Skip to main content

tv   2015-16 Supreme Court Term Preview  CSPAN  September 23, 2015 8:02pm-10:31pm EDT

8:02 pm
mandatory union dues, and abortion. georgetown university law center hosted this event. good morning, everyone. welcome to georgetown's annual supreme court preview. i'm irv gornstein. thanks for coming. to discuss this term's biggest cases, we have a stellar panel. marty lederman, who is seated in the most left, is a professor of constitutional law at georgetown. hashim mooppan is a partner at jones day, where he focuses on supreme court and appellate litigation.
8:03 pm
erin murphy is a partner at bancroft, where she also focuses on supreme court and appellate litigation. and david cole is another constitutional law professor at georgetown. before i turn things over to the panel, let me give you a very brief introduction to the term and tell you about the format for today's program. the story of last term is that the left side of the court did a lot of winning. that happened not only in the two momentous cases involving same-sex marriage and the availability of subsidies on the federal healthcare exchange, but in almost every big case decided last term. justice kennedy was the justice who usually joined the left side of the court in those cases. but the chief justice and even justice thomas occasionally either added to or provided the margin of victory.
8:04 pm
this term, i would expect a return to the norm, in which the right side of the court wins a majority, but by no means all of the big cases with justice kennedy, again, the key vote in most of the big cases. the big question for this term, i think, is how big will the wins be. in a fair number of the big cases, the court will have a choice between broad and narrow grounds for decision. and the importance of the term will be determined by which path the court chooses to take in those cases. we have on our agenda ten cases the court will either hear or is likely to hear this term, although we may not get to them all. after the panel completes its discussion of each case, the press will be invited to ask any
8:05 pm
questions that it has. for the first five cases, which i think are the big five, after the case is presented by one of our panelists, i will ask other panel members, who want to comment, to do so before inviting questions from the press. for the next five, the second tier five, i guess, i will invite press questions right after the case is presented, but encourage any panel member who wishes to do so to reply to the questions. we're going to start with evenwhile versus abbott. hashim will present that case. >> so this is a case that involves the one-person, one-vote doctrine. it's a pretty interesting case because it raises fairly fundamental questions about the scope of that doctrine that you would think would have been decided quite a long time ago and that have fairly major
8:06 pm
implications for how elections are run in this country. so it could be potentially a very significant case. the basic one-person, one-vote doctrine, as i'm sure that everyone here is aware, the supreme court held that when states are drawing districts and divvying up a legislative body into districts and putting people into each of those districts for voting, the state has to basically have a fair amount of equality between the districts. you can't have certain districts which have much greater populations than other districts, because that gives the districts with smaller amounts of people unequal and unfairly greater voting power. but what the court has never really grappled with in most of the cases is what exactly you're trying to equalize.
8:07 pm
are you trying to equalize the total number of people in each district, or on the other hand, for example, the total number of eligible voters in each district? the court has largely been agnostic about this. it's used language that sometimes suggests that you have to be equalizing the voters in the district, as the name one-person, one-vote sort of suggests, but in other contexts they have often suggested that you ought to be equalizing the total population. part of the reason they've been able to sort of duck this question for a long time is that in the '60s and for a good long while afterwards, it wasn't clear that the theoretical difference made much practical difference, because if the set of people who can vote in a state are sort of evenly distributed across the state, then equalizing total population and equalizing voter population end up being roughly the same thing. but today that's no longer the case, at least in some states,
8:08 pm
primarily because of the large populations of illegal aliens in certain states who are not qualified to vote. and there are other types of populations also that, for example, felons who are disenfranchised, things like that, where you have populations that can't vote and aren't necessarily evenly distributed across the states. they might be located in certain parts of the states more than other. so if you draw districts where there are a disproportionate number of those people in one district and you equalize total population, there will be more voters in certain districts than other districts, even though there is equal population totally. conversely, if you try to equalize voters in a given district, then you'll have different amounts of total people in the district, so that's the basic question that evenwell presents, which is what
8:09 pm
are you supposed to be equalizing under the one-person, one-vote doctrine. total population, or some type of voter population? the case arises out of texas. texas, like most states, chooses to equalize total population in their districts. and so they all shoot to have roughly the same amount of total population in each district they draw. as a result, in a state like texas, there are certain districts that have many, many more registered voters or eligible voters in certain districts than others. and so even though the populations are roughly equal based on total population, the populations are very disparate in terms of actual voters in each district. and so the plaintiffs in evenwell are arguing that that should violate the one-person, one-vote doctrine, because the voters in the districts where there are -- the voters in the districts where there are
8:10 pm
fewer -- sorry. where there are -- sorry. it gets a little confusing. the voters in the districts where there are fewer eligible voters have disproportionate voting power. let me just use an example, so this will be clearer. if you have two districts that each have a thousand people in it, and one district has 800 eligible voters and 200 non-eligible voters, and the other district has 400 eligible voters and 600 noneligible voters, than the district with 400 eligible voters, their vote is basically worth twice as much as the voters in the 800 person district, because there are 400 people electing an official in one district and 800 people electing an official in the other district. so to sort of summarize the arguments that each side is making, the plaintiffs are arguing that you should be equalizing the total number of voters in each district. they're saying the whole point of one-person, one-vote, is to ensure voter equality and to avoid vote die -- dilution, to
8:11 pm
make sure each person's vote counts equally. and the way you do that is making sure the total number of people voting is the same, and it doesn't matter how many total people are in the district, because people who aren't eligible to vote don't count when you figure out who is going to have voting power. it's a fairly straightforward argument as a conceptual matter. as i said before, the case law in this area isn't going to be all that dispositive because there is language in the cases going each way, largely in part because the distinction didn't matter a lot at the time a lot of these cases were written. texas, in response to this argument, tries to argue that states should have choices about which population base to equalize. it doesn't say that you have to do total population or you have to do voter population. it says states should be given discretion as to which population base to equalize. they give basically two main arguments in support of that.
