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tv   Legal Experts Analyze Supreme Court Term Rulings  CSPAN  July 10, 2021 1:44am-3:16am EDT

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>> c-span is your unfiltered view of government funded by these television companies and more including broadband. ♪ >> buckeye broadband supports c-span as a public service along with these other television providers giving you a front row seat to democracy. >> next, a recount of the u.s. supreme court term with former solicitor general paul cle meant who worked in the george w. bush administration and other legal officials. the panel discusss the con serb active majority in the court and what it could mean for future rulings.
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constitutional center mission statement. the national constitution center is the only institution in america chartered by kong to increase awareness and understanding of the u.s. constitution among the american people on a nonpartisan basis. this is the ninth year that we are co-hosting this review with our partners of the a.d.l. so great that we can do it. as fred lawrence said, we will repeat once again next year in phil:. we hope we can reconvene in person, but until then, it's so meaningful to bring together
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this magnificent audience of lifelong learners by zoom. so you've been all engaging with the ncc. make sure to check out our town hall programs in are archived on the interactive institution. our phenomenal we the people podcast live at the n.c.c. where we post audio feeds of all these great programs as well as our live constitutional 101 classes offered to learners of all ages. it's so meaningful to be able to offer them online. we have america's greatest seekers about the scream court and america's greatest moderator of supreme court conversations dalia and to introduce all of them, i will pass the mic over to karen leavitt who will provide a few remarks and hand it turnover dahlia. over to you, karen. ello.
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welcome to the antidefamation league annual supreme court review. i am karen leavitt. i pronouns are she and her. in the past >> hello. n center d i want to thank our partn ers there. before we hear from our panelists, i want to recognize adl's vice president of civil rights. our national civil rights chair area our vice chair. cap -- and, our legal affairs chair. it would not be possible without the support and teamwork of my colleagues at adl. if you are seeking continuing legal education credits, i know this is the big question. be aware that co you will be based -- cl you will be based on verified attendance.
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during the program, our moderator, dahlia, will save the codes which will be temporarily available in the q&a and chat section. please be sure to make note of these codes. after the program, imo your completed forms including the ceiling code -- the cle codes. the deadline to submit the form is july 31st 2021. because of the enthusiastic response we have received to this event, we anticipate it will take into 10 -- eight to 10
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weeks to process your request. we have set aside time for questions. for those of you watching on youtube or the event website, please accept our policy -- our pop -- our apologies that you will not be able to submit questions. adl was founded in 1913 was the mission to stop the defamation of the jewish people and to secure justice and fair treatment for all. materials for this program are available on adls website as well as bios of our speakers. the current dean of berkeley law. he frequently argues appellate cases. the tents -- 10th secretary and ceo of the phi beta kappa society and a senior lecturer at
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georgetown. the professor of the nyu school of law where she teaches constitutional law, family law, and reproductive rights and justice. she serves as a legal analyst for msnbc and is a host of a podcast about the supreme court. a partner at kirkland and ellis llp. and a distinguished lecturer at georgetown. he served as the 43rd solicitor general of the united states under president george w. bush. finally, our motto or -- our moderator. dahlia is a senior editor at slate. she is eyes are met or interviewed all four of the women who are set -- he/she has either -- she has either met or interviewed all four of the women who have set on the supreme court. dahlia: i want to add my voice to the gratitude, both to karen and the team at adl and to jeff
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and his amazing team at the national constitution center. it is so this stabilizing on one hand to do this on zoom. on the other hand, to do this on zoom, we want to thank everybody who has tuned in today. i'm going to say that there is an immense amount to cover. we always galloped through it. please, please, put your questions in the q&a. karen will get to them at the end. we promise, we will cover as many of them as we can. with that, i guess i will give an overview before i turn it over to erwin to give the masterful, comprehensive overview. that is simply to say, we saw a huge change at the court this term with the death of justice ginsburg and the elevation of amy coney barrett. the consequence with the term
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winding down in the last week, you probably heard one of several narratives. either you heard the media saying this was a victory, a super majority conservative juggernaut, or, you heard that this was an incredibly moderate, temperate, humble term with a big concentration of centrist jurors at the middle of the court. or, you heard that this was a conservative court was not conservative enough area one of those narratives has to be true. hopefully, we have some of the smartest people in the country to help us think through which of those narratives is true, or that they are all true, or that none of them are true. so, that said, i turn into irwin to give us table setting lay of
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the land contours of what happened and what we can conclude from these past weeks. irwin: it is an honor to be part of this panel. as dalia said, the most important change in the supreme court in the past year was the death of justice ruth bader ginsburg and a confirmation and swearing in of amy coney barrett. it is often remarked that anytime there is a new justice it is a different court, especially someone you hover -- especially when you have replaced a liberal justice with a conservative justice. we should think of this term as a supreme court in transition. i neither want to overstate the importance or underestimate its importance. i think it is -- this last term was particularly revealing. one year ago, in october 2019,
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does a pre-court decided 53 cases and -- the supreme court decided 53 cases. last year, there were 14 five/four decisions. in 10 of the 14, the majority was roberts, thomas, scalia, gorsuch, and cavanaugh. we are replacing ginsburg in garrett in those cases last year. that is likely to change the margin, but not the outcome. we are likely to have six/three rather than five/four decisions. but there were two decisions a year ago where the majority was
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different. they reported cases. one was struck down -- one struck down a louisiana law placing restrictions on abortion. another said that president trump could not resend up. -- recent -- reskinned --rescind dhaka --daca. we can predict two things about this term. one is there are six conservative justices appointed by the republican president. two justices appointed by democratic presidents. secondly, we are likely to see fewer five/four decisions. simple arithmetic explains this. liberal justices are now going to get esco votes rather than one -- two votes.
