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tv   Washington This Week  CSPAN  June 29, 2014 5:00pm-6:01pm EDT

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and few ellipses. two things on the table and then move on. they point in opinion zit direction. does the recess appointment power matter after the muk clear option? if you have the president in the same party as the senate majority, well then the nominees will get confirmed f. the senate is not in the same party as the president, then the nominee's going to be rejected anyway and it has been the case that presidents haven't made resez appointments for nominees rejected. that could change. so it may be that noel canning, though a principle may not have a ton of practical impact. the second is nile noel thinks and also eric thinks that the difference between the majority and the concurrence is not a big deal, i have written today i think that's wrong. and that the art of justice brey breyer's opinion on purpose or not the president can evade the restriction in the majority opinion because it depends on the idea that no senator will
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object to the existence of a quorum. we don't have to debate the her its of it. there's an open question about the consequence. okay. a professor at my law school, washington college of law and an expert in constitutional law and many other things. runs the sjd program there and an expert in issues related to race and the supreme court. we did have one really important race related case this term that's kind of gotten buried and lost in the shuffle. maybe decided earlier. but it tells us a fair amount i think about where the court is at on the questions and relates to other cases that you can discuss, i'm sure. the schutte case, the voters of michigan announced they were going to change the constitution to forbid affirmative action, including particularly race-based affirmative in higher education and some other things and had the consequence of
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overruling a prior question saying the michigan law school could take race into account for admissions. and so, the court was presented with a question of whether the state's voters could essentially ban affirmative action in that fashion. >> uh-huh. and so, you're exactly right that this is sort of following up from the opinion 11 years ago, the gruder decision up holding the constitutional of race conscious admissions at the university of michigan. what's important to keep in mind is that it is technically not an opinion that's about affirmative action in education across the board. so, it does nothing to alter the constitutionality across the board of those kinds of policies so it hasn't changed the holding of the gruder decision 11 years ago. it said that under the equal protection clause colleges and universities could create narrowly tailored race relations programs and also the probably opinion that got maybe more publicity last year, fischer versus university of texas
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because it was decided at the very end of the term. that was looking at the constitutionality of the university of texas's admissions policy which included a race conscious component. this is an opinion and a case that's really more about an issue that relates to civic participation. so it's about access to self government and this particular proposal, proposal 2, in the state of michigan, is a voter initiative that does have the effect of eliminating the affirmative action program at the university of michigan. this is a 6-2 decision. just kagan recused herself. you could look at it in a variety of different ways. the types of initiatives, one of the big questions and something that was actually very eloquently discussed in justice sotomayor's lengthy dissenting opinion is what it means to ensure meaningful political participation and whether it means that one need only remove
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formal barriers to participation or whether it includes a responsibility to vigilantly police the political process to ensure that all minority groups have equal access to participate. on the ground, proposal 2, a ballot initiative and a constitutional amendment like the one in michigan effectively means there's a higher burden placed for those to advocate for having a race-conscious admissions policy so if one in favor of race being one of a number of factors that are considered in admissions policies, one would need to basically overturn a state constitutional amendment to do so. very, very high burden. if, however, you are a major donor to a university and you want to give a thumb on the scale to your kids, an alum, if you're an athletic officer and want to spend time promoting star student athletes to go to public universities in the state of michigan you could continue
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to do so. other forms of affirmative action still stand. the one removed and singled out is consideration of race. and i think what one can think about with respect to what that means long term, again, it does not touches the merits, the constitutionality of race conscious admissions policies across the country but raised to the national level, a spotlight on this and because those who advocated for this type of ballot initiative in michigan were successful, i think that it does signal and can signal to voters across the country if there are others and other states and there have been who would like to push for similar measures as the one in michigan, the supreme court decision has given them really sort of more fuel to their fire to be able to do so. so i think that's one of the long term consequences of something like this. another thing to keep in mind is that there have been instances in which the supreme court in
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decades past has examined similar types of ballot initiatives that would single out particular minority groups to make civic participation in certain areas more difficult and in those instances the supreme court has struck those down so there are ones relating to, for instance, in seattle and 1970s around bussing. in the city of akron. one that's a very common one that all of -- almost all constitutional law professors teach rumors versus evans with an amendment to the colorado constitution that had singled out gays and lesbians and said that under the colorado constitution, no state jurisdiction could create any policy that would protect gays and lesbians from discrimination and the supreme court held that you cannot single out a particular group based on animus and make it more difficult for them to participate in the political process so there were some who believed this was very much akin to that kind of reasoning and therefore should
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be struck down. it was struck down at the lower court but the supreme court reversed that. and so for those who would be in favor of the ability to continue these kinds of programs in a state like michigan, there have been those who look to justice sotomayor's opinion as very interesting in terms of having a voice, a minority voice. well, no pun intended both a racial minority on the court but also obvious lay dissenting opinion opposed to a majority that spoke very frankly and passionately about the role of race in the united states and the important role that the supreme court plays in needing to take account of it. so she actually referenced chief justice robert's opinion in a voluntary integration race case with elementary and secondary schools came out seven years where he said that the way to essentially end race discrimination in america was to stop talking about race and sotomayor said the way to
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address racial discrimination in america is to speak openly and candidly about the role of race, about continued barriers to opportunity so that we can move forward. >> slight tweak on what the chief justice said. i think he said end racial discrimination by the end of stop discriminating not stopping to talk about race. i think. i don't think he ever suggested we don't need to talk about the issue. >> i would actually beg to differ with that piece of it. i think you're right -- i apologize. he said to end discrimination and wrapped up in that is a desire to stop talking about race. >> maybe. but on that case in particular, though, i kind of go back to -- i think the 9th circuit addressed this issue or similar issue 20 years ago and one of the lines that always stuck with me from that opinion was the constitution does not require what it barely permits. we have had a very heated debate over whether racial considerations can be taken into account and to -- i apologize for this.
