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tv   Attorneys Reporters Recap Supreme Court Term  CSPAN  July 9, 2021 1:11am-2:31am EDT

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6:30 p.m. eastern on c-span. >> legal experts and reporters on the supreme court rulings of the recent term. they looked at the pros and cons of conducting oral argument by telephone. the court moved to this format because of the pandemic. this is one hour and 15 minutes. >> vice president of the heritage institute for constitutional government. we hope you enjoy the program. gregory: welcome everybody. [applause] we have a nice audience here. i know we have a lot of people joining us online. i want to welcome you all to our annual round up of the recently completed term. the supreme court stayed out of the election disputes. justice stephen breyer decided
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to stick around for one more term. of course, there were opinions. in short, we have a lot to talk about. we have a terrific panel to do just that. i am joined by two outstanding scholars, josh blackman joining us for truly, and we are grateful to have with us two veterans of this program, award-winning scribes. we have a lot to uncover, therefore i am going to give each of them a brief introduction, way shorter than they deserve. first, josh blackman, josh is an associate professor of law at south texas college of law in houston. he specializes in constitutional law, the supreme court, and the intersection of law and technology. after graduating from george mason law school, he clicked for
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kim gibson in the western district of pennsylvania, and then danny boggs. in addition to being a regular contributor, he is an adjunct scholar at the cato institute and founder of the harlan institute. he is the author of three books, an introduction to constitutional law, and two books about obamacare. you will have to tell us where -- whether there is a third book. to my left, gregory garre, global chair of the supreme court and appellate process. a graduate of george washington university law school, she -- on the third circuit and william rehnquist. he served as a 44 solicitor general of the united states from 2008 to 2009. prior to that, she served as assistant to solicitor general.
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the only person who held all three positions. he has argued 45 cases in front of the supreme court on a wide array of issues and has also served as counsel of records. he has been consistently recognized as one of the nation's supreme court advocates and has received numerous awards including the attorney general's metal for distinguished service and the attorney general's award for furthering the interest of u.s. national security. on the far side, we have jeff. a supreme court report and for the wall street journal. here's a graduate of uc berkeley graduate school. he used to work as a reporter for the los angeles times. it is also a contributor to many other publications including the washington post, spy magazine, harper's bazaar, and former
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member of uc board of regents and city council appointee to the berkeley california police review commission and zoning adjustment board. he has author of two books, one having to do with guantanamo bay, the other the life and times of squeaky from, member of the manson family. we have adam liptak, supreme -- where he has a history after graduating yale, adam worked at the new york times as a copy boy, then went to yell law school during times of the summers. he spent years at -- where he specialized in first amendment law before joining the times legal department in 1982. in 2002, he switched to the news staff, and the rest is history.
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so now, we will sit down and start talking about some of the cases. adam, we will start with you. adam: i am going to talk about what is the most surprising decision of the term. to me. -- against the city of philadelphia. it is a clash between religious freedom and gay rights. you recall the colorado baker who did not want to make a cake for a same-sex wedding. one thing i would not have predicted is a unanimous supreme court on the bottom line and flavor -- in favor of religion. there were deep divisions. but, that the three liberals should join onto this project struck me as surprising. the case involved the question, the city of philadelphia runs a government program -- foster care --edit contracts with 20 private agencies in philadelphia
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to do work including screening potential foster parents. catholic social services was one of those agencies, independent contractor. it objected to a provision in the philadelphia contract which required it not to discriminate on the basis of many of the usual factors, including sexual orientation. that, the catholic agency said, violated its religious beliefs and should not be required to follow. that contractual requirement. the agency -- to be clear -- objected to unmarried couples, unmarried in its view of marriage, whether same-sex or opposite sex, and it said it did not have a problem with
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unmarried gay and lesbian potential foster parents. all of this was theoretical because there is to evidence that any gay couple applied to catholic social services to be screened as potential foster parents. and, the agency said that if they had they would send them to somebody else. nonetheless, the question is, is philadelphia free to have this provision? it goes to the supreme court and among the questions presented was about whether to overrule employment division against schmidt, which took the view of the free exercise clause that if the law is neutral on its face and of general hackable bit -- applicability, it is going to be ok. the six justice majority, the chief justice kavanaugh, barrett and the three liberals, took an
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exit graham. -- exit ramp. some took this as an injustice, in alito's words. so, make work that will not have an impact on future cases. it is as though, as alito wrote, it was written on the vanishing paper you find in metric shops. i commend a colleague of ours who mentioned shops unable to maintain any of this disappearing paper. [laughter] so, the chief justice is out. both sides get strict scrutiny. but, the chief justice gets the scrutiny by saying this is not a law of general applicability because the contract -- and a provision never employed in the pure good of theory -- allows
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discretion. so long as somebody has the theoretical ability to allow some sort of exceptions to the contract, you have to give religion an exception too. that is actually not so trivial as i make it sound. this idea that any exception anywhere in a government program , which of necessity has exceptions, gives religion a favored nation right, is not a small step. that step we also saw in the shadow of daca emergency efforts to prohibit religious gatherings in light of the print never -- in light of the pandemic. that is where this ends up. do not over roll -- and this is a telling piece of the term, to
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see who is in the middle or not, justice barrett, joined by kavanaugh, expresses great doubts about smith but since we will leave it for another day. in this end,, the three, alito, thomas and gorsuch, filing concurrent opinions -- i think the chief justice's opinion was 15 pages long. alito responded with the agreed concurrence of the judgment. making the case that employment division should be overruled. the length of it made some people speculate -- and the fact that the liberals joined on to something they could not have been happy about -- that there was a lot of internal discussion and deliberation then perhaps justice alito had lost the majority. >> i want to ask, including you,