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those predictions came true this year. that is exactly what we saw. the court decided 54 cases. it is notable that that is the second fewest number decided since 1862. only last year was last. one year ago -- 54 cases this year is really remarkable. of those 54 cases, 12 46/three decisions and six were five flash or decisions. -- 12 were six/three decisions and five were -- and six were five/four decisions. was it a book -- was it a conservative or liberal court?
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at least in divided cases, conservatives prevailed. no longer is john rob it -- john roberts the leading justice of the court. a year ago we said it was the roberts court. but also, a year ago there were four justices more conservative than roberts and four more liberal. that put roberts at the center. he was the swing justice. a year ago, he dissented only twice. he was in the majority of 97% of cases. now, there are five justices more conservative than roberts. think of it in terms of it takes
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four votes. the four most conservative justices might be reluctant to take cases if they know -- if they don't know they have roberts. now they know they likely have five conservative votes. that will change the agenda of the supreme court. john roberts is still the chief assigned to write the majority opinion when he is in the majority. but, what interesting statistic this term. it was brett kavanaugh who was the justice most often in the majority. second, there was no pretense of judicial deference by the court this time. there was a time when judicial conservatism was a deference to elected officials. we do not see that this year. as i went through the list of cases we are talking about, in
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almost every instance, the government lost, with the court repeatedly striking down federal and state statutes. i think it makes it a very different kind of conservatism and certainly has implications for the future. finally, as we begin talking about this term, my own caution against generalizing from a small sample. we all learned the risk of generalizing from a small sample. i was concerned by the generalizations i saw in the media that dahlia was referring to. after all, this is only one term of the supreme court. justice barrett did not participate in oral arguments in the october session. she participated in about 40 cases. some of those are not controversial at all. i think it is the next term when the supreme court is deciding cases about abortion and gun
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rights and maybe affirmative action that we will get a better sense of what the newly constituted roberts courts will be like. think of this year as a term in transition. dahlia: erwin, thank you so much. one of the most interesting aspects of the term was that a lot of it happened in a set of orders and decisions that came down on the so-called shadow docket, which is to say, these are cases that were not necessarily fully briefed or argued. they came down as a sequence of emergency orders around state and local government orders shutting down and imposing limits during covid. i should note, before i asked paul to explain the covid cases, that the adl briefed that cited -- sided with the state shut down orders arguing that the
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free exercise clause never intended to require exemptions from public safety laws, that and the other adl amicus brief that i will reference as a -- as we go along give us a much fuller exposition of what the adl argued in those cases. please look at your materials. that said, i am so delighted to call upon paul. paul, you have five or six minutes. if you want to reflect on what erwin just said or what i just said, and also, i am just asking you to help us understand what happened in these covid shutdown cases. as i suggested, not only did it not fully get surface at the court, but i think it was not fully surfaced in the media either. paul: thank you, dahlia. to echo something erwin says a probably says a fair amount about this term that when the
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first cases talked about were cases that were not merit cases. the first cases talked about were cases that were not merit cases. i think that underscores both that the main cases cases wheree
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plenary docket, the merit docket, are not where action are. cases where the plenary docket, the merit docket, are not where action are. cases where the plenary docket, the merit docket, are not where action are. less reference for religious worship, favorable context for pushing the free exercise claim in those first places -- cases
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the court denied injunctive relief. a few months later in a series of cases, the court began to grant relief. that was principally in cases coming out of new york and california. what changed in the interim? two things. one thing that changed is that we did get a little bit more experience with the pandemic at a better sense of what kind of restrictions were really necessary. i think the principal thing that changed was that justice barrett was confirmed and came onto the court and changed the composition of the court. we are now five votes to essentially stop state efforts to treat religious exercise less favorably than other activities for purposes of these kinds of pandemic related restrictions. and, i think, probably more than almost any other case on the docket this term, these cases really show that the change in
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composition can have a dramatic effect on the results in the cases and the role of the chief justice. in the first two cases i mentioned, the chief justice voted with the more liberal justices to deny relief and wrote in one of the opinions they separate writing -- a separate writing that explain his view that, although he was quite sympathetic to the claims of the religious and the rest of the jurisprudence on the pre-exercise clause, but notwithstanding the sympathy on the chiefs part, he really thought that given the public health emergency, this was the issue that the courts should just stay out of. and a few months later, it is the chief justice in defense of these orders and it is a majority that doesn't need to chief justice any longer. and i think that is one thing that really does affect the future project -- trajectory of the court. it's not just a change in
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composition, but the ideas that the court no longer will go as slowly or quickly as john roberts dictates with some of these hearings. with what the court actually reasoned, these are opinions and exactly how much impact the decisions themselves has outside of the covid context. i think time will tell. but i think they give us a great snapshot for issues like this. and what they really show at the threshold is a view of the majority of the court that states and local governments and federal governments presumably really do need to treat religious exercise equally with secular activities. and if you have a state that says, for example, you can have no more than 50 people at
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religious services, no more than 25 people at a particular kind of commercial exercise, and no more than 100 people at a different kind of commercial enterprise, the gist of all of these opinions is that is still discriminating against religious worship. it doesn't matter that the state treated some nonreligious activities the same or worse. if you can appoint to one comparable nonreligious activity that is subjected to better treatment, that is enough to get you into strict scrutiny. in the last thing i will say about this is one of the big decisions on this court's term is the bolton case where there was some sense the court might overrule the smith decision that generally subjected religious laws to non-demanding scrutiny. in what you see with covid cases, the trigger even without
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overruling the position, the trigger for strict scrutiny in these religious claims has become much easier to satisfy as a result. >> fred, why don't you take a minute to respond to paul on the covid cases? fred: i will respond to you and your challenge about which of these various configurations is at play. i think all of the above is probably the right answer. what will determine which one we are in, it has something to do with the issues involved. a case we will be talking about later today includes some unanimous decisions. the shadow docket says covid cases really show us how it is operating as paul said. one of the places, i think it is fair to predict that you will see the biggest impact of this going to conservative court in the area of religious freedom.