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>> very relaxing. no problem. >> we have had a very -- >> roberts court. >> i thought i turned this off. but i guess i didn't. we have had a very heated debate in this country over whether race can be taken into account in school admissions and other areas and the supreme court has resolved it narrowly but it's a whole huge knnother step to say you're required to take the factors into account. that to me at least is an extraordinary proposition and why i think you saw that decision not being one of these strict 5-4 decisions but even justice breyer coming across to acknowledge that basic principle that -- at that level. once you get to the level to take into account rather than whether you can take into account, that is really a decision that should be left to the political process. >> well, can i just clarify one
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point there. you said whether they should be required to take race into account and that's not what the opinion is about, not what the case is about or proposal 2. it's -- it's a proposal that eliminates the ability to do so. but it's not -- the question was never should they be required to take race into account. >> yeah. perhaps. but i actually think, though, that it really does boil down to that. can you say you're not allowed to not take into account because the political process decided it didn't want it to be taken into account. >> all right. so let's turn to religion. something less controversial. eric segall is a prolific author and expert on the court having published all over the place on major constitutional questions that the court is confronting and also working now as a co-author on path breaking book on supreme court transparency. and is going to talk about religion for us.
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the first of the religion cases, the town of greece in which the greeks, the gree shans, the folks in that town started their town council meetings with an invocation which they thought was akin to a legislative prayer. it was overwhelmingly a christian prayer based on who it is they happen to invite and there was a constitutional challenge that that was an establishment of religion. >> elizabeth said that progressives are in favor of obama's recess appointments and noel canning case and didn't lose as badly as you thought you might. people who are in favor of separation of church and state lost as badly as they could have. no greater loss we could have suffered than this case. eight years in a row prior to 1999, the town of greece, new york, started its very small town council meetings where you would go if you want a zoning variance or if you want to argue about the local cable access channel, you have to conduct your business there. this is not a big state
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legislature. this is not the congress. this is a small town council and prior to 1999, they began their meetings with what i think is an incredibly appropriate way to start the meetings, a moment of silence. prayer or not pray and reflect. for eight consecutive years and sometimes prone to hyper bole but in this situation, i'm not. eight consecutive years 100% christian prayers. no exceptions. for eight years. and two thirds of those prayers referred exples sitly to a number -- to different kinds of eli jous similar m boss and in many cases the chaplain of the month, what it was called, yes, the chaplain of the month would ask the audience to stand up or bow their heads in prayer to jesus. as a thought experiment i thought if i asked you to do that what the reaction would be
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and this is not a government meeting but in any event. the supreme court said that was not an establishment of religion, 5-4. partisan divide. justice kennedy and when i say flip flopping, on this one, he did about 17 flips. given that he is the author of two opinions that say that prayers in public school classrooms -- i'm sorry prayers at high school graduation ceremonies and prayers at high school football games are unconstitutional. i want to make just three points. first, eight years in a row of exclusively christian prayers, this is a situation where the supreme court upheld a clear preference of the government of a religion over all others. i don't think there's any other establishment clause case the supreme court has done that. there's aid ace cases and neutral statutes has a disproportionately benefit of catholic or jewish schools but
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neutral practices with disproportionate effects. for the court and even justice rehnquist, before he left us, said that the core command of the establishment clause is the government cannot treat one religion over another. and that's exactly what the town of greece, new york, did. so that that's very significant i think in terms of doctrine. even more importantly, whether you look at justice kennedy's opinion for justice roberts and aly to or aly to's supreme court opinion or scalia and thomas, all of them read the establishment clause out of the constitution when it comes to legislative prayer cases and even more scary other cases, as well, because, excuse me, justice kennedy gave examples of when legislative prayer pry investigates the establishment clause and almost all of them would violate the free exercise clause. there's -- we'll get back to this with the hobby lobby case but there's the establishment clause, the free exercise
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clause. one says the government can't reward religion too much. that's the establishment clause. one says the government cannot coerce or penalize religion. that's the free exercise clause. i think the balance is we want religious liberty and not religious supremacy. well, in this case, everything justice kennedy, bringing a new case challenging legislative prayer, then you have to in effect make out a free exercise clause violation, a coercive. kennedy said if the government took action against you because you refused to pray, that would be an establishment clause violation. well no. that's a free exercise clause violation. i think doctrinally if this case extends to other cases the establishment clause is in deep trouble which is consistent with scalia and thomas' longstanding quest to end establishment clause cases altogether through the standing doctrine which they have tried to do and not justice
