotomayor, who is an inspiring crusader for her vision of the correct constitution in the tradition of justice brennan regardless of its practical consequences. so i really want to work with you to teach these methodologies. first text and original understanding. second, history and tradition. third, precedent. four, pragmatism. fifth, natural law. justice kennedy, who just retired, believed that we do have certain rights that come from god or nature and not from government and that should be strongly enforced by the government -- by the court regardless of whether they're enumerated in the text of the constitution. so both the right to privacy and autonomy, which justice kennedy so memorably summed up in saying at the heart of liberty is the right to