8:12 pm
one is an argument about what function voting serves. and they argue that -- and this is an argument also pressed by a lot of the amici that support them, is that voting isn't just about serving the people who are eligible voters. once you have an elected official, they represent everyone in their district. so there is a representation norm that it's important that you have equal numbers of total population in each district, because otherwise you'll have, for example, one state official who represents a district with a thousand people, and another representative who represents a district with 2,000 people. so you could view that as a form of inequality even if the total number of voters in the district are the same. the other argument texas makes is they try to situate the one person, one-vote doctrine within
8:13 pm
the court's broader equal protection jurisprudence, and they say there is only a one-person, one-vote violation if there is intentionally discriminatory acts by the state. the state argues that the state isn't intentionally trying to dilute anything. as i said before, thinking about two different versions of what voting is about and what representation is about, and it's just a necessary effect of that that if you pick one population base, you'll dilute the votes of the other and vice-versa. and so it's not an intentionally arbitrary decision, therefore the state should have latitude to choose between the two. the other -- there's one other -- i guess there are two other issues that are probably worth talking about on the merits before doing a little bit of prognosticating. one argument that texas makes is that it would be very hard logistically to equalize voters
8:14 pm
as opposed to total population. total population of course is calculated by the census. it's done at a very, very specific level down to the block level when they do the census. and so we have very good data on where everyone lives, and so you could draw districts that try to equalize total population. but there's much less good data on how many eligible voters there are in a state and exactly where it is they live. the census doesn't ask those questions at the same level of detail. and so texas makes the argument that it would be very difficult to actually try to equalize voter population. and then the one other argument that texas makes that will probably get a fair amount of play in the litigation in the case is to point out that in the constitution, when the constitution determines how many congressmen each state gets,
8:15 pm
which is sort of apportionment across states, there the constitution expressly says that you determine each state's total congressional representation based on total population. so states with large total populations get more congressmen than states with smaller total populatio populations, and it doesn't mat e matter whether states have a different amount of eligible voters. you do it based on total population. technician and its amici argue it should be acceptable for states to do the same when drawing districts within their states and determining how to allocate within states. in terms of predicting how the case will come out, and the relative merits of the case, i think there are a couple of things. it's interesting case because if you think about the conceptual theory behind one person, one
8:16 pm
vote, i think there is a lot of intrinsic merit to what the plaintiffs are arguing in that the cases seem to be about equalizing voter strength, so naturally you would want to equalize voters. but there is a lot of resonance for some of the people on the court to the notion that you shouldn't be doing that in a circumstance where you then have massive disparities in total population in districts where you're essentially in some sense not counting as full members of the political community people who are not eligible voters. and i think that that will have a lot of resonance, especially for some of the liberal justices. the other thing that makes it a particularly complicated case is that the one person, one vote doctrine is sort of a landmark doctrine at this point, but it's also a doctrine that doesn't have a whole lot of clear footing in either the text of the constitution or the history. so for that reason a lot of the
8:17 pm
more conservative justices may be more skeptical about it. what plaintiffs are asking for here is a fairly significant expansion of the doctrine in a sense, by not only requiring equalization of populations, but then having a very specific definition of what population base has to be equalized. and so some of the conservatives might be more inclined in notions of federalism and based on skepticism of the doctrine overall to give states a little more latitude and a little more deference on how to do this. overall, i think these two effects are probably going to make it such that texas has an easier path to victory here because it can peel off some of the liberal justices on the representational arguments and some of the conservative justices on the administeribility and
8:18 pm
workability arguments. i think the plaintiffs' best chance of victory is to go for a narrower position, which is that maybe states don't always have to equalize voter population. but at least in circumstances where they can do both, where they can roughly equalize both voter population and total population, they at a minimum should have to do that. the plaintiffs here have argued that that's the case. texas disputes it. that will be a potential factorial issue. that's one possible middle ground position that might make it easier for the plaintiffs to get to five. >> anybody else want to speak on that? >> sure. that was an excellent summary, and i largely agree with what hashim has to say, with one factual clarification. the disparities in texas and other states aren't just a function of the facts that districts have percentages of undocumented aliens but also of documented aliens, aliens and
8:19 pm
nors who are living in those districts who are not eligible yet to vote but will be one day. i would be very surprised if there are five votes to take the plaintiffs' position that you must, that a state must draw its districts on voting or eligible voting lines. i think the real question is what the court says about the discretion that the states have to deviate from total population. the reason i think it would be very surprising, in addition to those that hash offered, which i think are pretty compelling, are, one, it would mean upsetting the practices of all 50 states for 50 years, or almost uniform practice of all 50 states for 50 years, not something the court is going to be eager to do, and also it would seem to set up a system in which the rule for -- this is an argument made by the chief justice when he was the deputy solicitor general in a case a couple of decades ago.
8:20 pm
it would be an odd result that the apportionment standard that states have to use to distribute their congressional seats is something that's prohibited to them when they're drawing their states. this is about state legislators. that oddity makes it unlikely. the real action, i think, will be whether and how the court says that it agrees with texas that the states have discretion to deviate from total population. so it will be interesting to see this friday when the amicus briefs comes in, whether any of the amici argue that states have to use total population, as most of them have for 50 years and whether that's a constitutional requirement. i think it's more likely that many of the amici will argue that it would be inappropriate for the court to reach that determination, that it should wait to see if a state legislature decides to do such a thing, what its evidence is and
8:21 pm
the like. many worry that if the court were to say very boldly, texas has discretion, they've chosen total population and that's constitutionally permissible, but they're free to go to eligible voter population or citizenship or some other criterion for drawing their districts, it will be an incentive or message to state legislatures that are predominantly republican controlled to make such moves in a way that could radically effect the make up of state legislatures. and i think that the real interesting question will be to what extent the court reaches out to affirm what it suggested in this 1966 case, which is that the states have brought discretion or whether the court saves that question for a later case. >> i agree with marty and hashim. i have one sort of consideration, which is that any time the court is asked to
8:22 pm
engage in policing the electoral process, there is the risk of the results appearing 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 public interest groups. and so that rule, the rule that the plaintiffs are seeking, would benefit republicans. and that would -- could well politicize the court. two of the court's most -- of this court's most controversial decisions were citizens united and the affordable care act case, both of which were highly partisan. and we all remember bush versus gore. so i think there are reasons for
8:23 pm
the court buzz of its legitimacy to tread softly in this area. the easiest way to tread softly is to leave the matter to the discretion of the states, as the court said in 1966. and then one last thing, from the standpoint of sort of originalists and textualists, that also seems to be the result that should obtain, because the constitution doesn't -- just doesn't say whether it should be total population or voter population. and i don't think the original meaning of the understanding of the time would in any way direct either one of those results. and so if you're an originalist or a textualist, you would say therefore it should be left to the states. >> one thing -- go ahead. >> i just wanted to follow up quickly on that, which is, so i agree there are potential partisan implications here. but i don't think it's necessarily as clear-cut as a win for the plaintiffs would
8:24 pm
obviously benefit republicans and hurt democrats. how this will shake out in any given jurisdiction depends on how total population maps on to eligible voter populations. for example, a way that this could benefit democrats would be, if you have states, for example, with large prison populations, where for example you take large populations from urban cities who are then in prison and they're not eligible to vote, and they're in rural prisons, if you count those people as residents of the rural district, it inflates the rural district to the expense of the urban district. in that context it likely would have a pro-republican benefit rather than a pro-democrat benefit. another way this could happen is you could have gerrymandering, right? so right now, the reason why using voter population would benefit republicans is because districts are basically drawn such that you have situations
8:25 pm
where if you have a large population of non-qualified voters, they tend to be living near people who are qualified voters and who agree with them. and so you enhance their political power. so to be precise about it, in texas, for example, in areas where you have large amounts of undocumented aliens, the people who live near them also tend to be hispanic and tend to be democrats. and so it's enhancing their voting power. if texas, for example, tried to draw districts where you've pulled some of the undocumented aliens from one area into the same district with eligible voters in rural or suburban areas, you could have a very different partisan makeup. and so whether this shakes out as a pro-republican or pro-democrat thing partly depends on how the districts are drawn. but i agree that it definitely has partisan implications. and right now it probably does shake out more to the benefit of republicans than democrats. but it's not strictly speaking.