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josh, if you have anything you want to add? one thing i have heard speculation about is whether barrett and kavanaugh for sending a signal of, we might want to overturn employment versus schmidt, or sending the signal that they do not. i was not -- josh: i was not getting the signal, but just not this year. through specs that adam mentioned that signified the term, one is sort of surprising consensus we saw in some of the higher profile, and more contentious areas like religion. the other area is that justice barrett showed herself to be
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more cautious and incrementalist than some had feared before she went on the court last fall. >> i would like to jump in. >> go ahead. josh: justice barrett is averse to screw -- of -- adverse to strict scrutiny. follow-up to the afp case, which we will be talking up, barrett did not want to apply strict scrutiny. in general, her mo, we do not know -- we do not use rigid scrutiny. that is more indicative. it is not like she rules, and that is indignant already. >> looking at this case, in its broader context, may be there is just a reluctance to overrule smith and to give religion such a privileged place in a
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gay-rights case. you look at the tandem versus newsom per curiam decision involving a covid restriction, we did not see hesitancy from kavanaugh or barrett to require strict scrutiny for religious exercise. you saw them turn down the arlene flower case which presented a similar claim. maybe they still have not found a way -- the majority has not found a way to reconcile the expanding recognition of gay-rights with the expanding recognition of religious rights. if they have to make a decision regarding smith, they just do not want to do it in this case. they would rather involve some unrelated war -- unrelated, or less touchy topic. >> let's move on to america prosperity versus --
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a challenge to a california regulation requiring nonprofits to disclose their donors to california authorities. greg? greg: as indicated, this case is a clash between the first amendment and rules requiring the disclosure of membership lists of private organizations. it rose out of a california scheme that requires rigid waste and -- registration requirements. but also, requires the disclosures of the names and addresses of donors who have contributed more than $5,000 in a given year. it does so by requiring groups to submit a form they have to submit with the irs already, schedule b 990. the disclosures are meant to be confidential but during the
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course of litigation it was disclosed that california had not in perfect in keeping in the confidential thousands of these lists that had been released inadvertently on a website run by the california attorney general. this requirement has been out there for a while, but in 2010, california ag ramped up efforts to enforce it and it ended up sending thousands of deficiency letters to chair board organizations who had not made the requisite disclosures. and, to those groups ended up bringing suit alleging the disclosure -- the first amendment. on the last day of the term, the court handed down a 6-3 decision in favor of the plaintiffs, holding that the laws were unconstitutional on their face. it was a 673 decision that like
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some of the other decisions, actually broke down on ideological grounds, although there were two separate concurring opinions among the conservative justices, that we will talk about later. the chief justice wrote this decision for the court and he began with a discussion of ncaa versus alabama, the case in which the court held that the alabama ag could not require the naacp to disclose its membership lists. in that case, it rose under the efforts of the alabama ag office to crack down on the naacp's efforts to promote racial education and transportation in the state. the court held that that disclosure requirement, or effort or the naacp's membership
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list, violated the first amendment. >> working off of that, the most -- question was, what standard of review would apply to the plaintiff's claim challenging this sort of disclosure requirements? there was a range, starting with the first amendment. typically when you have classic first amendment violations, you have strict scrutiny underneath that. you have what is called "exacting scrutiny." that comes from the buckley case. below that, you have range of matching between interests of the state and the intrusion of the groups. if the chief justice -- the chief justice and court upheld that the exacting scrutiny of hell to these disclosure requirements. here, justices kavanaugh and barrett joined the chief justice
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's decision holding that exacting scrutiny applied. justice thomas concurred separately. he said he would have applied strict scrutiny. alito and gorsuch said in this case, since the disclosure requirements flaunts both exacting scrutiny and strict scrutiny, we can just pump that question for later. the fulton case, where some members -- the smith issue here, alito and gorsuch thought that they could reserve question for later day and keep strict scrutiny in play. applying exact scrutiny, the cheaper the court had essentially little difficulty holding that the california requirements violated the first amendment. they knowledged there was purpose in the abstract among charitable organizations, but there was dramatic mismatch, which is what the chief called -- between the general interest
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and the flawed disclosure requirement and the lack of evidence of foundation were belief that there was fraud being uncovered by these lists. the chief justice referred to it as a dragnet of sensitive information and noted that the ease of the administration that might be gained by upfront disclosure requirements were not going to be sufficient to cross the exacting scrutiny line in the first amendment. the court went further and held that this requirement actually was unconstitutional on its face. not just applied, given the dramatic threat -- breadth. the liberal block held by sotomayor, their focus was not on the standard review and in particular the fact that the majority had called for narrow -- in these sorts of -- they
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objected to that. the level of scrutiny essentially should be measured with the amount of the intrusion caused by the particular disclosure requirements. they would have held the california law as advancing important state interests in preventing fraud. in thinking about this case, i would say the conclusion, to me, was not surprising. we knew that this was a pro first amendment court, and i think this is a strongly worded first amendment decision. this was the loss not only for california, but for the biden administration, which had switched positions in the case the trump administration had filed urging the court to review the case arguing that the california requirement was unconstitutional. the biden and ministration agreed to hear the case, flipped the position and largely