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this is a major issue for part of the program for most of the conservative justices. the status for religion really takes hold in the shadow doctrine. and you will see it go to the merits doctrine in future cases. the other thing i would mention, and this is clearly mentioned in a very vigorous dissent by justice kagan, it's not just the most favored nation status the court is using that says if you do something for anyone else, you have to do that for religion. the court is waiting to say this is comparable and this is not comparable. a case involving homeownership, the state said we are treating all home activity the same. religious and nonreligious. the justice court said this is not the right comparison. look outside the home and compare that to restrictions inside the home. that is an aggressive move to put religious freedom as a first among rights.
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>> and it's also worth noting in the statistics that when shared at the beginning, that these include the shadow docket. i will pop into chat in a minute. they ran the numbers including all the nonmerit dockets. this gives a sense of how the numbers shake out. i want to stay on this question of religious liberty. i think as long as i have been doing this, we have been having this conversation about what feels like a collision course between civil rights and public accommodation laws. they cannot be forced to do
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things that violate their own religious conscience. i want to give you ample time, six or seven minutes to talk about that. and you can talk about graham and maybe where the court shows where not to go. and to flesh out where paul and fred have really telegraphed what is going to be an area that more and more is going to take the courts time. i should know adl filed a brief for the city of philadelphia. please look at your materials to see details. can you give your best shot about what didn't happen in
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fulton this year? >> it was one of the most-watched cases on this terms docket because it was expected to be a rather maximalist decision in favor of religious exercise. the court did not go all the way. it wasn't a minimalist decision either. they decided 9-0 written by the chief justice. but it can be characterized -- it is not a unanimous decision, it is narrow. it does move the law in a more conservative direction towards this idea of religious freedom that this is a right that is preeminent around other claims of civil rights. the 2018 cake shop on whether religious liberty trumps civil
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rights. social services which administered -- the notice termination policy for hiba did discrimination on the basis of sexual orientation. it determined that the application for the nondiscrimination policy did not constitute a violation of the clause. in so doing, they asked the court to revisit and overrule the decision. the unanimous decision written by the chief justice, the court held the application of the nondiscrimination policy is burdened because it requires the organization to choose between a precarious mission or a relationship consistent with leaves.
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the question was whether or not the city could impose such a burden. under smith, such a burden would be permissible because the law ostensibly would be a neutral law of general flex ability. -- flexibility. but the court held smith did not apply because the nondiscrimination policy contained a system for granting exemptions. in that system, there is discretion afforded to the decision-maker. although the city had never granted an exception from the nondiscrimination policy, the possibility of being able to do so meant that the policy could not be considered a neutral law of general flexibility and smith does not apply. they took the question about whether to overrule smith off the table, but it nonetheless push the court to review the policy under strict scrutiny because it was not applicable. under strict scrutiny, the court
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determined that the policy failed. it wasn't a permissible burden on religion. it did not win quite as big as it could have. it is worth noting that although the court avoided the thornier question about whether to overrule the 1990 precedent, there were three justices on the court that made very clear that they were certainly willing and perhaps even eager to take up the question. in a concerns -- in a concurrence, amy coney barrett expressed some skepticism of smith and a seeming concurrence that read more like a dissent to make clear. the court declined to grant in another case. and that presented the question of if it allowed schools to
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allow transgender students to use restrooms opposite their biological sex. they found school districts violated federal law when it barred students from using restrooms that aligned with their gender identity. it will be celebrated as a victory. it does not mean the court will take up an issue of transgender rights. a pretty unsettled landscape. and certainly in the conflict with religious liberty. >> will you take a minute and respond to what melissa laid out? >> i very much agree with melissa's analysis. there is always tension between liberty and equality. any law that limits discrimination limits the freedom to discriminate.