8:26 pm
>> certainly that's what the advocates seem to think, if you look at the lineup of amici in the case. it's pretty stark. >> one thing i wonder about, why states have all been using total population, if, as texas has, states all along have had discretion to go either way, and there are these political advantages to using one or the other depending on, you know, whether you're a democrat or republican, generally speaking. does anybody have any thoughts on that? >> one thing that hash mentioned, that the census data allows much more specific and reliable breakdowns on total population than cvap, the eligible voter population.
8:27 pm
the other, speaking here only for myself, i think most people sort of have inculcated the idea that nonvoters are entitled to representation, and it would have been politically quite striking for a legislature to say otherwise until now. i just think the partisan politics of it make what used to be off the wall arguments now tenable. >> i wouldn't characterize it as off the wall. let me just say one thing. then i'll go to the press. if the court gives a green light, if you think the states have pretty much thought, oh, we have to do it by population, texas is very much arguing in part of its brief 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 that will change the political landscape, if not as much as a victory for the plaintiff, somewhere, you know, approaching that?
8:28 pm
>> i think the court has already said that. and byrnes essentially said there's a green light in this 1966 case. to me, i think it's probably administeribility that has led states to go with total population. they're there. they're available. they're easy. but as technology makes it easier and easier to crunch numbers and get specific data, they may well -- it may well become easier to go the voters route and people might well -- states might well chose to go to voters route just as technology has made it easier and easier to do very partisan jerry mangerry. 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 can leave it open. if it becomes a problem, they can reach it later. >> questions from the press.
8:29 pm
yeah? >> my question is for hashim. you kept saying voters and suggesting that felons would not count, but are they asking for literal eligible voters or citizen voting age population? >> the cameras are asking if you have questions, come to the mic. it's not being picked up. >> i'm sorry. i'll mumble it now. you kept saying voters and you suggested, for example, that prisones in rural areas wouldn' be counted because they're felons, but are they asking for voters that are literally eligible to vote or citizen voting age population, because the results are different? >> the plaintiffs' brief is a little agnostic about it. as i read it, they're focused on eligible voters. now, there are a lot of
8:30 pm
different metrics for how you measure eligible voters. the most common is the statistic reference which is called the cvap, the citizen voting age population, but it's not a perfect proxy for eligible voters because there are plenty of people who are citizen voting age but nevertheless are not able to vote. again, i think that sort of plays up the administeribility issues with the plaintiffs' case, but they're not asking for registered voters that would raise a whole host of other issues given the concerns. it is notable that 1966 case that marty referenced earlier it involv involved hawaii. hawaii had a similar problem with major discrepancies between total population and eligible
8:31 pm
voters because large populations of military and large populations of resident tourists, i guess. hawaii decided to deal with that by using the registered voter base as the population base and the court actually upheld it. that's why some people seem to think the operating status quo is that states do have the discretion. that case has a lot of ambiguous language in it. i don't think the plaintiff is pushing for that. >> following on your question and remarks there, in texas specifically or in any other state has a state legislature considered this question, been asked to address the question? did the plaintiffs write their state legislature first, or did they just go to court? >> you know, so i'm not 100%
8:32 pm
sure about how it worked on the facts of texas. i don't think they went to the legislature. part of this is texa texas' redistricting -- it took a long while in texas because they were subject to voting rights act litigation. the court passed a plan. the legislature passed an interim mplan. in general, i think i would say -- it is not every state uses total population as its base. i believe there are at least -- maybe i shouldn't say state. there are at least at certain levels of government there are entities that have used population bases other than total population. i don't think it's the uniform rule throughout the country. so it has been considered.
