tv Key Capitol Hill Hearings CSPAN September 24, 2015 8:00am-10:01am EDT
texas is pretty much arguing in part of its light for a green light to do it away. if the court does say there is a green light value could go either way, do you think that that will change the political landscape is not as much as a victory for the plaintiffs, somewhere approaching that? >> i think the court has already said that anne byrnes essentially said that there's a green light in a 1966 case. to me i think it is had led most states to go with the total population figures. they are there, available come easy. but i think i was sort of technology makes it easier and vision to crunch numbers and get specific data, it may well become a easier to go the voter route and people might well come states but will chose to go the voter registers technology has made it easier to do very easy
party chairmen of the i would find it i would be shocked if the court which is not a necessary and says it has to be total population in this case. they don't need to decide that to resolve this case. they can leave it open. if it becomes a problem they can reach it at some later time. >> questions from the press. >> my question is for hashim. you kept saying voters and suggested -- [inaudible] aren't asking for voters or are they asking for citizen voting age population? >> the cameras are asking that if you have questions come to the mic. it's not being picked up. >> i'm sorry. i will mumble it now. you kept saying voters and suggested, for example, that prisons in rural areas would not be counted because they are
felons. but are they asking for voters that are literally eligible to vote or of asking for citizen age voting population? results are different. >> so the brief is a little come the plaintiffs a brief vessel agnostic about. as i read it there focus on eligible voters. there are a lot of different metrics for how you measure eligible voters. the most common is, reference which called this event, citizen age voting population. it isn't actually a perfect proxy for eligible voters because there are people who are citizen of voting age but nevertheless not able to vote again i think that's what please off the admin or stability issues of the plaintiff's case. their definite asking for registered voters which would be one way of solving the problems that raise a host of other
issues given concerns about the accuracy of registered voter rolls. though it is notable that 1966 case that marty referenced earlier i believe, it involved hawaii and hawaii had a similar sort of problem with major discrepancies between total population and eligible voters because of large part of the military and large populations of resident tourists i guess. and the court action upheld. so that's why some people, why right now both david and marti stressed it, people seem to think that the operating status quo is the states do have the discretion. that case has a lot of ambiguous language in it, but registered voters would be a way of solving administrability probability of other issues with it i don't think the plaintiff is pushing for that.
>> falling under question and remarks, in texas specifically or in any other state has a state legislature consider this question, been asked to address the question? to the plaintiffs write their state legislature first or just go right to courts because i'm not one of% sure how it worked on the facts of texas. i don't think they went to the legislature. part of this is that texas redistricting was, took along while in texas because they were sent to a bunch of voting rights act, litigation, to the initially past a plan, challenged in court under the rights act at this court passed a plan to become the, the legislature passed an interim plan. so i'm not sure the plaintiffs in this case ever actually went to the legislature and asked for it. in general i think what i would say is not every state uses total population as its base.
i put there are at least, at least, maybe i shouldn't say state. there are at least at certain levels of government or entities other tha figures population bas other than total population. i don't think it's the uniform rule throughout the country. so what has been considered. >> is there any chance that this case affects congressional district in, or it is the constitution good enough that that's going to be based on total population regardless? >> so this is another area in which i think the pictures reef is a little ambiguous and i think we will know at the reply stage exactly their position, the implications for the u.s. house of representatives, but right now they have said you shouldn't rely on the federal analogy even if it had a different rule, population growth. so that's what they're coming in position is but haven't actually said whether they think, and
hashim can correct me if you read it carefully. they haven't actually said what the rule is for house of representatives. you could draw a distinction based on the specific text of the constitution but the specific text really is only telling you about how to abortion representatives among the states, not how the state should draw lines, which you could draw a distinction based on that, but you also just say if one person one vote is about voting, the same rule out to apply. >> i agree with everything you said, irv, with one caveat, which is that under a current law there is a difference between how one person one vote applies to the states as opposed to congressional. the route is what been talking about equality and equalization, but at the state level the court has never actually put strict handcuffs on states to hit
exactly equal populations. they get some latitude. they usually talk about is plus or minus 5% or at 10% range. so as long as a district that is the most underpopulated is within 10% of the district that is the most overpopulated is presumptively okay. but on the congressional side the court is required pretty close to perfect equality. because of that it might have implications for how the rule would work on the congressional side. so, for example, as i mentioned before one possible middle ground position would be you have to equalize both if you can. that only really works when you have wiggle room on the quality of the you can't equalize both populations if you have to also hit the both of them on the hatreheadbut you can only reallf every plus or minus 10 window. so if the rule were to stick for
political cases come out of texas and in both cases texas is defending the liberal position. so fisher is the challenge to texas, university of texas at austin affirmative action plan. the university of texas has been defending its admissions policy since 1992 when it was first challenged by a woman named hopwood. the essential question in fisher is how do you reconcile the application of strict scrutiny which requires narrow tailoring to a compelling and? and the courts holding that diversity deferentially defined by universities is a compelling and. so the court, two things are clear in the affirmative action arena. one, strict scrutiny applies,
exacting scrutiny at least in theory that applies to laws that disadvantaged racial minority applies to laws of that advantage racial minorities. and that requires narrow tailoring. number two, diversity is a compelling interest and those of the university's determination that it needs a critical mass of racially disadvantaged groups in order to achieve the educational benefits of diversity is a compelling interest to which the court deferred. but diversity and critical mass both a lewd any specific or concrete definition. so how do you apply a standard which requires very narrow and specific tailoring to an end that is open-ended, indefinite and vague? and that i think is central
tension in the court affirmative action jurisprudence which they have not resolved. this was up before the court national a couple years ago, and after a great deal of time the court eventually reinvented it back to the fifth circuit. the fifth circuit upheld university of texas' program, but the supreme court said that they been too deferential to the court on this narrow tailoring prong so they sent it back for assessment of whether under a non-deferential strict scrutiny analysis the program at texas a&m was, in fact, necessary or nearly tailored to achieve diversity. the program, i think most people are fully with, but essentially texas adopted after was told he couldn't use race at all by the fifth circuit and the hopwood case. it adopted a top 10% in which they guaranteed admission to the top 10% of every graduating high
school, every high school in texas. because texas, like so much of the rest of the time it is highly segregated, that i to achieve diversity. it's not at admissions plan that any sane, you know, admissions officer would adopt but for the fact that it achieve diversity. it puts grade-point average above everything else in terms of how you evaluate a person's value to university. until schools were forced into this position nobod of nobody ad such a program because it doesn't make sense. but having adopted a program, texas achieved some significant diversity, about 4% african-american, about 15% latino representation. then the court in 2003 decided the university of michigan case, grutter, in which it upheld the use of race as a factor, and modest factor in a holistic all
things considered assessment of the individual to achieve diversity. so texas says welcome to the universe of michigan can do it we can do it. they did not scrap the top 10% by but they said with respect to the students who have not cut in the top 10% plan from the remainder, about 20%, we are going to play essentially the grutter, the university of michigan plan. we would do a holistic review, consider a wide range of factors to assess whether this person with ad diverse value to the academic community. one of those factors at a very modest factor will be raise. will they were challenged and the question is whether that consideration of race in the holistic inquiry that is applied to the remainder after the top 10% plan fill 70-80% of the
class is consistent with the court strict scrutiny requirement. how in the world did you narrow tailoring to that end? that's essentially the challenges argument. they say if you have a mushy and you can't have a narrowly tailored means test, and texas has not sufficiently demonstrated why it needs to consider race in this remade in order to achieve its end. the problem i think with that argument is that the court has already confronted that argument iin the michigan case, the challengers argue diversity is, and i quote from justice rehnquist's opinion, too open
ended ill defined and indefinite to constitute a compelling state interest. but what rehnquist said was we have rejected the challenges argument that diversity is to open ended, ill defined and indefinite to constitute a compelling state interest. they accepted this interest with full recognition that it's open-ended, ill defined and indefinite. so then how do you do narrow tailoring? and what the courts have done thus far is that they've said well, narrow tailoring, which can realistically acquire is no racial quotas, consideration of race-neutral alternatives, a holistic consideration of each individual, no sort of set aside categories, and raise being only a modest factor, not a predominant factor.