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the court has ruled that stopping discrimination is more important than protecting the freedom to discriminate. but now a majority of the supreme court says the people can discriminate against others. the court says that any law that has discretion that imposes a burden on religion must meet strict scrutiny. doesn't matter the court says the discretion has ever been exercised. it doesn't matter if there was discrimination against religion. i think this largely undercuts the decision even though it is on the books. we will see cases about this for years to come. the right to discriminate against gay, let's be a, transgender employees. i think we have a majority that will protect the discrimination
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with some religious grounds. >> fred has the privilege and honor to present the case that was the most fun to cover this year. the case of the swearing cheerleader. it has such delicious facts. and before i ask fred to lay out what happened, i want to point out that adl joined to ensure that when it comes to off-campus students, bullying, harassment or threats. take it away, the case of the swearing cheerleader. >> and i am muted. she was not, the swearing cheerleader. it turns out to be one of the
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most significant campus free speech cases in years. arguably since the school district case in 1969, taking it best known and that students do not shed their constitutional rights. it also gave schools the right to regulate free speech and expression in certain instances. things that materially disrupt classwork or the invasion of rights of others. that is the background. let's talk about what happened. this was a cheerleader that did not make varsity cheerleading. she posted a picture of herself on snapchat with a caption of
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eff school, eff volleyball. except she spelled it all the way out. school officials suspended her for violating school rules. she sued the school saying the suspension violated her first amendment rights. she one in the district court, taking this up a higher notch. finding that her snapchat post did not cause a substantial disruption at school and it reverts back to that protection of not being shed at the schoolhouse gates. they held that it was part of tinker that allowed the regulation of expression and is not apply at all because schools are limited at the schoolhouse
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and there is no special license for schools to regulate off-campus speech. this raise concern for many of us, a big pay -- case of the adl brief. it would limit the ability to regulate cyber bullying and other kinds of activity. and has an impact off-campus, including academic integrity issues. the court upheld the holding and said that public schools that have a special interest to regulate some off-campus speech. promoting good manners, preventing disruption, they were not sufficient to overcome the student's interest in free speech. the interest in regulating the on-campus speech does not always
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disappear when that speech physically takes place off-campus. there are three features the court mentioned with the off-campus speech or expression. off-campus speech normally falls within the purview of parents, family, or guardians rather than the school to be regulated. the off-campus speech regulations can cover virtually everything that a student has a right to do or say. and finally, the school has an interest in protecting the unpopular off-campus expression because the free marketplace of ideas is a cornerstone of a representation of our democracy. using that framework, justice breyer said that her interest in free expression outweighed the schools interest.
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the snapchat post constituted criticism directed toward the school which would primarily fall for the first amendment. it may not be the way that most of us would express criticism but the context of the speech from her personal cell phone off-campus and over the weekend diminished the school's interest in punishing her and regulating her expression. looking at the school's argument that it was promoting good manners and punishing vulgar speech, the court noted that it is really parents and not the school who have the primary responsibility on a weekend and away from school. while it was the subject of much discussion, it upset some students, but it did not cause that kind of substantial disruption that was envisioned. and finally, justice breyer answers the question we are all
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thinking because it is hard not to describe this case and somewhat comical terms because of the nature of it. he said, it might be tempting to dismiss the plaintiffs words as unworthy of robust first to mimic, but sometimes it is necessary to protect the superfluous to preserve the necessary. the one dissent was justice thomas that takes the position that schools have had the authority to regulate off-campus speech so long as it has an approximate tendency to harm the school and he felt this fell into that category. the eight justices on the court took a different view. >> and paul, i will give you two minutes, if you can, to help us understand if this speech created some rule going forward that we can apply or if it was just a very interesting fun fact
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but not clear going forward what the rule is in terms of student speech. paul: i will say two things. first, to answer your question directly, i think it is a little hard to discern a brake line rule from this majority opinion, but i think that is entirely intentional. and i think it reflects the fact that justice breyer was the author of the opinion. and obviously a lot was said during this term about whether justice breyer should step down. his retirement, his placement, or any of that. i think it shows justice breyer in his full form. this is a classic justice breyer opinion. it is hard to imagine that any other member of the current court would have this opinion in
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this way. the ability to identify the factors that are relevant, identify the countervailing factors, to resolve them in this case without determining for all future cases which of the three factors we identify as relevant is necessary or sufficient. it is classic common-law judging and classic justice breyer. i think every other member of the current court is less comfortable with that kind of reasoning and that kind of judicial writing. whatever justice breyer decides -- whenever justice breyer decides to retire, i think it is something they will mess. part of the reason justice breyer ended up with this case is they thought the chief needed that kind of opinion and justice breyer was the person to deliver that kind of opinion. this case does underscore that
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if justices disagree on a lot of things, they all agree that free speech is very important and should be robustly protected. this was not -- the fact that this was an 8-1 decision and only one justice dissented is important. >> the first coat right now, -- code right now, marshall. imagine that if they're watching this zoom from outer space and have no idea what just happened. that is the first code. that brings us to the most important case of the term. although i think for a lot of people it isn't. how you treat this case determines the answer to my opening question. was this a 6-3 term?
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i think burn of it we can agree was a seminal voting rights case. -- i think bernovic, we agree, was a seminal voting rights case. section two of the voting rights amendment. the adl joint 52 other organizations on an amicus brief with the leadership conference on civil and human rights. erwin joining bernovic -- doing bernovic in six minutes is not an enviable act. >> the voting rights act of 19 625 is one of the most important laws in my life. -- of 1965 is one of the most important laws of my life. preclearance for the significant change -- before a significant change in the election system. shelby county, the supreme court
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effectively nullified and ended the preclearance procedure. justice kagan in her dissent presents statistics about what the effect of shelby county has been. since 2013, there has been a 2.5% decrease of people of color voting, reversing a consistent trend in the opposite direction since 1965. the second thing the voting rights act did was in section two. the state and government cannot have a system that discriminates against certain language minorities. the supreme court said that it has to be intentional discrimination in order to violate this. in 1982, congress passed voting rights act amendments says the proof of a discriminatory impact
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is the violation of the law. it's not about if sufficient proof -- it involves two provisions of arizona law. one said that for a vote to be counted, the person who cast it must be in his or her own precinct. the second said only a person or relative can turn in an absentee ballot to eliminate ballot harvesting. the ninth circuit in a 7-4 ruling said these provisions had a racially discriminatory effect. it's going to precincts in the minority communities and had an adverse effect on people of color. it especially had an adverse effect. the supreme court, they reversed
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the ninth circuit. justice alito wrote the opinion for the court. he said prior cases involved so-called -- [indiscernible] it is mostly about redrawing districts that had a racially discriminatory impact. he says this is the first time we have dealt with time, place, manner restrictions of voting. he said it is important to look at the totality of circumstances. he then identified five considerations. the burden imposed on voters. we stressed some laws imposed by voting. and apart from practices in 1982 , why 1982? that is when the voting rights act amendments were adopted.