8:33 pm
>> is there any chance that this case effects congressional districting, or is the constitution clear enough that's going to be based on total population regardless? >> so this is another area in which i think the petitioners' brief is a little ambiguous. i think we'll know at the reply state their implications for the u.s. house of representatives, but right now they've said you shouldn't rely on the federal analogy, even if it had a different population rule, so that's what they're coming in position is, but they haven't actually said whether they think -- and hash, you can correct me if you read it differently. they haven't actually said what the rule is for house of representatives. you could draw a distinction based on the specific text of the constitution, but the specific text of the constitution is only telling you about how to apportion
8:34 pm
representatives among the states, not how the states should draw lines, but 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 out to apply. >> i agree with everything you said with one caveat, which is that under current law there is a difference between how one person, one vote applies to the states as opposed to congressional. throughout this, we've been talking about equality and equalization, but at the state level the court has never actually put strict handcuffs on states equal populations. they usually get some latitude. it is usually plus or minus 5% or at 10% range. so as long as the district is --
8:35 pm
but on the congressional side, the court has required pretty close to perfect equality, because of that, it might have implications for how that rule would work on the congressional side. for example, as i mentioned before, one possible middle ground position would be you have to equalize both if you can. that only really works when you have wiggle room. 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 a plus or minus ten window. if that rule were to stick for congressional, that middle ground position might not be available on the congressional side, so there are potential implications for how this would work on the congressional side, but i think the short version is essentially what irv said. the case doesn't involve congressional. the plaintiffs aren't taking a strict position on what it is, nor does the constitution clearly answer what to do on
8:36 pm
apportionment in congressional districts within a state as opposed to determining how many congressional districts each case gets. >> let's go to the next case. david? >> last term liberals won more than conservatives. that's also the first time in the history of the roberts court that that has happened and the roberts court is ten years old. nine terms, conservatives won more than liberals in 5-4 cases. last term, it was the opposite, and i think that explains some of the emotion articulated in some of the dissents. they aren't used to losing in these kinds of cases, and they were not happy with that evidently. the second thing -- i think irv is right. the question is it conservative
8:37 pm
with a big "c" or conservative with a small "c." when it's been the roberts court, it's generally been conservative with a small "c." when its had the option to make the moderate conservative route rather than the radical conservative route, that's what they've done. the other thing that striked me about this term is that two of the most controversial and political cases come out of texas and in both cases texas is defending the liberal position. so fisher is a challenge to texas' university of texas at austin's affirmative action plan. the university of texas has been defending its admissions policy
8:38 pm
since 1992 when it was first challenged by a woman named hopwood. and the central question, i think, in fisher is how do you reconcile the application of strict scrutiny, which requires narrow tailoring to a compelling end and the court's holding that diversity deferentially defined by universities is a compelling end. two things are clear in the affirmative action arena. one, strict scrutiny applies. the exact same scrutiny at least in theory that applies to disadvantaged racial minorities lies to laws that advantage minorities and that requires narrow tailoring. two, diversity is a compelling
8:39 pm
interest and thus the university's determination that it needs a critical mass of racially disadvantaged groups is a compelling interest to which the courts defer, but diversity and critical mass both elude any specific or concrete definition. so how do you apply a standard which requires very narrow and specific tailoring to an end that is open ended, indefinite, and vague? and that's, i think, a central tension in the court's affirmative action jurisprudence, which they have not resolved. this was up before the court a couple of years ago, and after a great deal of time, the court eventually remanded it back to
8:40 pm
the fifth circuit. the fifth circuit upheld the university of texas's program. they sent it back for assessment of whether under non-differential scrutiny and analysis that the program texas has was necessary or tailored to achieve diversity. the program i think most are familiar with. it adopted a top 10% plan, which they guarantee admission to the top 10% of every high school in texas because texas, like so much of the rest of the united states, is highly segregated. that actually achieves diversity. it's not an admissions plan that any admissions officer would adopt but for the fact that it
8:41 pm
achieves diversity. 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, but having adopted that program, texas achieved some significant diversity. about 4% african-american, about 15% latino representation. then the court in 2003 decided the university of michigan case, in which it upheld the use of race as a factor, a modest factor in a holistic all things considered assessment of the individual to achieve diversity. so texas says, well, if the university of michigan can do it, we can do it. they did not scrap the top 10% plan, but they said with respect to those students who have not
8:42 pm
gotten in through the top 10% plan, it's about 20%, we're going to apply the university of michigan plan. we're going to do a holistic review. we're going to consider a wide range of factors to assess whether this person would diverse value to the academic community. one of those factors, but a very modest factor, will be race. and they were challenged. and the question is whether that consideration of race in the holistic inquiry that is applied to the remainder after the top 10% plan fills 70% to 80% of the class is consistent with the court's strict scrutiny requirements. as i said, i think the challenge here is that it's very difficult -- if it's difficult to say what diversity means, if it is difficult to define what a critical mass is and that is the
8:43 pm
end, how do you do narrow tailoring to that end? that's essentially the challengers' argument. you can't have a narrowly tailored means texas and texas has not sufficiently demonstrated why it needs to consider race in this remainder in order to achieve its end. the problem, i think, with that argument is that the court has already confronted that argument in the michigan cases. the challengers argued diversity is, and i quote from justice ren kwis's opinion, to ill-defined to institute a compelling state interest. we have rejected the challenger's argument that diversity is too open-ended, ill-defined to institute a
8:44 pm
compelling state interest. how do you do narrow tailoring? what the courts have done thus far is they have said, well, what you can realistic require is no racial quotas, consideration of race neutral alternatives, a holistic consideration of each individual, no sort of set aside categories, and race being only a modest factor not a predominant factor. that is the definition of narrow tailoring. that is what kennedy said he would accept as narrow tailoring in his concurrences in the michigan cases, and that's essentially what texas has shown. they have shown that they attempted race neutral alternatives more than michigan did.
8:45 pm
michigan did not adopt the top 10% plan. they engage in holistic all things considered assessment. they use no quotas and race is only a modest factor and doesn't add a huge amount of diversity on top of the racial diversity that the top 10% plan reaches. so the question -- and 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 -- the strongest argument the challengers make is this point it just doesn't make sense to have a narrow tailoring requirement applied to an open-ended, indefinable end. you just never know when do you have critical mass. why is critical mass apparently different for african-americans
8:46 pm
than for latinos? what are the percentages that you need? those are questions that texas will not answer, cannot answer, and that makes the application of narrow tailoring very, very sticky. so you either -- it seems to me you have two options. you either say, well, the 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 you would end affirmative action or at least threaten the end of affirmative action. about 12 years ago, justice o'connor said we're upholding affirmative action when it is used in this holistic modest way
8:47 pm
but for 25 years. it's only 12 years ago. in 25 years, there's going to be a very strong argument that affirmative action should be ended, so i would be surprised if the court ends it now. one possible sort of, i guess, middle ground is to say when you've adopted a top 10% plan and the top 10% plan or race neutral plan that gets you some racial proportional diversity, then you have a higher burden to demonstrate why you still need to consider race with that remainder. and then that would not end affirmative action. that would just say when states adopt a top 10% plan, they have a higher burden. that would be a paradoxical result. because if you adopt a race neutral test, which is not required to be adopted -- in
8:48 pm
michigan the court rejected the notion you have to adopt a top 10% plan -- you're put in a worse position which applied race to every applicant. so i think it's a tough case, and i think what's tough about it derives from the existing precedent, which creates this tension between the requirement tailoring and the open-endedness of the end. >> erin? >> so i largely agree with what david said, but a couple of additional thoughts. one is -- an interesting aspect about this case is it was at the court before. they took it. they had it for basically the whole term and then at the end of the term, they remanded it on
8:49 pm
very narrow grounds, which many people have suspected and reported might have been as a result of some sort of compromise. it went back down. the fifth circuit reached the same result. they took it back up and then finally decided to grant. given those circumstances, it seems pretty hard to believe that texas is going to prevail. why bother taking the case if the votes within the there to reverse? that sort of prediction gets sometimes refuted. another case out of texas last year involving the fair housing act. but in this circumstance, it seems pretty hard to believe that the conservatives would have pulled the trigger on granting if they didn't have the votes to reverse, at least in some aspect, whether it's narrow or broader. i do agree with david that the two big moves are the narrow one would be just to focus on you
8:50 pm
didn't need additional affirmative action programs over and above what you already had. the more aggressive one, which i don't think would actually end affirmative affirmative action, but make it harder to justify would be to say, if you're going to have diversity as an interest, you have to explain what that means. you have to explain what the numbers are you're shooting for. if you're saying there's a compelling interest of having a certain amount of racial diversity, you have to explain what that is. what figures are you looking for where you get the educational benefits from diversity and then we can figure out whether it's narrowly tailored. but until you tell us what you're shooting for, the analysis didn't make sense. if i recall correctly. the chief was pushing that argument pretty heavily.