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kennedy's quest and even more ironic because in the last paragraph 069 opinion justice kennedy says children -- that kids had to go to this greece town council part of high school civics programs and kids were in the room here when this was happening. last point, i have one more minute? last point is this. we have a solution talking about affirmative action, abortion, i have opinions but they're hard questions and i don't know the answers. i have opinions. i have an answer for this. same answer for high school graduation ceremonies, football games and classrooms. have a moment of silence. i've been in football stadiums and baseball staid yums of 60,000 people after a national tragedy and a moment of silence is a really powerful thing and it works. and it brings all the good things about prayer into the room but none of the controversial things. so if you want a prayer over a moment of silence, you are saying you want to inject religion into the government and i think that's what the
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establishment clause forbids. >> you know, i guess my take on that case is, i do agree that from your perspective it's a pretty resounding loss but what i call it is the triumph of originalism but good for this ride only. what you see is justice kennedy's opinion taking an originalist approach, and there i would argue that it's different from cannon because you have an unbroken understanding of the application of the establishment clause dating back to the time of the founding and after that these types of prayers were permissible, but on the other hand, the way that the court approached it was that it was -- its holding solely based on legislative prayer and the fact there was with respect to this one type of practice a long and unbroken chain of history. so, yes. while it is a resounding loss for your side, i don't read too much into it.
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i don't look at it as a case where the principles are going to be translatable to other cases. from my perspective, were that it was so. >> but that rational upheld segregation and discrimination against women. we had segregation and discrimination forever and just looking about history, those two practices would have been upheld and none of us want them upheld. >> looking at how justice kennedy approaches the hot button issue, he often adopts a measure of reasoning and that is easily distinguishable in the next one and i think that's the same kind of approach you saw him take in this case. >> we have one clue about whether or not there'll be a doctrinal leak outside to other establishment clause questions when the court was asked to consider right on the heels of this case another school case where it was a graduation ceremony held in a church and just the court declined both to
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take up the case and also to have the case which had struck down the practice reconsidered by the court of appeals and the justice scalia said i thought we una bunch of establishment clause jurisprudence which i was so excited about five days ago and so it was some suggestion that it isn't going to be a revolution. paul smith runs the supreme court appellate practice at jenner and black and doing supreme court cases as an acknowledged leading advocate in a number offields, first amendment we'll talk about today, voting rights, also gay rights issues. we're going to as i said there are a couple of important first amendment cases. the mccullen abortion protesters cases where massachusetts passed a law that created a 35-foot buffer zone in front of abortion clinics and there was a constitutional challenge and a real question about the fate of an older precedent which had
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upheld a floating buffer zone in front of abortion clinics. >> right. this is a really interesting outcome because the court unanimously held that the buffer zone was unconstitutional. going into this case after the argument i think no one would have predicted a unanimous ruling one way or the other. hill versus colorado that allowed a floating buffer so you couldn't approach somebody without their consent more than six feet was extremely controversial on the conservative side of the court and justice scalia continues to find it so. the dissent in the case yesterday says we continue to have an entirely different dpirs amendment applicable to abortion rights issues than anywhere else and i think there was a real scenario under which hill versus colorado would have been thrown out and the whole world of how you regulate access to abortion clinics and protect people from harassment and from overcrowding and the kinds of problems that arise in front of the clinics could have been drastically changed but instead what you see
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is a 6-3 and unanimous and there's a majority opinion in which the chief justice gets six justices to write an extremely narrow opinion throwing out the law. what's that? [ inaudible ] alito? thomas and scalia, right? and kennedy. there's the majority opinion? which the liberals joined with the chief justice and goes out of his way to say there is no content-based law here. strict scrutiny doesn't apply. strong argument to any law to the abortion clinic is content based by the nature and any law to allow clinic employees to enter this zone that was -- this safe zone around the front of the clinic while not allowing other people to go there was content based because they could come out, accompany people into
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the clinic and say you're going to be fine. this is a good place to be. whereas the individuals challenging it couldn't do what they wanted to do and just to be clear, they didn't want to scream at people. what they wanted to do is approach people politely, engage in quiet conversation and say there are alternatives. i'd be happy to talk to you about them. the entire court was willing to say that kind of conduct on a city sidewalk is protected by the first amendment and we are not going to allow the city to fence off a large chunk of real estate on a sidewalk of people being able to walk up to people, engage them in conversation. the floating buffer zone still exists. can exist. still the constitution. but this larger fencing off of this large area is no longer permissible and i think it's an interesting situation to see -- to wonder how this came about, you know, i think that you could easily as i said have found a decision and the usual
