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tv   Experts Discuss Upcoming Supreme Court Term  CSPAN  September 25, 2021 5:04am-6:19am EDT

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involved in a broad range of legal issues including first amendment challenges to finance reform, changes to health care reform and other federal regulation -- regulation. to my immediate left is sarah harris.
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she is a client of high-stakes appeal at the u.s. supreme court and federal state appellate courts but she is argued twice before the spring court, propelling in both cases. she works with clarence thomas on the spring court procedure undergrad from instant -- princeton. she also has a phd from the university of cambridge. if it wasn't for her, i would be eight philosophy professor. please welcome the panel. [applause] >> we will start off with amy and over you of what she wrote in her article and the cases she covered that is to say they are blockbusters. >> thank you so much for having me, writing the article, happy constitution day, i have them frozen in my mind when he retired so it was a shock to
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realize he was 82 but we can all raise an apple and yogurt in his honor. last term which we spent most of the day talking about was really unprecedented in the sense that it was entirely remote. it was the first term since justice ginsburg passed away. the court shifted to the right and the court has now has on its docket for the upcoming term, a handful from the press court perspective, juicy cases involving abortion, guns, religion, potentially, affirmative action. i think the real question is whether or not they will shift to the right but how far it will shift to the right? you have presumably, the answer lies in part with john roberts not necessarily because his vote makes a difference anymore but whether or not he has any
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influence on the court i imagine that is something we will discuss and we will see quite soon. i would like to touch a little bit on the shadow docket. the article was due on august 1. it is a wonderfully smooth editing process but we want to add to it. there were a lot of the veltman's on the shadow docket i think we would like to talk about, including because some of them will be showing up on the marriage docket. let's talk about some of the juicy cases at the court this term. as many of you are no doubt aware, during the presidential campaign, donald trump would apply justices who would overrule roe v. wade. he said it would happen automatically. he appointed three justices. so now, it's the time to see whether or not that promise will
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come true. the court is in december. we will hear them in a case called dobson versus jackson women health. an organization that is challenging the the constitutionality of a mississippi law that balance -- bands almost all abortions after the 15th week of abortion. under these other cases that give a constitutional right to an abortion when a fetus becomes viable to around before weeks of privacy -- before weeks. i think this is an important point. they came to the supreme court to weigh in. the supreme court petition for review. you don't have to rule on row or -- roe or kc. we just have to rule on the constitutionality of this law.
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they agreed to taking it up after relisting it 15 times and we will now hear arguments in december. meanwhile, as you are no doubt aware. if you have watched the news at all in the last month or so. the supreme court, two weeks ago, agreed on the shadow docket. they refused to step in and block the texas abortion bill which virtually bans all abortions after six weeks from going into effect. this was an order that came out about a paragraph and a half. justices in the majority in that case made clear that there were serious questions whether it was constitutional but they were nonetheless going to step in and go into effect. chief justice john roberts and the three liberal justices dissented from that order.
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on the one hand, the court said they would not weigh in on the constitutionality of it. on the other hand, right now in texas, until that law is settled, there is no right for a woman to get an abortion. that is abortion. the next case that will be argued in november i want to talk about is new york state, rightful association versus bruin. back in 2008-2 thousand 10, they rolled in d.c. versus heller and mcdonald versus city of chicago that you have the right to have a handgun in your home for self-defense. gun rights supporters came to the supreme court many times over the next 10 years or so asking them to say more about the scope of that right. the supreme court repeatedly turned down requests to do so. back in 2019, they finally took up a new case out of new york
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city involving a new york city role that banned the owners of licensed handguns in new york city from taking them outside of new york. even to go to a shooting range or to their vacation homes to give you examples of new york city, recognizing that this would not likely to be successful in the supreme court. they changed the rule. much of the argument back then was whether it was constitutional but whether it was moot. in 2020, a majority agreed it was moot. three justices dissented from that decision. a fourth justice, brett kavanaugh, concurred that it was moot but suggested that perhaps they should take up the 10 or so petitions for review that it had been on hold for the last several months. the court's decision in the new york case so they could weigh in
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on the scope of the second amendment. the second -- spring court those cases backed up for -- supreme court goes back up. perhaps, they were considering them and then denied them all. we don't know what was going on behind the scenes. the conventional wisdom in the press room was that there were four votes to grant reviews involving the right to carry a concealed weapon but, we don't know. perhaps, they were not sure if there was a fifth vote. the vote of john roberts to grant review. you fast-forward to now, amy coney barrett who had written a dissent while she was on the second -- seventh circuit suggested that she would be more receptive to the argument that the gun mike -- gun rights people were making and they agreed to take up this new new york case.