8:51 pm
that would be the bolder position that would come out of the case. >> just to echo what hash just said, it east interesting to me that they granted this case. they clearly know what's going on and what they're getting themselves into which makes it hard to think that they didn't grant it with the idea of being able to come out and in some way that is not very good for texas. but i also have a hard time seeing five justices, a five justice majority ready to really go far in this area. that leads me to think they have a narrower view in mind with how they're going to deal with this. they certainly didn't have to take the case. and they clearly know exactly what they're getting themselves into by doing it which sets up an interesting dynamic of what is going to come out here. >> so so far nobody has expressly mentioned the rationale u that the court of
8:52 pm
appeals used to say why there needed to be more diversity. and it seems to me what they were saying is that there needed to be some sort of within group racial diversity. maybe there was enough of each particular group. but what wasn't accomplished through the 10% plan was within group diversity. the reason being that the 10% plan accepts people on one metric. great point and draws largely from segregated schools and that there are experiences that at least this court after appeals sought and backgrounds that aren't captured in the 10% yp ear automatically in the 10% that could be found through
8:53 pm
holistic review. i'm wondering how you think the could will react to that rationale. >> you go back to justice powell's landmark, and that was one of the main rationales in it, this whole effort is not only intended to get more students of particular races and background in there, but to break down racial stereotypes. you need enough students to demonstrate that not all students of color think the alike or have similar backgrounds or bring the same things to a classroom. but that the whole effort to break down racial stereotypes in society and higher education in particular requires a broad range. this was in response to the argument that many of the programs were az mitting higher income very well to do african american students rather than those who had different backgrounds. and the court -- i believe justice kennedy has expressed some sympathy to this idea, that
8:54 pm
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 be a little sympathetic to this idea. >> so that's definitely the right way to spin it if you're texas. and there's a lot to it. >> i am texas, yes. >> but you know, the audty of it is something that you also flag, which is this is, in essence, what it's saying is what we need is a lot of recommend tifly well off minorities who went to relatively good schools and weren't in the top 10% ap then seems to turn a lot of people's notions of affirmative action on its head. the people you're giving the additional benefit to are the people who are in the least need of it. people who went to the better schools and are better off and weren't in the 10%.
8:55 pm
>> that's absolutely true. i'm just not sure that's how justice kenty thinks of it. >> i ams think there's a way in which texas's argument, to the extent if it's phrased this way, sort of appear to adopt a stereotype about the black kids who come from the top 10%. oh, well, they're of a certain type and we need a different type. and that itself seems to be stereo typed. and there's no evidence in the record of what the sort of overall diversity of the top 10% students from the segregated black and latino schools are like versus those who are from the other, the remainder. but i guess my sense is that it's not so much about intraracial diversity as an end. it's about diversity as an end. and the reason the state engages
8:56 pm
in holistic review of everybody and texas engages in the holistic of the other, it wants the person who had extraordinary challenges growing up. it wants the great debate whoer was in the top 15%, right, not the top 10%, et cetera, et cetera. an within that set of diversity, race is a legitimate consideration. and we shouldn't exclude it at that point. but we're not just looking for well-off black kids who were in the -- you know, who were in the top 15% but not the top 10%. we're looking for a diverse student body which includes the consideration of race as one of the factors that colors one's
8:57 pm
experience in the united states. race continue to matter. and so it continues to be a relevant factor in consideration diversity. and as long as it's modest, which it clearly is, it ought to be permissible. >> so, you know, it seems to me, david has done his best to predict a win for the university of texas. you know, i just don't see it. i see this grant the same way hash does. in studying justice kennedy's opinions on affirmative action and the use of race, it seems to me the overriding theme are two-fold. one, he really believes in an integrated and the value of integration. and number two, he desperately wants it to be achieved by race and means. i think you see that in the fair housing act opinion and the reason that came out the way it did, i think, is those two things are basically true.
8:58 pm
he believes in sbre grags and fair houses cases can be remedied simply by adopting one race message rather than -- and 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 balance. but i think what he wants to do is drive more innovative solution to how to get to integration through racial means. and the way to do that is to make universities around the country fear that their plans are going to be invalidated but not rule out the possibility that they could be upheld. that's what's going to drive innovation. and i think that justice kennedy will write something that makes it very difficult to satisfy strict scrutiny and starts to worry people that maybe they ought to be looking for race neutral means. it's true there's been a lot of effort to do that that hasn't
8:59 pm
turned out as successful and some might have hoped. but i think justice kennedy thinks that the ready result to race with the michigan decision is part of the reason why it hasn't been driven. i do think we eel see something that picks out enough things that are wrong with the university of texas plan to give other universities enough concern that they'll be in the position of thinking maybe we ought to switch to something that's race neutral. >> with that, questions for the press, from the press. yes. >> go back one more time, if they do rule -- i'm sorry. if they do rule for bradley then and want a number associated with critical mass were for the lehman, how does that not rub up
9:00 pm
against the quota aspect in i just don't understand. >> so the question is if the court tries to -- holds that universities have to articulate what critical mass means in a more quantitative way than the fuzzy qualitative way they've done so far, how does that lead to a quota. and i think the way it could would be to say, for example, you study educational policy, et cetera, and you determine that for example, i'm going to pick numbers out of a hat. let's say 10% of the minority population is the sort of level where you get the educational benefits for diversity. that's where you really need to be. that's what you're shooting for. that doesn't mean that you can then go say, i'm going to let in 10% minorities and nothing more, i'm not going to let in one more or one less. that could be a quota. having 10% be your target and
9:01 pm
acting in a race conscious way that considers all factors whole list cli, you could have it be a far get rather than a quota. of course when you say here's a number, it's going to lead to a kwa that, which is why some have been nervous about it. some of the conservatives are going to view -- running the risk of having it be a quota and the state universities can say we're shooting for critical mass in the air and no one knows what that means and then you try to do narrow tailoring without anything to tailor it to, i think some people are going to be interested in that as a possibility of putting some real teeth into the scrutiny. >> any other questions? let's move on to our next case, fred ricks versus california
9:02 pm
teacher's association. >> sure. it should be one of the closely watched cases at the court, involving the question of whether the court could overrule its 1977 decision which is the case that held that public sector employees can be required to pay union dues. there's really two questions in frederics that deal with the economy that abud drew which was to say you can have compulsory dues for purposes that are germane to collective bargaining but if the union is using money for political reasons that aren't particularly germane to collective bargaining, you can't have compulsory dues. what the court said is it's okay to give them the opportunity to opt out of paying those dues rather than to opt in to them.
