tv 2015-16 Supreme Court Term Preview CSPAN September 22, 2015 10:44pm-1:08am EDT
federal health care exchange, but in almost every big case decided last term. justice kennedy was the justice that usually joined this side of the court in those cases and the chief justice and even justice thomas occasionally have provided the victory. and with justice kennedy key vote in most cases. and the thing is how big will this be. and a fair number of big cases, the court is going to have a choice between broad and narrow grounds for decision.
and this is determined by which path the court chooses to take in those cases and we have on our agenda 10 cases that they are likely to hear this term although we may not get to them all. and after they discuss each case, the press will be invited with the best ability they have to speak. >> for the next five, and i will have this right after it the case is presented and i would encourage anyone of us are applied to this. we are going to start with this
versus abbott then it raises fundamental questions. >> it has fairly major implications for how elections are run in this country and it could be a potentially significant case and that includes a legislative body and putting those people into those districts for voting. and that includes greater population than other districts.
distributed and today that is no longer the case and primarily because of the large populations of illegal aliens in certain states that are not qualified to vote. and they may be located across certain parts of the states than others. so if you draw districts where there's a disproportionate number and you equalize total population. there will be more voters and if
you try to equalize voters in this district, you have different amounts of pieces in this district. so that is the basic question that presents were you supposed to be equalizing. and as a result in a state like texas, there are certain districts that have many more registered voters than that includes actual voters in these
and it doesn't say that you have to do voter population so you're basically given discretion and it's about serving the people that are not just eligible voters. once you have an official that represent everyone in the wreck. there is a representation one that it is important. that had equal numbers. because otherwise you will have one state official that represents the district and that
have to choose between the two and one argument that texas makes is that it would always be so hard logistically to equalize voters as opposed to the total population. the total population, of course and there's a lot of less good data on how many eligible voters there are in the state where they live.
and that includes how we are trying to equalize this. and the one argument that texas makes that has a fair amount of play is to point out that in the constitution and it will determine the states total population. with large rural populations with a smaller part of populations and it doesn't matter whether the states have different amounts of eligible voters and especially when districts are within their
the other thing and that includes where it's not always clear in the constitution or the history. so for that reason a lot of conservative justices could be somewhat skeptical about it. i'm having a very specific definition is to be equalize. and that includes having notions of skepticism overall to give us a little bit more latitude in deference on how to do this.
and especially when there's an easier path to victory here. like we can peel off this argument with some of the conservative justices and the workability arguments as well. i think that probably the plaintiff's best chances is that they tried to go with a narrower position that they don't always have to equalize voter population where they can roughly equalize both of voter population and total population as well and the minimum should have to do that. ..
eligible voting lines. i think the real question is what the court says about the discretion that the states had to deviate from total population to the reason i think it would be very surprising in addition to those that hashim offered which are compelling would mean upsetting the 50 states for 50 years where is uniform practice.
not something the court is going to be eager to do and also would seem to set up a system in which the rule for and this is an argument made by the chief justice when he was the deputies acting deputy solicitor general in a case a couple of decades ago. it would be an odd result that the apportionment standards that states have to use to distribute their congressional seats is something that is prohibited to them. this is about state legislatures so that i.t. makes it unlikely. the real action i think will be whether and how the court says it agrees with texas that the states have discretion to deviate from total population. so it will be interesting to see this friday when a command whether any of the amici argue that states in fact have to use total population and most of them have for 50 years.
whether that's a constitutional requirement to think it's more likely that many people argue it would be inappropriate for the court to reach that question in that question should have waited until some state legislature decides to do such a thing to see what his justification is. because i think there are many who worry that if the court were to say very of old glee texas has discretion and that's constitutionally permissible but they are free to go do you know eligible voter population or citizenship or some other criteria for drawing districts. it will be an incentive or for a message to state legislatures that are predominately in this case predominately of her cub -- republican republican-controllee such moves in a way that could radically affect the makeup of state legislatures. i think the real interesting question will be to what extent the court reaches out to a firm
what is suggested in this 1966 case which is the states have raw discretion or whether the court to save that discussion for later case. >> i agree. one consideration which is anytime a court is asked to engage in policing the left world process there is the risk of the results of to be partisan and to politicize the court and if you look at who is challenging the total population regime and arguing for voter population regime it's all republicans and some very conservative special interest groups. and that rule, the rule the plaintiffs are seeking would benefit republicans and that
could well politicize the courts into the court's most controversial of this court's most controversial decisions were citizens united and the affordable care act which were highly partisan and we all remember bush versus gore so i think their reasons for the court in terms of its legitimacy to tread softly in this area and easiest way to tread softly is to leave the matter to the discretion of the states as the court said in 1966 and one last thing from the standpoint of originalist and textualists that also seems to be the result we should obtain because the constitution doesn't say whether it should be total population or voter population and i don't think the original understanding at the time would in any way direct either one of those
results and so if you are a textualists you would say well therefore should be left to the states. >> so what do you think? go ahead. >> i want to follow quickly on that. i agree that there are potential partisan implications here but i don't think it's necessarily as clearcut as a win for the plaintiffs would benefit republicans and democrats. how this will shake out in any given jurisdiction depends on how the total population maps onto eligible voter population so for example the way this could benefit democrats if you have states with large prison populations where for example you take large populations from urban cities who are imprisoned and they darren rural prisons. if you count those people as residents of the rural district it inflates the world district to be expensive there have been
district and in that context it would like they would have a prorepublican benefit rather than a probe democrat benefit. another way this could happen bye bye the way ways you could have gerrymandering so right now the reason using voter population would benefit republicans is because districts are basically drawn such that you have situations where if you have a large population of non-qualified voters they tend to be living near people who are qualified voters and would agree with them. so you enhance their political power city of be precise in texas in areas where you have large amounts of undocumented aliens the people who are near them also tend to be hispanic and to be democrats so it's their voting power that in texas for example trying to draw districts where you pull some of the undocumented aliens from one area into the same district with eligible voters in suburban
areas you can have a very different part of makeup so whether this shakes out as a a pro republican or democratic thing partly depends on how the districts are drawn but i agree that it definitely has partisan quotations and right now probably does shake out more to the benefit of democrats. >> certainly if you look at the lineup of amici on the case it's pretty start. >> so one thing that i wonder about and i will just ask one question before we turn to the process why states have all been using total population if as texas says states all along have had discretion to go either way and there are these political advantages to using one or the other depending on whether you are democrat or republican generally speaking. does anyone have any thoughts on that?