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and the scale of racially discriminatory impact. quite significantly, justice alito said that if there is an impact, it's not enough for violation. there are other ways, employment, wealth, education. what are the other opportunities provided for those? are there other ways that somebody can vote? what is the strength of the states interest? justice alito was clear that the unusual way of approaching disparate impact was not clear. justice kagan wrote a vehement dissent. she pointed out that none of the
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requirements are part of section two of the voting rights act. the court is abandoning its usual approach of disparate impact under federal statutes. it would show violations for section two in the future. justice alito pointed out it would be very likely the government would prevail. why does this matter so much? states recently like georgia, florida, arkansas, it would impose significant restrictions on voting. there is strong evidence it would have a racially discriminatory impact. the supreme court's decision is to make it much harder to be able to bring successful challenges. in our country, there are different narratives about voting. the republican narrative is that
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voting fraud is a significant problem in the government has to deal with it. you certainly find that in justice alito's majority opinion. the democratic narrative is that voter suppression is a major problem in that fraud is nonexistent or rare. six justices were appointed by republican presidents and accepted the republican narrative. the justices appointed by democratic presidents took the democratic narrative. >> and melissa, you have the unenviable task of adding new >> i will note that what burn of etched doesn't make clear is how the roberts court has been assertive in shaping the landscape for the law. in addition to the decision into rightly one, we have marion county from 2008 which made it harder to bring challenges to voting restrictions.
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and in 2019, the court concluded that the federal court lacks jurisdiction to concern the constitutionality of gerrymandering. that will have significant consequences for redistricting. and shelby county versus holder, the 2013 decision that gutted the voting rights act. to be clear, in doing so, the chief justice noted that although preclearance was not going to be a viable conduit for challenging voting restrictions, section two remained a viable conduit for litigation against such restrictions. now the court, in a classic roberts to step, has hobbled section two of the voting rights act in much the same way it the preclearance provision. again, i think this is a significant decision.
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the court made fraud a much bigger deal were generally. there is another trial the same day where the state of california issued a provision requiring the disclosure of donors to specific charities, on the grounds that the state would help prevent fraud. the lowest strike -- the law was struck down. >> we will now do the part of this event which is tricky, the speed around -- speed around where we offer as best we can compressed assessments of some of the other big cases with the caveat that we really cannot get to everything and there's a lot we are not covering. so we will just do little 3, 4 minute bullets on some of the other big-ticket cases that came
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down. before return to the immigration docket, just a note on language, there are places in u.s. law, including in this year supreme court decisions where non-us citizens are referred to as, quote aliens. although this is the terminology, it is dehumanizing and has fallen out of favor among a lot immigration advocates, where terms such as noncitizen are being adopted instead. since last year the current administration is moving to adopt changes in immigration language wherever possible. i just wanted to flag that as a point of some contention in the nomenclature. with that said, fred, i invite you to give us a quick walk-through sanchez versus mae orca. >> it is a unanimous opinion by
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justice kagan, 9-0. it is fairly technical but could have a significant impact on the lives of a lot of people. it held that the individual who enters the u.s. unlawfully is not eligible to become a lawful permanent resident, even if he or she has been granted temporary protected status. technically, whether tps status constitutes an admission into the u.s. is the issue, because you need to be admitted into the u.s. to be eligible for consideration for permanent resident status. people in this case had come from el salvador unlawfully in the 1990's. they successfully applied for temporary protected status in 2001. temporary protected status grants the ability for foreign nationals to stay when they come from a country with unusually
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dangerous conditions. it allows them to live and work in the u.s. while those conditions exist. 2014, years later, they applied to become legal, permanent residents. the question was -- had they been admitted, which is what that requires. had they been admitted under the temporary protected status law? the unanimous view of the court is that that admission, that grant of status under the temporary protected status law, is not constitute -- does not constitute an admission. it is a statutory matter, not a constitutional matter. congress can change it if they wish to. as many as 400,000 current tps residents in the u.s. could be affected by this, because right now they are in the u.s. without authorization and cannot seek permanent resident status because they have not technically been admitted.