9:03 pm
so this leads to the two questions that are presented in the frederics case, one is should the court overrule the principle holding of abud that you can compile any dues, even for the germane to collective bargaining purposes and the other being even as to the dues that are for political purposes. it is constitutional to have an opt out scheme or does the constitution require an opt-in scheme where the employees have to affirmatively cloos to give the dues rather than raise their hands and say no, no, i want my money back because i don't want to contribute to union's political activities. it's always interesting when a court grants a case for the question of should we overrule something. here it's particularly interesting because this isn't a question of oh, you know, does abud apply to xy and z and if it does should it be overruled. this is a straight up case that was teed up as presenting the
9:04 pm
question of whether abud should be overruled in the first. i think there would be some dispute as to whether abud needs to be overruled as to the second question. it is set up with those questions before the court and no apparent way for the court to kind of get around them in some narrower resolution of this case. they've taken a case squarely to decide whether to overrule one of its precedents. the past two terms are a bit of cautionary tale as far as reading too much into the court to overrule their cases. we've seen a couple of cases in a row where they did that and there wasn't a majority to overrule. i don't think it's a rule of thumb to assume just be because they grant on a question like that 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 respondents given what we've seen from the roberts court on
9:05 pm
this issue in the past few years. and that's because this isn't a case that comes out of a few justices off-handedly suggesting in a statement respecting denial that they're open to reconsidering the question of whether abud was right. this comes on the heels of two back-to-back solid five justice majority opinions that business cli fundamentally undermine every aspect of the reason in the abud decision. the first of those is the knox case from the 2011 term and the question there had to do with compulsory payment of -- what's the terrible? >> special assessment. >> special assessment. and in resolving that question and deciding that i was unconstitutional to have come pullsly payment of that. the court went out of its way first to describe the principle holding of abud as an anomaly, even though that principle
9:06 pm
holding about jermaine to collective bargaining dues wasn't an issue there. but the court went out of its way to call that into question. then it basically resolved the question before it by reasoning that abud was probably wrong about this opt out-opt indy cot my in the first place so that the opt out requirements certainly shouldn't be extended to a new context special assessments. and so you can see the court taking the opportunity to resolve a case that it perhaps could have resolved without going out of its way to call into question abud. but instead doing that and you have that in a, you know, an opinion fully joined by the five members of the court that made the majority. there's no separate concurrence saying i joined this but i'm not sure i have fundamental issues with the hospital in-opt out aspect of that. that's what we get from knox. then a couple of years later we
9:07 pm
have the harris v. quinn case which was whether abud applied to health care workers. the court could have focused aanalysis on distinguished the health care workers. instead the court decides to resolve the case by engaging in a really detailed lengthy discussion of why the foundations of abud are questionable both as a legal matter and an empirical matter and engaging in what leads a lot like a discussion of how abud has proven unworkable and how basically saying it's not only wrong but it doesn't really make sense to keep having it around, kind of going through all of this, in an opinion that reads like it's going to read by overturning abud but concludes saying we don't have to go that
9:08 pm
far because once again this decision is so wrong we're not going to extend it to the circumstances before us and we'll leaf it at that. and again you have the opinion joined in full by five members of the court with none of them writing separately to say, well, i don't really think we need to go that far. or you know, this can just be done by distinguishing the facts of this case by abud. there's nothing there that would give us comfort that there is some justice that's a little uncertain about signing on to all of this. i think about aspect of harris v. quinn in particular that hash's brief for the petitioners here does a good job of pointing out. the dissent in harris v. quinn, the court goes out of its way to call in the question of abud, doesn't defend abud on the actual reasoning that the abud decision employed. the court in abud said we accept
9:09 pm
that all of this is an imposition an infringement on first amendment rights even when they're talking about compulsory payments of fees germane to collective bargaining. but we consider the first amendment rights outweighed by concerns of free riders and people not having to pay their fair share for what they're getting out of the union. i'm trying to resuscitate abud in the dissent. that's really not even kind of the grounds on which the dissent try to resuscitate it. they call into question the whole premise that there's a first amendment interest at stake here. you're left with a decision that even as to the justices who fully still want it to remain the law, they're not even necessarily seemingly convinced that it got there for the right reasons, which sinceable when you read what harris v. quinn as to say about how awe bide had a
9:10 pm
slip shot analysis getting to where it had and treated some cases as having resolved the issue when they hadn't done so. i think when you look in context of the leadup to the court granting this case, it's hard to see abud surviving in full after frederics. there could be a situation where there's a split the baby approach of the court deciding if there's somebody not willing to go all of the way on the question of compulsory dues for collective bargaining purposes. there probably would at least still be the five votes to say, 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 give their money to support the political speech. they can't be forced to take the
9:11 pm
affirmative action of opting out of the regime. i think you would arrive at a compromised result that's not the result that would be the need to answer the fist question. the court is not going to get around what it took the case to do. and the signals here all to me point in the direction of they took this case to overrule abud on both of these issues. >> anybody else? >> i'm afraid that erin's pog nos occasion is probably correct. i would think this would be two inta instances were 0 the a least one for peeling off a fifth vote going the other way. if first and obvious one, this appears pretty clearly in jaws tis keegan's dissent in the previous case, is try to appeal to justice scalia on the public
9:12 pm
opinion that these are public employees and he's long felt that the rights of public employees are diminished. the prospect of getting his vote on that theory depends on convincing him or making a plausible case that these sorts of agency fee arrangements are intended to make the workplace more efficient. they're used in certain labor contexts for many years. the big three, building trades and the like. and employers there think this is good for business. and i think that is probably the somewhat long shot but who knows where we would be on that. i think that will be the focus of the brief. i can't help but mention a second that i'm not sure anyone is going to brief. i've long thought that abud ought to be overruled, hash. but it ought to be overruled the other direction.
