justice kagan? justice kagan: may i ask more about the bop experience? i mean, as i understand it, there were 13 recent executions, in 11 there were spiritual advisors there. you said that all of them, you allowed vocalization throughout the process, but in only one was there touching, and that before the drugs were administered. is that basically -- did i get that right? feigin: yes, your honor, with -- with two very small caveats. it's a little bit unclear, just because no one was focusing on this when they made their records, it's a little bit unclear whether all the vocalization included vocalization during the administration of the drugs. it may have; it may not have. and also i think in one case it was just conversation before and not actual -- justice kagan: here's what i would like to know. i guess i would like to get a little more texture about how the process played out. in other words, you know, when you got these requests, what you , being the bop, what did the bop do? were there discussions? were there requests that were rejected? how does t

justice kagan? justice kagan: may i ask more about the bop experience? i mean, as i understand it, there were 13 recent executions, in 11 there were spiritual advisors there. you said that all of them, you allowed vocalization throughout the process, but in only one was there touching, and that before the drugs were administered. is that basically -- did i get that right? feigin: yes, your honor, with -- with two very small caveats. it's a little bit unclear, just because no one was focusing on this when they made their records, it's a little bit unclear whether all the vocalization included vocalization during the administration of the drugs. it may have; it may not have. and also i think in one case it was just conversation before and not actual -- justice kagan: here's what i would like to know. i guess i would like to get a little more texture about how the process played out. in other words, you know, when you got these requests, what you , being the bop, what did the bop do? were there discussions? were there requests that were rejected? how does t

justice kagan? >> you started a thought and then you were taken off someplace else, so i wanted to allow you to finish the thought. what you said was that there was a reason why a sensitive place regime cannot serve as a replacement, and then you are not given an opportunity to say why, so why? >> essentially, because it would be very hard in the first instance and i think also not very acceptable in the -- in the second instance, to specify in advance all the places that ought to be understood as sensitive. it sounds very convenient alternative but for example, we were talking about times square on new year's eve. times square when the rate -- when the theater district, when commerce is in full swing, times square is a to shoulder people. then you end up with having a very big difficulty in specifying what all the places are that have the characteristics that make them sensitive. in principle, it has an attractive quality to it but enable mentation, i think it would be unsuccessful. >> justice gors

chief justice roberts: justice kagan? justice kagan: mr. hearron, if i could turn technical for a minute paid -- minute. should one of your arguments prevail or another argument in support of your position prevail , it doesn't matter exactly which argument it is to me, what exact relief are you requesting? mr. hearron: we are requesting an injunction. so we have a pending class certification motion for a defendant class against the clerks, so we would be requesting an injunction against the commencement or the docketing of lawsuits against the clerks of the -- across the state of texas, as well as injunctive relief against the state executives for their residual authority to enforce s.b. 8. justice kagan: i mean, suppose i i think, tell me if i'm wrong on this, that just the procedural morass we've got ourselves into with this extremely unusual law is that we would really be telling the fifth circuit, again, if your position prevailed, that the district court had to be allowed to continue with its preliminary injunction ruling. is -- is tha

justice elena kagan followed up on it. i pulled this piece of the elena kagan back and forth with the texas solicitor general. i think it is instruction active, almost explanatory to hear justice kagan become exasperated by this line of argument. she has to basically back up after he tries to move on and go, wait, wait, wait, wait, wait, did you just say what i think you said? is that really what you're saying? listen. >> i guess i would like to take you back to the other case and ask you to answer the question that you said you wanted to avoid for justice sotomayor. >> i'm sorry, your honor. i thought i agreed it doesn't depend on the nature of the right being asserted and also that none of the -- we could sort of race the potential sanction as high as possible, and that wouldn't affect federal court availability. i'm sorry. i thought i answered that. but to make my answer especially clear. >> thank you. >> i guess i need to back up. if we said that, we would live in a different world. essentially we would be inviting sta