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it is a challenge to new york's concealed carry regime, under what which, you need to show a special need beyond the general need and desire to have a gun when you are out and about for self-defense. you have to show a real need to have one. the court will hear argument in that case in november. the next case i want to talk about is one called carson versus makin. in 2020, and espinoza versus montana department of revenue, they voted 5-4 that montana's exclusion of religious schools from a state tuition aid program that provided scholarships to attend private schools as long as they were not religious schools discriminated against religious schools based on their
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religious status and violated the constitution. this involves allegations based on religious use. case comes to the court from maine which has unusual system for secondary schools. many parts of the school -- state are quite rural. their state constitution allows for laws that that school district do not operate their own high schools to make arrangements for their students to attend other high schools, public, sending them directly there, thank tuition for them to attend or by paying tuition for them to attend a private high school. a group of parents are arguing that being able -- not being able to use these tuition funds to attend private schools because they will be using the funds for religious instruction
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violates the constitution. that is a good start. i don't want to drone on for too long. >> not going to put anyone on the spot, especially a question if you don't have opinions on the abortion case. you can say past. we can start with that like amy did. interesting question i have is realistically, is there any way that the court can avoid roe v. wade in the next three years? >> they can avoid anything. and they avoid a challenge whether to overrule it given what states are doing? >> i would not underestimate their interest in brokering compromises that will avoid saying they are overruling it but reframing parts of it. you see the chiefs separate
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opinions in true medical which certainly reframes a lot of women's health. i would not underestimate their willingness to reframe the entire test but still seeing that the formal matter is the law. the real framework is still something. >> as she brought up with todd roberts, with guns and abortions on the docket, what are his biggest concerns, you would think for next term? >> it is interesting because juxtaposing guns and abortion cases. there are so many similarities in how states treat those two things. states that don't like guns will literally pass anything they can to suppress the right to keep bear arms. states the don't like them seem intent on doing anything they can to suppress what the scope of the right is. at the moment, it is a right and they don't seem to care.
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i think the resolution to your question might end up being some kind of readjustment of tears of scrutiny. a lot of this is the standard of review is causing these problems. the standard of review in something like casey is up in the air. it emboldens people to say if this is a balancing test, i have a new theory. with guns, it is the same thing. intermediate scrutiny is a balancing test. maybe they will solve this problem by not overruling roe v. wade. but maybe coming in with a weaker or stronger, giving it some structures so we don't constantly have to be have to do fact bound cases. -- have to do fact bound cases. the big leave of do it -- leap
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of doing what you want and get out. perhaps appealing to someone on the right seems to be a big step in a short amount of time. >> i agree in the analogy in many ways. not only are guns and abortion the culture war aspect, the spring court have loosely upheld fundamental rights, if not clarified very much what that is. all of these states will say something like you have to be able to run a half marathon before you get a marathon -- get an abortion. if you're the past a complex test to get a gun, we still don't know what that is for. for the guns case, which again, new york state rifle and pistol association, rewriting the question presented. i don't know if anybody followed the question rewritten. they rewrote it to talk about licensing and not simple carrying.