that is the definition of narrow tailoring and that is essentially what candidate he said he would accept in his concurrence is in the michigan cases. and that's essentially what texas has shown. they have shown that they attempted race-neutral alternatives, more than michigan to because michigan did not adopt a 10% plan. they engage in holistic all things considered a suspect they use no quotas, and race is only a modest factor and it doesn't add a huge amount of diversity on of the racial diversity of the top 10% plan reaches. so the question, and the fifth circuit on green and said that's all we can require. texas has met that standard and the court is not going to take that up again. i think the challenges argument is the strongest argument the charges but is this point that
it just doesn't make sense to have a narrow tailoring requirement applied to an open ended indefinable end. you just never know, you know, went to critical mass, why is critical mass that are different from african-american fidelity discuss what is the percentage? those are questions texas will not enter, cannot after, that makes the application of narrow tailoring very, very sticky. so you either, seems to me you have two options. you either say, well, most we can require is what we have required, and i think texas has met that, or you can jump that insight no, actually we require something more, whatever that something more is, it's not likely to be able to be shown by the universities and you would
come and affirmative action or at least threaten at the end of affirmative action. about 12 years ago justice o'connor said where upholding affirmative action when it's used in this holistic, modest way, but for 25 years. it's only 12 years ago, and i think in 25 years there's going to be a very strong argument that affirmative action should be ended. so i would be surprised if it ends it now. the one possible sort of i guess middleground is to say well, when you've adopted a top 10% plan and the top 10% plan or race-neutral plan that you choose some racial proportional diversity, then you have a higher burden to demonstrate why you still need to consider race
with that remainder. and that that would not end affirmative action to do what you say when the states adopted 10% that they have a higher burden. that would be kind of a paradoxical result because it would say that if you adopt a race-neutral test which is not required to be adopted, in michigan the court rejected the notion that kept adopt a top 10% plan, you are put in a worse position than a university like michigan which apply to race to every applicant. so i think it's a tough case and i think what's tough about it derives from the existing precedent which creates the tension between the requirement of tailoring and the open ended as of the end. >> other comments?
>> yes. i largely agree with what david said but i have a couple of additional thoughts. one is an interesting aspect about this case is that it was at the court before. they took it. they had a for basically the whole term and then at the very end of the term they remained it on very narrow grounds which because expected and reported my to been as a result of some sort of compromise. and then it went back down. the fifth circuit reached the same result data to back up every considered it for a couple of conferences and then finally decided to grant the given those circumstances it seems pretty hard to believe that texas is going to prevail in terms of a flat out -- why bother taking the case if the votes were not there to reverse course that sort of prediction sometimes gets refuted as, for example, after another case out of texas last year involving the fair housing act, but in this
circumstance it seems pretty hard to believe that the conservatives would have pulled the trigger on granting if they didn't have the votes to reverse a lease in some aspect whether it's a narrow or broad or the attitude sort of agree with david that the two big moves are a narrow one would be just and to focus on you didn't need additional from affirmative action programs over and above which already had. the more aggressive what would you don't think what action to end affirmative action but it would make it harder to justify would be if you're going to have diversity as a compelling interest and your gorgeous is because of educational benefits, you have to explain what that means. you have to explain what the numbers are you are shooting for the are not quotas at interesting there's a compelling interest in having asserted about of racial diversity you have to explain what that is what figures are you looking for where you get the racial benefit, the educational benefits from diversity, and then we can figure out whether
it's narrowly tailored b but unl you tell us which are shooting for, the analysis doesn't make any sense. so that i think would become a difficult record i think the chief was pushing that line of argument or a tablet in the oral argument the first time around. so that would be i think the bolder position that would come out of the case. >> just to echo what hash said. it's very interesting to me that they granted this case, because they clearly know what's going on and what they're getting for those into which makes it hard to think that they didn't grant it with the idea of being able to come out in some way that is not very good for texas. but also have a hard time seeing five justices, a five justice majority really ready to go for in this area. so all that leads me to think that candidate nader were given light of how they're going to deal with this.
but they certainly didn't need to take this case to they seem to struggle a bit about whether to take and they clearly know exactly want they getting themselves into by doing it what you think all set up for an interesting dynamic of what d.c. is going to come out. >> so far nobody has expressly mentioned the rationale that the court of appeals used to say why they need more diversity and it seems to me what they were saying is that there needed to be some sort of within group racial diversity. maybe there was enough of these particular group, but what was accomplished through the top 10% plan was within group diversity. the reason being that the 10% plan accepts people on one metric, grade-point, and draws largely from segregated schools, and that the our experiences at least this court of appeals thought that, and backgrounds,
that are not captured in the 10% kind of, you just automatically into 10%. that could be found through holistic review. so i'm just wondering how you think the court will react to that rationale? >> but it's funny, you go back to justice powell's landmark opinion, that was one of the main rationales that this is not, this whole effort is not only intended to get more students of particular races and backgrounds in there but to break down racial stereotypes to keep enough students to demonstrate that not all students of color think alike or have equal or have similar backgrounds opening the same things to a classroom. but the whole effort to break down racial stereotypes in society and in our education a particular requires a broad
range but this was response to the argument that many of these programs were admitting hirer income very well-to-do african-american students rather than those are differences of, different backgrounds. at the court of public justice kennedy has expressed some sympathy to this idea, that part of the reason for affirmative action is to have any students of different backgrounds so that people don't contribute life perspectives categorically to a particular race. so he may be a little sympathetic to this idea. >> that would be the right way to spend it the our texas. there's a lot to it. but the oddity of it is something you also flag, which is in essence what you think is what we need is a lot of relatively well off minority who went to relatively good schools
and were not in the top 10%. that seems to sort of turned a lot of people's notions of affirmative action on its head, that the people you didn't the additional benefit to other people in some sense the least in need of it spent to the extent one thinks of affirmative action that's her meet her, that's absolutely true. i'm just not sure that's a justice kennedy thinks of it. >> i think there's a way in which a texas argument to the extent that if it is phrased this way, sort of appears to adopt a stereotype about the black ki kids who come from thep to 10% of like you're of a certain type and wendy a different type. and that itself seems to be stereotyping. there's the evidence in the record of what the overall diversity of the top 10%
students from the segregated black and latino schools are like versus those who are from the remainder. i guess my sense is that it's not so much about interracial diversity as an end to it's about diversity as an end. the reason the state engages in holistic review of why most schools engage in holistic review of everybody, and why texas engages in holistic review of the remainder is because it wants diversity. it wants the cop a plea, the lacrosse player, the person who would extraordinary challenges growing up. -- it wants the trumpet player. it once the great debate and the top 50% of not the top 10%, et cetera, et cetera. within a set of diversity, race is a legitimate consideration. you shouldn't exclude it at that
point. we are not just looking for well-off black kids who were in the top 15%, but not the top 10%. we are looking for a diverse student body which includes the consideration of race as one of the factors that colors once experienced in the united states. race continues to matter. and so it continues to be a relevant factor in considering diversity, and as long as its modest, which it clearly is, it ought to be permissible. >> it seems to be david has done his best to protect a win for the university of texas. i just don't see it. i see this grant the same way hash does. in studying justice kennedy's opinions on affirmative action and the use of race, it seems to me the overriding theme are twofold.
one, he would've placed in an integrated and the value of integration. and number two, he desperately wants it to be achieved by race-neutral means. i think you see that in the fair housing act opinion, and the reason that came out the way it did i think is those two things are basically true. he believes in integration and fair housing act can be remedied some about adopting one race-neutral method rather than come and the other albeit in it is for promoting integration. and so it's really hard to figure out how for him how to strike the right balance but i think what he wants to do is drive more innovative solutions to how they get to integration through race-neutral means. and the way to do that is to make universities around the country fear that their plans are going to be invalidated, but not rule out the possibility that they could be upheld.
that's what's going to drive innovation, and i think that justice kennedy will write something that makes it very difficult to satisfy strict scrutiny, and starts to worry people that maybe they ought to be looking for race-neutral means. it's true, there's been a lot of effort to do that it hasn't turned out as successful as some might have hoped but i think justice kennedy thinks that the ready resort to raise is the part about under the michigan decision is part of the reason why it hasn't been driven. so i do think we'll see not something that eliminates affirmative action altogether that picks out in of things that are wrong with the university of texas plan to get other universities enough concern that they will be in a position of thinking, maybe we are to switch to something that is race-neutral. >> with that why don't we take questions from the press? anyone?