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>> and paul, if we think back to justice barrett and the confirmation hearings, the affordable care act, it turned to be the thing we were all setting our hair on fire about, it also was one that i think the court decided absolutely not. to make a big deal over. can you walk us through again both california versus texas, the challenge to the affordable care act the third time in the court, and take us through another case. >> happy to do that. i'll start with california against texas. implicit in dali's introduction is the idea that if the court cited the merits of the case, it would've been a landmark to -- a landmark case we would have discussed at the beginning of the program. it made the lightning round because the court did not decide the merit, they decided this
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case on standing grounds. ultimately the court decided in an opinion by justice breyer joined by most of the court, seven justices in total. the plaintiffs in this case did not have standing to challenge the law. the reason is a little, gated. i will give it in miniature. the issue in the case goes back to the first big challenge to the affordable care act. the court famously, in an opinion by the chief justice, saved the law's constitutionality by saying it is a valid exercise in taxing power. congress in subsequent years did two things that i think are relevant. one, they tried to appeal the statute and not have the votes. the second thing they did is they managed to reduce the tax penalty for not complying with the individual mandate. then some clever person came up with the idea that, if the
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statute is only constitutional because it is a taxing statute and no longer raises any taxing revenue, maybe it is unconstitutional. it is a clever theory. at least one lower court judge accepted it. and then suggested he would go further and invalidate the whole statue on the basis of that one provision, which struck a lot of people as an odd outcome, because congress had tried to repeal the whole statute and not have the votes. i would have expected this case to be decided essentially on those kinds of technical grounds, so at least personally i was not expecting the court to strike down the statute by any sense, but by not even reaching that issue in deciding on the basis of standing, the court relegated the case to our lighting ranch. second of all, i'm going to talk about nestle against doak, a case that might have been in our lighting around either way, but
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was another case decided on the same day as california against texas, where the court decided in a less divisive way. if you're trying to look to dolly as -- dalia's theme that the court avoided the most divisive issues, this is an example where they did that. this case is one of a number of cases that has arisen in the last couple of years on the court's docket involving an obscure or previously obscure statute that dates all the way back to 1789, the so-called alien tort statute, they didn't call it noncitizen back then. it's been with us since 1789. the issue in the case is to what extent this statute provided
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causes of action to vindicate human rights abuses abroad and the particular question in the case that was teed up is whether corporations could be liable under the statutes, specifically domestic corporations. a couple of years ago the court decided that foreign court -- four corporations were not proper defendants and nestle and other large corporations were making the argument that big domestic corporations are also not defendants under the statute. it turns out we still do not know the answer to that. because the court said, and a pretty case specific holding, that one of its other previous decisions in this area limiting the extraterritorial effect of the statute apply here that there was no liability. happy to talk more about it if anyone has a question, but i think this ends up being another one of these cases where the court found essentially a less divisive way out. >> just as we had a huge immigration docket that was
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compressed into one case, there was a huge criminal law docket that we are not going to be able to get to, anything close to the fine grain. we would like to, but i'm going to spike it over to melissa. two doctors for, again, -- to talk for, again, a brief time, about jones versus mississippi, the return of life without parole for minors. >> it considered the imposition of life sentences for juveniles. previously, in 2012, the court determined that outside of extreme cases of permanent incorrigibility, mandatory life sentences without parole for juvenile offenders violated the eighth amendment's prohibition on cruel and unusual punishment. in 2016, it was made retroactive. in jones, a juvenile offender who was 15 at the time of his offense, challenged his life sentence under both miller and
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montgomery on the grounds that the state had not determined he was permanently incorrigible before imposing a sentence of life without parole. in a 6-3 decision, with all the conservative justices in the majority, upheld the life sentence without parole, and the court ruled that states need not make a separate assessment of permanent incorrigibility before imposing life without parole. i think the bottom line is, not simply the uneven landscape for juvenile offenders, but the fact that state-level criminal justice positions, and how the justice system will be played out. >> can you walk us through cedar point, which is part of an increasing trend towards making
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it harder and harder for unions to function? >> the case of cedar point nursery involves the taking clause of the constitution, which allows the government to take private property for public use. over time the supreme court has found two ways. one is called a possess. if the government confiscates or physically occupies property, then also a per se taking. the other kind of taking is a regulatory taking. here is where regulation goes too far in the courts words. it generally requires showing that government regulation leaves no reasonable economic use of property. this case involves a valve -- a california law that requires agricultural lawyers allow union organizers access to the property from three hours a day, 120 days a year.
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the failure to do so is deemed an unfair labor practice. the question before the court was, is this a possessory taking? in another decision up along ideological lines, the supreme court said yes. chief justice roberts wrote the meserve -- wrote the majority. even though this is not a permanent grant of the ability for the union to come on the property, it still should be regarded as a possessory taking, denying the ability. justice breyer wrote the dissent with kagan, saying this is temporary. more important, he said this is a regulation, not a possessory taking. i think the issue is -- what about the other laws that give government inspectors the ability to go on property for limited periods of time? why are they not then possessory takings.
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chief justice roberts said it is different f the government operating a business is letting inspectors be present. there is analysis, why is it not still a possessory taking? why is it not the government's conditioning allow union organizers to be present? as you alluded to, dahlia, the core is very pro-property rights and anti-labor. all that came together in this case and i printed to lead to a lot more challenges and arguments that giving access to government officials to be regarded as a possessory taking. >> fred, can you close out the lightning round with a quick hit on the u.s. versus cooley, which just implicates tribal police officers and their authority? >> at he take out the context it sounds like a garden-variety fourth amendment case.