>> the data allows much more specific and reliable breakdowns on total populations than eligible voter population. the other i think is that speaking for myself i think most people sort of that and located the idea that districts ought to represent equal numbers of people and nonvoters are entitled to representation. whether it's quite striking for a leglator to say otherwise until now. the partisan politics of it made what used to be off-the-wall now tenable. >> let me make one thing and then i will go to the press which is if the court gives a green light, if you think the states have pretty much that we have to do it by population
texas is hearing much argument for a green light to do it either way and if the court does say there is a green light you can do it either way do you think that will change the political landscape and if not as much as the plaintiff somewhere approaching matt? >> i think the court is already said that. in this 1966 case so to me that think it's probably administer ability who have led most states to go with the total population figures that adair, available and they are easy but i think as technology makes it easier and easier to crunch numbers and get specific data of thing -- it may well become easier to go the vote a wrap and people might well, states might well choose to go the vote a wrap just as technology has made it easier
and easier to do partisan gerrymandering. we may see that. i would be shocked if the court reaches out unnecessarily and says it has to be total population in this case. they don't need to do that to resolve this case. if it becomes a problem they can reach it later. >> questions from the press. >> my question is you kept saying voters but are they asking for voters or are they asking for citizen voting age population's? >> they are asking if you have questions to come to the mic. it's not being picked up. >> i will mumble it now. you kept saying voters and he suggested for example prisons and rural areas wouldn't be counted because they are felons
but are they asking for voters that are lead early eligible to vote or are they asking for citizen voting age population because the results are different,. >> the plaintiff's brief is a little agnostic about it. as i read it eligible voters. their lot of different metrics for how you measure eligible voters. the most common you reference called the citizen voting age population but citizen voting age population isn't a perfect proxy for eligible voters because people who are citizen voting age nevertheless not able to vote. again i think that plays out the administer ability with the plaintiff's case. they are definitely not asking for registered voters which would be one way of solving the problems that raises a whole host of other issues given
concerns about the inaccuracy of registered voter rolls. though it is notable that 1966 case that marty referenced earlier is about hawaii and hawaii had a similar problem with major discrepancies because of large populations of military and large populations of resident tourists i guess and they are dealing with that by using the registered voters based on the population based base and the court upheld a so that's why some people why right now david and marty stressed people seem to think the operating status quo is states do have discretion. that case has a lot of ambiguous language in it but it would be a way of solving administer ability problems.
>> in texas specifically or in any other state has the state legislature consider this question and then asked to address the question? >> i'm not 100% -- 100% sure of how worked but i don't think they went to the legislature. heart of this is texas redistricting was it took a long while in texas because they were subject to a bunch of voting rights act litigation so they initially passed the plan and it was challenged in court like the voting rights act. the court pass the plan and the governor eventually passed the interim plan. i'm not sure if the plaintiffs in this case ever went to the legislature and ask for it. in general i think what i would say is not every state uses total population as its base.
i believe there are are at least , maybe i shouldn't say states. there are least certain level of government entities that have used population basis other than total population. i don't think it's uniform throughout the country. so it has been considered. >> is there any chance that this case affects congressional districting ores the constitution clear enough that is going to be based on total population regardless? >> so this is another area in which i think the petitioners brief is a little ambiguous and i think at the reply stage exactly or 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 population rule. so that's what they are coming in position is that they haven't actually said whether they think
and you can correct me if you read it differently they have actually said what the rule is for the house of representatives. you could draw a distinction based on the specific text of the constitution but the specific text of the constitution is only telling you about how to apportion representatives among the states and not have the state should draw lines. you could draw a distinction based on that but you could also just say if one person one vote is about voting the same rule to apply. >> i agree with everything you said with one caveat which is that under current law there is a difference between how person one vote applies to congressional and throughout this we talk about equality and utilization but at the state level the court has never put strict handcuffs on exactly
equal populations. they give some latitude than they usually talk about it in plus or minus 5% or 10% rate so as long as the district that is the most underpopulated is within 10% of the district that's the most overpopulated is presumptively okay but on the congressional side the court has required close to perfect equality. because of that it might have -- or how the rule might work on the congressional side. for example and i mentioned before one possible middle ground position would be you have to apply to an end that only really works when you have wiggle room. you can't equalize both populations if you have to also hit both of them on the head. you can only really do it if you have plus or mus 10 window so that rule were to stick for congressional that middle ground
position might not be available on the congressional side. there are potential limitations for how this would work on the congressional side but i think the short version is the plaintiffs that case doesn't involve professional and they are not taking strict -- on what it does is nor does the constitution clearly answer what to do within a state is supposed to how many congressional districts each state gets. >> let's go to the next case. david has fischer versus the university of texas. >> first a couple of quick general comments. irv noted that liberals won more than conservatives and 5-4 cases. that's the first time in the history of the roberts court that has happened in the roberts court is 10 years old. nine terms conservatives won more than liberals and 5-4 cases. last term it was the opposite and i think that explains some
of the emotion articulated in some of the dissents and they aren't used to losing in these kinds of cases. they were not happy with that evidently. and then the second thing i think irv is right to question this term is it going to be conservative with the big. >> or conservative with a small c. i would say historically for the roberts court when that is then a the question has generally been conservative with a small c the roberts court when it's had an option to take the moderate conservative route rather than the radical conservative route that is what they have done with some notable exceptions like citizens united. but other than that that has been the case. so the other thing that is striking about this term is that two of the most controversial and political cases, out of