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does new york states system violate the second amendment? >> the broader view was that it was probably more accurate to reflect what the law does. they put that reference in there. could it only deal with concealed carry? their law bands open carry. one can imagine differences between open and concealed carry. i think the view from second amendment practitioners is that you might be able to stick one of the other but you cannot stick both. there might be good reasons to not terrify the public by not caring the gun in the middle of a subway and waving it around or the might be reasons not have concealed carry because we don't know who is on. you can go either way on that. to say that you cannot go either and cannot carry at all is how a lot of petitioners would approach that. they are rewriting the question,
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trying to finesse that a little bit and it'll come out in the argument, the briefing that you got to do at least one if you think they are right at all or just say it is not a right. >> i think it partially explains and if you look at the exposition of the abortion and guns case, it highlights to dynamics on the court. it is one that amy highlighted other parts of the chiefs winning influence overblown and the -- chief's winning influence overblown. this will always create some kind of tension because he may not for votes to grant if you think the result will be a loss or bad outcome. i do think it is safe to say that if justice barrett ever joined the court, they would not
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have been granted. i would be surprised if they were but i think the chiefs influence is on the merit side. i think in both of the cases, what we are talking about is how will the court compromise? will they do a grand bargain on tears of scrutiny? will they take another crack at the row -- roe and casey case s. they might cobble broad majorities on narrow rules. what you might call in the most extreme of cases, we get to one result, you cannot discriminate against schools based on either their exercise of faith and infusing space in the classroom or religious status. they are taking 6-7 years to get to that one ruling. >> trinity lutheran was a narrow
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decision with a broad majority. espinoza was not. it was 54 and this is not a case in which justice barrett vote will make a difference. this is the chief justice, other conservatives, and for liberals on the other site. i imagine we will talk about the shadow docket in more detail later on but talking about another area in which we are seeing the effect of justice barrett. the texas abortion law, in all likelihood, not be ineffective justice ginsburg were still on the court because they were for both -- votes to block it and she would have been a fifth. >> if i touch on the next question of justice barrett and the shift between grant and merit, we sometimes over describe the effect of the extra
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justice will have. it is less about the outcome will be then getting to an outcome that does anything. i think the fare for a long time, if i had to guess was not that roberts or somebody else would not vote the way you would want them to vote but they would come up with some single opinion with a quirky non-test that did nothing. why are you renting a case it is nothing other than adding to the confusion if you remember the o'connor years, a lot of cases would've been better to be granted and then be decided as they were. they added nothing and messed it up for 20 years. maybe it is that. now that they have a consensus on a theory and that may come out one way or another. i'm not fully confident that amy coney barrett will do what people expect her to do. i expect that she may be firmer on a theory then keeping options
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open. >> in the last few months of his last term may be showed, given the coalitions and cases in fulton for example, that roberts strength is pretty strong. the ability to get the court to decide more unanimously is more strong than we thought it would be after barrett's we still not know? no? >> this is why every time you get a new justice, it is a new court. >> i used that line so it is good to have a coin flip of who gets to use that line. moving on, i don't know of the want to highlight anything from cases you are watching or you took the big one at the top? >> i think amy mentioned the
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shadow docket and now is a good time to talk about it. this is an interestingly lopsided term. the sexy and big juicy cases are abortions, guns, and carson and the religion space. many of the other cases on the docket are important but not heavily on the news every week except for the shadow docket. there is a lot of discussion i think in what is the court doing, why do they have these emergencies days, why do they make important decisions through this shadow docket? that is one set of questions. also, what have they done in the shadow docket recently? all of the covid litigation has produced some pretty substantively important ones in the religious base and bolts during idea of nondiscrimination
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based on status alike. also, the remaining in mexico skirmishes which as they hold over from the trump administration which was a feature of the shadow docket skirmishes over immigration policy. the administration would enact policy. they would join a policy is get look it up to the supreme court in emergency posture and remain in mexico as a holdover of that because the shoe is on the other foot and other district folks are joining the button at administration and undoing days. where, the court allowed the trump administration to remain mexico policy to proceed over the biden administration objection. just another example of a lot of important policies/visibly publicly happening on the shadow docket. i don't think the court has much choice. a lot of these cases come up
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from emergencies days and these are coming to the shadow docket because you cannot just wait for the court to take 90-100 days and do all the steps and get the court to act on it fast. the fact that there are nationwide injunctions that have effects on very important policies mean that we will continue to see the emergency stay docket, a perennial fixture , as long as there are nationwide injunctions. i am not sure it is the courts fall but they are doing so much on the docket. it will work for better or for worse. >> the shadow docket, i hate that phrase. it implies something nefarious, insidious or whatever. it is nonsense. you get an application for a stay. what will you do about it? somebody is about to be executed
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and you get a stay on it. you rule on it and you wanted as soon as possible. you get nine people together to get an answer and release in order. i don't know what the world expects from them and do the business if one of you and give us an answer. understand some of these emergency applications are leading to opinions but i would take those opinions with a grain of salt. they're good for now and discourages people from throwing more emergencies at them if they can help it but at some point, they will go up on the full merit. i don't think anybody will feel bound to in emergency opinion when he gets to that. what i find interesting is that a lot of this is coming up because people are so impatient. you used to see abortion laws that would pass and that is until gets overruled. there can be a deliberate challenge to the law. now, you get texas or oregon
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state sing a goes in fact -- effect. -- oregon state saying it goes into effect. if people would just give the institution of the court the respect it deserves and time to be judicial about things, we would not have so many >> >> of these rulings. >> if someone was being executed, it would be nice to know how people voted not a one paragraph order in the middle of the night. i do think the court has responded to some of this. you saw with the abortion order, there was a longer order. there were dissenting opinions that came with it. obviously, if you're talking about an execution and the worn starts at 6 p.m. and runs until midnight, you got to get that opinion out.