. >> i think ultimately that would be a situation where the colloquy i had with justice kagan would be relevant, where you had a party seeking information. there would be a strong showing of necessity. that authorize the court to probe, to say i want to know more to understand the basis of this assertion. ultimately our view would still be that the executive's national security judgment is subject to deference. and i understand that that's a harsh consequence, that was the consequence in reynolds itself, which was a tort suit against the united states for alleged malfeasance by the united states. i don't deny the harshness of the doctrine but i think that's inherent in the state secrets dock tin. >> suppose, mr. fletcher, there was overwhelming, essentially incontrovertible evidence that the acts here did take place in poland. suppose somebody had leaked videos that everybody had agreed were authentic. you know, what then? >> so again, i think the answer would be, those would be additional circumstances that the cia director or whoever was making the judgment in the first instance woul

. >> i think ultimately that would be a situation where the colloquy i had with justice kagan would be relevant, where you had a party seeking information. there would be a strong showing of necessity. that authorize the court to probe, to say i want to know more to understand the basis of this assertion. ultimately our view would still be that the executive's national security judgment is subject to deference. and i understand that that's a harsh consequence, that was the consequence in reynolds itself, which was a tort suit against the united states for alleged malfeasance by the united states. i don't deny the harshness of the doctrine but i think that's inherent in the state secrets dock tin. >> suppose, mr. fletcher, there was overwhelming, essentially incontrovertible evidence that the acts here did take place in poland. suppose somebody had leaked videos that everybody had agreed were authentic. you know, what then? >> so again, i think the answer would be, those would be additional circumstances that the cia director or whoever was making the judgment in the first instance woul

well, justice kagan there knots up the implications of allowing this law to go forward, right? texas has basically set up a system by which they say, you know what, you may think this is a constitutional right but in texas, in our state, any person can sue you so that you're not able to access that and therefore your constitutional right is sort of subject to the whims of anybody who wants to sue you to stop you from exercising it. and no, there's no reason that that should be just a constitutional right to get an abortion, it should be a constitutional right to anything. right, saying what justice kagan is pointing out, if any state gets the greenlight from the supreme court here, to pass their own texas style laws, that would allow them to prevent people from exercising, not just a constitutional right to abortion, but any constitutional right, like she says. guns, same sex marriage, whatever you don't like, go ahead-- >> under questioning from a different justice today, it was all spelled out. what about a different state wanted to pay somebody 1 million dollars bounty to br

this is justice elena kagan. >> that's right., and we say that -- we would live in very different world from the world we live in today, essentially, we would be inviting states, all 50 of them, with respect to their emperor preferred constitutional rights to try and nullify the law that this court has laid down as to the content of those rights. i mean, that is something that until this law came along, no state dreamed of doing. essentially, we would be -- your open for business. there is nothing the supreme court can do with it. guns, same-sex marriage, religious rights. whatever you don't like, go hit. amy: supporters and opponents of abortion rights protested outside the supreme court. for more, we go to kathryn "kitty" kolbert, longtime public interest attorney who argued the number case before the u.s. supreme court in 1992 which is credited with saving roe v. wade. she is co-founder of the center for reproductive rights and co-author of "controlling women: what we must do now to save reproductive freedom." her column in mo

justice kagan? >> you started a thought and then taking someplace with else and i would like to allow you to finish the thought. what you said was that there was a reason why a sensitive place regime cannot serve as replacement and you were not given an opportunity to say why. so why? >> well, essentially because there are-- it would be very hard in the first instance and i think also not very acceptable in the-- to my adversaries in the second instance, to specify in advance all the places that ought properly to be-- for example, we were talking times square on new year's eve. times square, when commerce is in full swing, times square almost every night is shoulder to shoulder people. so, then you end up having a very big difficulty in specifying what all the places are that have the characteristics that should make them sensitive. it has, in principle, it has an attractive quality to it, but in implementation, i think it would be unsuccessful. >> justice gorsuch. >> no further question, thank you.