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ideological breakdown and instead clearly an effort made here to bring the court together. it is quite a remarkable difference than what we have seen in recent years with the court on these kind of hot button issues. >> thanks. >> you could call it what justice scalia called it in the concurring opinion which is an apparent and specious unanimity and were really strong words to come from especially someone concurring in the judgment in that decision. so i think it sort of fits into this theme that we are seeing with some of these cases where there is an apparent unanimity. i would leave out the specious. i'm not justice scalia with the high rhetoric but, you know, sort of masks the heat i think of the divisions in some ways in that case is an example of it. >> interesting case that sort of fits this discussion we had before about libertarian and lots of liberals on both sides of this issue and people that the aclu, a tough time with this issue and so i mean this is not an issue, an area in which the
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natural breakdown occurs. if you have a libertarian instinct on the left or right you may very well agree with the court. >> paul, i was uncertain how narrow the majority's reasoning was looking at the narrow tailoring reasoning because that reasoning could apply equally to did floating bubbles. if the primary purpose is to, for example, ensure access -- >> right. >> what the court said was that you can ensure access more narrowly prohibiting obstruction. >> right. but it's important to maintain the idea of laws applicable only in the abortion clinic setting. that by itself according to the conservative members of the court would have invalidated any law with strict scrutiny and the problem of the state allowed to address in a less restrictive way is important thing to maintain. exactly how it will play out in terms of what options are available, the majority suggests some, the -- it is true to make
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an argument that hill is implicitly overruled. i believe that justice scalia said that. that may or may not play out that way and much more maneuver for people trying to solve the problem to avoid harassment and get into the clinics than one might have imagined would be true looking back a few months. >> judge posner late yesterday i think posted an article in slate i hope everybody reads because he characterizes the majority opinion and whether -- the legal question is hard but the majority opinions discussion of what women are faced when they go to planned harnthood clinics to xexercise right to choice, mild persuasion. they said it's signs of a baby killer and i would just recommend judge posner's slate article on this topic. >> one interesting argument of whether these opinions mask real problems under the surface to
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eventually emerge is that the majority opinion doesn't even say anything about what happens to the old hill precedent that was potentially on the chopping block. we won't talk about it! come ask us later. >> clearly strong efforts to bring everybody on the opinion and might not otherwise have been there. >> elizabeth, let's -- we're going to need to kind of do the remaining cases in relatively efficient form. but an incredibly important nonetheless campaign finance decision. mcculturen, following on a lot of attention of jurisprudence about the constitutionality of the agree gait contribution limits, not $2,000 to give in a particular election cycle but the amount to all the federal candidates in total. >> yeah. so i think we can deal with that very quickly taking eric's suggestion for a moment of silence for reform in general. while it's ka case about the contribution limits, it seems that the roberts court has yet to meet a campaign finance
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regulation that it actually likes. and one of the ways that i think the case is important in general for campaign finance regulation is the way that the court in my opinion redefined the government's interest in preventing corruption in our democratic system through campaign finance regulation and in cases back to buckley versus vallajo we saw the government's interest described preventing actual corruption, a quid pro quo bribery as well as the appearance of corruption so sort of a -- any sort of influence that money and politics might have, that undermine the public's faith in the integrity of our democratic system. and so, what i see the majority doing in the mccutchen ruling is taking out the second part of preventing corruption and really just limiting the government to campaign finance regulations that can be directly tied to the
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prevention of actual quid pro quo protection of money and politics. i think it's wrong and goes against the understanding of corruption dating back to the founders' understanding of what the government would have an interest in legislating when it comes to preserving the integrity of our democratic system. i think that justice breyer in his dissent did a good job of raising that. i think that if you read the brief i filed on behalf of lawrence lezig, he is's done great research showing what the founders understood corruption to mean. i think the implication is what does this mean for other campaign finance regulations? does it mean the end of sort of any limits on soft money? what does it mean for state campaign finance rules? could it eventually lead to striking down those most basic direct limits on giving money to candidates? you know? i think that all of those are fairly open questions at this