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if you have been sitting like something on the roman catholic diocese of new york, sitting on something for a week and release it 10 minutes before midnight on the wednesday before thanksgiving, come on. that is just part of my job but issue it at a time when -- that is part of the reason why it seems below board. it is not as transparent as you think. it is involving inmates right in the execution chamber. laying his hand on him. this part of his christian faith. this "has a couple of these cases come to them on these shadow dockets over the last few years. somebody wanted his muslim mom with him in the execution chamber and the supreme court turned him down because he came
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to the court too late. the second time, it was a buddhist priest and the state of alabama did not allow him to have the buddhist priest when they would have allowed a muslim imam or a christian race. -- christian priest. the third time was in texas, i forget the issue but the supreme court said you can either let everybody in or nobody in. texas said nobody in. they sent the case back to the district court about if there were actual security concerns that would require texas from barring everybody there. someone from texas came back to the court last week and they said ok, let us hear in oral argument about it in october. that is fine. >> i am delighted they did that.
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that case drives me crazy. they claim there is no burden on religion? whatever the security concerns are, that is lovely. you imagine there is no burden. i am thrilled they took that case. >> i think it is interesting now because again, this is all speculation. this came a week after there was so much criticism of support order in the texas abortion case. do you want us to act quickly? we will. >> one other case was they had a gaping hole in their docket. the shadow docket is very active. the court now has you could say, for more agreements on things. it is just a weird push and pull
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dynamic. >> can we stop calling up the shadow docket? it is the so-called shadow docket. [laughter] >> emergency docket. >> it is interesting to see that when the u.s. versus texas, over the texas abortion law or inevitable litigation for the vaccine mandate comes back to the supreme court, the so-called shadow docket, have date set a precedent? >> you -- have they set a precedent. >> i don't want to weigh in on that craziness. it is bizarre. >> i find it fascinating and difficult and that i understand the technical objection to who
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do you sue and at the end of the day, if you are subcontracting out state actions, there have got to be a legal. that says that is not kosher. it is all kinds of stuff. it can be masked mandates. if they lose, you cannot get any money back. that strikes me as absolutely nuts way to enforce state law. if this is state law, you have deputized your entire population to be state enforcers. i don't think there is a best way to get there without throwing a wrench at everything. this model of state law enforcement can get a pass until
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somebody litigates it through. the sheer chill on exercise of constitutional rights is shocking. >> in finance situations, people are deputized. one way is to stop it facetiously, solving the execution cases. [laughter] >> i think the hard thing is that there is a push and pull. you might deputized people to enforce and act in the interest of the attorney general. what exactly the barrier is to the texas law? it was probably apt for the majority and for them to say --
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raise these difficult questions and i think the reaction people have is that there are various legals -- legalist challenge this. it seems like the court is deeply uncomfortable. five justices expressed extreme discomfort that there is a likelihood of success when the folks challenging the law did not actually present the case of what exactly the obstacles of the texas laws were. it raises really hard questions. sometimes, to the emergency stay ? novelty might be your best friend and gave the outcome you want when it is really a snap decision. >> i agree. it has a dozen of descents and it. -- dissents. it would be nice if they came up
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with a theory on how to deal with this residual gambit. it will not stay intact. it will not stay -- though away. -- go. i am not saying i necessarily think they made the right call -- wrong call in this case. it is a terrible precedent. it needs to be dealt with properly so that you don't get caught in that bind again. >> you mentioned this. what is happening in advent law? it's a broad question. the last two years have created a different landscape of what is happening going forward. chevron and every thing else is being altered but in the actual situation?