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defended the california requirements. the lingering question is, what about the irs form that california just copied in requiring the disclosures for schedule b form 990? there it is unclear that the court referred to the fact that there may be additional interests in the tax context, revenue gathering context that theoretically might support the disclosure requirements. that is a question that will remain to be answered. >> anyone have anything to add? >> so the court split along ideological lines, but the mink's briefs didn't. you study the naacp, on the others of this -- the charitable context is interesting. the other lingering question is
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what if they moved from charitable to electoral? what about disclosure regimes that are upheld in citizens united? and upheld in dovie reed -- i do not know if this is a marker that will move us into the electoral area. >> interesting. there was a another contentious case, the -- do you want to talk about that? jeff: thanks for having me back to this panel. it might look like a pen on the helsinki formula, but it is actually about the supreme court term. >> the case -- this is one of the most significant cases. it became more significant when the biden administration filed suit against georgia's voting regulations adopted after the november election. part of it versus dnc --
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involved the remaining part of the voting rights act. there were two provisions that the dnc challenged as discriminatory against minority voters. one was a rule that a voter could not cast a ballot out of precinct. if an otherwise that -- otherwise valid ballot brought to the wrong pring sing wooden count. that disproportionately affected minority voters. for some reason, they move more frequently, or voting precincts are moved more often. that provision tended to invalidate ballots for statewide offices. it doesn't matter what precinct, because everyone in the state has a same choice. the other provision was, test --
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disallow of third-party groups from collecting ballots. this would be a voter absentee valid -- absentee ballot, instead of mailing it themselves, gives it to a group that mails a door brings it to the registrar. that provision was challenged as discriminatory in particular because arizona has a lot of reservations. mail service on those reservations is spotty. many native americans do not have street numbers on their houses and tend to get mail at post offices or collection points. so, they have a harder time -- it was argued, getting those ballots in the mail. that night circuit court of appeals found those two provisions to violate section two of the vie -- of the voting rights act.
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the obama administration was sued, did not back this lawsuit. it may be they thought the facts in this case were not a great one to send up to the supreme court that had recently struck down section five of the voting rights act in the shelby county case. the ninth circuit opinion i willie fletcher stressed the history of discriminatory practices in arizona and looked at these positions in that light to find that they violated the voting rights act. the supreme court, in the 6-3 split, justice alito writing, found that the night circuit had err ine viewing these as violations. d he did not go so far in laying out specific tests for section two violations, but talked about factors that were going to matter.
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one factor was looking at the totality of the circumstances, not just these two individual provisions, but the different ways people can cast ballots in arizona. he said that arizona makes it easy to vote and you have to look at the effect of these positions -- provisions as to whether there are other bearers of voting or other ways that make it easy. he found arizona to have had many alternative ways of getting your vote counted. he also said that the disparate impact approach, provisions that can be shown statistically to have a greater impact on minority voters, this impact being the way that fair housing cases and other kinds of discrimination cases are sometimes evaluated, that was not appropriate for this type of case. he thought that the -- she was much more concerned about
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discriminatory intent than discriminatory impact. he said it was important to look at the context that voting regulations have in the 1980's when the voting rights act was modified to update section two to its current language. keeping in mind what the voting provisions were then, that was a time when people tended to cast votes in person more so than now. it was also a factor to keep in mind. all of those things taken together, he said means that arizona pot regulations are permissible. dissenters took a different view. justice kagan said the totality of circumstances you should be looking at are the totality of certain circumstances regarding the voting rights act. what she characterized as a broad mandate from congress,
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using the 15th amendment to clear away all of the subtle and obvious ways that impediments to voting have been placed in front of minority voters. she strongly criticized which he considered to be a cramped reading of the voting rights act. a lot of the post case commentary dealt with how hard it is going to be in the future for challengers to raise section two claims against voting procedures. the analysis was all over the map. some saying this makes it hard, only a tiny door left open for claims. others arguing that there was plenty of teeth left in section two, and that it may not be -- it being not have a huge effect on cases going forward. one of those people was senator mcconnell, who i was surprised
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to see in his statement, praising the vitality and strength of section two and what a great mechanism is -- it is for minority voters. we will see what the impact is with the georgia case that the biden administration filed, where they make more progress of about discriminatory intent and the number of -- maybe greater than we have seen in arizona. they, the heels of an election that lawmakers who passed the bill were disappointed in. that may be the follow a case that tells us how far the arizona decision is going to go. that is the case. i just want to add -- >> it was interesting for me to look at the brnovich case
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involving donor disclosures, not only because you had the same split among the justices, but also because of the different way the court looked at state interests versus minority interests. you saw the donor disclosure case, the board took a broad reading -- the court broad reading and said, you have never based any investigation at all on these schedule b's that have been filed, you've got other ways we can investigate conflicts of interest or fraud in charities, and the burden of these donors -- a subset of donors -- people who contributed $5,000 or more to charity and that may can -- that may include all of us here, but not a typical donor to a nonprofit. ed is not like the naacp case where rank-and-file was a very small group of better off donors
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we are talking about. you can track that to the greg: -- to the brnovich case where justice alito said you do not need an instance of fraud to ever have happened for the state to be justified in step two prevented from happening. he was not looking for evidence that these measures -- arizona implemented would burden minority voters, were reasonable responses to things that hadn't taken place. congress acting under its specific greater authority, it was interesting to look at how, in some instances, they gave reference to state legislature and authorities in enforcing their prerogatives and in the other case they thought work negligible. >> obamacare was back up again.