>> can you go back one more time -- [inaudible] if they do rule and want another associate with critical mass, for the layman, how is that not rub up against the quota? i just don't understand. >> the way it could be, so the question is, if the court tries to hold that universities have to articulate what critical mass means in a more quantitative way rather than sort of fuzzy qualitative way they've done thus far, how does it not related to quota? and i think the way it could would be to say, for example, you study education policy, et cetera, et cetera, for its apologist picked up out of a hat but let's say 10% off minority population, sort of love we get
the educational benefits for diversity. that's where you really need to be. so that's what you are shooting for. that doesn't mean that you can then go said okay, i will that than 10% miners and nothing more, that would be a quota. having 10% for your target and then king in a race conscious that considers all factors come holistically and makes race a plus factor but not the positive -- this positive comp you could reconcile the two the you could have it be a target without having a quota. there's a risk want to say here's the number, it's going to lead to a quota which is what were i think people have been nervous about doing it. i think it was some of the conservatives will view as we can run the risk of having their be a more likely quota or having to the universities can just say we're shooting for critical mass in the air, no investing idea what that means and then you try to do narrow tailoring without anything together to, i think at
least some people will be interested in that and the possible of putting some real teeth in scrutiny. >> any other questions? so then let's move on to our next case which is california. >> friedrichs would be one of the closely watched cases that the court this term. this involves the question of whether the court should overrule its 1977 decision which is the case that held that public sector employees can be required to pay union dues. there's two questions in friedrichs that it was kind of the two issues as a dichotomy that it drew which was to say the court said you could have compulsory dues for purposes that are germane to collective bargaining, but if the union is using money for basically political reasons that are not
strictly germane to collective bargaining, you can't have compulsory dues. you have to give employees the opportunity to not pay those people what the court said in that one is it's okay to give them the opportunity to opt out of paying those abused by the then to opt into them. so this leads to the two questions that are presented in the friedrichs case. one is should the court overruled the holding of abood that you can compile any dues, even for the germane collective bargaining purposes, and the other being even as to the dues that are for political purposes, is it constitutional to opt out scheme or does the constitution or an opt in scheme would oppose be up to affirmatively choose to give those dues rather than raise their hand and say no, no. i want my money back because i don't want to contribute to the unions political activities.
so i think it's always interesting when the court grants the case for a question of should be overruled something. and here is the kicker interested because the specific question of does trent lott apply to x, y or z, give it does should be overruled. this is a straight up case that was keyed up as presenting the question of whether abood should be overruled in the first i think there would be some dispute about what is the overruled after the second question but it is all set up with just those questions before the court and no other way for the court to get around in some narrower resolution of this case. they've taken a case squarely to decide whether to overrule one of their precedence. the past two terms are bit of a caution against putting too much into the court's decision to grant on a question to overrule one of its cases, because we've seen a couple of the cases into what h it did and there wasn't a majority to overrule.
i don't think it's a fair rule of thumb to assume just because they grant on a question like that they necessarily have the votes to go all the way. that said, i would not feel very good come into this if i were the respondents given what we have seen from the roberts court on this issue in the past few years. and that's because this is a kind of a case that comes out of a few justices offhandedly suggesting in a concurrent or statement or expecting to not that they're open to reconsidering the question of whether abood was right that this comes on the heels of two back-to-back solid five justice majority opinions that basically fundamentally undermine every aspect of the reasoning in the abood decision. in the knox case from the 2011 term, and the question there had to do with compulsory payment of
-- what's the term -- special assessment, and in resolving the question and decide it was unconstitutional to have compulsory payment of that and the court went out of its way to describe the principal holding of time as an annulment even though that principle holding about the germane to collective bargaining wasn't even really an issue there but the court went out of its way and called into question. then basically result of the question before by reasoning that abood was probably wrong about the opt out option dichotomy in the first place so that opt out am the opt out requirement certainly shouldn't be extended to a new context of special assessment. so you can see the court taking the opportunity to resolve a case that it perhaps could have resolved without going out of its way to call into question abood but instead doing that,
and chances come and opinion fully joined by the five members of the court that make the majority. there's no separate concurrence saying i joined us. i'm not quite sure fundamental issues with the opt in opt out aspect of that. so that what we get from knox. and then a couple years later we have the hairs versus queen case which involved whether abood should apply to home health care workers and again there you have a case for argument the court could approaches focus its analysis on distinguishing home health care workers and the kind of come from the public employees that issue. in abood. instead the court decides to resolve the case by engaging in a really detailed, lengthy discussion of why the foundations of abood are questionable both as a legal matter and as an empirical matter, and engaging in what reads of a lot like a stare decisis discussion of how abood has proven unworkable and have
basically saying it's not only wrong but it doesn't really make sense to keep having it around, and kind of going to all of this, and opinion that looks like it's going to read by overturning abood but concludes by saying we don't need to go that far because once again this decision is wrong we are not going to extend it to the new circumstances before us and we will leave it at that. and again you have that opinion joined in fall by five members of the court with none of them writing separately to say well, i'll don't really think we need to go that far, or it can just be done by distinguishing the facts of this case from abood. so there's nothing kind of it would give me comfort that there's some justice who is also the uncertain about signing on to office. i think another aspect of harris versus quinn, the dissent in
harris in taking issue with the fact that the court didn't go out of his way to call into the question abood doesn't even really defend abood on the actual reasoning that the abood decision employed which the court in abood said we accept that all of this is an imposition, an infringement on first amendment rights even when we're talking about compulsory payment of fees that are germane to collective bargaining, but we consider the first amendment rights outweighed by concerns about free riders and then people not having to pay their fair share for the getting out of the union. actually not in trying to resuscitate abood in the defense in harris, thus that even the grounds on which the defense and try to resuscitate a. they call into question the whole premise that there is a serious first amendment interest at stake if you're left with the decision that even as to the
justices who still wanted to remain the law, they are not even necessarily seemingly convinced that a cover for the right reasons which is understandable when you can read what harris versus quinn had to say about how abood had a little bit of a slipshod analysis and how it got to the conclusion it did and trade traded some casese as already having resolved the issue and they had not, in fact, done so. i think we look in context to the lead up to the court granting this case, it's hard to see abood surviving in full after friedrichs. there certainly could be a situation in which there's kind of a split the baby approach of the court deciding if there's somebody who is not willing to go all the way on the question of compulsory dues for collective bargaining purposes. there probably would only stubby the five about kissing you can't
have an opt out scheme. this is a fundamental constitutional right that people retain and have to opt in to a regime in which they decide to give their money to support a political speech. they can't be forced to take the affirmative action of opting out of that machine. i think you could arrive at the compromised result is that the result would obviate the need to answer the first question. the court is not going to get to read what it this case to do, and the signals here all any point in the direction of a to this case to overrule abood on both of these issues. >> i think it would be two embassies in the bottom side briefs, or at least one and but i want to suggest might be
possible for peeling off a fifth about going the other way. the first and obvious one and i think this appears pretty, in justice kagan's dissent in the previous case is to try to appeal to justice scalia in particular on the theory that these are public employees after all and he has long felt that first and then the rights of public employees are quite diminished come in particular the state has an interest inefficiency in the workplace, you should be able to control the first amendment activities of one's employees. i think the prospect of getting his vote on that very depends, however, unconvincing in or make it possible case, i think there is want to be made, that these agency the arrangements are intended to make the workplace more efficient. they are used in certain labor context for many years. the big three building trades and the like. employers tend to think this is good for business, and i think that is probably somewhat long
clean why the first amendment problem here p read i don't think there is one. there might be major policy reasons why a state ought not to do this, but i don't get implicates one of speech and i doubt this can be a primary topic-- [laughter] >> but, if there are sincere principles on the courts they might consider whether abood wasn't wrong to begin with going the other direction. >> i just wanted to add one thing about the justifications that you are apt to see from the ottoman side briefs. i agree with marty's first one, i don't think any bottom side briefs will be taking marty's second point. but, the second point that is there is that the one in dissent of justin kagan's and borrowed from justice scalia opinion and -- >> the when i'm about to say. >> which is that what
distinguishes the situation from others from compelled assessments is that the union has under state law to bargain for everyone else in the union and if that's different than i would-- every which you have compelled assessments. now, the one thing about the decision is that i would say that justice alito's opinion tried pretty softly on the ground. i mean, he perhaps called into question a little bits, but not so much-- my speculation is that justice scalia may not have been ready to ditch it 100% and therefore-- it's definitely worth bringing up on the bottom side briefs. i tend to agree that the odds are that we will see abood overruled, but i do think there
is some possibility that one or two justices will get cold feet and posh has offered them a landing spot and i can see why you presented the second question, but it's there and so people can think that, well, abood has been around for a long time in the world has not come apart, but will the second part of abood we will switch over, which is that for fees that cannot be coerced, nonbargaining fees we will require often rather than opt out and do so i think that's the modest-- the best i would suspect that the bottom side can do in this case, but i do think it's a real possibility, still. >> just to echo and under-- this argument scalia has made before because public sector unions
have a statutory duty to represent members, the state has legitimate interest in requiring those nonmembers to pay for that service. it would require scalia to admit that he was wrong and i've never seen scalia admit that he was wrong, so that's on the side of not, but entirely overturning abood. on the other side, i think this is a case that really puts an individualistic libertarian claim against collectors possibility, not unlike you can't require me to buy health insurance to support my fellow americans. you can't require me to pay for my public sector union dues and historically individualistic libertarian arguments win out over collective responsibility arguments. the aca case notwithstanding.