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>> it feels like endless war. i think the contraceptive mandate is the best example. been around the block 17 million times and come around again. everyone is so narrow. it always goes up to the supreme court. there's always nationwide injunctions on both sides. it keeps coming up and the supreme court keeps taking their hand down the road with procedural rulings or rulings that are halfway solutions. that guarantees more litigation and each administration, especially when there is a change, it will undo its predecessors act. the mexico state order where they decided that the docket -- they did not explain it well enough. i think some people will say what comes around goes around to different administrations. if you look at it in terms of a development of the law, it is a
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weird and noble situation in which it feels like no administration big-ticket items never get resolved. it is just litigation for decades. it is a strange state of affairs because congress doesn't do as much legislating as it used to meaning administered of agencies on both sides, when they try to pick up the slack, and not only is it a great thing to have but they're taking the place of congress but it is a stalemate. it is weird. >> there are so many things we can think for this. >> i followed a number of cases. i have one up there dealing with chevron. i am permanently hostile towards chevron. i think it is a terrible idea. i think the law should be interpreted by judges, not administrators.
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there is a problem of switching administrations. once you have chevron, you have the changing waves of politics without they want to work with ambiguity. these days, they get to do it on purpose. i find it difficult and troubling which is more of a reason to overrule it then constantly fight about something for 10 years until another administration comes in and yanked the policy, interpreted in ambiguous ways to mean the opposite of what our last administration. if you want these to flip-flop based on the current executive, that is just an awful way of running the country, and litigations. let us just get a decision. that is crazy. i would not be shocked at all if the current justice changes their mind and says would you like chevron. even of the last one said we don't. i don't know what you are supposed to do with that as a litigator and a client.
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i don't know how you deal with that kind of stuff. it is a dilemma of who ultimately speaks for the government so when the government speaker keeps changing their views. this is coming up in the abortion context. was it wisconsin? >> kentucky. >> they said they would not defend the law. who do you get to speak for government? it is a bigger question. >> he try to bring it to the law as an abortion case. they said they are not getting into the abortion part of it but it is an interesting question. one thing about the remain in mexico policy. when the light in administration came to the court on the remain in mexico case and it was the same week that they were
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defending the eviction moratorium. the stay request and the remain in mexico case has this paragraph at the end where the supreme court can't remember all those times that the trump administration came to you because a district court was trying to dictate formulations and they said oh no, district courts cannot do it supreme court was just like yeah, no. that is not the same thing. i also think it is a victim perhaps of the it administration saying they change positions on some last-minute changes. it had been shorted from the so-called shadow docket. i would have to guess that remain in mexico, yanking it
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from that perspective hurt them. as opposed to the form relations one which is notable. >> i will open it up for questions in five minutes. if you are watching it online, we will look for questions from you. the #is -- hashtag is #catoscotus. i think the sick -- >> processing fee petition is overruling things. it gives the court opportunities to overload their decisions. there is a harvard petitions. it asks the court to rule over it. it is an option.
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we'll see what the government says. i'm guessing the government will not say the same thing they did during the trump administration but we will see. i am not holding my breath on that one. there are a fury -- flurry of positions that said that half of oklahoma should -- there are various petitions perennially about overruling qualified immunity. i have a petition that raises questions on if the court should will back or cut back on dividends which is a president from the 1970's about implied rates of action against federal agents the court has increasingly had skepticism about whether or not it is a thing. this presents that question but mirrors questions about whether or not to extend these to two different novel contexts.
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it is an interesting juxtaposition with the qualified immunity debate. there are various folks from a political discussion says it is something they want to pursue there is also a school of thought that says both of these are doctrines that have been questioned as lacking some sort of basis in the constitution or any sort of statutory market. if the court cut back on one, it could make it easier to cut back on the other because they balance each other out. >> i commend you that article that he argued in last year's review. are there any petitions that you want? >> there are a few things i am interested in the bump stock petition. i have one in the d.c. circuit. it is mostly about chevron and
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raises good issues about chevron's application. it is a mess. i think the epa and fcc, there are big statutes that create big crimes to the point that those crimes and it bugs me to know and. there are the follow up on petitions that keep cropping up about a lot of bar dues are inconsistent with janet >> or whether or not the ian's are giving people the op indy to recover their money by a thursday in mid august? >> exactly. i like the overall part which sticks with the theme. i think there is a big petition coming up soon, the statute in california. interesting, but i like the keller overrule part.