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what happened? is there a third book in it for you? josh: my first book was about the -- case. my second bus -- book was about hobby lobby. my third book will probably call ed unreviewable. this issue never seems to go away. obamacare was enacted in 2010 and was immediately under siege, litigation, across the country. perhaps the most important aspect of that litigation with the individual mandate. this was a provision that required people to purchase health insurance. not everyone agreed with me. some people had -- mayor lee eight tax on those who decided to go uninsured. we know the story, it goes to the supreme court, the court
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votes five-four, the chief justice finds that the mandate cannot be supported by the nation to propers power and cannot be supported by the taxing power. part c of the opinion, the chief rights that escorts have a duty to find ways to hold statutes, the reasonable reading that holds that accord, he adopted the savings instruction which the law had no mandate, which merely imposed a tax on a monitored. roberts -- the uninsured. roberts made it clear it was a permissible reading of the statute which allowed them to uphold the entirety of the statute. -- that was the first case. fast forward five years. in 2017, congress tried and tried to repeal obama care and
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were not successful. john mccain giving the thumbs down, he put the kibosh on the repeal bill, which would not have repealed the law, but changed it. republicans try to different tactic, the used budget reconciliation which only requires 51 votes, they used that to modify aca. they didn't actually repeal the mandate, all they did was the reduced the penalty to zero dollars. if you failed to have insurance, you paid a penalty of zero dollars. nothing. around the time this bill was passed -- this change seems to topple the construction. the construction's premise was the fact that the law reads as revenue, the laws no longer is revenue, so therefore we have no more mandate. it is unconstitutional.
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i was not the only one who -- texas, and a number of other states, brought lawsuits challenging the aca, later individual private plaintiffs brought a lawsuit. the biggest hurdle was not the merit, the merit was the easiest part, the court actually got the merits and -- the merits itself or never -- the states argued there were injured? people not under the mandate may decide to quaff medicaid and do other things. those affect the state of the employer. those injuries traceable to the decision of -- ok, the private plaintiffs made a different argument. they said we know the penalty is
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zero, but the mandate exists. the mandate is still unconstitutional. we want a declaration, we want an injunction to bar the government enforcing the mandate. you might ask, how do you enforce a mandate that is not enforceable? this was the biggest problem for the plaintiff switch did the men. the district court accepted arguments of separability, and the district court went further and said the aca was in constitutional. the fifth circuit did not come that far, but the fifth circuit said we are going to -- the standing inquiry with the severability inquiry. whatever provisions are injuring the plaintiffs, we will find that those provisions are unconstitutional and cut them off. this is -- i get some credit
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here because the court relied on my work. but whatever. the supreme court has argued the case and the trump administration argued on behalf of texas -- for the most part. the sg did not support texas' standing. they said texas -- sorry, the u.s. has adopted theories similar to mine. if we assume that the mandate is inseparable from the provision, and all of the provisions glob together, and the injunction to stop that glob with injuries traceable to that glob, then joining those glob actions, this is what you might call the bootstrap theory if we bootstrap together several positions, we have an one constitutional -- unconstitutional provisions, we are left with a glob the court
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can join. that argument applies only to private plaintiffs. i made that argument, so did the sg. i am sure the plaintiffs made it themselves in trial court. but that was months later. edge goes to the supreme court and i am honestly expecting the court to rule favorability. they said yes, it was unconstitutional, but let's call it a day. that would have been the best because it ends the case. there is number dispute. maybe somebody else has standing. maybe there is action somewhere where someone raises in favorability, but the prosecution. but, the decision from the court , 7-2, not the vote i expected. it was not by the chief, for the first time. he wrote -- this was justice breyer. how did breyer get this opinion? i was shocked.