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point. you know, i think finally, one point that i think is relevant to think about when we look at the court, the roberts court in general is sort of when you contrast with this with the voting rights act last term in shelby county where the court i think limited the government's interest in protecting the right to vote and for those of us who supported the robustness of the voting rights act in that case, it was disheartening to see chief justice robert's opinion start with this ode to democracy in which he sort of laid out all the ways to participate from castinging your vote in the ballot box to contributing money and sort of seeing the roberts court making it easier to give campaign cash but arguably harder for people to cast a free and fair vote at the ballot box. >> you know, i think that you're right. this is part of a long line -- not long but relatively recent line of cases by the roberts
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court. i have always thought that these are relatively simple ques. core political speech made at a single point in time most important in the midst of an election and if you can restrict core political speech at the most important time, that it is to make it is during an election and say that during these periods there are restrictions and you can only spend so much money using your voice then you really are having the federal government directly influence the political process through restrictions on free speech and the basic principle in my view has always been we're better off with more speech. let everybody scream as loud as they want at one another. spend the money as they want on that speech and let the chips fall where they may. so, i applaud what i would consider the roberts court's approach to all these campaign finance regulations. >> let me just recommend that people look at justice breyer's dissent which i think very article tick latly tries to late out the case for the other
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position, the position still maintained by four justices and may some day come back around i think with so much to recommend which is, you know, what he did is he said we're going to take this corruption appearance of corruption rational upheld and i'm not going to completely reject this other idea that's been out there for all this time and can't level the playing field. he basically brought the two arguments together and said what this is really about is maintaining democracy and a government that's responsive to the people and that in a world of billionaires spending billions not a government responsive to the people and some level there's sufficient government interest to maintain some responsiveness. >> all right. so let's make sure that we cover the two cases yet to come. but we obviously have to wait and see what the outcome will be. paul, do you want to -- paul, you argued the harris versus quinn case to frame it up for folks and the good news to expect. >> first amendment challenge to the fee charged by public employee unions against people that don't join the union and
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benefit from the collective bargaining and from the grievance procedures and started as a challenge to a specific kind of unionization which is home care workers who work individual homes and paid by medicaid to do that. the state of illinois allowed them to be unionized by majority vote. as a result they got much better benefits and training and health care than they had before and some of the people who were in that bargaining union decision agreed with being unionized and paying the agency fee and the national right to work committee brought it as a challenge and morphed into a much broader challenge to the whole aed into line of cases saying there's nothing unconstitutionally about requiring people to pay money to the union for core union services. not for other things they do and say but the services. it was in the knox case and find out on monday, tommy announced on the blog yesterday we're not going to win. we'll see if tommy knows.
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but this is one of those counting justices opinions from january exercises. i have other theories but we'll see. >> who's the -- >> justice alito who wrote the opinion in knox. >> he is not what we're counting on in the case. >> well, he could just write a kind of sarcastic majority opinion saying that he was wrong. eric, the important hobby lobby case? >> yeah. i'm going to cut right to the chase here. as everybody knows, hobby lobby's a nor-profit, privately held corporation and doesn't want to comply with the requirements in the affordable care act they provide certain types of contraception to the women through the health insurance, and this is what i want to say about it. neither the free exercise clause nor the religious freedom restoration act which is the federal law that they're suing under, this is not a constitutional case theoretically. neither one has ever been really interpreted and should not be
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interpreted to allow people to say, i'm not going to follow that law because it hurts my conscious to do so. that is not what those provisions are about. the government should not get in between you and your religious practice. going to church, wearing a yam ka using peito and the government interferes with the practices then the government should have a compelling interest, at least under rifra. it's there. i accept that. that's not this case. the owners of hobby lobby are not doing anything in their religious capacity that the government is interfering with. hobby lobby does not have prayer meetings. that's not what this is about. they don't want to comply with a valid secular law applicable to everybody because it offends their conscious. and if we live in a country where people cannot follow law because their conscious is offended, then we're going to
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have a whole lot of chaos and other than one evenly divided summary affirmance by the skort, i don't think the skort suggested. they suggested the opposite. you don't get to follow the law skouf conscious. that's what the owners of hobby lobby want to do. personally i hope they lose. one last point about this. justice kennedy and the majority said to the people in greece, new york, if you're offended by eight years of christian prayers, get over it. that's what he said. i think what we should say to the owners of hobby lobby, we're sorry you're offended but you're a part of civil society and you have to comply with this law. >> when maybe in strawson testified in favor of the religious freedom restoration act and a reason saying it's important is absence you could make doctors who were opposed to abortion perform abortions.