>> before i turn to the press, what about the impact of this case? assuming abood is overruled, is the fate of unions really up in the air here? unions are obviously on the decline, but they are still strong in the public sector. this case is really about public-sector unions, so what do you see as the impact? >> i mean, i think there's a decent argument of, look, at the core level of whether you have unions still and whether they will function and display give evidence that they can function without dues in the public sector and will they have the same money and the same power in the states where they had dues coming in if they don't have them? absolutely not, but i think it's kind of a question of where on the scale. i mean, i don't think it's the destruction of the public sector union representation. although, i'm sure we will see a bit stronger view of that
question from the respondents with the brief coming them. >> i think public-sector unions take a different view and have long seen this as a real threat to their continued effective existence and as we know unions are on the decline generally, so scott walker has stepped out of the race and the supreme court may step in. >> i will note that the federal government doesn't have compulsory union dues for his public-sector unions and in addition to scott walker a lot of states don't, so aaron is correct we will will have a shift of union power, but i think it won't be the demise of public-sector unions and i think that's fairly overblown given half this country and federal government operate under that right now. >> press questions. contraceptive-- >> the three cases with discussed so far, rick fisher, and even will probably argued in december and one might get
kicked into january, but the two irv and i will discussed next are not even on the docket yet. i think we probably, most of us think both of them are likely to be granted at some point during this term. i'm going to be talking about the hobby lobby follow-up contraceptive and we'll talk about the abortion case. out of texas. i will assume some knowledge about hobby lobby, which has decided the terms and the apparent wind when solutions that-- solution that justice kennedy was thought to have engineered in that case and as you know the affordable care act requires that all healthcare in the united states provide certain forms of preventive care in order to both advanced health of americans and women in particular. also, make healthcare more affordable by preventing high costs healthcare needs before
they occur and the government has determined that in particular, all healthcare plans must provide cost free coverage of 18 of the 20 fda required-- fda approved forms of contraception and certain entities, both for-profit and nonprofit object to having those forms of contraception coverage for their employees and a handful of student plans as well with respective colleges and universities. hobby lobby was a case involving several for-profit entities and as most of you may recall under the religious freedom restoration act, it said general statute that says with respect to virtually every federal law if the application of that law to put together individual's asian imposes a substantial burden on their exercise religion the government is
required to grant them an exemption from the application of that law unless the government can show that the denial of the exemption will be the least restrictive means of advancing a compelling governmental interest. the five-four majority in hobby lobby suggested that hobby lobby's claims that contraceptive care required in healthcare plan did probably impose a substantial burden on its religious exercise because in its view of its complicity in its employees use of contraception, if the healthcare planning? to give them cost free coverage for that-- for that contraception notwithstanding the fact that they could just not have a healthcare plan at all. because if they continue their health care plan they would be
subject to pretty extensive fines for not including them or any other form of preventive coverage that the law requires. such as immunization. the court ruled five-four it was a substantial burden and it then moved to to the compelling governmental interest tax in which justice alito's majority of the opinion seem to be skeptical of the government's compelling interest, but justice kennedy's concurrence didn't really resolve the question adjusted kennedy's concurrence seem to send a strong signal that he thought there was a compelling interest to make sure that all female employees do have access to cost free contraceptive coverage. then the question sort of reduced to is this the least restrictive way of guaranteeing the cost free coverage and justice kennedy and to a certain extent the majority in the majority opinion ultimately rested on something justice kennedy emphasized, which is that the government itself, department of labor and health and human services had come up with on accommodation for nonprofit entities that would
appear to be so called win-win situation under which they would not be responsible for paying for facilitating or do ministering the contraception coverage for their plans, their students or employees, but at the same time their employees and students would get cost free coverage. how does this accommodation worked? it works in the following way: the organization, if the employer opts out of coverage the government then requires its insurer and i will break that down a bit in the second, to itself pay for the coverage rather than the employer and the employer at that point according to government, has nothing more to do with the provision of the contraception and to go around them to the insurance company such as aetna or blue cross that they have hired to administer their plan and to that entity rather than the employer and they are both administers and the first pays for the coverage.
hobby lobby and aaron representing hobby lobby seem to suggest without quite sane so that that would not violate their religious obligations or at least not in the same way, so the courts said that seems to solve the problem we have in hobby lobby, let's go back and see if this is in a solution that can be applied to everyone, so the government went back and is now extended that accommodation not only to for-profit employers, but continuing to do so with respect to nonprofit employers and changed its regulation a little bit in ways that are not worth getting into here under orissa, so now all one is required to do is stand notice to the department of health and human services that you are opting out and at that point the department of labor turns around and reaches out to your insurance and says you a now on the hook for this cost three coverage.