you know, code word, and it could be poland or it could be another location. >> well, justice kagan, i think my friend on the other side will have to speak to what it is that they're having in mind with the code word proposal but quite a lot of information about happens to be mistreatment is also in the report, and has been made public. what i understand then to be seeking is tell us what happened that detention site blew, or tell us what happened between this date and this date where we believe he was in poland. that is what raises the concern for us. especially when the hole thing is premised on this notion that this is a proceeding to get evidence for use in a polish progress cuse, the evidence wouldn't be appropriate for disclosure unless it was relevant to the polish prosecution. i think at that point -- >> suppose the petitioner says tell us what happened wherever and didn't ask you to say anything about the location whether it's a blue location or the green location, and then the petitioner has to come up with evidence on his own to satisfy the polish authorities that it was o

linda how do you understand this build bridges attitude that justices kagan and breyer have versus, go ahead and burn it down and how do you see that playing out because two of them will probably be around longer and be in the remaining leadership positions on the liberal side justice kagan and sotomayor. >> i think it's a difference in approach so i think both justice breyer and justice kagan think the role they can serve best is is to be able to somehow reach some of the justices and as far as we know that it happened. there's certainly been cases that have turned out to be more narrowly focused indyke can't sit here and prove that that's because stephen breyer exerted some kind of influence or cast some kind of magic spell on the others but i think sonya sotomayor has given up -- and she tells the truth to the american public as she sees it about the dealings of the majority and to make the record because none of us, none of them and none of us will be here forever but history will be written about the supreme court and she is on -- 13 executions that the trump administration carrie

it's a level of generality all the questions that justice kagan asks are the chief asks.ee that historical record requires you to that states did outlaw guns and sensitive places. can't we just say time square is sensitive because now we have seen people on top of each other, we experienced violence, we're making adjustments it is a sensitive place spent the right way to think about limiting guns in times square on new year's eve is as time place and manner restrictions. that is a perfectly time and place but as i understood it and obviously it is a brief reference from the heller decision i may not fully were understand it but there are places where there are no weapons those because of the nature of that institution. and it is probably worth thinking about rallies and in times square there would be restrictions under the rubric. >> if we start with the purpose of the right to keep and bear arms and the core purpose of that right putting aside the military aspect is self-defense so starting with that period we analyze the sensitiveea place question by asking if this is a

it was frankly hard to follow as justice kagan said, that texas was saying. today was just a procedural question, really, about whether this vigilante provision means that you can't actually even sue texas or its officials. it's not a judgment on whether roe v. wade is going to be the law of the land. so if my prediction is right and texas loses in the supreme court today's oral argument, that doesn't mean that this supreme court is going to now uphold roe versus wade or anything like that, and indeed, a month from today they'll be hearing a case in mississippi which is designed to overrule roe versus wade. it's very possible that the same justices who today strike down the vigilante or bounty provision on procedural grounds may still vote to overrule roe versus wade. elections matter, tomorrow's election matters. who we send to congress matters and of course who is on the u.s. supreme court. >> so what are the options for the court in this case? is it -- are they being asked to simply allow people to file lawsuits and bring lawsuits to block this law in fede

where they may come down and actually overturn roe. >> i think that last snippet was from justice kagan, and she really brought home the fact that this is not about some narrow procedural issues regarding these two cases but a broader existential question for this court, whether or not the court is going to allow rogue states like texas to blatantly defy extent constitutional precedent, in the same way we saw the states defying brown versus board of education, and cooper versus aaron was mentioned repeatedly this morning in oral arguments. so the court seems to understand that the very legitimacy of the court as an institution is in play here and justice kagan underscored that, so did justice sotomayor. of course coming down the pike as you suggest, there is this question of the oral argument on december 1st in the dobbs case. that will allow the court to take up the broader substantive issue and, of course, these two cases can't be seen in isolation. they very much relate to one another, a decision on roe in dobbs will certainly have implications for what the court has to do in sb8 sub