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police officer sees a truck pulled over, has suspicion there is drugs in the car, then suspicion that the owner of the car may be violent. he pulls his weapons, he does his search, he finds drugs and weapons. what is our question? the officer is a native american on a public roadway in tribal land and the individual who was searched is a non-native american. montana against the u.s., a 1981 case, said that the tribes do lack inherent sovereign power to exercise criminal jurisdiction over nontribal members, but they do exercise civil authority over the conduct of non-indians within the reservation when it has a direct effect on the political integrity of economic secure your health and welfare of the tribe. so the opinion implies montana gets the u.s. doctrine and in this case, this tribal officer is permitted on tribal lands to
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use his authority to search, stop, and it sees, in this case from a non-tribal member, that leads to a federal prosecution on firearms and drugs charges. >> i will do the second cle code, and it is o'connor. no need for an' for those who are trying to figure out how to spell it. it is o-c-o-n-n-o-r. we will puppet in the chat. that is your cle code. then we will go to melissa. earlier you said that in some sense whatever way you want to construe this term, it is probably some version of a calm before a storm and i wonder if you might just take a couple
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minutes and walk us through what is already docketed for next term, what looks like it might be coming on the docket and the ways in which the courts effort to tamp down some of the real partisan political issues might detonate as soon as october. >> i'm not sure if the calm before the storm is the analogy i would use. i prefer the idea of thinking of this term as table setting for the october term of 2021. already, the court's docket is shaping up for a barnburner of an october 21 term. on the court's docket is a challenge to conceal carry gun regulations, this case would provide the court with yet another opportunity to expand on its decision from 2008 in d.c. versus heller. heller holds the second amendment protects an engine --
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an individual's rights to hold arms for lawful purposes. this offers the court and opportunity to take the second amendment outside the home and the idea would be that there is a constitutional right to carry a weapon outside of the home on your person, concealed, and that is surely within the scope of the second amendment. a much broader interpretation of the second amendment and an expansion of the courts's logic in heller. the corlett case is likely to be a flashpoint in the upcoming term. i'm not sure the conflict between gun rights and gun control regulations really stands as quite controversial and will likely be the flashpoint of the term, and that of course is the court decisions taken. versus jackson women's health center, the challenge to a mississippi heartbeat law that prohibits abortion after the 15th week of present -- of pregnancy. it will be the first abortion
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challenge of this newly constituted court with amy roney -- with amy coney barrett replacing ruth bader ginsburg will hear. viability is usually marked at suwanee three weeks of pregnancy. that would suggest a mississippi law is unconstitutional. yet we know the court considers this precision -- considered this petition for a long time. it appeared in conference 17 times before the court decided to grant it. make it clear just tight -- despite the state of the jurisprudence, there was considerable discussion about whether to take this case and perhaps conflict over whether or not to do so. it will be the case to watch term as any decision in this case will also implicate the continued longevity of roe v. wade. if abortion rights and gun rights were not enough, the court could also add the hot
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button issue of affirmative action to its docket. pending before the court is a petition against harvard university, this is harvard versus air, students for a fair admissions process. that would present a statutory challenge to the affirmative action policies many private colleges and universities use. courts could decide to sidestep this in favor of a constitutional challenge that would likely come in the form of a public university using affirmative action, also percolating in the lower federal courts. all of this will play out from october through june of 2022, which is also the eve of the 2022 midterm elections. i think that is something that may actually constrain the court. the prospect of the courts decisions on these hot button issues becoming fodder for electoral politics may certainly be a concern for some on the court, particularly chief
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justice roberts, as the term plays out. if there's going to be a limiting principle, i think the limiting principle will be what happens in electoral politics. >> i will turn this back over to karen who is going to wrangle the q&a. there is more than 100 questions in the q&a. she has been trying to sort them as we have gone along. just note that you all should continue to put your questions in the q&a and we will try to take as many as we can. best of luck to you, karen, getting through 100 questions. >> i will do my best. let's start with real quick, could someone please explain what the shadow docket is and provide a little bit of a position on that? there has been some confusion in the chat. >> it is come to this record
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sometimes when there is a request for an injunction or to overturn an injection for miller court, it does not come from a full briefing and four arguments. so the cases that paul mentioned involved instances where religious individuals or entities went to court to challenge and to seek injunctions. in these particular cases, the lower courts denied the injunction that went to the supreme court for the injunction and this would be what is referred to as the shadow docket. things that were not coming, but nonetheless, the supreme court issuing opinions and force of law. >> great, thank you. another common question we've gotten, and i am going to
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summarize it, is there are several of you, if you could share your thoughts on the size of your -- of the court, whether it should be expanded, whether term limits should be imposed, this is been a hot topic. and dahlia, feel free to jump in because you are not moderating. dahlia you want to go first? i'm going to keep cold calling. >> i think it is in keeping with the cle stuff. i think there has been a sort of burgeoning movement to seriously think about court reform. i think that when mitch mcconnell made the decision that already voting has started in the 2020 election, nevertheless, was going to put up amy coney barrett, it appeared to be pretty directly contravening the
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role he had set out when merrick garland did not get a hearing or event -- or a vote before the 2016 election. i think there was a profound sense on the left that this was no longer about some principle, but just about whoever controls the senate controls the court. and with that, i think a growing sense, rightly or wrongly, and i would love to hear paul's thoughts on this, that the court , this sort of deliberate counter majoritarian function of the court, was now working in a counter majoritarian way to imperil actual democracy. so there has been a real uptick in enthusiasm and interest among progressives to do some kind of structural court reform, whether that is court packing, fdr's
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landmark failed attempt to add seats to the court, and i should note, there is not a magic number, there is nothing in the constitution says you need nine justices. but other kinds of conversations about whether the court should have term limits, whether the court should be subject to some kind of jurisdiction stripping, where they cannot hear certain kinds of cases. joe biden has created a commission to study this. and to issue something short of recommendations. for what might be done. but my sense of the matter is, this is a conversation that is happening, at least my sense of it, in the margins. i do not think that the core commission, as is evidenced by the conversation they have had so far, is taking at least the court packing piece of this all that seriously.
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>> fred, could you way in eco -- could you way in, would anyone justice have bigger voices if chief justice roberts is less important in an outcome? >> hard to make these analyses based off of one term and not even a full term of nine justices. there are a couple of observations we can tease out. one is that even within the six conservative justices, there are differences. when we've talked about several times is chief justice roberts is a somewhat more moderate conservative, probably putting the others -- the other five in the same category is over signifying a little bit. it appears justice kavanaugh is trying to probe the position in the middle of the court. it may well be a position he is
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happy to have, and to play that kind of a rural -- a role. in a different way, justice kagan might have played that role, but she is part of the three, not the six. one cautionary note, certainly, from some quick commentary you see, now the court has three liberals and three conservatives and three sort of in the middle, that does not make that group of six other than anything but very conservative. we three justices on the court, justices thomas, alito, and gorsuch, any one of whom would be the most conservative justice on almost any court for the last 75 years. the other three, chief justice and justices kavanaugh and justice barrett, we will see how they play out. they are very conservative by any objective measure.