here i am afraid i will have to very briefly break down and this will be a bit harder than it was in hobby lobby to understand, but i think it will bear on how the court resolved the case. employers have at least two principal and three types of insurance plans that they use. the accommodation applies to each of them. so, so-called insurance-- under so-called insurance plans that ensure that you hire such as aetna is responsible for paying out the claims that your employees submit for your students submit. in the soap called self-insurance plan that employer itself ordinarily makes the payments, but it hires and insurance committee to be the administrator of the plan, but the money is coming from the employer. the accommodation suggested offer applies to both sorts of plans. thereabout 100 nonprofit organizations in the united states and hhs expects about 100 for-profit employers who continue to object into this
accommodation and to seek a riff rock exemption for it. so, that accommodation has nullified or satisfied the great majority are probably of formally employers that used to object or be uneasy about the dish this, but there's a problem it couple hundred out there that dealt with nonprofit and for-profit side. the case that is sorted likely to grant involves nonprofit which is where most of it action is in the lower court. and i believe it of the courts of her peels have ruled on nonprofit cases and until last week all seven had ruled in the government's favor and all seven of-- seven held that there was no substantial burden because the employer had been taken out of the loop and the obligation was there only in the third parties at this point and one of those went on to say that even if that weren't the case there is a compelling governmental interest in having-- and making
sure all employees or students could get access to the coverage and in fact, in that case the judges said the government may continue to require the religious organizations insurers themselves to provide contraception to the employees at its pretty striking things and other conservative judges agreed on the substantial burden, but several conservative judges did not end at last week a panel of the eighth circuit did agree making it very very likely that the court will grant one of the many petitions currently pending before it to hear these cases. there are petitions up there from the dc circuit, from the third circuit, from the fifth circuit, from 10th circuit. several were scheduled to be on september 28, but last week the court but those off. i suspected they are waiting for all of the briefing to be done
in all of the currently pending petitions. of the governments of final brief in the 10th circuit case is due tomorrow, so as soon as there is a reply brief in that case i suspect that the court will put all the cases on one conference and decide them wanted-- somewhat early in the term and i publicly have predicted the case that the court will grant the ones that even the government believes is the best vehicle, which is the dc circuit case, so if i am right about that-- [inaudible] >> aaron has wonderful petitions from the fifth and 10th circuit, but i'm sorry to say, aaron, i think in this case the court will probably grant the dc circuit has it involves every different kind of plan, student and employer and all three different kinds of plans and the dc circuit whitby on the substantial question and went to the compelling interest question as well, so i believe if i'm right about this the case will
be captioned and roman catholic archbishop of washington dc versus burwell. , which is pretty dramatic. caption-- actually the archdiocese of dc is not covered by this and they don't have to provide the coverage at all to their employees, but port it's a technical reason because their plans are used by other employers and i don't think their claim is particularly strong, but that case involves other employers in particular catholic university, one of which has ventured plan and other has a salvage her plan and jones day has at this point figured out with the strongest arguments are for why that-- this accommodation might impose a substantial burden i think most of the arguments and it can be met and have been met success with by the governments with the objection that they are based on fact or law under a series of how the system works under the
law and the facts, but lately jones day has focused in particular on one argument that doesn't seem to be as easily subject to that objection and the theory is something like the following: yes, to be sure we are not responsible anymore for our employees use of contraception and we are not the -- they would use it anyway and we get cost recovered anyway , but we are responsible for the fact that this particular insurance company will be the one providing them with the cost free coverage. we hired these employees. we contracted with this insurance company, we contracted with a rather than blue cross and we are responsible for putting aetna together with these employees for this coverage and we consider it a violation of our religious obligations to be a matchmaker of that sort. to have matched up a particular insurance company with particular employees. the government can't second-guess our religious
explanation of complicity and we think we are complicit because of that matchmaking function and therefore, we should get the compelling interest in narrow tailoring side of things. on narrow tailoring and compelling interest, it is notable, i think, that even judge kavanagh that the government ought to be able to require these insurers to provide cost free coverage to this employees. he did object, however, to one small aspect of the schema where the government cannot justify one spot asked back of the scheme, which is the requirement you identify who your insurer is when you opt out you have to say and i've hired at not. it about 90% of the cases that does not matter because the employers big knowledge publicly who their insurers are. it's not obvious that this actually matters to any of the petitioners, but it is something judge kavanagh pointed out, so-- and i don't think it's a very strong argument that the government has to the extent
there is a petitioner out there who really cares about having to identify their employer for the government and thereby help the government with this scheme. i am pretty sure the justices will say the government does it have a justification for requiring that identification, but that just sort of punts the case to a bigger question, which is number one, is there a substantial burden and if so can the government identify itself as at no or blue cross and require that entity to provide the customer coverage to employees. we can talk if you are interested about how that scheme works and in most cases it's either a benefit to the insurer or the government reimburses the third-party administrators for their cost, but i don't want to get too deep in the weeds because i'm interesting in hearing what my fellow panelists think. not going to make up production on the merits. i've written enough about this, so my views are pretty well-known and i think the government ought to win under
ariffa, but i think it's up to justice kennedy seems to be the theme here and it it's not entirely-- i think he was to provide universal coverage for employees of this cost troop three contraception and i thing is but will depend largely on to the extent to which he thinks the government-- it sort of like affirmative action, has other options available to it that would enable it to provide this cost free coverage in a reasonable way without using these insurance company's to do so. >> so, we represent several of the petitioners in these cases, so i take issue with about 90% of what marty just said, but i will try to keep it to just a few brief points. we represent some universities in texas and seven other areas. we represent the little sisters
of the poor in an attempt to circuit case and just one observation about all this, i mean, i don't know what cases the court is going to grant here, but if it were really as anxious as it seems to defer to the government's suggestion about what is best petition in which to resolve the case then i'm not sure why they decided to pull the dc circuit cases from the-- which they did before, so they had already decided to pull that from the long conference and reschedule all the cases into what it looks like they are doing is waiting for the little sisters and other petitions out of the 10th circuit to be fully briefed, which i think the government has extension and will be brief for a few more weeks at this point, but to me that suggest they are not at all committed at this point to take in any particular case or deferring to the government to you of the vehicle in which it would prefer the cover-- government resolve the case involving the government. the other thing that is notable
about it is the main argument that has been offered for taking the dc circuit case that involves all three types of plans, which is a bit of that argument because there is no one in any of the cases who thinks that analysis is any different depending on what plan you have. the government thinks it's perfectly lawful matter what plan you have ended the objectors often get some awful under ariffa and matter what plan you have. so, there is a couple quarts that suggested that there is the dissenting opinion in one that concluded and made a difference, but it's not something any of the parties think. there is also an interesting aspect, the little sisters petition present the separate question of whether it's unconstitutionally and if it doesn't violate ariffa, which is not just a straight up freedom exercise. is a question about whether the government's decision to discriminate essentially among religious employers and
completely allow churches to opt out while not allowing other basically entities that are not specifically associated with eight church or house of worship to opt out is itself unconstitutional because the court-- the government should not draw lines about which religious objections it's going to accommodate in which it's not, so that's another aspect here and that's not an issue that has gotten prince full attention and the courts will hope it's an issue that has gotten a lot of attention from amici and suggestions, so it's possible they will decide to add a question in the mix here. we will see, but i expect ariffa to be the main issue-- and i think everyone expects that some court the dashes onto the court will get the case here. will say one or two things about the issue because i feel duty bound to set the record stay a little bit on the half of the
challenger's here i think marty's analysis glosses over the principal problem that is really the source of the objection here, which is that the government is not only using the plans of the employers, which it can seize in his most recent briefing the hobby lobby case the government conceded that in one of the context it is actually using the employer's own plan to provide insurance, but also that the government is requiring the employer to affirmatively assist the government in achieving that end because it's not simply a matter of opting out. you don't just sign a form that says i have a religious objection, you have to find something and tell the government, here's my jeep my third-party administered or my insurer and here's how to contact them so you can go and get them to provide the insurance that i find objectionable and the government itself acknowledged that in their brief and assay, well, we
need that assistance from the employers because they actually concede that they can't get that information if the employers don't help them get it. so, that points it's a very hard for me to understand how people can say that the employer has no involvement in any of this when by the government's own telling it's saying, no, no, we need them to give us this information because if they don't give us this information, we can then use the-- their plan to provide the coverage we want to provide. you can still have a debate about whether that is the least restrictive means of doing all of this, but i don't really see how you can have a debate at that point about whether there is a substantial burden on religion because there are compelling people to do something they consider to be facilitating sin and you're telling them if they don't do it they have to pay millions of dollars in penalties.
with that said, every court below has gone the other way and has managed to resolve the substantial burden analysis turned a measure the government will fare nearly as well before the supreme court on that piece of the case, but we shall see. >> for what it's worth, aaron, i'm agreeing with you guys to the extent that the requirement to provide information to the government the government will be able to show that that's not a substantial burden. i just don't think the case will really turn on that. >> the government says differently in its own brief. >> anyone else? so, i will turn then to the press questions. >> microphone. >> with atmospheric on kim davis affect the justices thoughts on this? >> i think the broad issues, the kim davis is raising as some of
you may know, the claim under the kentucky state ariffa and her cases obviously different because she's a public official, but yes, the general-- everyone knows that as we move towards more controversial, social norms that had not been accepted in the context of both same-sex marriage and contraception that there will be religious objections from some folks and where ariffa is available they will seek exemptions from being required to do what, in their view, makes them complicit in that allegedly sinful conduct, so i don't know that kim davis will affect the justices at all, but everyone knows this is just representative of a broader problem that will be-- that the cohorts will have to confront, but the same-sex marriage context as well as things like contraception. >> anyone else?