texas and in both cases texas is defending the liberal position. so fischer is a challenge to texas, the university of texas 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 and the central question i think in fischer 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 the compelling and periods of so two things are clear and affirmative action arena. one, strict scrutiny of pro-life
the exact same scrutiny at least in theory that applies to disadvantaged racial minorities applies to laws who have advantage racial minorities and that requires narrow tailoring and two diversity is the compelling interest and does the university's determinations that needs a critical mass of racially disadvantaged groups in order to achieve the educational benefits of the university is a compelling interest to which the courts deferred. but diversity and critical mass both a lewd and a specific or concrete definition, so how you apply a standard which requires very narrow and specific tailoring to win and that is open-ended, indefinite and vague and that i think is a central
tension in the jurisprudence which they have not resolved. this was up before the court as you know a couple of years ago and after a great deal of time the court eventually renamed it back to the fifth circuit in and the circuit had upheld the university of texas program but the supreme court said that they have been too deferential to the court on this narrow tailoring prong so they send it back for an assessment of whether under a non-deferential scrutiny analysis that program that texas had was in fact necessary in to achieve diversity. the program i think most people are familiar with but essentially texas adopted after it was told they couldn't use race at all at the fifth circuit in the hopwood case and adopted the top 10% plan which they guaranteed admissions to the top 10% of every graduating high school every high school in
texas because texas like so much of the rest united states is highly segregated. that achieves diversity. it's not an admissions plan that any admissions officer would adopt but for the thing that it achieves diversity and it puts grade point average above everything else in terms of how you evaluate a person's value to a university and until schools were forced into this position nobody adopted such a program because it doesn't make sense. having adopted that program texas achieved achieve some significant diversity by 4% african-american, 15% latino representation. then the court in 2003 decided the university of michigan case router in which they upheld the use of race as a modest or in a
holistic all things considered assessment of the individual to achieve diversity you had texas as well if the university of michigan can do what we can do it and they did not scrap the 10% plan but they said with respect to those students who have not get into the top 10% plan the remainder is about 20%, we are going to apply essentially to router the university of michigan plan. we are going to do a holistic review and consider a wide range of fact year's to assess whether this person would add the first value to the academic community. one of those factors by the very modest factor will be race. and they were challenged and the question is whether that consideration of race in the holistic inquiry applied to the remainder after the top 10% plan fills 70 to 80% is consistent
with the court's strict scrutiny requirements. i think the challenge is if it's difficult to say what diversity means, that difficult to define what a critical mass is and that's the end how in the world do you did narrow tailoring to that and? that's essentially the challenge to the argument. if you have a mushy and you can't have a narrowly tailored means test and taxes has not sufficiently demonstrated why it needs to consider this in order to achieve its ends. the problem i think with that argument is the court has already confronted that argument in michigan the challengers argue diversity is an that quote from justice rehnquist opinion
to open-ended ill-defined and indefinite to constitute a compelling state interest. what he said in his opinion is we have projected the challengers argument that diversity is to open-ended ill-defined and definite so they have accepted the centrist with full recognition that is open-ended, ill-defined and indefinite. so how do you do narrow tailoring and what the courts have done thus far is they have said narrow tailoring what you would realistically require is no racial quotas, consideration of race-neutral alternatives, a holistic consideration of each individual in set-aside categories and race it being only a modest factor in not a predominant factor. that is the definition and
that's essentially what kennedy said in narrow tailoring in his concurrences in the michigan cases. that is essentially what texas has shown. they have shown that they attempted race control alternatives more than michigan did that michigan did not adopt the 10%. they engage in holistic all things considered assessments. they use no quotas and race is only a modest factor and it doesn't add up to a huge amount of diversity on top of the racial diversity at the top 10% plan reaches. the fifth circuit on remand said that's all we can require and texas has met that standard and the court is now going to take that up again. i think the challengers argument is the strongest argument
challengers make is this point that it just doesn't make sense to have the narrow tailoring requirement applied to an open-ended indefinable and. you just never know when do you have critical mass, why is critical mass apparently different for african-americans and than for latinos, what are the percentages that you need? those are questions that texas will not answer and cannot answer and that makes the application of narrow tailoring very very sticky. so it seems to me you have two options. you either say well that most we can require is what we have required and i think texas has met that or you can junk that and say 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
affirmative action and threaten the end of affirmative action. about 12 years ago justice o'connor said we are upholding affirmative action when it's used in this holistic modest way but for 25 years. it's only 12 years ago and in 25 years it's going to be very strong argument that affirmative action should be suspended so i would be surprised if it ends it now. one possible middle ground is to say when you have adopted a the top 10% plan in the top 10% plan gets you some racial proportional diversity then you have a higher burden to demonstrate why you still need to consider race without remainder.
and then that would not end it. that would be to say that 10% plan has a higher burden but that would be a paradoxical result because it would say that if you adopt a race-neutral test which is not required to be adopted michigan and the court rejected the notion you have to adopt the 10% you are put in a worse position than a university like michigan which applied race to every applicant. so it's a tough case and i think what's tough about it derives from the existing precedence which creates this tension between the requirement of tailoring and the open and goodness of it.