>> a couple follow-ups to justice kagan's question. i think you also a depending tro in the district court with a preliminary injunction in the class certification come is that accurate? >> yes. >> to follow up on the chief justice's question which i think reflects from my viewpoint a change in your reply brief, or maybe i don't want is a change, shift in focus in the reply brief to the clerks from the judges and clerks. and if i'm understand you correctly you are saying that ex parte young principal should apply to both but the adverse miss issue may be more serious with judges and, therefore, you focus on the clerks work that's how i read your reply brief because it was noticeable to me. >> i think that's right, your honor, that it is easier to say that we are adverse to clerks because the defiling of a lawsus which is the pointer to great the and aroma affect the to chill constitutional rights is a funny of lawsuits and that creates a sharp adversity to the closed-door just performed their duty and not adjudicating anything. >> okay

but here's kagan on a related point.after, oh, these many years, some geniuses came up with a way to evade the command that the even broader principle but states are not to nullify federal constitutional rights, and to say, oh, we've never seen this before so we can't do anything about it. i guess i just don't understand the argument. >> i played that because it overlaps with what justice kavanaugh was getting at. he was saying, well, if they go after this right or choice one day, they could use the same scheme to go after gun rights. some people might hear that and they care more or less about a certain right. she's almost being the most blunt which is rare for justices in an oral argument where she's saying, are you kidding me, you think you're going to trick us, you guys are geniuses like we can't review this? do you think that that is an element here where there might be a coalition to say, texas, you're not as smart as you think you are, or at least texas republicans. you know what i mean. >> i do. and justice kagan

what do you think of what justice kagan said? her warning? >> justice kagan's absolutely right. this would be the definitive slippery slope. we often hear about this could be a slippery slope. it might have a domino effect. if you allow states to be able to do an end run around judicial review, you essentially give them carte blanche to do whatever they want as long as they can figure out a way not to have a state actor enforce the law. remember, fundamentally what's wrong with this case is that normally, if you want to try to prevent a law from going into effect, you have to be able to sue the state actor who was charged under the statute to actually enforce the law. in texas, they decided, huh, we will avoid that by allowing anyone in the country, not a state actor in texas, to be able to sue anyone who aids in an abortion. thereby, allowing them to just avoid judicial review. now, if that is allowed, she is right. it's not just hot-button issues like abortion or gun rights or anything else. it could be everything that could be fair game. and that's not a blueprint that can ac

what justice kaga inch is -- kagan is saying, any constitutional rights.e she says, guns, same section, religious rights. it was pointed out, what if a different state wanted to pay a million dollar bounty to bring a lawsuit against someone who sold an ar-15. you couldn't, under the constitution arguably ban an ar-15, but could make selling one you could be sued for a million dollars. astonishing. the court heard two challenges, the first from a clinic that provides abortion, and the second was argued by the brand new solicitor general of the united states. because the justice department went second, she had the benefit of having the last word as the justices considered this ban. they are asking to ignore texas's claim saying that this is insulated from federal court review. this is what she said about the implications. >>> the case is submitted. if they can do this, then no constitutional right is safe, no constitutional decision from this court is safe. that would be intolerable. our constitutional guarantees cannot be that fragile. she was sworn in frid

elena kagan, one of the three remaining liberals on the bench, so in the minority.ints. said during one exchange to the lawyer for texas, the solicitor general, judge stone, he said, essentially, let's get real here. this is not a hypothetical situation anymore. there are actually women in texas who have been stopped from exercising their constitutional right to abortion. a constitutional right that has been in place since 1973's roe versus wade. let's hear what she also had to say about the possible domino effect here. this is elena kagan coming now. >> essentially, we would be inviting states, all 50 of them, with respect to their unpreferred constitutional rights, to try to nullify the law that this court has laid down, as to the content of those rights. i mean, that was something that, until this law came along, no state dreamed of doing. essentially, we would be, like, you're open for business. there's nothing the supreme court can do about it. guns, same-sex marriage, religious rights, whatever you don't like, do ahead. >> so all told, it looked like there sho