>> how big a deal as the outcome of this case if there is a finding that is a substantial burden that is the least restrictive means? the second question is, just assuming for a second that the justices may not be as eager, as you think to take on this case, what are the prospects awaiting for the the governments brief out of the eighth circuit, which would have the effect possibly a pushing the case back a term? >> to answer your first question, if the government wins , loses substantial burden, but wins on the compelling interest, that's a huge win for the government. >> on the second question, i mean, my expectation is that when the government files its reply briefs in in the 10th circuit cases they will tell the court that they either plan to file a petition in the eighth circuit case or they don't and
to kind up till the court what they think it takes sense to do in light of the, kind of that development. it's hard to see the court deciding the right thing to do is to deny all these petitions that will leave religious employers who lost in the position of actually having to go comply with the accommodations if the court intends to later take up the question, so it seems to me that even if they wanted to give the government an opportunity to have its own petition, which there's no need for them to do that, they would hold on to the petition and deal with it all at once rather than deny cases in which the religious employers lost when there's a decent chance of a majority of the court will think those came out the runway:
they will either say we think the case remains the best case to take not that there's a split, you should take it. or if they have some reason for thinking the eighth circuit case is a better vehicle, off the top of my head it's not sure that would be a better vehicle. >> if there's a petition to get
to file a reply brief which is something the court doesn't care about the something the government might care about. >> you don't care about it? [laughter] >> i will go out on a limb and say the government not filed a brief more saying the circuit case so we can get a reply. >> i didn't think they would say that. any other questions? if not then we will turn to the last of the big five. the court has not heard an abortion case since 2007, and since then a number of states have sort of tested the limits of their authority to regulate or restrict abortions. some of those have been struck dumb by lower courts, others have been upheld and so for the supreme court has stayed out of it. this year it seems likely to be the court will return to the subject of abortion in this case. this case involves two
requirements that are imposed on abortion providers. admitting privileges requirement provides that if a physician who performs an abortion has to admitting privileges at the hospital that is within 30 miles of with the abortion is performed. the ambulatory surgical center requirements provide that abortion providers must comply with certain minimum physical plant requirements that apply to all ambulatory almost ambulatory surgical centers. it's claimed a two requirements together would result in the closing of 70% of the abortion facilities in texas, leaving approximately 10 that are concentrated in the urban centers in dallas, houston and san antonio. the closures would result from the fact that some of the facilities have doctors who can't gain admitting privileges to nearby hospitals for reasons that have nothing to do with
their qualifications as doctors. and from the fact that it would be prohibitively expensive for many of the facilities to reconstruct their centers to comply with the physical plant require but. so a group of abortion providers have challenged these requirements under the undue burden test that was set forth in the decision to reaffirmed trying to live in the village need requirements advance the state interest in the health of women seeking an abortion and that both create serious obstacles to obtain an abortion, particularly for women in the southern and western parts of the state's who would have long travel distances to the nearest abortion facility, should their newest ones be closed. the district court invalidate
the requirements by the court of appeals or the fifth circuit reversed except with respect to one facility. that court read casey and subsequent cases to establish two requirements for analyzing abortion restrictions. first, does the challenge requires satisfied the most lenient form of rational basis review, which is can you conceived in a state of facts possible that would justify the restriction. and second, does the requirement substantially burden a woman's access to abortion? the court rejected the approach of the seventh circuit and opinion offered by judge posner who sent abortion related statutes ought to be justified on medical grounds not only need evidence that the medical grounds are legitimate, but also that the strength of the governments interest outweighs
that of the burden. so under that approach given a very slight burden on abortion access would be undue if the justification for the restriction was weak. at applying that approach to the seventh circuit invalidated are actually preliminarily enjoined admitting privileges requirement. now, the fifth circuit apply the first, the two-part test, found that there was a rational basis for each requirement. ephod that continuity of care with a rational reason to require admitting privileges in those cases in which complications necessitate emergency treatment. and thought the building standards were ones that were generally rational in light of upgrading care. the court held that neither requirement opposed and undue
burden. on travel distances the court thought up to 150 miles in travel times up three hours do not impose an undue burden. they got that from reading between the lines of casey's holding up a 24 hour waiting period did not impose an undue burden in the face of district court findings that there could be travel distances or travel times of from one to three hours as a result of that requirement. it further found that while travel distances any times that are greater than 150 miles and three hours could pose an undue burden of the plaintiffs had not shown that in of women faced the burden to patiently invalidate the requirements across the board. it focus on to abortion facilities, one in the rio grande area, and struck the application of the requirements as applied to that area. because the closing of the
facility would result in women having to travel 235 miles. as to a second facility in the el paso area, then there's texas facility was 550 miles away, but it concluded there was no undue burden because women in that area could go to a facility in santa teresa, new mexico, only 12 miles away. the court distinguished its own holding, the fifth circuit did in a case called jackson women's health organization what they said mississippi could offload its obligation to provide abortion facilities to another state. but it distinguished back case on the ground that the travel distances were greater to the second estate, and because probably most importantly alpaugh so and santa teresa are part of the same metropolitan
area. but a fight for vote, the supreme court states the fifth circuit's mandate which the effect of that is typically -- fifo -- the physical plant requirements across the board throughout the state. and to preclude the enforcement of the admitting purchase requirements to el paso and to the rio grande area. it seems likely that the court will grant certiorari in this case. to vote tuesday enforcement is an indication that five justices you a sort of grant as reasonably likely. there's also a seeming conflict and the circus between the approach articulated by the fifth circuit and that of the seventh circuit. i don't think a certain grant is 100% sure thing because there are procedural complications arising from a race -- that could conceivably stand i in the way. i doubt that they will. but there's also, there's the opposition to sort file and what
looks like a clear candidate when you only see the top side breeze. sometimes considerations that are brought to bear when the opposition is filed that could alert the court that thinks it did know about before and cause it not to take the case, but all things considered i think it's a safe bet that the court is going to take this case based on the fight for statement -- five for statement or assuming remanded system in another case where justice can will likely be the key vote in terms of publicizing how he comes out, i don't think his boats and other abortion cases really tell us all that. he voted to uphold the physicians only requirement for performing abortions but it seems like the kind of commonsense requirement and one that is very, very unlikely to impose any kind of burden on women seeking abortion.
and he had voted most weekly to uphold prohibition on partial-birth abortions at all for the decisions that involve a particularly gruesome procedure that was performed in the third trimester, into we have something i think altogether different from that. based on his general jurisprudence i think that he is prepared to give a fair measure of discretion to states in adopting rules and regulations that promote the health of women seeking abortions. i don't think though that he will be prepared to apply the kind of brand of rational basis review applied by the fifth circuit under which any conceivable state of facts could support, if any conceivable state of facts could support the restriction and the restriction should be upheld. and i particularly think that he
will not be prepared to do that in situations in which there are signs that the reason for this may not be, or maybe to really close down abortion facilities rather than to promote women's health. justice posner pointed out in his opinion that that requirement was not applied to procedures that pose greater risks than abortions. and the petitioners have pointed out in this case that there are grandfathering and waiver provisions available to other surgical centers if they can show the compliance with building requirements is not necessary to promote women's health. i don't think that's the end of the case for him but i do think it raises sufficient red flag for him to want to see exactly what evidence supports each of
these restrictions. and so that part of it i don't think he would agree with the fifth circuit, but where that leaves us i'm not sure. i don't think you will agree that stake in offload its constitutional responsibility to some of the state. maybe that's a pejorative way of putting it. the way the fifth circuit would put it is i think ther there's o undue burden if i can go to a facility across state lines and get the abortion that they need. will so i'm not and have never been the best reader of justice kennedy, and maybe others on the panel -- maybe others on the panel are. i'm not prepared to venture an opinion yet. so anybody else have thoughts on this particular one? any questions from the press?