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justice breyer focused on one of the three legs of standing, which is called traceability. he did not call on injury of fact, but once you go injury -- he focused on traceability. breyer said even if you assume that injury, that injury is not traceable to anyone, because there is nothing we can do to enjoin the enforcement of the mandate, it is simply a provision that stands by itself, the majority opinion was 15 pages long. the obamacare case was the same length. breyer wrote a surgical slice through the case. it was so thin, it got second votes. prior also rejected state standing, and he is right on this because the mandate is not operated upon the state. they are only tangentially related.
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but with the senses case that said unit there is a possibility of injury or standing, i do not know how use where the obamacare, they are at odds. every year is in turmoil. we get to the other opinions, justice thomas concurred. i think he was gritting his teeth the same way that sotomayor in the obamacare case, he didn't like it. he said, under my theory of standing, this is the work. thomas rejected the inseparability standing. he said it does not work. he considered inseparability the -- of the states. but the majority -- did the majority actually check? not exactly. they deemed it waived. the worst argument ever is you waived that position, you can raise that. i think the plaintiffs raised it, i sure hope -- i raised it.
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this is in the litigation and i think it was present. the court didn't want to touch it because it is a nasty issue. congress, i do not buy favorability, the majority was like yeah, no we are not going to touch it. not quite as long as default in, but alito was busy this term, he wrote a long dissent which also did not address individual standing. he focused only on state standing, which was perplexing. i thought private plaintiffs had much stronger arguments, but what do i know? alito said the states are injured and also said that the majority applied to the rules because it is obamacare. this is the sort of plant -- all these rules go out the window for obamacare. in the end, seven-two, the court turns away the challenge. are we done? of course not, i've got another book to write. i think mip title, "john might
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be undefeated." the plaintiffs go back and clearly -- the inseparability theory, though it won't work. the more likely path is someone who is subject to an enforcement action raises his argument, that's a false claims accusation that would bring fraud on the aca. you can't enforce this, it's unconstitutional. at this point, article three has established the bond case, and when the government is coming after you, you raise claims. at that point, yeah, it is unconstitutional, but those provisions are exceptional. sooner or later, some court somewhere will say the obamacare mandate is unconstitutional. the court could have resolve this and put us out of our misery, but instead they decided to punt. >> but, here we are.
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it is a pleasure to be here. you guys are the -- [indiscernible] [laughter] >> i knew we would be falling behind, but before i get to the shadow docket come i want to cover at least quickly i couple of cases. one of them is the mahanoy, the disgruntled cheerleader. greg: this is the case of mean girls meets the first amendment. the plaintive of the case tried out for varsity cheerleading in pennsylvania. found out she made only need university cheerleading squad. that we, with a friend at a --, she decided to do -- expressed her displeasure and sent a snapchat post, which to pair of a's said f-everything.
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along with a picture of her and her friend raising the middle finger salute to everybody. that post was shared with other friends, it got to the cheerleading squad and around the school. the school cheerleading squad suspended her for the year and she took action by suing the school in federal court by violating first amendment rights. both the district court and the court of appeals held in favor of her, that her rights were violated. the third circuit did so on the colloquial rule that the framework established by tinker versus des moines, in the school context which is to say that the court, in that case, which is a famous vietnam armband case, held the first amendment does not scott -- does not stop at the schoolhouse, but schools maintain -- speech when it is
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disruptive of the classroom. what the third circuit held was that framework was categorically inapplicable, when speech originates off-campus, as social media post in this case did. the school sought review of the third circuit's categorical rule . if you listen to one argument, you should listen to the your girl argument in the mahanoy case because the advocates were fantastic and the questions were raised and it is highly accessible and fun to listen to. to piggyback a little bit on what josh had said, this is a another case where justice breyer wrote for a surprising high majority of justices, in maine justices, in a co-opinion that is probably 15 pages, maybe less. i think ultimately this is a win for both sides.
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the school got the roulette wanted, the plaintiff got symbolic victory in the supreme court. the court agreed with the school and held that the third circuit's categorical rule relayed to off-campus speech was wrong. this was important because as many told the court, bullying and harassment originate off-campus can be a great danger in schools. we have threats aimed at schools, and teachers and students, academic rules and the like, all of that can be disciplined in the school. just because you sent your post, it was somehow different? the court recognized that. the school recognized that when speech does originate off-campus, schools -- the court emphasizes that schools have a higher burden under the ticker standard -- tinker standard.