that would be the narrowest. >> justice kagan. justice kagan: this question supposes just in case you don't lose. this is between the two questions, suppose the easiest question in this case, i think, is the question of when dismissal is appropriate and that the ninth circuit decision was in some important way premised on an incorrect understanding of when dismissal is appropriate in a states secrets case. and suppose, too, that i find the 1806 questions quite difficult, and if the entire discussion of the ninth circuit was premised on this error about state secrets dismissals, one wouldn't have to get into that, that would seem an attractive solution to me. but that leaves an opinion on the books which may well be wrong, that the ninth circuit view of 1806, in fact is in correct, so what should i do? mr. arulanantham: i think the court acould -- could affirm on the alternative ground but still leave the ninth circuit opinion on the books is your point, your honor. i guess -- i suppose the court could say under these circumstances

. >> justice kagan? >> is it possible in the whole woman's health suit that the ag could stand in for the individual plaintiffs in the way that in your suit the state essentially stands in for the individual plaintiffs? >> i think that is possible justice kagan and so if this court concluded that the ag of texas could properly be enjoined here in the providers suit then that effectively i think would pierce a fiction here that the status tried to create by delegating the enforcement authority to the world at large and could rightly try to target that aspect of the enforcement scheme. >> justice gorsuch? >> general, are you aware of a precedent that permits an injunction against all persons in the country, and the world, the cosmos? >> no, justice gorsuch. our injunction doesn't do that either. >> you said anyone who brings suits and it did include that in my limitation. a missing something? >> just to be clear and its rfi was a clear about this before, we understand injunction only to bind those individu

justice kagan said it could open the door for other states to use the same tactic. take a listen. >> essentially, we would be inviting states, all 50 of them, with respect to their unpreferred constitutional rights to try to nullify the law that this court has laid down as to the content of those rights. i mean, that wassing? that until this law came along, no state dreamed of doing. and essentially, we would be like -- we're open -- you're open for business. there is nothing the supreme court can do about it. guns, same-sex marriage, religious rights, whatever you don't like, go ahead. >> well, meanwhile conservative justices brett kavanaugh and coney barrett signalled they would be open to challenge the law. his cabinet echoing some of kagan's concerns. >> it could be free speech rights, it could be free exercise of religion rights, it could be second amendment rights if this position is accepted here, the theory of the amicus brief is it could be easily replicated in other states that disfavor other constitutional rights. >> but whatever the court decides, it won

host: this is justice elena kagan on how the constitution changes. this is from 2010.video clip] >> the 14th amendment was an enormous break after the civil war and created a different constitution for america. so partly, the changes come in that way. but partly they come outside the formal amendment process as well. if you look at the specific intent of the drafters of the 14th amendment, they thought that the 14th amendment was perfectly consistent with segregated schools. you can't really argue otherwise as a historical matter. but in brown, the courts said otherwise. and step by step by step, decision by decision, in large part because of what justice marshall did, we got to a place where the courts said, it is inconsistent with the principle of equal protection of the laws that the drafters of the 14th amendment laid down. it is inconsistent with that principle to have segregated schools. so that is a way in which change can happen as well. host: how does her scholarship differ from what you are proposing in this book? evan: there's a lot that she said that i enti

. >> justice kagan? >> mr. hearron, if you could turn technical for a minute, should one of your arguments prevail or another argument in support of your position prevail, doesn't matter exactly which argument it is to me, what exact relief are you requesting? >> we are requesting an injunction -- so we have a pending class certification motion for a defendant class against the clerks. so we would be requesting an injunction against the commencement or the docketing of lawsuits against the clerks -- across the state of texas, as well as injunctive relief against the state executive officials for their riddle authority to enforce sb-8. >> i mean, suppose, i think, i mean, tell me if i'm wrong on this, that just the procedural morass we've got ourselves into with this extremely unusual law, is that we would really be telling the fifth circuit, again, if your prevailed, that the district court had to be allowed to continue with its preliminary injunction ruling. is that correct? is that what we would be doing? >>