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doctors performing abortions are not doing that in their religious capacity. they're doing that in the capacity as doctors. so, i don't think there's any argument that the freedom restoration act protects you exercising religious things. it requires the government not to do something that the religion tells them they're not allowed to do unless it has a really, really good reason and does it in the most narrowly tailored way, subjects it to strict scrutiny. so, that's the question here. and here the owners of hobby lobby, much like many christian or catholic owners, have a religious and moral objection to doing things that in their view facilitates access to contraception. they can't provide the insurance plan. what the court always said is if somebody tells me that their religion tells them they can't do something, you know, that's -- it's not a court's
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role to second guess that decision. does the law in fact tell them to do something they're not supposed to do? here it's clearly undisputed it does and then proceed to the strict scrutiny analysis. i don't think with all due respect your description is at all accurate. it is meant to protect against precisely this thing. one final point. there's no law that puts forth the mandate. the affordable health care law says something about it. that's a health and human services regulation. that regulation like all other regulations is subordinate to the religious freedom restoration act which is a law. and the affordable health care act explicitly said nothing in the act was overriding the conscious protections that are found elsewhere in federal law. the most prominent of those protections is religious freedom restoration act so i don't think there's any argument that you're
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exempted from a law. in fact, you're following the law by applying the religious freedom restoration act. >> the text of the act is not referred to conscious. it refers to the free exercise of religion. >> no. it refers to a substantial burden. >> no, no. but first it has to -- the burden. the free exercise of religion and we have justice scalia in smith and the case in the 1890 s on polygamy and generations of cases saying you don't goat exempt yourself from generally applicable law because your conscious as opposed to your practice is affected. >> the religious freedom restoration act overruled smith. >> well, but it also says it incorporates the pre-smith law. the purpose is to bring in the pre-smith law and no supreme court case to suggest -- >> when mr. smith was hammering out tank tur rets, not giving unemployment benefits because he
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objected to hammering out tank turrets, was he exercising the religion? of course he was. that's something that the religious beliefs forbade. that's what's going on in the hobby lobby case. >> important to note is that while i have no doubt that the green family and the hahn families have that objection, the law doesn't place burdens on the people as an individual but an obligation on the corporate entity hobby lobby or con stow yeah wood to offer health plans and must provide the full range of fda contraception and the individuals don't have a claim to bring and i think that the corporate entity upon which there is actually the requirement doesn't have a claim to bring because never in the history of free exercise law has a secular for-profit commercial entity been understood to share
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the -- >> preventing unintended pregnancy is a compelling interest. >> all right. fantastic. now that we're all -- now that we all agree -- >> just so we're clear. the answer to that one is no. >> correct. let's be sure to take time for questions which we think are very important. so we'll start with folks, in case any of the folks of the press have questions and someone will bring a microphone to you. and if you'll identify yourself and then direct your questions to whomever. >> mike doyle to the panel. could you return to the smartphone search case? there was brief reference made to the potential implications for challenges to met data collection. would you walk through the challenges in light of riley will now play out? >> well, i think that, you know, first of all, riley shows that there is -- that there is a different approach that might be
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taken to electronically stored information. i think, also -- and so in that respect, i think that's important, the majority noted that in response to some debate at oral argument that protections would probably also apply to information that is stored in the cloud and not just physically on your phone. so that i think is an important aspect of the ruling. also, there was a yes, sir which you are made to sort of what people call the mosaic theory under the fourth amendment that when you aggregate information, when you have, you know, so this came up a little bit in the gps case, jones from a few years ago, that there's sort of something different about agree gaiting massive amounts of data that gives fuller picture of someone's activities and someone's life than just sort of picking out -- so, for example,
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the gps case, there's the court found there to be -- didn't find there to be. there was a difference to be sort of a detective following someone and getting the information from a couple days opposed to the sort of information that you could get if you had a gps and could get this vast amount of information. and so while it wasn't obviously expressly decided in riley, there was a gesture to the idea that the massive amounts of information obtained on a smartphone could be qualitatively different because of the bigger picture to give about a person's activities or information so people that support the idea that that makes a difference saw something to be hopeful for that the court might adopt a mosaic theory in future cases. >> just two quick things. that is, you know, every fourth amendment case has two parts. is there a search of something that's private? cell phone cases are about the -- is it private part.