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and to be careful when it comes to political speech. applying that framework, the court did side with the -- well, maybe a little -- [indiscernible] -- justice alito and gorsuch concurred. but argued that the standard on the application of tinker ought to be strict. justice thomas dissented in a true originalist fashion, said basically schools have been punishing students who have mouthed off for 150 years, there is no reason the school can do it in this case. i waved concluding thoughts come i think that this is an important decision for schools. the court said strict scrutiny applied to any effort to
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disciplined speech that originates off-campus, particularly in social media. the results an unsatisfying focus that remains we are the exact line of how far schools can go and i suspect there is going to be a lot more litigation like that in the future. last, this is another example where the courts spoke with surprising unanimity on a subject that traditionally is divided -- has divided the court , so from that perspective, the decision was noteworthy. >> before i get to the other topics, we can't leave without talking about property rights. jeff, talk about cedar point nursery. jeff: this is a case of great significance going forward because it might apply to all kinds of regulations. it arose in the context of labor
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organizing in california. purge of the passage of the agricultural labor relations act in california in 1975. it was a very big event. it capped more than a decade of what was considered to be strikes in the agricultural field. there was a labor organizing unit led by cesar chavez to organize workers in california. growers did not support that. there was violence, boycotts and supportive farmworkers. it was a big deal. ed led to a bust of cesar chavez being in the oval office. i do not think it was there last year. this your come i noticed it in photographs. after the agricultural labor relations act was passed, one other bit of context, the national labor relations act
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passed in the 1930's excludes farmworkers and domestic workers. they do not have organizing rights under federal law. so, california adopting this law, in their view they filled in a gap that congress had left out. so, farmworkers don't have organizing rights under federal law, but they do under state law in california. it created an agency that has a name very similar to its federal counterpart, the agricultural labor relations board. one of the first things it did was adopt regulation to enforce its mandate, the axis regulation. this regulation allows union organizers to obtain a limited right of entry to farms over the objection of the farm owners. if they serve the farm owner, or the grower, and file a notice with the arb -- alrd, they can
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take access of the farm and speak to workers there one hour before or after their shift. in the 1950's, the supreme court upheld an order from the national labor relations board in a specific case ordering an employer to allow union organizers onto its property to meet with workers [no audio] [no audio] , after finding organizers had no other -- [no audio] >> a blanket rate the unions obtained to enter the grower properties for organizing purposes. the measure was immediately challenged on property rights grounds by growers in 1975, but a divided california supreme court upheld the access
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regulation and the u.s. supreme court declined to review that decision. that is where it stood until this year. as a practical matter, it is not used much because the farmworker movement has had other issues that has sapped its strength. but, it did exist and it did exist between these growers. cedar point nursery in northern california, a company that makes strawberries, relatively small company, very far from the kind of agribusiness images one may think of in california. the other grower was a giant agribusiness, a packing company in fresno, which was a major vegetable and fruit packing company, both of them were targeted by united farmworkers and both of them objected and brought this property rights suit against the agriculture
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labor relations board. the regulation was upheld in the lower courts, but it was reversed by a 6-3 majority by the supreme court, which looked at it under a -- lens and found that this regulation amounted to a taking of private property without just compensation. it was effectively an easement that the state had granted to union organizers to enter private property,, but provided no compensation. as a result, it could not stand. the 14th amendment violation against the growers. this is historically significant because the access regulation was the apex of chavez's movement which fell apart after
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the mid-1970's. it is also significant because it apply to other contexts. there are instances in which states may grant some kind of public or limited access to private property. now there is a framework to examine those regulations depending on what kind of rights they impinge upon. the chief justice of -- pointed out the right to exclude is a principal right of private property. the choice of who gets to enter your property or not. the state of california had intruded on that right, essentially taken it by allowing organizers to enter. we will have to see how that might apply to other types of situations where the state has authorized people to enter private property without the owner's consent. we can think of others that are not quite right. health and safety inspectors might be coming from osha to see
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the working conditions. health inspectors wanting to check of a meatpacking plant or a food processing facility or vaccine manufacturing facility in baltimore is properly conducting its work and attending to public health needs. the majority said that they were not too worried about those kinds of things because those convey benefits to the property owner. which, one could think about that, whether they view that as a benefit or not to have state inspectors come in and out of their property to issue citations. in any event, that is a different thing. also, licensing schemes where there might be oral requirement to permit periodic inspections. they try to extinguish what california was doing, which was giving the union right to enter the land. the dissenters obviously disagreed. they found that this was not a taking of rights, that the
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organizers rights were limited and they differed greatly to the arb -- labor makes it difficult to reach workers and they cannot meaningfully exercise self organizing rights if they can never talk to a union organizer. so, they would have left the lives of bras and did not view this as a taking. ok, if it is a taking, then the state can impose a taking, they can condemn property or impose easements, but the practice -- compensation. what is just compensation? if you look at the fair market value, what is the fair market value of all allowing organizers to enter property for a few hours. -- over a two week period.
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how would you calculate that? it is the value of the union contract that the grower does not end up having to sign? or is it the value of access to this hot and dusty property? i do not know. that is an interesting question we might see examined. how do you put a price tag on this taking, now that we know that it is a taking. >> i'm going to call an audible. i am hoping we will have time for audience questions, but we have a lot to talk about and time is running. i had four topics i wanted to talk about. i want to say what the four topics are, then ask you each to pick one, or if somebody else -- offer your comments, then we can get to audience questions. one is the shadow docket, pandemic related questions that the court considered.