justice kagan. >> you started a thought and then you were taken off someplace else, so i wanted to allow you to finish the thought. what you said was there was a reason why this sensitive place regime cannot serve as a replacement and then you were not given the opportunity to say why. >> essentially because there are -- it would be very hard in the first instance and i think also not very acceptable to my adversaries on the second instance to specify in advance all the places that ought properly to be understood as sensitive so it sounds like a very convenient alternative but we were talking about times square on new year's eve. when the district met, when commerce is in full swing, times square almost every night is shoulder to shoulder people. so then you end up having a difficulty in specifying what all the places are that have the characteristics that make them sensitive. it has an interactive policy but the implementation i think would be unsuccessful. >> justice gorsuch. justice cavanaugh? >> do you think it was rightly dissented? >> i think there was a lot of support historically

justice kagan points out there is a loophole that has been exploited here or used here, which the privateuits are enforced by state clerk clerks or judges. should we extend the principle of ex parte young to an essence close that loophole? in other words put aside the language in ex parte young for a second that a strong for you i agree. the principal of ex parte young and the whole sweep of ex parte young extending the principle here arguably. >> two points or honor, no precisely because this court is the power of such an innovation. if that were still an open question, my friends are gone the other side might militate towards one exception this court has disclaimed the ability to give itself the power to essentially create a novel non- traditional call to action. the language we are discussing in ex parte young means anything at me and certainly injunction running against a state court to prevent the adjudication of a state law case is entire and foreign. >> you agree there state action when the state clerk dockets the case? >> state action of the 14th amendment perhaps? >> estate clerk

. >> that was your answer to justice breyer and justice kagan. picking up on justice thomas' first question, he referred to the constitutional status of the state secrets privilege. i would be curious how that plays into our statutory interpretation for a i think you said at one point we should not expect congress to do a drive-by on the state secrets privilege. through this kind of language. but, how does the potential constitutional backdrop on the state secrets privilege play in? >> i think the court should insist upon a clear statement that congress intended to abrogate a privilege that is critical to the presidents -- president's exercise of his article to powers. there was, i think, a strong presumption against reading in a suppression of evidence. a statute that is protective of the government's interest and national security. top of privilege and a disposition of a case that would undermine that. >> there would be a major article two issue if congress tried to do that. we don't need to get into that. >> that is correct. the same thing wou

liberal justice elena kagan saying the law invites other states to deprive citizens of constitutional rights they object to. >> essentially we would be like, you know, we are open, you are open for business. there's nothing the supreme court can do about it. guns, same-sex marriage, religious rights, whatever you don't like, go ahead. >> reporter: david, it's unclear tonight how soon the supreme court will hand down a decision, but a majority of the justices on the bench today signaled that abortion providers have a strong case to ask federal courts to put that texas law on hold. david? >> all right, rachel scott at the court tonight. rachel, thank you. >>> now to the travel chaos across the u.s. more than 2,000 flights canceled over the weekend. hundreds more grounded today. american airlines hit especially hard, and it comes after the mess with southwest airlines weeks ago. so, what's going on with the thanksgiving travel just weeks away now. here's abc's marcus moore tonight. >> reporter: tonight, american airlines, the latest carrier to come down with a cascade of cancellations. >

a long—time conservative writer robert kagan wrote... i've no idea who that is. important conservative thinker. he wrote a piece in the washington post recently, saying he feared that if donald trump fights and then wins the next presidential election, there is the real prospect of violent conflict inside the united states. um, we have armed...we have conflicts now in our country, violence is up and homicide is up in every major city across this entire country. that is a more major concern than the fear of, you know, mass armed clashes if donald trump is re—elected in three years from now. i would like to care about the fact that there are thousands more dead people in our cities today and last year, under both donald trump and joe biden, than what may happen if he is re—elected? that's a real serious question, is crime in our country right now. ryan girdusky, we have to end there, but thank you for being on hardtalk. thank you. hello. after all of monday's sunshine, tuesday will be a cloudier day with the best of any sunny spells across southernmost parts of the