9:13 pm
the court has never really explained, including in these recent cases, what the justification is for its basic rule that when the state takes money from you and gives it to another private party in certain context to allow that private party to speak in a way you disapprove of that that implicates your free speech right ps obviously the state taxes you all of the time and uses your money to engage in the government's speech without any first amendment places. and the cases of southworth in wisconsin to promote a wide array of public speech, much of which you might disagree with. abud would never explain why there is a first amendment problem here. i don't think there is one. there may be major policy reasons, but i don't think it implicates one's speech. and i doubt this is going to be a primary topic of the briefing. but if there are sincere
9:14 pm
principle originalists on the court, they might consider whether abud wasn't wrong to begin with going the other direction. >> i just wanted to add one thing about the justifications that you're apt to see from the bottom side briefs. i agree with marty's first one. i don't think any of the bottom side briefs will be taking marty's second point. but the second point that is there is one that is borrowed -- was in the dissent of justice keegan and por rowed from a justice scalia opinion. >> first one, right? >> no. the second one. >> the one i'm about to say, which so to say what distinguishes this situation from many others of compelled assessments is that the union has a duty under state law to bargain for everybody else in the union and that's different than every other situation in which you have compelled
9:15 pm
assessments. now, the one thing about the harris decision is that i would say that justice alito's opinion tread pretty softly on that ground. he perhaps called it into question a little bit, but not so much as to -- you know, my speculation is that justice scalia may not have been ready to ditch it 100%. and therefore it's definitely worth bringing up on the bottom side briefs. i tend to agree that the odds are that we'll see abud overruled. but i do think there's some possibility that one or two justices will get cold feet and hash has offered them a landing spot. now i can see why you wented the second question. but it's there.
9:16 pm
and people can think that, well, abud has been around for a long time. the world hasn't come apart. but we'll -- the second part of abud we're going to switch over, which is that for fees that cannot be coerced, nonbargaining fees we're going to require opt in rather than opt out. so i think that's the modest -- the best, i would suspect, that the bottom side can do in this case. but i do think it's a real possibility still. >> just to echo or underscore what irv's point, that argument that scalia has made before, because public sector unions have a statutory duty to represent nonmembers. the state has a legitimate interest many requiring the nonmember to pay for that service. it would require scalia to admit that he's wrong and i've never seen scalia admit that he's wrong. that's on the side of not
9:17 pm
entirely overturning abud. on the other side, i think this is a case that really pits, you know, an 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 for my public sector union dues. and you know, his core cli, individualistic lynn tarn arguments win out over collective responsibility arguments. the aca case notwithstanding. >> all right. so before i turn to the press, what about the impact of this case? assuming abud is overruled, what is the fate of unions really up in the air here? unions are obviously on the decline but they're still stroestrong in the public sector. and this case is about public sector unions. what do you see as the impact?
9:18 pm
>> i mean, you know, i think there's a decent argument of look, at the core level of whether you can have unions still and they're going to function, there's plenty of evidence that they can function without compulsory dues in the public sector. now will they have the same money and the same power in the states where they had the dues coming in if they don't have them, absolutely not. but you know, i think -- so i think it's kind of a question of where on the sail. i don't think it would be the destruction of public sector union representation although i'm sure we'll see a little bit stronger view on that question from the respondents when their brief comes in. >> i think public sector unions like a very different view and have long seen this as a real threat to their continued effective existence. as we know, unions are on the decline generally. scott walker has stepped out of the race. the supreme court may step in.
9:19 pm
>> i will note that the federal government doesn't have compulsory union due for its public dues. and in addition to scott walker, a lot of states don't. erin is right, of course it will be a shift from the union power but the, thought that would be the demise of public unions is fairly overblown, continuing has f of this country and the government operate under that regime right now. >> press questions? all right. contraception and religious accommodation, marty? >> the three cases we've discussed so far, frederics, fisher and evewell will be argued in december, one of them might get kicked to january. the two that irv and i are going to discuss aren't even on the docket yet. but i think most of us think that both of them are likely to be granted at some point during this term. i'm going to be talking about
9:20 pm
the hob pi lobby follow-up. ir f will talk a little bit about the abortion case out of texas. so i'm going to assume some knowledge about hobby lobby which was decided two terms ago. and the apparent win win solution that justice kennedy was thought to have engineered in that case. as you know, the affordable care act requires that all health care plans in the united states provide certain forms of preventive care in order to both advance health of americans and women in particular. and also make health care more affordable by preventing high costs health care needs before they occur. and the government has determined that in particular, all health care plans must provide cost free coverage of 18 of the 20 fda required -- fda approved forms of contraception.
9:21 pm
and certain entities, both for-profit and nonprofit object to having those forms of contraceptive coverage in their health care plan for their employees and a handful of student plans as well with respect to colleges and universities. hobby lobby was the case involving several for-profit entities. as most of you may recall, under the religious freedom initiative act, it's a general cross cutting statute that says with respect to virtually every fade rale law, if the application of that law to a particular individual or organization imposes a substantial burden on their exercise of religion, then the government is required to grant them on exemption from the law unless the government can show that the denial of the restriction will be the least need in the compelling government sbres.