>> yes, i largely agree with what david said that a couple of additional thoughts. an interesting aspect is they had it for basically full-term and the variant of the term they breathe made it on very narrow grounds which many people have supported as a result of compromise and then it went back down. they took it back up and took it to a couple of conferences. given the circumstances it seems hard to believe that texas will prevail in terms of the flat out out -- so why bother taking the case if the boats weren't there to reverse? for example another case out of texas last year involving the fair housing act but in this
circumstance it was pretty hard to believe that conservatives would have pulled the trigger if they didn't have the votes at least in some aspect whether it's narrow or broader. i do believe the two big moves are the narrow point of we just focused on. you may may see the formative programs over and above what you have and the more aggressive plan that would make it harder to justify. if you are going to have diversity is a compelling interest and for educational benefits you have to explain what that means. you have to explain what the numbers are you are shooting for. a compelling answers in having a concerted amount of racial diversity have to explain what that is. but diggers are you looking for. then we can figure out whether
it's narrowly interpreted but tell us what you are shooting for. if i recall correctly that plan of argument in the oral argument the first time around. that would be a think the boulder position that would come out of the case. >> it's interesting to me that they granted this case because they clearly know what's going on and what they're getting themselves into which makes it hard to think that they didn't granted with the idea of being able to come out in some way that is not very good for texas but i also have a hard time seeing a five justice majority really going far in this area. all that leads me to think we have a narrower view were in mind and how we are going to do
with this. they certainly didn't need to make this case. they clearly know exactly what they're getting themselves into by doing it. so far nobody has expressly mentioned the rationale that the court of appeals used to say why they need more diversity in seems to me what they were saying is that there needed to be some sort of within the group racial diversity. maybe there was enough of each particular group but what wasn't accomplice to the top 10% plan was with diversity, the reason being that the 10% plan except people on one metric grade-point and draws largely from segregated schools and there are experiences end this courts of appeals saw in background that
are captured and a 10%. you are just automatically in the 10%. that could be found through a holistic view so i'm just wondering how you think the court will react to that rationale. >> it's funny you go back to powells landmark opinion in bauchi and that was one of the main rationale that this was not just intent, this whole effort is not only intended to get more students of particular races and backgrounds in there but to break down racial stereotypes. you need enough students to demonstrate not all students of color have similar backgrounds or bring the same things to a classroom. but the whole effort to break down racial's area tipson society and higher education in particular requires a broad
range. this was the response to the argument that many of these programs were admitting higher income well-to-do african-american students rather than those who had differences, different backgrounds. part of the reason for affirmative action is to have enough students of different backgrounds so that people don't attribute particular views or life perspectives categorically to a particular race. so he might deal little sympathetic to this idea. >> that would be the right way to spin it if you are texas. the oddity of it is something also flagged which is this is in essence what it is saying is what we need is a lot of relatively well-off minorities who went to relatively good
schools in the top 10%. that seems to turn affirmative action on its head to the person you are giving the additional benefit to is that people and least needed that. >> to the extent one thinks of affirmative action is remedial i'm not sure that's how justice kennedy thinks of it. >> i also think there's a way in which texas argument to the extent that if it's phrased this way appears to adopt a stereotype about the black kids to come from the top 10%. they are of a certain type and we need a different type and that itself seems to be used aereo typing. there is no evidence in the record of what the overall diversity of the top 10% of the students from the segregated
black and latino schools are like versus those that are there a manger. i guess my sense is that it's not so much about inter-racial diversity as an end. it's about diversity as an ant and 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 to trumpet player and it wants the lacrosse player and a person who had extraordinary challenges growing up. it wants a great debater who is in the top 15% etc. etc.. within that set of diversity race is a legitimate consideration and you shouldn't exclude it at that point.
we are not just looking for well-off black kids who were in the top 15% if not the top 10%. we are looking for a diverse student body that includes the consideration of race as one of the factors that colors one's experience 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 not be included >> it seems to me and david has done his best to predict the university of texas, i just don't see it. i see this the same way that hashim does and then studying justice opinions in the use of races seems the overriding aim
are twofold. he really believes an integrated integrated -- a number to copy wants it to be achieved by the means. the reason i came out the way did i think are those things are basically true. he believes integration and fair housing act can be remedied simply by adopting one race rather than the other albeit in the interest of promoting integration. and so it's really hard to figure out for him how to strike the right talent but i think what he wants to do is drive more innovative solutions to how to get to integration through race-neutral means in the way to do that is to make universities around the country fear their plans are going to be invalidated but am not allowed the possibility to -- that's
what's going to drive innovation and i think justice kennedy will write something that makes it very difficult to satisfy scrutiny and starts to worry people that maybe they ought to be looking for a race-neutral means. it's true there has been a lot of effort to do that that hasn't turned out as successful as some might have hoped but i think justice kennedy thinks the way to resort to racists part of the reason why it hasn't been driven so i do think we will see not something that eliminates affirmative action altogether but picks have enough things that are wrong with the university of texas plan to give other universities enough concern that they will be in a position of thinking maybe we ought to switch to something that is race-neutral. >> with that why we take questions from the press. yes.
>> one more time, if they do want to be associated with critical mass how does that not rub up against the quota? >> the question is the court tries to step then universities have to articulate what critical mass means in a more quantitative way rather than the fuzzy qualitative way they have done thus far. how does it not lead to a court and i think the way it could would be to save for example you study educational policy etc. etc. and for example i will just pick numbers out of a hat but let's say 10% of minority population has decided it's the
level where you get the educational benefits for diversity. that's where you need to be. that is what you are shooting for. that doesn't mean you say i'm going to let and 10% minorities and nothing more. i'm not going to let in one more or one less. having 10% of your target and then acting in a race conscious but a way that considers all factors holistically and makes race a plus factor but not dispositive, you could have it be a target. once you say here's the number it's going to lead to a quota which people have been nervous about but at least some of the conservatives between running the risk of having there be more likely a quota or having to be universities can say we are shooting for critical mass in the air and no one knows what that means to do narrow tailoring without anything to
tailor to i think some people aren't just in that. >> any other questions? so let's move on to our next case. >> friedrichs would be one of the closely watched cases. as some bath 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 and there are two questions in friedrichs did deal with the two issues in an economy that he drew which was to say the court said you can't have compulsory dues for purposes that are germane to collective bargaining but using money for basically political reasons that aren't directly germane to collective
bargaining you can't have compulsory dues. you have to give employees the opportunity to not pay out but what the court said included its okay to give them the opportunity to opt out of paying those dues rather than to opt into them. this leads to the two questions that are presented in the friedrichs case. one is should the court overruled the principle holding that you can compel even the germane to collective bargaining purposes and the other being even add to the dues that are for political purposes is it constitutional to have an opt out game where the constitution requires an opt in scheme where employees have to be able to affirmatively choose to get those dues rather than raise their hand and say i want my money back because i don't want to contribute to the union's political activities.