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and on that score, the supreme court looks back at an old case of pen registers in the early days of phones and the court said collecting that information doesn't implicate the fourth amendment and says that precedent really doesn't apply with any substantial force in a digital era when so much information is gathered from things like phone calls but there's an important footnote in which the majority says we don't decide what constitutes a search and if the government is able to just collect information about us that's otherwise available from databases and the like it may not implicate the fourth amendment but actually collecting phone call information without a warrant will raise serious fourth amendment issues. >> i was going to say, it's more by analogy they're related. the issue in the meta data context is validity of the old rule that if you let information be in the hands of other third parties you don't have a fourth amendment claim when the
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government gets it from the third party and justice sotomayor suggested in the gps case is something we need to rethink in a world where everything we think and do is in the private third party hands and it indicates those who think it should be overruled and judge leon here have some support. >> other questions? >> mike lindenberger with the dallas morning kn ing news. you see in the politics, too, with rand paul and war on drugs, et cetera, but i think the first amendment may be the best fulcrum to talk about that. it seems like what used to be sort of a rallying call for liberals is often now challenging liberal politics in support of the first amendment like, for instance, the abortion cases. i just wondered if you could talk about that, the shift and
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the new maybe newfound support of first amendment as a weapon for the right and maybe something that makes liberals less comfortable than they used to be. >> yeah. i certainly -- i'm not going to comment on whether it makes liberals less comfortable than they used to be but i think on the conservative side over the decades you have seen a much more robust embrace of first amendment principles along the libertarian lines. i spend a lot of my time in private practice litigating commercial speech cases and seen a dramatic change in the court on the approach to commercial speech. right now, when we're looking at cases and, you know, you try to look across the country at which courts are the best to bring commercial speech cases in, frankly, the supreme court is more protective of commercial speech in my judgment than any of the lower courts in the country. >> i would suggest writing a check from a politician from
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alabama to california is not core political speech at all an agree with you that the right side of the court has taken the first amendment away from dissenters. i mean, really the original -- one of the major ideas of the first amendment was to protect dissent. that's gone. and when we have dissenters, in fact, the court doesn't really protect them very well. i think that's a big change. >> i think, you know, on the liberal libertarian alliance i see it less in the first amendment context and more coming to equality and liberty and as well when it comes to privacy and the fourth amendment context. there's been sort of rand paul and chris coons wrote an op-ed about the riley case together. you know, and the marriage equality cases my organization and kato filed a joint brief together as we did in the supreme court cases from last term. i think the first amendment actually is an area in which the reports court moved the doctrine to very conservative direction by, you know, some folks have -- some comment taters called it a
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locknerization of the first amendment to strike down corporate and commercial regulations. >> just a brief question looking forward to the panel on death penalty and 8th amendment jurisprudence. does the panel expect anything forthcoming in the next term or is there anything percolating its way up or anything from any major circuit decisions, especially in light of the recent issues with experimental drugs for executions? >> so, the supreme court, there's been this debate that we all know about with problems of the administration of the drug cocktails and so far it has stayed away from stepping into those cases. it has issued a stay in a case from the 8th circuit that's going to the circuit that isn't so much about the safety of the
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protocol that was administered but whether you could impose it on somebody with specific health conditions. and i think that the justices are hopeful that that question will go away. most of the death penalty 8th amendment action i think is instructal cases that interest justice kennedy about medical disability, about age eligibility, those sorts of things. it has tried to avoid, what they would regard i think micromanaging the precise drug cocktail because it's so up in the air and so uncertain. you know, what drugs the states can use. oh, sorry. >> i wanted to ask. hobby
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more important about what the courts think of the corporation then it will be regarding a religious rights on a question. i think they are quite likely to overrule and say the corporations do have souls. but i'd invite the panel to comment on that broader general question. >> i have a colleague i'm going to shamelessly plug, dan tucker, a law professor writing about all the implications of hobby lobby for corporate law. she has written a lot -- i don't understand it all, but she is very afraid that if hobby lobby comes out in favor of corporations having free exercise rights and not limiting it to privately held companies, that a lot of corporate ceos are going to have very difficult ethical problems going forward in what kind of decisions they make. if they have to worry about their shareholders and their
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employees free exercise rights. i can't go into more than that, but she is very worried about that and i think she has a right to be. >> one interesting thing about that question, i think it's an incredibly important question. i think from my perspective the most interesting part of the case. it didn't get a lot of play at oral argument, the court was much more focused on the burden, the compelling interest, tailoring. what that suggests for how the opinion is going to come out, maybe that means that wasn't controversial and there is going to be, if not unanimous then larger number of justices thinking corporations can bring these claims. i don't know. i found it interesting. i guess disappointing that it didn't get more of an airing in oral argument. >> i think the corporation issue is a lot more nuanced than just do corporations have religious freedom rights. i think most would agree some corporations do. for example, churches are
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incorporated entities. churches clearly have free exercise rights. what about religious nonprofits like catholic charities? most people would agree catholic charities can exercise free exercise rights that are protected under ripper. the question is what is it about the corporate form that allows one category of corporations to exercise religious freedom rights and not another category? it can't simply be that religious freedom only attaches to individuals because we know that's not the case. rather, we need to many could up, if this is your position you need to come up with something that distinguishes a corporation as an expressy religious purpose like catholic charities, archdiocese versus a corporation organized for a for-profit purpose is owned by deeply religious people who use the corporation to promote their own