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just coming back to millis is very good to look ahead to next term, we will learn a lot about how these justices lineup on hot button issues. a year from now, asked me the same question. we might have better information. >> turning to melissa and also paul, what do we think the value of the covid blooming's cash covid rulings might be? the way that it didn't really play out. melissa, you can go first. >> i do not know if we did not see tandon play out. i do not think we sign maximalist decision in fulton, but he saw the imprint of camden in the way the court tried to reach some kind of middle ground between the two positions. the shadow docket -- this is part of what erwin said, these are emergency decisions. they are not supposed to carry the same kind of weight the
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decision of the docket should have. but i think we are seeing the shadow docket being translated into the docket. not especially, but you can see it in some of the logic of these decisions. >> i will just echo that and say the following, which is melissa's right. the shadow docket cases are supposed to be separate. they tend to manifest themselves in relatively short procuring's of opinions. at first plant -- plants, they do not have the same presidential weight as a decision in the supreme court. there is one other implicit point here. the court is considering tandon for example at the very same time. it was deliberating over the fulton case. opinions were presumably going back and forth among the justices on both the per curiam
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and merrick case simultaneously. i think there is a particularly close relationship between these cases. together, they point to two potential paths forward, for the more conservative justices on the court. one path forward would be to eventually in the subsequent case overrule smith. because you seem to have a working majority of the court that at least has nothing nice to say about the continuing violent -- continuing viability of the smith decision. they could go that route, but i think these cases together, and erwin may have alluded to this, prompt the possibility it might not be necessary to overrule smith, because if smith becomes only the role for those laws of general applicability that are so general, there is no possibility of an exception.
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all of a sudden, smith is no longer the general rule. it has become the exception. that is another path forward. >> another question that we got different variations of but quite a few of in the q&a and perhaps erwin, you could address this, is also on the religious freedom, religious liberty, etc. along those lines. it is essentially versions of, if the court seems to be moving further and further towards favoring one's ability to assert one's religious beliefs and sincere religious beliefs in order to assert -- obtain exemptions from discrimination exemptions from other sorts of laws. at some point, does the court become the arbiter?
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one of the questions, use the term ecclesiastical tribunal. a fun term, so i thought i would share it. do courts have to do this inquiry every single time? at what point are we overburdening the courts? where do we draw the line? how do we handle this? >> is an employee -- it is an excellent question. if we did exceptions on account of religion, then we have to define what is religion, and we have to decide, is it a sincerely held religious belief. if it is a neutral law of applicability, e.g. not get a religious exception, so we avoid having to decide if it is a religious belief. the more the court goes down the
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path, and it is clearly going down this path of giving exceptions to religion, more inevitably the court will decide, what is religion? and is it a sincerely held religious belief? those are uncomfortable things for the judiciary to be a part of. establishing religion? the more we give -- that is not the intention of the establishment because -- establishment clause. >> finally, to again summarize and consolidate several questions we have received, does this notion that ideally the supreme court should not be ideological, but i think we all know that is not the reality. what possibility is there, or
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what indications are there of perhaps the conservative justices, as you alluded, not winding up the way we might have expected or, is there, some folks have suggested, might there be potential changes? might they drift further left or right? what can we potentially expect? >> -- this is an open round to anyone who wants to weigh in. i think this will be our last question, looking at the time. >> i think what we can expect is a very conservative supreme court that will issue some very significantly conservative decisions in the next term. i could obviously be wrong about that, but i think this term concluded where the court might have coming off of to bruising
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confirmation hearings. that is behind us. they move into another year. the court cases they decided to take for next term did not look like a court looking to trim its sales. to keep the metaphor going, i think we are sailing into choppy waters and i think you will have a very conservative core issuing very conservative decisions on some very significant issues for the body politic. >> anyone else? >> dahlia, i'm to send it over to you to wrap up. >> i think i want to start just by thinking the adl for the phenomenal work it does and as i suggested at the beginning, please have a look at the materials, because it will give you a better sense of what they have been focused on in a really busy term, and i want to thank
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the national constitution center, which does yeoman's work to put the constitution at top of mind for a lot of people, including my little kids when they used to go on school trips and suddenly knew more about the constitution than i did. so really important work. now more than ever. i opened with this framing question which we have been batting around a little bit about whether this was a 6-3 court, a 3-3-3 court, you could do this all day. i think there is one story that justice breyer likes to tell that this is a 9-0 or 8-1 court made up of people who are brains in vats of no ideology. that has probably been belied by this term. the last thing i will say sweet
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did not talk a lot about the single most important -- we did not talk about the single most important view that the court did not weigh into the 2020 presidential election. going into this term, if we had told her -- pulled ourselves, we might have expected much more intervention from the supreme court, and certainly lots of early ideas about how the election was going to run that suggested the court might be prepared to intervene in election. i think going to what erwin said , it is easier to intervene in ways that are very occluded by technical jargon then to jump into a middle -- the middle of an election, and it does seem that the court moved the goalpost, but in ways that are much less dramatic then we might
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have seen in 2020 around the election. i think the goalposts have shifted. i want to thank fred lawrence, paul, erwin, melissa murray, and the amazing folks both at the constitution center and the adl. i want to thank all of you for tuning in. as everybody
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