so it's always interesting when the court grants a case for a question of should we overrule something and here it's interesting because the specific question of does it apply to x, y or z and the data should be overruled this is a straight up case presenting the question of whether aboud should he overruled and they would be some dispute about whether needs to be overruled but it is all setup with just those questions before the court and no apparent way for the court to get around them in some narrower resolution of this case. they have taken a case squarely to decide whether there is precedence. a cautionary tale against putting too much into the court's decision to grant a question to overrule one of its cases because we have seen cases where they did that and there was a bit majority to overrule. i don't think it's a fair rule
but just because they grant him a question like that they necessarily have the votes to go all the way. that said i would not feel very good coming into this if i were the responded given what we have seen from the roberts court court on this issue in the past few years. that's because this isn't the case that comes out of a few justices offhandedly suggesting in a concurrence or statement respecting denial that they are open to reconsidering the question of whether a viewer is right. this comes on the heels of two back-to-back justice majority opinions that fundamentally undermine every aspect of their reasoning of the abu decision. in the knox case from the 2011 term and the question there had to do with compulsory payment of
a special assessment and in resolving that question deciding it was unconstitutional to have compulsory payment of the court went out of its way to describe the principle holding up the boot and the imam ali even though the principle about germane to collective bargaining dues wasn't an issue there. that basically resolve the question before it by reasoning that aboud was probably wrong about the opt out often dichotomy in the first place so that opt out requirements certainly shouldn't be extended to a new context of assessments. you can see the court taking the opportunity to resolve the case that perhaps could have resolved without going out of its way to fall into question the boot but instead of doing that and you have this opinion joined by the
five members of the majority. i'm not quite sure i have fundamental issues with the opt in opt out aspect of that so that's what we get from knox and a couple of years later we have been harassed because quinn case which involves whether aboud should apply to home health care workers and again you have a case where an argument of the court could have spoken to distinguishing health care workers and the public employees at issue. instead the court decides to resolve the case by engaging in a really detailed lengthy discussion of why the foundation of aboud are questionable in a legal matter and an empirical matter and engaging in what reads a heck of a lot like a stare decisis discussion of how aboud has proven unworkable and
how basically saying it's now wrong but it doesn't really make sense to keep having it around and going through all of this opinion like it reads like it's going to end by overturning a bit but likely says we are going to go that far because the position is so wrong we are not going to be extended to the new circumstances before us. again you have that opinion joined by five members of the court with none of them writing separately to say i don't think we need to go quite that far or this can just be done by distinguishing the fact that this case from aboud said there is nothing there that would give me comfort that there is some justice that is a little bit uncertain about signing on to this. another aspect in particular that the brief for the petitioners does a nice job of
pointing out is the dissent and harris bee quinn in taking issue with the fact that the court can go out of its way to call into question the aboud doesn't even really defend aboud on the reasoning that the aboud decision employed which was thick court we accept that all of this is an imposition and an infringement on first amendment rights when we are talking about compulsory payment of germane to collect the bargaining but we consider the first amendment right outweighed by free riders rather than people not having to pay their fair share for what they're getting out of the union. in trying to resuscitate a boot in the defense, it's not even the grounds on which the dissent tries to resuscitate it. they call into question the premise that there is serious first amendment interest at stake grady will be left with a decision that even after the
justices who still wanted to remain the law they are not necessarily feeling contents that it got there for the right reasons which is understandable when you can read what harris bee quinn has to say about how aboud had a slipshod analysis and how it got to the analysis. they had in fact done so. when you look in context the lead-up to the court granting the case it's hard to see aboud surviving after friedrichs. there certainly could be a situation and when there is a split the baby approach of the court deciding there somebody was not willing to go all the way on the question of compulsory for collective bargaining purposes.
you can't have an opt out scheme. this is a fundamental constitutional right that people retain and they have to opt in to a regime in which they decide to give their money to support the political speech and camping horse to take the affirmative action of opting out of that regime. i think you could arrive at a compromise result. it's a result that would obviate any to answer the first question so the court is not going to get around what it took his case to do and the signals here to meet point in the direction of a took this case to overrule aboud on both of these issues. >> i'm afraid this is probably correct. i would think though that there would be two embassies in the bottom side briefs or at least one and one that i suggest might be possible for this boat going
the other way. the first obvious one that is prominently in justice cake in his dissent in the previous cases 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 amendment rights for public employees are diminished when the state has addressed the efficiency of the workplace you should be able to control the first amendment activities of employees. i think the prospect of getting this boat on that theory depends however on making a possible case and i think there is one to be made that these arrangements are intended to make the work is more efficient. employers tend to think that this is good for business and i think that is probably a
somewhat long shot but who knows where he would be on that. i think that would be the focus. i can't help but mention and i'm not sure anyone is going to brief which is i have long thought a budha to be overruled. but it out to be overruled the other direction. the courts never really explained including these recent cases what the justification is for a space suit ruled that when the state takes money from you and gives it to another private party in certain contexts to allow that private party to sneak in a way that you disapprove of that implicates your free-speech right. obviously it happens all the time and uses your money to engage in the governments own speech without terse amendment problems and even sometimes in the student activity fee case in wisconsin to promote a wider array. a aboud would never really explained by this person was a problem.
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 think implicates speech and i doubt this can be a primary topic in this briefing but if there are sincere principles by the originalist on the court they might consider whether a food wasn't wrong to begin with and going the other direction. >> i just want to add one thing to balance the justifications from the bottom side briefs. i agree with marty i don't think the bottom side briefs will be taking marty's second but the second that is the dissent of justice kagan's and barred from justice scalia opinion. the one i'm about to say which is that what distinguishes this
situation from many other compelled assessments is that the union has a duty under state law to bargain for everybody else in the opinion and that's different than every other situation which you have compelled assessments. the one thing about the decision is that i would say justice alito's opinion treads pretty softly on that ground. he perhaps called into question a little that but not so much as my speculation is that justice scalia may not have been ready to ditch him 100% and therefore it's definitely worth bringing up on the bottom side reads. i tend to agree that the odds are that we will see aboud
overruled but i do think there's some possibility that one or two justices will get cold feet and hash as offered them a landing spot. so people can think aboud has been around for a long time in the world doesn't come apart but the second part of aboud we are going to switch over which is that for fees that cannot tico worst beyond bargaining fees or require opt in rather than opt out so i think that's them best i would suspect the bottom side can do in this case but i do think it's a real possibility. >> just to echo in underscore this argument that scalia's made before because public-sector
unions have a statutory duty to represent non-members the state has a minimum interest in requiring those members to pay for that service. it would require scalia's to admit that he was wrong and i've never scalia's admit that he's wrong so that's on the side of not entirely turning over aboud. on the other side this is a case that really pits and individualistic libertarian claim against collective responsibility not unlike you can't require me to buy health insurance to support my fellow americans. you can't require me to pay or my public-sector union dues and historically individualistic libertarian arguments win out over collective responsibility arguments the ncaa case notwithstanding. ..