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i think there is a big petition coming up soon. this statute in california. >> the one that is a story in the pork industry? >> the petition is coming out, mayor brown is bringing it soon. it is fascinating. i am not a fan of the clause, but i think it does a lot of work that should be done by other constitutional provisions that were misinterpreted 100 years ago. it does real work, it does constitutional work. what do you do when the mistake happened 100 years ago and this made up area has grown up to fix the mistake? it is a fascinating dilemma. it is fascinating to think california gets to tell the whole country that you have to do it our way or the highway. i am not a fan of that, either.
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>> i met another fan of the imports-exports clause. i did not know we had that in common. >> is there something else you want to add? >> there were a couple cases of the supreme court having left implement division versus smith in effect. there were some cases asking the court to either clarify or reconsider smith. there is one called dignity health versus minton. a case filed by a transgender patient who wanted a hysterectomy at a catholic hospital. there were procedural issues the respondent said would keep the court from taking up the case because it came from a state court. they did not send it back to the lower court. they considered it a couple of times before the summer recess. it is up again at the long conference. there is one further over the horizon called seattle unions
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gospel mission versus woods that involves a legal clinic for the homeless run by an evangelical christian organization. the mission who told someone who applied for the job at the legal clinic who was in a same sex relationship that it was contrary to the church's teachings. the question is whether or not the first amendment protects the mission's rights to hire people who share its religious teachings. these are issues similar to what the court took up in a different case a couple of years ago. there is one called roman catholic diocese of auburn versus lacewell. this is kind of similar to the birth-control mandate. it is a new york regulation that requires employers to fund medically necessary abortions
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through their employee health plans. it has an exemption for religious employers but not for religious organizations like catholic charities. >> that is pretty crazy. questions? on the outside in the blue shirt. that is you. she will come to you with the mic. >> i am unaffiliated. this might be more of a comment. isn't the issue about how the constitutional issue would be raised in the texas abortion case? they would have to go to court. parties would have to go to court to enforce the penalty and that would constitute state action, would it not? >> absolutely.
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it is just a question of whether or not we allow it to happen before that. we have a lot of pre-enforcement challenges to criminal laws, various first amendment related laws. we understand the harm happens, arguably, well ahead of any actual litigation. it is a question of reconciling those theories. if you believe you can violate someone's constitutional rights, we need guilt with that. >> moving up here on the inside with the blue shirt. >> my name is andy, i am a local attorney. i have read the briefs for both sides in the dobbs case and it seems like both sides have a glaring weakness. the weakness with mississippi's
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brief as it comes off as a bait and switch. very little in the brief addresses that. they make no real principled argument as to why 15 weeks should be ok, but 16 not, or whether some of the rule should be adopted. the weakness i found in the respondent's case, it makes no real attempt to justify roe as an original matter. by roe, i mean the essential holding of roe. i am wondering if anyone on the panel has a similar assessment. >> i would not say casey reaffirmed roe. would you agree with that? >> i think that is a big part of their argument. almost like, we do not have to explain it or rationalize it
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because roe was reaffirmed in casey and casey has been around for 30 years. i think to go to your second one, it will be very interesting to see whether or not that comes up, either at oral argument -- you said we do not need to consider roe versus wade and casey, and this is what most of your brief is about. they have dismissed for that. >> one of the interesting things about roe, i get the sense that people who are pro-choice will have a hard time defending that decision. casey replaces the trimester framework of the opinion. i do not see roe with the jurisprudence matter having that many defenders. >> i have the opposite reaction.
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i thought both briefs were really well done, both as briefs and making tactical moves. i think mississippi's brief, i think it correctly captures where at least several justices start off with respect to the roe casey framework. if you think about from mississippi's vantage how to defend the 15 week law, what they might need to defend it, the brief in some ways is honest about what they think the court's options are. the respondent's brief is effective because it is we don't need to go further than storage of sizes. we will not engage -- starry i also think the future of abortion cases is the court knows the issues well and i'm
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not sure the briefs matter. they matter as pieces of advocacy. everything else in jurisprudence, the court reaches compromises and struggles to figure out how to reframe standards and that is what the court will do. it is not clear to me, even though both sides have exceptionally good advocates, how much advocacy would matter. >> eileen moore in that direction. at the end of the day, i would not have engaged beyond stare decisis. there is no value there to say let's reconsider roe from scratch. that invites them to do it rather than saying, no, no, they said no, we will not fight about that, it is just about what roe means.