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the second topic is telephonic arguments. what was good about them? what was bad? a third topic is what we have learned about justices gorsuch, barrett and cavanaugh in the brief period on the court? the last topic is the next term, there are at least three major cases -- there is an abortion case on the docket. an establishment clause, what are we thinking about for the next term? pick one of those four, or go with another one. josh: i will start with barrett, cavanaugh and gorsuch. they are not cut from the same cloth. i think you're already seeing this divide and a couple of high-profile cases, cavanaugh and barrett were on one side, gorsuch on the other. i will take an in sample on the shadow docket. in california, the majority agreed that the restrictions of
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abortion were unconstitutional. but, could the state band singing? thomas, lito and gorsuch said no. but, barrett and cavanaugh said well, it is the burden of the people to face demonstrators -- they go to fulton. we have three conservatives, overrule not yet, not yet. i think we are seeing certain types of divisions, and in at least two cases to conservatives said that the trump appointees lacking fortitude. i think we are still learning a lot about barrett and kavanaugh. i think gorsuch is on board with thomas and alito. i think that is where the court aligns on a lot of cases. mr. garre: i will just follow that up really quickly. i do think that one of the most noteworthy aspects of this term
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is that justice barrett aligned herself with justice kavanaugh for the middle and not necessarily with gorsuch and thomas. as josh said, i think two or three years out with the trump appointees they are by no means moving in the aipac and together. this is often true when justices come on the court even under the same administrations. most of the most interesting in fighting is taking place on the right these days. as we learned in talking through some of the opinions today. i will talk briefly about the telephonic arguments, since i had the opportunity to do a couple of those this term. for an advocate it is incredibly foreign experience to be in your office alone, speaking into a telephone to the justices of the supreme court. there are certainly advantages to it. you can use notes and take advantage of other things in your office. you have a greater opportunity
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to answer questions. the fact that the justices are all asking questions is fantastic particularly with the respect to justice thomas. i think the quality of the questions was unsurpassed. i do think, though, that there is a big inference in that with a telephonic format you never have those moments that you can see an argument is going down quickly and crashing before your eyes as an advocate. in an audience where you have those moments in an argument where it is clear five justices are more coming to this conclusion or, you know, viewing this argument as a bad argument that is not going to work. i think it was harder to engage that during the course of our-long conversation where you are going down the line of answering questions. i think we all hope and i think it is likely the justices will be back in the courtroom next fall, but it will be interesting
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to see if they carry over some of the things that did seem to work and seemed to improve the quality of arguments for everybody, i think, once they are back in the courtroom, or whether it devolves back into the feeding frenzy we have seen up to this point. mr. malcolm: adam? mr. liptack: i would like to say good riddance to telephone arguments and hope the feeding frenzy is back. [laughter] the lockstep arrangement where people in order of seniority ask the question whether they have one or not, and if they don't have one they will repeat one, is really unsatisfactory. feeding frenzy on the bench is actually a form of deliberation. justices have not discussed the cases before they go on the bench, and while in form it looks like you are asking questions of the advocate, as john roberts once said -- and he of course was a stellar supreme court advocate --really you are a basketball backboard and they are bouncing questions off each
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other and building on each other's comments and responding to each other's questions. that dynamic process is very valuable to the court and almost entirely lost in this. it is not an hour, it is two hours. and also the court's efforts to -- someone has 30 minutes and someone has 10 minutes -- everyone ends up getting the full round of questions. i am eager for the court to get back on the bench and open -- an open question is whether life audio, which is an on alloyed good, will remain with the court back on the bench, but i think the downside, justice thomas's participation rate. a chance to have a look at justice barrett, whose questions were exceptionally good right out of the box, great. but this lockstep, one after the other form, no good at all.