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religious beliefs. >> i think the question is good when in the sense that to eric's point, it does speak to a trend in supreme court injucourt in j. if you look to a repudiation of that era and a set of cases as they are connected, there is a change that is happening. so whether you look to hobby lobbies being more nuanced, i think it's about a broader issue how this court defines the scope of the power and rights of corporations, which is changing. >> the next big issue if hobby lobby wins is how this applies to laws that have discrimination between lgbt people. this is a big coming fight about to happen between religious freedom and discrimination protections that is already happening. that is something people are
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watching very carefully and worried about. >> hoping justice kennedy is watching that carefully. >> concerned about his legacy, as he is. >> yes. >> haley middleman. did you represent mr. canning because you have the same first name? >> actually it was the knowle canning company. >> i listened to the first five minutes of the oral arguments on the scour. it started out with justice ginsburg and others asking what would happen if all the nlrb decisions don't exist any more. you haven't talked about that. what is the actual effect of the decisions? >> the decisions issued by the board with the unlawfully appointed members. the three members invalidated in the supreme court's decision. all those orders are buoyed. what it had to do in a different case called new process steel
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from a few years ago, where for different reasons it held the board was unlawfully constituted. what the board has to do is revisit each order and decide whether or not to readopt that position. >> can they do that in the aggregate? >> i think a new process steel they actually assigned a panel to each case. the panel reviewed it and decided up or down whether to affirm it. generally, i think they did affirm it. i don't think they did it in an aggregate order. that might raise a few issues. >> they didn't have to wait for a new case to arise. >> right. >> i see. >> the court decided a couple of clean air act cases to gave the epa and interpreting that law. i'm curious about water thoughts what that says about how much deference they are going to give
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agencies going forward since regulatory issues are always a big question with the supreme court's docket? >> i think that is a great question. the epa had a really good term this year before the supreme court. the initial case you mentioned, the clean air act case, was a big victory for the epa. the court upheld a majority of opinion that included conservative justices, as well, upheld the epa's ability to regulate pollution that traveled from one state, air pollution that traveled from one state to another. that was a big victory for the epa. the greenhouse gasses case that in some ways limited epa's ability to regulate greenhouse gasses, in one respect allowed the epa to basically, as justice scalia said when he was issuing the decision, get everything it wanted out of the case. the way i sort of described it was that it was a 97% victory
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for the epa. the difference between what the epa argued for entirety and what the supreme court gave it even though it limited a little bit of its authority, it was only a 3% difference in greenhouse gas emissions. it was basically a victory for the epa. it was a good term for them. going forward, if you look at president obama's promised regulations on greenhouse gas emission standards, the ruling that limited epa's ability to regulate greenhouse gasses a little bit, i don't think really will affect that provision. those upcoming standards because it comes under a different provision of the clean air act. >> i think the jury is still out on how restrictive the greenhouse gas decision is going to be on the administration's ability to regulate greenhouse gasses. it's true that what the majority opinion holds is that 97% of the
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emitters of greenhouse gasses can still be or 84%, whatever the number was, can still be regulated by the epa under a different set of regulations, but the majority opinion also goes at length to say that set of regulations has a lot of restrictions in it. it remains to be seen whether any particular rule will survive those restrictions. in fact, the dissenters don't see how any rule could survive those restrictions in that regulatory regime. what the majority acknowledges maybe yes, maybe no, but at least it's there and that will play out in future cases. i don't really myself buy the narrative that this was a strong victory for the epa. maybe yes, maybe no. i actually don't think it was necessarily that. it could turn out to be that. we have not yet seen how this, how the regulations are going to be evaluated under a regulatory regime that was not the principal regime epa was advocating in the first place.
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>> our last question. >> three years ago there was the schneider case where you had the picketing of the soldier at the funeral, so on. one part of the decision by justice roberts was that there was 1,000 feet away. so there was a real buffer zone. is this buffer zone idea an arg um much less relevant or not at all or does it depend on subject matter or does it depend on how you go about the protest? >> it was interesting. a lot of people pointed out the supreme court itself has a buffer zone you can't get close to the building. i think the two cases are quite different from each other. this was a general line drawn around these buildings that you can't even enter them just to enter quiet conversation that wouldn't interfere with the operation of that clinic in any way. that involved protesting. even then upheld the first amendment challenge. i think the two cases are
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distinguishable. >> all right. please join me in thanking the panel, and thank you all for coming. [ applause ] >> live outside the supreme court tomorrow as the remaining decisions are announced. one is the health care laws -- law's contraceptive mandate. you can listen to many of the oral arguments on this online. [captions copyright national cable satellite corp. 2014] [captioning performed by national captioning institute] >> the associated press is reporting that president obama
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will be nominating former c.e.o. bobamble mcdonald monday. mr. mcdonald is a graduate of west point military academy. he served five years in the army jobre taking an entry level at the consumer goods company. if confirmed, he would replace v.a. secretary sloan gibson. "newsmakers with senator john thune." after that, speeches from last week'sn mississippi and new york primary races. congressman john dingell of michigan talking about his career and the state today'stisanship in politics. author danielth schulman. >> this week on "newsmakers" hill,g us from capitol south dakota s


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