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we are not fighting about whether roe should be flipped. from the state's point of view, i suspect they are playing for concurrences, not a win. >> i think they are playing for a win because they assume the court will compromise. >> maybe. i feel the best they can get is a loss and think about it more. i am not sure they get a true win. they are playing for the concurrences to use on remand. >> we had an online question sam will read out. >> we have frank asking via youtube, to the extent any panelists are familiar with the case, what effect if any do you see the american hospital association versus -- having on chevron? >> i am glad you asked.
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>> thank you frank, former legal associate. >> this is one of the more interesting grants because it comes to the court from the dc circuit. it is about a cms reimbursement -- it is so complicated, it would take the entire. the court is granting a question about chevron deference in a case where if you read the papers, it seems like from petitioner's description, did the dc circuit misinterpret the statute kind of question? it is an interesting grant. it is an important case for reimbursement purposes. it is one where i wonder if the court had buyer's remorse not taking some of the bump stock cases because it is a clean opportunity if the court wanted to do a, let's put more
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guardrails on chevron, this is a good way to do it. the stakes are manageable and the court can save various things about chevron without having to overrule it. a super interesting grant. >> i sort of feel like, the chevron issue in that case seems nonexistent. it is included in the questions presented. just sort of wave the flag in front of them and say, come on. maybe they will use it as an occasion to say something that will influence some of the more meaty they might not want to take for other reasons. >> with your passionate hate of chevron, every time i try to count how many votes to overturn it, a lot of that changed after that kaiser v. wilke case. i am not sure if there is two or
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three overruling chevron outright. >> the court says, you should do xyz if the weight of a truck is over 20 pounds. you need the agency to figure out what scale to use print i will give you that. i require a clear statement from congress delegating that authority, because i am anti-delegating, too. to really ratchet it down, no criminal applications, -- >> the supreme court treats chevron as a dirty word. you do not see people arguing chevron to the supreme court. in the dc circuit, it is an
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equal and opposite reaction to being more a nam bird over chevron than last 20 years. >> over on this side. >> thank you very much. i was a little surprised when i remember back in the 1980's, when the supreme court said women were not eligible to register for the draft because combat arms relied on the draft and women were not eligible. after 2015, the rules changed. women are now eligible for combat arms. i think one of the appellate courts made reference the past few months and the supreme court
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i think refused to say anything. i think the appellate court said the whole thing was moot because it no longer applies. do you envision them taking that off? i think they said something about it being a congressional issue, which i find strange for the supreme court to say. are you familiar with this at all? >> i am vaguely familiar. wasn't there supposed to be a congressional report on it? that is a sort of thing where the supreme court is like, we will let them work this out. >> there is a petition that got denied. >> there was certainly a petition recently that was very well done. >> it was denied. the supreme court basically said, not right now, not our
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place. >> the thing people do not get about the supreme court is they do not fix every problem it rose through the door the second it rose through their door. it is not their job, it is not with jurisdiction has them do and it would be a terrible idea to take the first case that pops up just because somebody asked. they are not on demand. the fact they said no does not mean they will never take it. they are waiting to see if the problem fixes itself. the resources of the court are limited. they should not be the ones making these calls. we are so concerned about activist judges, but the minute they say no to a petition, we are like, how could they say no. >> sam, online question. >> this is from john. specifically to eric, what i
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supposed anyone else on the panel could answer. do you think court will take the case this term or wait for the issue to percolate through the circuits? >> if i was a betting man, i would say the odds are not in favor. >> first, explain what the case is. >> there are several bump stock cases. >> can you explain what a bump stock is? >> for those of you who are not gun nuts -- >> your youtube moment. >> it is definitely not a machine gun. a bump stock is a shoulder stock you can put on a rifle that lets it recoil just a touch and that helps you use this technique called bump firing. you pull the trigger, it recess,
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and then if you push things forward again, you hit the trigger again. it lets you go back and forth and shoot the thing very fast by allowing the recoil to assist you with the released. it is said to make a machine gun out of a semi automatic rifle. there have been a bust of challenges. -- there have been a bunch of challenges. there is a challenge in the fifth circuit, there is a challenge in the sixth circuit. there are a bunch of cases out there like this. in my case, it was right up after this got passed, the supreme court denied, second was early. justice -- cases have been kicking around since then.