says say real threat to their continued in defective existence. there on the decline generally. scott walker as stepdaughter the race. >> i will know that the federal government doesn't have compulsory union dues for public-sector and a lot of states don't so i think it would be the demise of the public-sector unions. >> given half the country and federal government operates. >> contraception? >> for the big cases we have discussed so far, of fisher iran even though will be
argued in december won a. to a january but the today we're going to discuss next are not even on the docket yet. the we think they are likely to be granted at some point during this term. i will talk about the hobby lobby follow-up and the abortion case. so i would have assumed some knowledge from the press corps that was decided to do terms ago m that win-win solution from justice kennedy was have thought to engineered in that case. the affordable care act make sure all have certain forms of preventive care and also make health care more affordable by preventing
government is required to grant them the exemption unless they can show the denial will be the restrictive means of a governmental interest. the five / four majority and hobby lobby suggested their claims to be included and their health care plan did have a substantial burden on its exercise because of its complicity but they were to give cost free coverage for that contraception. notwithstanding the fact they could just not have a health care plan at all. because if they continued it would be pretty extensive fines.
for what the of law requires the court ruled there was a substantial burden n to be skeptical of that concurrence and what and justice kennedy's concurrence from what he thought there was a compelling interest in an all male and female all employees have access. is this the least restrictive way to guarantee that coverage? and justice kennedy and the majority opinion ultimately rested on something that justice kennedy emphasized that government itself department of health and human services comes up with
an accommodation for nonprofit entities that what appears to be though win-win that they would not be responsible to facilitate organ is straight the contraception coverage for their students or employees but at the same time tunicate cost free coverage. and as the employer ops' out but to the self paid florida coverage but the employer at that point has nothing more to do with that provision of the of contraception. a star as aetna and blue cross board hired to administer the plan and in the first instance to pay
for their coverage a.m. new york -- and hobby lobby seem to suggest they would not violate their religious that -- obligations in the same way. that seems to solve the problem so let's go back if this is a solution to be applied to everyone. so now they have extended that accommodation to for-profit employers but continuing to do so with nonprofit employers to change the regulation a a little bit one -- so now all that is required with the health and human services your opting out to reach out to that now you are on the hook for the is cost free coverage l i briefly half to
break down little harder to understand but they have to root principles than three types of insurance plans. under the insured plans is responsible to pay out claims and with a self insured plan and the employer is so for nearly makes the payments but hires the insurance company to begin administrator but the money comes from the employer. there were 100 non-profit organization is in the united states to expect about 100 for-profit
employers that continue to object even with this accommodation with the exemption for its. to satisfy their great majority there is still probably a couple of hundred out there and then that is in the lower courts. and all seven had ruled it had never been safer. there was no substantial burden because the employer was taken out of the of the loop. and one of those said even if that blood dash that was not the case the
governmental interest to make sure all employees could cash access to coverage. and then to provide contraceptive coverage to the employees. but it's did not disagree on the last secretary give very likely the court will grant one it -- one of the many petitions. aunt but from the tenth circuit several were scheduled to be on the long conference september 28 to put those off. i suspect there is a way for
those positions and to put all of the cases someone conference to decide them somewhat early in the term. in den even the best vehicle that is the circuit case. if i am right about that. been to have wonderful petition is. because it involves every different kind of plan and all three different kinds of plans and the circuit when on -- beyond the substantial burden question as well. if i write i believe it will
be captioned roman catholic archbishop of washington d.c. verses bernie well -- buhr well which is pretty dramatic. they don't have to provide the coverage and all but for technical reasons it is used when other employers i don't think they're claiming is strong but that involved other employers in particular white catholic university and thomas aquinas college that has an insured plan the other has self insured. to figure out the strongest arguments are for that. and most they have made with the ejection based on law
one argument that does not seem to be easily and -- subject to that to be sure we are not responsive all ruth use of of contraception to use that anyway. but with this particular insurance company is the one providing them with the cost free coverage. rehired these employers and contracted with aetna rather than and blue cross. we are responsible to put at the together with the is employees for this coverage to be considered a violation of religious obligations to have matched up a particular insurance company the
government cannot second-guess our religious explanatiexplanati on of complicity because of the matchmaking. and those sides of things. and then to be able the cost coverage but he did object to one small aspect that the government could not justify one small aspect of the requirement that you identified your insurer when he walked out. 90% of the cases that does not matter because there acknowledge publicly but it is not obvious that this matters to any of the petitioners. ended don't think it is a stronger argument the
government has. to the extent there is a petitioner out there that caters having to identify to help the government with this scheme i am pretty sure a the justices will save the government doesn't have a justification to require that justification but that is the bigger question. so is the cost coverage to employees. is also the government reimburses the cost but i want to get chewed deep into the weeds. i will not make up prediction on the merit i have rigid enough so my views are pretty well known
and it ought to win but it is up to justice kennedy as becoming a fame. and to to the extent to with affirmative-action. en two-room have that cost free coverage. >> we represent several petitioners i take issue about 90% but i was trying to keep its to read few brief points. [laughter] we represent some universities and texas and represent in the tenth
circuit case. in one particular observation that i don't know what case the court will grant but if there were really buzzing schuster deferred juror the beverage for the best position chair resolve the case i am not sure why they decided to pull the d.c. circuit cases before the split developed and they had already decided to pull back from so long conference to reschedule all the cases as they wait for those to be fully briefed which the government has the stanchion and will not be briefed at this point. so if there would resolve its case against the
government so the other thing that is notable. it is an odd argument and the government thinks it is perfectly lawful bin it is says no matter what each play and you have. there are a couple of chords that suggests a jury dissenting opinion on one bench is not for the party also the of whether this is unconstitutional and actually is a question of the government's decision to
your discriminates among revisionism players and complete the allows churches to opt out while having entities not associated with a chance because the government should not draw lines about which to grow accommodate and to organize. rick doesn't have principal attention but it has gotten a lot and has been suggested is no but now that there is thus with the people expect there will be a case. but one or two things of the merits because they do feel
duty bound to set the record straight to a of a bit. but the principal problem that is the source of the objection that the government is not only using the employers. in dhaka the lobby case they conceded is using the own private insurance but also the government's is requiring them to assist the government to achieve and because it isn't simply a matter to opt out. you don't sign a form with the religious objection but tell the government here is my third-party administrator and contact them so they can provide the insurance i find objectionable.