okay. well, we're giving you the and but for those of you would like to stick around a little longer wield a couple other cases, at least maybe to and see who stays and who doesn't. this is the second and i was hoping to get to the to big business cases of the term, and so let's see if we can do that. you have tyson foods which i think judging by the amicus support is probably due to the biggest business cases this term. >> sure. of the tyson foods case certainly looks to be kind of the latest in the roberts court continued efforts to rein in what i think majority of this court is as abuses of the class action device. the case involves what the wal-mart opinion qaeda pejoratively labeled trilobite formula, which is the concept of basically using a simple set of plaintiffs or kind of taking
statistics to arrive at a composite plaintiff and then essentially litigating the case as if every class member were that plaintiff, even in a context where it's really indisputable that not every class member actually shares those characteristics of that plaintiff. now, i don't think anybody likes the idea of defending the notion of yes, probably form as a great idea so there will be a fair amount of fighting whether that's a fair way of characterizing what happened but that's essentially the issue that the court is principally dealing with. in this case, rises in the context we've all gotten to know and love recently which is the dawning and offing doctrine. this case involves a tyson foods meat processing factory where people off protective equipment to work on the slaughtering floor and the processing floor and employees all get paidand
get compensated for two sets of time. once at a time for winter after station and this underlines are running and then on top of it they get this extra time that is called kate time which is supposed to be approximate in tysons view the amount of compensable time that is spent doffing protective gear so this has ranged from a four to eight minutes in different scenarios and the classes assertion here is that they are actually spending much more time, employers will spend much more time donning and doffing and, therefore, working uncompensated overtime in violation of state law. now, the complication with all of those and was proceeding as it action is that there's really no question that the employees, all the class members in greater amounts of time daunting and doffing protective gear because they don't all have the same
job. so some of the jobs don't require as much protected you as others come even as to some that have the same job, some of the gear is not required but employees choose to wear tear that's optional. so there's all of these are differences that are indisputable that demonstrate that there is no kind of exact number that you can attribute to what time is actually being spent donning and doffing. and that you the additional copying from of nobody has been keeping track of how much time anybody spends donning and doffing, probably because there was this time becomes is what implores you they are compensating and employs about they didn't think indeed be keeping track of time. so you have no evidence to demonstrate what the amount of time is ketchup class wants to loolick it on behalf of all the employees who may be spending different amounts of time.
how much time is being spent matters a great deal because this isn't a case where there's no conversation going on for donning and doffing. a lot of that going on. and it is also dispute that when you get into overtime. it matters a great deal exactly how much time each individual is spending. now, the class said we've got a great way to solve this problem, we're going to have an expert observe 744 and employs and then drop average summit and proceed as if every class member spends the average amount of time donning and doffing, even if that's not actually what they spin. there's an obvious lurching problem, still not working with that which is made clear when you get to drop in the class representatives are providing testimony but even they spent less time than the average is better being attributed to it and is plenty of evidence to demonstrate that essie mae of these class members, for various
different reasons they clearly don't have any claim at all that they're working uncompensated overtime. but the eighth circuit said it's fine because there's this supreme court case that deals with the specific question of compensable time in the context of the records of how much time was spent would be compensable and suggest that if you don't have records you are not the kind of use averages to figure out how to determine how much compensable time there is. tysons has objected to the right from the get-go and always said look, the real problem here, what all of this is illustrating is there never was a class with a common issue. because individualized issues predominate as every individual matters how much time they are donning and doffing and is not going to be a common answer to
that question and we can't kind of publicize one by taking some average that is not actually true as to these employers and get around the basic problem that this is a class in which individualized issues predominate over common ones that therefore a class should not be certified at all in the first place. given what we've seen from the roberts court in the area of class action jurisprudence over the past decade i would be very surprised if they took this case because they want the world to know that they think what was done is the model of class actions are supposed to operate. it's a little bit of an unusual case to take it even were taking it to resolve a circuit split or something like that, because it involves the issues that are all of the distinct to the context
and employment issues. for my strong suspicion is they have taken this case to deal with a little bit more of their broader project file by formula is not something we're going to sanction and when we say, issues we really mean common issues, not common issues that are manufactured by things like come up with a composite plaintiff to kind of paper over the problem that the class members are all really and very differently situated. i think it is, go back to something was said at the beginning of those cases where the real interest will be looking to see how broadly the court seeks in resolving this case and if they really tried tuesday to pick up and run with a discussion in the wal-mart decision from a few terms ago about what it is that makes issues come in and things will have a pretty lasting impact in
the class action context in general, or if they would keep it narrower to just the question of what else you can do, you can have these trial by formula ideas where you kind of use a subset the plan is which is what was going on in wal-mart, or here, a hypothetical planet that's not even reflective of any actual class member to litigate the case when, in fact, you have less numbers that have a lot of different numbers amongst them. >> spoke yo mike tyson is being argued in november. a little earlier. it involves a broad and important question in article iii standing at sort of has bedeviled the clerk for several decades and seems to, seem to be in before the corporate it was before the court several terms ago and the court into dismissing the case was improperly granted the edwards
versus first american that has been argued or early in the term and then on the last of the term the court decided not to decide a. the opinion was a sign for justice thomas f. would've reason the court was unable to settle on the revolution of it. it raises the following question, when can congress create substantive rights individuals and allow those individuals to go into federal court to complaint about violation of the substantive rights. to approximate the dawn of time both common with courts and legislatures have often create substantive rights for individuals. that is to say that required some other actor, governmental actor or another private actor to act in a particular way or not act in a particular way with respect to individuals either requires them to give information to prohibiting them from disclosing information about you, giving you certain prophecies within the government whatever it might be, very,
very, and. for instance, just to give a very smug example, if someone just posted on july the a right to exclude them and going to go to complaint about and to get damages for the violation of the trust without showing any further injury is sufficient they just show that the person violated the rule that was laid down that prohibited them from doing whatever it is they are alleged to have done an popular you get damages just for the violation of the copyright without showing damage to any of the way the college of any physical harm or economic harm or the like. so there's quite a number of common law doctrines that allow for people to sue, to complain about the violation of, the substantive rights, and also statutory rights. so under the fair credit reporting act congress required that consumer reporting agencies
which are defined as entities that for a monetary fee or a cooperative basis engage in the process of assembling information about us and it is selling it to others for pointing it out online. this has become a very big business. but they have to take certain statutory steps before they can disseminate information about you or the required to give certain notice. there's a bunch of different statutory rules that were imposed on entities that share information about other individuals, and the primary statutory requirement an issue in this case is one that requires the consumer reporting agency to follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom information report relates. so it's a requirement that they take reasonable steps to ensure the accuracy of what they say about you to others, and the government consider this to only be triggered when actually
disseminate the information about the report. this case involves a claim against spokeo.com, one of the major organizations engaged in this kind of activity. they have tons of information about all of this on by and for these two theories folk come and allegation in this case is that the information they published that do not only violated the statutory rule, but had to take reasonable steps to ensure accuracy, but their violation caused them to publish inaccurate information about the plaintiff in this case, mr. robbins. information they published and sent to the inaccurate involved his age, wealth, employment, education and marital status. in virtual although this context they published information that was enacted that would appear to be to his benefit. they allege he was more well educated and well employed and wealthier and younger than he
actually is. and so in some sense spokeo's claim is hey, we did you a favor, it may be inaccurate but on your own allegations you were not detained by. it didn't reveal any artifacts that you do anybody to know and, therefore, come and more important you are not required either sought to demonstrate that this inaccurate publication called you any additional harm. the statute provides that if we didn't follow recent steps, we are liable between 100-$1000 for each instance in which we do that. is seeking class certification so that could add up to a lot of money. and the complaint is you ought to be able, if it were to get into federal court, you ought to be required to show not only that we violated his statutory right to congress conferred upon you but that it cost you what the supreme court has ascribed as injury in fact.