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there is another case up on preliminary junction. it remains to be seen after a number of rulings, the court is reluctant or not to take it. they might have gotten over that given there have been a variety of rulings. there is a merits case coming out of the fifth circuit. if i had to bet, they have enough drama on their docket this term that they do not want to add that. >> another gun case? >> overruling chevron to allow machine guns, that seems a little more drama than they might be prepared to accept. the oddly enough should do it on the shadow docket. a lot of these cases have been decided on the theory that the government cannot waive chevron. the government said we do not want chevron. a bunch of courts have shoved
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chevron down their throat, anyway. absurd on its face in some anyways. last term, the court accepted basically a waiver of chevron from the government. one could easily see any of these petitions -- just on the basis of that. why are you making me rule on chevron when we don't want to do it, the other side does not want to do it? i could see the shadow docket kicking this back to the courts for another three years. >> over here. >> another former legal associate. they are populating the legal world. >> i don't understand the justification for why the names of the justices are not listed on the shadow docket for how they voted. i understand if there are multiple authors, but why don't
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we know who voted in favor and against certain things on the shadow docket? >> that is an excellent question. >> maybe they feel like they are telegraphing something they do not want to be telegraphing. that is the best i can predict. >> at some point, these are preliminary, nonbinding decisions. you are doing them for the same reason, sometimes attributing them locks you in in a way you do not feel like you should be locked in. >> sometimes it can be like, can i have more time to file my petition? i think there might be something the justices do not like to do, assign more merit to some orders over others. this is important enough that we
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will put everyone's name on it but this one is not, that might facto into it. . >> i think it is -- the court is so much more transparent, even though the last couple of years in terms of audio and online opinions and access to emergency state applications, for most of the court's history, you could access a lot of this. probably not off the emergency docket. i feel like there is a push-pull for the court that is difficult to navigate. the more they try to be transparent, the more people say the shadow docket is illegitimate. >> the court is also trying to balance its institutional -- maybe this gets supreme court --
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one of the more interesting things going on is saying, do not necessarily rush into this. whatever you do can get flipped and the court is an institution that tends to make its own decisions. i think most of the justices have that perspective because they know how it operates internally and it is hard to convey. there is always the opportunity for dissenters. if people feel strongly someone should be held accountable, dissents do that. if none of the justices feel strongly enough to dissent by name, they feel strong enough to speak as one voice. well, we voted, we lost, i am good with that, we will speak as a court. there is some value to that. >> up here, wait for the mic,
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please. >> thank you. my name is stephen, i am a retired diplomat. i had a specialty in economics. i should emphasize that i am not a lawyer, i have never practice law. at lunch, a number of us were talking about the mississippi case, and abortion in general. everyone except for me was of the belief that there was a good chance the court would decide in favor of mississippi. i was of the opinion that the court will either rule against roe v wade, decide it was erroneously decided, or will uphold it. can you please comment on differences of opinion and to you think is most likely to be
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correct? >> sure. i think with a lower court having struck down the law as unconstitutional, i do not think the court after 15 weeks or whatever of considering the case at conference took the case so it could then say, you are right, the law is unconstitutional. i think that some form of the law is going to survive. exactly what the court will say, are they going to head and overrule -- roe v wade -- will be go to some sort of standard that looks at whether or not the law is an undue burden, that, i do not know. i would be surprised if there are five votes to say, you are right, the law is unconstitutional. >> i agree. it will be the kind of case were john roberts will spend a lot of
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time to make sure the court comes out as unscathed as possible with public opinion. other questions? >> i have a philosophical question about the subject you just discussed. making something illegal that millions of people already do drives it underground, makes it more expensive, it increases corruption, increases cynicism about the law and increases lawbreaking. prohibition is prohibition. this is libertarianism 101. why is there ambivalence among libertarians about abortion? >> the prohibition of statutes drive merger underground, too.
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>> we would not require families -- >> i am not studying my opinion. if you believe it is murder, you would not care about the effects of prohibition. >> you would not require relatives to keep the bodies of the relatives alive after brain death. >> we did four years. >> you could not make that consistent with libertarianism, though. >> i am a lawyer, talking about the constitution. it has libertarian components, allocation of power components. your argument is the argument you can make to a legislature, i understand that. >> that is why i said this a philosophical question. >> the biggest philosophical issue is, who gets to decide?
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if you do not concede the right of legislatures to make the wrong answer, this whole exercise is silly. >> that is why i asked why libertarians were conflicted. you would not require preservation of a body after brain death. >> it is ok. we have time for one short question. please join me in thanking the panel. please stick around for the excellent
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