deaconess they concede they can get it if the employers don't help them get it. some is very hard to understand it is saying. we need them and give us the information that you can still have a debate but i don't see how you have a debate at that plaintiff there is a substantial burden on religion because your compelling people to do something bad there facilitating and with a talent they have to pay
but yes, everyone knows that as we move toward more controversial social norms not excepted with same-sex marriage and contraception there will be religious objections and wearing it is available, they will seek the exemptions from being required to do what's in their view makes them composite in that allegedly sinful contact. i dunno if davis will affect the justices said all that we know it is representative of a broader problem that the courts will have to confront because a same-sex
but that is the least restrictive means but comment. assuming that bay native at the ads eager, where if a suspect's of waiting that have the effect to push this case there if back to terms read but if they went on a compelling interest, that is a huge win for the government? >> on the second question my expectation is when the government files of reply brief they will tell the court that they plan to file a petition or they don't to
tell the court what they think make sense to reduce with that development. it is hard to san the court decided the right deign to do is to deny all days petitions for these religious employers that goes with the accommodation with what the court intends to take up the question. so it seems to me even though you want to give the of government the opportunity they would hold on stowe all at once rather than tonight cases when there is the decent chance the majority thinks they have come out. >> also on top of that for this a reason it seems unlikely this is the sort of
case they try to push a term because you have the important status quo. eith@ important status quo. either collusion - - collusion for next year or the injunctions the employees who retire of contraception for the extra year while the government wins so it is in no one's interest to kick it for another year ago they get is that controversial to putting into another term just for the sake of delay. >>. >> if they do have another extension and i suspect -- suspect it is the best case
you don't care? [laughter] >> that the eric everett will tomorrow. l not sign a brief tomorrow. any of their questions? if not then we will turn and then the court has not heard an abortion case since 2007 and since then a number of states have tested the limits of their authority to regulate or restrict abortions. some of those struck down by the courts some upheld and so far the supreme court has stayed out there like the dish you're there will return to the subject of abortion in this case there
requires that a physician who performs the of portion has to have as many privileges within of forint has put those that of irish and a - - applied to this surgicenters. the two requirements together with results in closing a 70% of facilities in texas leaving approximately than concentrated in the urban centers of dallas and houston and san antonio but closures would result from the fact that an for it to
be expensive to reconstruct their centers with the physical plant requirements requirements, the abortion providers have challenged under the undue burden test set forth in the casey decision that was modified significantly. they alleged either argumentative vances the state's and therefore to create obstacles smith said the there would have to travel long distances to the end nearest.
>> bay and though i gave to them dash but with respect to one facility that clark read casey to establish the requirements for analyzing abortion restrictions buffers doesn't satisfy a rational basis review witches can you conceive any stage or fax possible to justify the restriction? does the requirements substantially burden a woman's access to abortion? the court rejected at the approach of the seventh ben not only the regents but with the big governments interest so under a set of
have finished 50 miles with the travel time of three hours that do not impose the undue burden. they got that from reading between the lines of casey's holding the 24 hour waiting period do not pose the into production to burden but that there could be travel times between one and three hours as a result spirit those but sent to be focused on to that area because the
closing of the facility there resulting in women having touche travel 129 miles. as for a second facility one dash facility the texas abortion facility five pager 50 miles away but it concluded there is no undue burden because women in that area could go to a facility and in santa rita dove and mexico. the accord distinguish it is in the organization where mississippi could not offload its obligation to provide a portion facilities. but to distinguish that case on the ground because most importantly to be part of the same metropolitan area
now by a five / four vote the supreme court states the supreme court mandate to to preclude enforcement of the physical plant requirements across the board to preclude the enforcement of the of privileges requirements to aeropostale and the rio grande area. is seems likely the court will grant certiorari as indication that the justices viewed of a grant as reasonably likely also a conflict between the approach articulated. there are procedural complications that could conceivably stand in the way i doubt that there will. there is no opposition to
the files that looks like a clear candidate if you only see the topside brief those considerations when the opposition is filed and to cause it got to take the case spalding's considered it was a safe bet that the court will take this case based on the 54 statement. >> is serving in -- assuming it is granted another case where justice kennedy is the key vote and to prophesies prophesies, i don't think his votes on other cases tell us that much she voted to uphold the physicians obeid requirement for performing abortions but that seems like they're a type of requirement that is very unlikely to impose any
burden on a woman seeking abortion. also voted to uphold prohibition on parthenons dash partial birth abortions but that involved a particularly gruesome procedure performed in the third trimester and something i think we have it all together different from that. with a general jute - - jurisprudence she is prepared to give a fair measure of discretion to states adopting rules and regulations upholding women seeking abortions. i don't think he will be prepared to apply that kind of brand of rational day says review under which any conceivable state of fax could support the restrictions and they should be upheld the.
and i think he will not be prepared to do that where there are signs that the reason for this may be to close down abortion facilities rather than promote women's health. justice pointed out in his environment it was not applied to those that creates risk. a the petitioners and other surgical centers to show the compliance of the building requirements is not necessary to promote women's health. i don't think that is the end of the case.