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then just from a journalistic perspective it really robs you of your ability to see where the case is going, because again, as john roberts wrote when he was on the d.c. circuit judge, it is a very easy way to tell which side is going to win. justices in real arguments ask only hostile questions. they are asking questions of the side that is going to lose. and you just have to do the mechanical exercise of counting up who is getting the least questions to know who is going to win. mr. malcolm: just -- jess, no one has picked up on the next term. mr. bravin: the next term has on it the kind of cases we will delight in seeing argued in the courtroom. we have a gun case and abortion case, and we might also get an affirmative-action case. although this term was consequential in some ways, i
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think that we will have a much better picture of how the court has evolved in the next term. the gun case is the one that people have been waiting for since 2010, when the mcdonald decision applied the heller case to the states, and the first one that asks, you know, how far does the second amendment -- how far, does it extend further than to keep a firearm in make the home for self-defense. the abortion case from mississippi looks at the viability standard that we had under roe v. wade and planned parenthood versus casey. and, you know, puts to the test some of the very vague language that has passed as the standard since casey about undue burdens on the right to abortion. then the affirmative-action case, which we are waiting to see what the biden
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administration thinks about whether race-conscious admissions are permissible. i know this is a question we are all on tenterhooks to find out how they might come down about one. but that would be almost a trifecta of hot button issues going ahead of the midterm elections. they may not take the case at all, or if they do, in time for next term. but, yeah, so far, so good. mr. malcolm: another establishment clause too, about a government program that is already generally available. mr. bravin: that's right. the main schools program, and that is whether religious schools can qualify for the subsidy. that would be another one that, again, i think we can guess which way the court is inclined to move on that issue, but there may be specifics and nuances that make that case. mr. malcolm: so, let me know
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open it up to people here, if they have any questions, and if not, while we are waiting for the first question i will ask greg, adam, or josh if they wanted to comment on one of the other topics. >> we have not talked about the shadow docket, chaz really spiked in the trunk years. this is also not a particularly satisfactory part of the court's work, where on emergency applications on very in weaving without oral argument, without deliberation, the court will functionally decide really important issues. covid, election, eviction moratorium. often in one-line orders with no reasoning. the merits document is tiny. the shadow docket is increasing. it would be good if things moved in the opposite direction. >> it is not increasing through
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anything but the courts doing, really. we did have a covert crisis and a unique situation in the prior administration with nationwide injunctions and the like. the court has always dealt with these emergency requests. it is only recently we have called it the shadow docket, although it takes place in the light of day. >> adam have the numbers handy, but the number of sg applications -- to be sure, as a consequence of nationwide injunctions being imposed, but nonetheless the data is that we just had a lot more but then we did in the obama and bush years. >> i don't think we have had a single application this term? not one in the bond and administration. maybe they will slow down. >> steve has written a lot on this, and the numbers of sg
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emergency grant requests went up by five fold during the trump administration. roger, you have a question? >> a media question and legal question for the media on the panel. i was struck by cedar point. the mainstream media, especially npr, treated it entirely as a union case, whereas some of us in the conservative -- libertarian community -- treated it as a property case. and wonder from the media perspective what they would have to say about that. just on the legal point, he raised the compensation problem. there is also the public use issue. even if it is treated as public benefit, of course is not the language of the fifth amendment, it does raise a question of how the entry would be treated if that issue were to be central to it.
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in employment cases for example, that you are mentioning. >> well, in terms of portraying this as a labor case or a property case, i think that often you will have cases that have several -- implicate several different areas of law. i think for the news media, it is easier to understand it as a labor case. those of the facts, and the facts are kind of dramatic. there is a particular history here, and so that is sort of what stands out illustratively. but you are right, and i try to suggest going for the implications are going to be in many other areas of law, because no other state has an identical regulation like california does. i suppose there could be a question of, you know, what california does next. they will come up with something
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closer to the a b -- the nlrb approach. the more important question is, how does this affect other land use regulations? at what point do they become takings? as we go forward i think we'll start seeing it characterized more as an environmental case or , you know, a public safety case. property cases are hard to describe to an audience. mr. malcolm: adam, anything to add to that? mr. liptack: no. mr. malcolm: you think there is any kind of an appetite to revisit kilo? >> it was a cert denial with three justices. it was gorsuch, thomas, and kavanaugh. alito, no. maybe with the right people, but
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i think this is the moment if you want to see kilo, i cannot imagine there are five votes to keep kilo on the books. mr. malcolm: question back here? >> i have a question about 10 then and fulton and how they relate to each other. is there anyway we can understand what happened in fulton to be informed by what had just happened on the shadow docket with attendant -- with attendant? what is the relationship between those two cases and how the one might have impacted the other? >> in a broad generality the same theory holds in both cases. as soon as you give a secular activity permission, you have to give the religious activity that same status. people call this the most favored nation theory of the free exercise clause. a version of that happened in the fulton, where a secular exemption -- even if it only exists at -- as a matter of
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theory -- is good enough to require a religious exemption. mr. malcolm: anyone want to add to that? >> i think the court may have said everything to say in attendant and taken a more narrow approach in fulton. alito may have lost the majority opinion. roberts had the super-narrow approach, and they were able to get all of the votes on. i think tanden is the most accurate supreme court precedent, even though it was a shadow docket case with public -- with zero public augment. i think that is where the court is now and fulton was, get rid of it. mr. malcolm: last question, over here. >> this is a methodological question. with the shift in the court's personnel, with six justices
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having allegiance to textualism, you seem more references to legal history in opinions themselves or the briefing that is being presented to the court? >> i would not say i have seen a marked shift, but we have seen it in the briefing over the last decade or so that there is more focus on originalism, if any interest in that on the right and the court. i think this is another area where it is not entirely clear that the justices are lockstep, insync, and how they are thinking about that. the case about the pipeline this term, justice barrett's lid off and rode from a more originalist perspective, so that may be a sign that she is going to take a more originalist approach that some of the other conservative justices. mr. malcolm: anything else? >> i'm afraid we are out of time. i'm sorry about that. please join me in thanking our
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panelists. [applause] sorry about that. >> i wanted your opinion on the free-speech case -- [inaudible] >>'s for coming, everybody. --bout four hours.
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