so what does injury in fact mean the phrase was developed in the 1970s by the court to expand the concept of article iii. at the outset the court said even if you have not suffered an injury i virtue of a legal right that has been violate computer has been violate computing sure you are actually injured by someone's conduct, thank you she standing in going to court. more recent decades, however, the majority of the court has suggested injury in fact is not a floor. it's not something they teach into corba something that keeps you out of the kitchen injury in fact. some of the justices have suggested that in addition to showing violation communication of injury in fact without ever quite figured out what that means. but suggesting it doesn't simply mean violation of their statutory right by congress conferred upon you, suggest the official something more
elemental, of the platonic ideal of injury or something like that, physical harm or economic harm would be the obvious cases but it also includes at least being discriminated against. that would be an injury in fact were not receiving information that the statute entitles you to receive from the government. they claim there is no injury in fact, that the new publication of false information without having allegedly without having gone through the requisite procedures creates, we violated your statutory rights but it didn't harm you or at the very least you have to show it harms you in order to recover damages. that's the basic issue. sort of added, was teed up in his or her case, chief justice during the oral argument suggested that these statutory
rights, he said that's not injury in fact the injury outlaw. at the law establishing an injury on your behalf by creating the substantive rights. i thought that distinguished these, i'm paraphrasing, from injury in fact. that's something an injury that precedes the law, i guess, or that's the suggestion. so the implications of this are quite direct because there's a bunch of statues not to mention common law, doctrines that establish rights on your behalf and that allow you to sue for violations of those rights without showing any more injury. if there were five justices who would say you need to show some sort of additional injury they could have a pretty dramatic impact on the ability of legislatures including the national legislature to address these rights. >> just one extra comment about this as the interplay between this case and class actions which i think marty alluded to. often it's very easy to establish a common history --
issue if you should show that a defendant had an established procedure that was violating a statute. that would be a common question but if you have to show additional injury, then it's very quickly going to turn into an individualized issues predominating. and so i think this is why we see most of the business are very interested in this case, is because of the interplay between the injury in fact requirement and the ability to establish the common issues to dominate in a case but it's not always the case. there is not a 100% or omission between the two because it's not clear to me that on plaintiffs of three of the case then look at the cape certified because they are focusing on whether there's false information. >> i have to say that they may or may not get class
certification but if they just have to show, for example, that they failed to follow reasonable procedures which looks like that's all the statute requires, then you obviously would have a statutory violation that would be common to everybody who's name was then in the pool of people who -- and this is true of some of the statute that where it's very easy to show a common question if all you have to show is a violation of the statutory prohibition. but if you have to show additional harm, there will be individual issues that overwhelming, class and, therefore, conclude class certification. >> irv is right that both appointed and the us government in this case have urged the court to invite its holding to cases alleging publication of false information. they haven't sent in their briefs what would be the case or the right rule if the claim more as a trend which is described
publication of two average with a code to a fault recent steps to ensure its accuracy, which would be broader but seems to be covered by the statute but perhaps not this case to just one other point. the purpose behind the statute by this of course is the legislatures understanding that usually most of the time if this statutory requirement is not followed it will involve comfortable result in some of the kind of injury that we all care about individuals. so most of the time when false information is published about us they will cause injury. the government, that's true even in many cases where the information seems to be to your benefit because employers will when they find out that the information is not true, doesn't comport with what you on your resume, they will just say i'm not even going to consider her because who knows, maybe she's been lying to someone else. she gave someone else false information, spoke you put it online, i can't trust her.
-- spokeo. even in these cases, it might result in harm to you for congress great a prophylactic rule. basically don't publish anything without ensuring its accuracy to get at those cases that will cost some other form of harm. >> i was going to point out one general point which is from marty's presentation which i don't agree with everything he said, but it's hard to understand why anyone may want to say that you need to have an injury in fact. it helps to understand a little bit by the court cares about stan and injury in fact if you come out of an attraction which are a couple of cases where the court said congress can't just anyone in the country can sue over ethical violation. the reason they have said that is it's predominately concerned about separation of powers. they don't want courts opining of legal disputes in the abstract. they want a plaintiff who cares about the violation and not just
cares to answer for ideological reasons but just in a real-world concrete sense that it affects them personally. on one end of the pole for situations like congress passes the statute this is anytime there's an environmental violation continue in the country can sue it doesn't matter if they're near the environmental violation come, dt matter if you've ever seen it the court said no standing. spent all the parties agree that would not be standing to congress great a statute that said you have a right to make sure that no this anything inaccurate about hash that without assembly provided with the cause of action. >> and on the other side of the post you have -- unit easy cases were standing where it's a concrete integer specific person that impose a real tangible corporate this is a between. you've got a legal violation that is in some sense personalized in that it violates that i forget the guy syndrome the individual, robbins,
information about him, not information but some other person was a -- on the other hand, if he can't identify some sort of concrete harm that's personal to him, then in a sense it sort of is relevant it happens a personal injury gym, he is no better. so that's sort of what the conceptual fight is, about why people might care and may want to restrict standing separate and apart from the implications of class action. it's ensuring that the right play to bring suits over legal violations. >> i would take a little issue with the idea of that if the court decides that you need injury in fact that's going to invalidate every statute that gives people a statutory right to bring suit. many of statute because people a statutory right to bring suit does so because the circumstances under which they have that right by definition necessarily satisfy injury in
fact. that's why this doesn't come up that much because it's a narrow unusual category of statute as to which there's a dispute about whether you've been given a right that doesn't correspond to any injury in fact the when people try to raise this issue you can deal with the blessing it doesn't matter if it's statute and think you intriguingly because the statute gave you a statutory right because of an injury. >> i think the difficulty with this is in some ways analogous to the critical mass difficulty which is about how to define and injury in fact, except by reference to some legal concept. whole concept of a right is a law that has defined that when somebody does something, it causes harm that is compensable. that's the definition of a right. so justices have long said that congress has the power to create
rights which didn't afford people the ability to bring suits to enforce those rights. so it seems to me it's one thing if there's no individualized affect come which is the case with the lujan case, the environmental injury case, but you included is an individualized effect, this particular individual was, had false information distributed about him. so if you're concerned about having concrete people and not ideological plaintiffs, it does it. i think it would be hard, the court has never really been able to define what injury in fact is without reference to law. i just don't understand chief justice roberts question. >> yes? >> a lot of the breeze, amicus briefs indicates the case go to the underlying lawsuit about
terms of private and so forth and other laws might be computer i just wondered if the justices could wonder, if they might be, their car may be followed with a gps device, with n.a.b. wonder in this case if there's false information about them? >> seems unlikely especially because it would have to be false information about them that seemingly beneficial for them. and then they would still want to sue for some reason. besides getting statutory damages. doesn't seem like the sort of case where personal things would be likely. >> and other questions? so if there's any other questions on any other case, we will take them now, and if not we will end the session to any other -- yes.
>> in addition to contraception and abortion, do you see any possibility this term waiting another term for any of the others including immigration out of the fifth circuit quacks immigration or voting rights out of north carolina or texas or any of the other states, any other wild-card? >> so to some extent i it depens on when those cases you decided them how quickly did you decide. if they could quickly have they could be lined up for this turn your that would include immigration which arguments have been heard. it's a waiting decision by the fifth circuit. the d.c. circuit just decided a gun case, and so that is potentially, if the d.c. decides to go forward, that could potentially get to the court. >> texas voter id might be in time. >> they have already ruled on, right comes to depends on
whether -- did the state petition? >> i can't imagine they won't petition. spent it was kind of a narrow win for the plaintiffs but still in all, so i wouldn't be shocked if they didn't petition because it seemed like a pretty easy fix but maybe they will petition anyway. so that, definitely petition to be time to get to that case. >> in addition to hash from the state of texas -- [inaudible] >> any other questions? other cases? okay, think you very much for coming. [inaudible conversations]
[inaudible conversations] >> all persons having business before the honorable the supreme court of the united states draw near and give their attention. >> number 759, petitioner versus arizona. >> number 18, roe v. wade. >> marbury v. madison is probably the most heinous case this court ever decided. >> dread herriot exists at his laypeople existed here on land where slavery wasn't legally recognized in putting into effect would take presidential orders, and the presence of the federal troops and marshals, and the courage of children.
>> we wanted to pick cases that change the direction and import of the court to side and also changed society. >> so she told them that they would have to have a search warrant, and she demanded to see the paper and to read it, see what it was. which they refused to do so she grabbed it out of his hand to look at the, and thereafter the police officer handcuffed her spirit i can't imagine a better way to bring constitution to life and by telling the human stories behind great supreme court cases. >> red korematsu boldly imposed forced internment of japanese-americans during world war ii. after being convicted for failing to report for relocation, mr. korematsu accuses case all the way to the
supreme court spirit quite often in many of our most famous decisions are ones that the court talk that were quite unpopular. >> if you had to pick one freedom that was the most essential to the functioning of the democracy it has to be freedom of speech. >> let's go through a few cases that illustrate very dramatically and visually what it means to live in a society of 310 million different people who helped stick together because they believe in a rule of law. >> landmark cases, an exploration of 12 historic supreme court decisions, and the human stories behind them, a new series on c-span produced in cooperation with the national constitution center, debuting monday october 5 at 9 p.m. and as a companion to our new series, landmark cases, the