>> i don't think this state can offload but the way the effort put the there was no per-share across state lines and get but until i see their briefing in this case i a their briefing in this case i am not prepared to is richer in an opinion yet. if anybody else has thoughts? any questions we're getting
near the end but for those who would like to stick around a little longer we've got to a couple of other cases at least maybe tutus see whose stays and who doesn't. but this is the second and also getting to the two big business cases of the term. you have tyson foods that by a judge from the of the guests support is the biggest business case this term. >> it seems to rigo latest of a robert court's continuing efforts to rein in and as the abuses of a class-action device. the case involved of but the wal-mart opinion is try life formula that is the concept
of using a simple set of plaintive sort statistics to arise to litigate the case as if every member was even in the context it was indisputable not every class number actually shares those characteristics of the plaintiffs now relax your idea to defend that notion so there will be far-reaching by them on to characterize what happened but essentially it is the issue the court is dealing with. and to arrive bin that context we all love recently. that it involves a to work from the slot during floor and of processing floor.
some don't require as much protective gear as others even those that have the same job some of the year is now required by the employees choose to wear it. but then to be a kick -- keep track anyone spends on tongans and if they compensates and band-aids and knee but there is the class that was to litigate there may be spending different amounts of time
and how much is spent? not a great deal because there is no compensation compensation, said justin l. little then also of the dispute to for new getting into overtime so it is exactly how much each is spending. we have a great way to solve this problem we will have an expert with 744 random employees then drop the averages to proceed as if every class members and said average amount of time he then if that isn't actually what they spent. there is some one obvious looking problem which has made even clearer when you get to trial the class representatives provide testimony that they spend blast -- less time and there is lenty of evidence do demonstrate to to the class
members r various different reasons that they are working undercompensated overtime. say it is fine because the older supreme court case that deals with the specific question of time as a lasting record of how much time was spent to suggest that if you don't have their records you can have the statistics to figure how much cheer determining compensable time. has been objected from that cko but the real problem is there never was a common issue because those individualized issues dominate. and there will not be a
common answer to that question to hypothesize that day predominate and therefore a class they should not be certified at all on the first place. >> given what they have seen from the roberts court with jurisprudence i think they'll be surprised because they want the world to know and put it to resolve that because my strong suspicion
is they have taken the when we say come issues that as well be me now what do is manufactured to paper over the problem that the class members are differently situated. so one of those cases where the real interest books to see how broadly the court speaks and if they tried to use that to pick up with of a discussion in the wal-mart decision from a few terms ago headed say pretty
that probably would be granted efforts a chance to earn a few men to tear them of the last day their colors to said that she reminded me but the court could not settle on their the mission and. four in division rose than allow them to go to federal court to ruth talks but those violation of rights so with the dawn of time they have often created substantive rates for individuals to say of governmental actor or private actor to act in a particular way or not with respect to individuals and
bin to care very familiar examples that someone entrusted is underway and you have the right to exclude them and to get damages for the violation without showing any further entry that the person violated the rules but down that prohibited them from doing that they are alleged to have done in this copyright you can get damages without showing damage it in any other way to cause physical or economic harm or the life. there was, what doctrines' for people to do so with
back to why operative basis end to pointed out on line is a big business. how but they had to take steps before they could disseminate information for there were required to get notice and there are rules that are imposed on entities that share information about other individuals the primary requirement in this case is one that requires the consumer reporting agency to follow reasonable procedures to richer maximum possible accuracy about lumen informational report relates a requirement that takes reasonable steps for what they say about the others and the government construes this to be
triggered only when they disseminate the information about the reports and this involves against its tokyo -- spokeo. the allocation disinformation the publish they not only violated the statutory rule but have to take reasonable steps to insure accuracy but their violation caused them to publish an accurate information about the plaintiff. that information involved his age and wealth and employment and education and marital status of those it was inaccurate but that good the to his benefit. allegedly she was more eloquent dash educated and
gender than he actually is. so the klay ms. we did you a favor with your own allegations. you did not remind jeffrey student but that could add up to a lot of money. the complaint is in order to get into federal court you ought to be required to show not only we violated the statutory right to that congress conferred upon new but cost with the supreme court has described as
injury in fact,. that was developed in the 1970 case to expand the concept at the time. at the half set the coverage said but the majority has it is in something that gets you into court but what can keep you out. some of the justices have suggested with a statutory right to show the injury without ever quite figuring out what that means. but it doesn't mean that a violation of your statutory rights that congress conferred upon you to show
something more elemental without platonic ideal of injury with physical harm is the obvious case. also. >> gore now receiving the information. >> we will go through those. >> that revile the your statutory rights but didn't harm you or you have to show they harmed you to care furring dishes. but you knew the race to get court but was in the earlier case during the oral argument suggested the
statutory rates, he said that is injury in fact, but it is the al lot to create the substantive right to thought that distinguish them from injury in fact, that proceeds though i guess so or that is the suggestion so the implications are benches of statutes that establish rights on your behalf to sue without blish rights on your behalf to sue without showing. >> often is very easy to use establish a common issue but
the defendant had reestablished procedure that is a common question but if you have to show additional injury to be very interested and to 90 injured area of the of cuddy but you need to have the correlation because it isn't clear to read them on plaintiffs theory they will again it certified because they're focusing on whether there is false information. >> i have to say that they may or may not get class
certification but if they have to show that they failed to follow reasonable procedures and that is all it requires, then obviously you have a statutory violation that everybody who's name is an end of pool , and this is true of other statutes where it is very easy to show a common question if all you have to show is a violation on the statutory prohibition but if you have to show additional harm there are issues to preclude certification. and they have not said a flood is the case if there was as described with at
accuracy would be much broader that seems to be covered but perhaps not this case. so the purpose that legislatures understand most of the time if their requirement is not follow it if the move resulted another injury rubio care about to the individuals. et will cause injury and that is true in many cases racemes to be to your benefit because rickety they find out if it is untrue it does not comport with what you have on your resume a. maybe she has ben line i cannot trust her.
sometime she says things that our false. that might result in harm. make sure you insure the accuracy. >> it is hard to understand why anyone they want to say. there is the couple of cases that congress cannot just say they can sue under a legal violation. did not let cords on end disputes but a plaintiff who cares real world concrete
>> call having business you for the honorable supreme court of the united states get your attention. >> seven sanders 59, bin bin to enslave people on land but it was none enabled optimist. >> in the presence of federal troops and marshals and the courage of children. >> we want to pick case is that she is the direction society