9:22 pm
the 5 to 4 majority in hobby lobby suggested that ho hobby lobby's claims did probably impose a substantial burden on its religious exercise because of its view of its complicity in its employee's use of contraception, if the health care plan in question were to give them cost-free coverage for that, for that contraception. notwithstanding the fact that they could just not have a health care plan at all. because if they continue their health care plan that would be subject to pretty expensive fines for not including that or any other form of preventive coverage that the law requires. such as immunization. the court ruled 5-4 that that was a substantial burden. it then moved to the compelling governmental interest test in which just alito's majority
9:23 pm
opinion seemed to be skeptical but the justy kennedy's concurrence -- but the court didn't resolve that question. and justice kennedy's concurrence sent pretty strong signals that he thought there was a compelling interest in making sure that all female employees do have access to cost-free contraceptive coverage. so then the question sort of reduced to is this the least restrictive way of guaranteeing that cost-free coverage. and justice kennedy and to a certain extent -- the majority opinion ultimately rested on something that justice kennedy emphasized which is that the government itself, the departments of labor and health and human services had come up with an accommodation for nonprofit entities that would appear to be a so-called win-win, a situation under which they would not be responsible for paying for or facilitating or ad ministering the contraception coverage for their plans but at the same time the
9:24 pm
employees and students would get cost-free coverage. how does this accommodation work? it works in the follow way. if the organization, if the employer opts out of coverage, the government then requires its insurer -- and i'll break that down in a second -- to itself pay for the coverage rather than the employer. and the employer at that point, according to the government, has nothing more to do with the provision of the contraception. sort of go around them to the insurance companies, such as aetna or blue cross that they've hired to ad minister their plan. and it's that entity rather than the employer that ad ministers and pays for the coverage. and hobby lobby seemed to suggest without quite saying so that that would not violate their religious obligations, or at least not in the same way.
9:25 pm
so the court said that seems to solve the problem we have in hobby lobby. let cease see if this is a solution that can be applied to everyone. the government went back and extended that option to for-profit employers but continuing to do so with nonprofit employers and changed its regulation a little bit in ways that aren't worth getting into here. so that now all one is required to do is to send notice to health and human services that you're opting out. and at that point the department of labor reaches out to your insurer and says now you're on the hook for the cost-free coverage. here i'm going to have to briefly break down -- this is going to be a little harder to understand. employers have at least two prans. and three types of insurance plans that they use and the accommodation applies to each of
9:26 pm
them. so so-called -- under so-called insured plans, the insured that you hire, such as aetna, is responsible for paying out the claims that your employees submit or you students submit. in a so-called self insured plan, the employer itself ordinarily makes the payments but it hires an insurance company to be the a administrator of the plan but the money is coming from the employer. the accommodation that they offered applies to both sets of plans. there are about 100 nonprofit organizations in the united states and hhs expects about 100 for-profit employers who continue to object even to this accommodation and to seek an excepti exemption for it. it's satisfied the great majority probably of employers that used to object or to be
9:27 pm
uneasy about this. but there is still probably a couple hundred out there that least that don't on both the for profit and nonprofit side. the case that the courts are likely to rule on is nonprofits. until last week, all seven of them ruled in the government's favor. all seven of them had held that there was no substantial burden because the employer had been taken out of the loop and the obligations were thereafter imposed only on the third parties at this point. and one of those courts, the d.c. circuit went on to say even if that weren't the case, there's a compelling governmental interest in having making sure that all employees or students could get access to the coverage. and in fact in that case, the judge said that the government may require the religious organizations insurers themselves to provide
9:28 pm
contraceptive coverage to the employees. it's pretty striking thing. other conservative judges such as judge smith in the fifth circuit agreed on the substantial burden. but several conservative judges did not. and last week a panel of the eighth circuit disagreed making it unlikely that the court will grant one of the many petitions currently pending before it to hear these cases. there are a bunch of petitions up there from the d.c. circuit, from the third circuit, fifth circuit and tenth circuit. several were scheduled to be on the long conference on september 28, but last week the court put those off. i suspect that they're waiting for the briefing to be done in the pending petitions. the government's final brief in the tenth circuit is due tomorrow. as soon as there's a reply brief in that case, i expect the court to put them all on one conference.
9:29 pm
i publicly predicted the case the court is likely to grant is the one the government beliefs is the best vehicle which is the d.c. circuit case. so if i'm right about that, it's jones day's case. hash? erin has wonderful petitions from the fifth and the tenth circuits, but i'm sorry to say that i think in this case the court will probably grant the d.c. circuit case because it involves every different kind of plan, student and employer and a all three different kinds of plans under erisa and the d.c. circuit went beyond the substantial burden question and went out to the compelling interest question, as well. so i believe if i'm right about this the case will be captioned roman catholic archbishop of washington, d.c. versus burwell, which is pretty dramatic caption. actually the archdiocese of d.c. is not covered by this, they don't have to provide the coverage at all to their
9:30 pm
employees, but they're in the case for a technical reason because their plan is used by other employers. i don't think their claim is particularly strong but that case involves other employers, catholic university and thomas aquinas college. and jones day has at this point figured out what the strongest arguments are for why this accommodation might impose a substantial burden. i think most of the arguments that most of the plaintiffs have made can be met and have been met successfully by the government with the objection that they're based on fact or law on their theories of how the system works. but lately jones day has focused in particular on one argument that doesn't seem to be easily subject to that objection and the theory is something like the following. yes to be sure we are not
9:31 pm
responsible anymore for our employees' use of the contraception, they would be using it anyway, getting cost free coverage of it anyway, but we are responsible for the fact that this particular insurance company will be the one providing them with the cost-free coverage. we hired these employees, we contracted with this insurance company. we contracted with aetna rather than bluecross. so we are responsible for putting aetna together with these employees for this coverage. and we consider it a violation of our religious obligations to be a matchmaker of that sort. right? to have matched up a particular insurance company with particular employees. the government can't second gez guess our religious complicity. we think we are complicit because of that matchmaking function.
9:32 pm
and on narrow tailoring and compelling interest, it is notable that judge cavanaugh thought the government out to be required to provide these insurances to these employees. he did object to one small aspect of the scheme which is the requirement that you identify who your insurer is. when you opt out, you have to say and i've hired aetna. now in about 90% of the cases that doesn't matter because the employer's acknowledged publicly who their insurers are. and it's not obvious that this actually matters to any of the petitioners. but it is something that the judge pointed out. and i don't think it's a strong argument that the government has. to the extent there is a petitioner out there who really cares about having to identify their employer for the government and thereby help the government with this scheme, i'm pretty sure the justices will
9:33 pm
say the government doesn't have a justification, but that punts the case to the bigger questions which are, number one, is there a substantial burden and if so, if the government can identify itself that it's aetna or bluecross, can it require that entity to provide the cost-free coverage to employees. and we can talk, if you're interested, about how that scheme works. and in most cases it's either a benefit to the insurer or the government reimburses the third party administrators for their costs. i won't make a prediction on the merits. my views are pretty well known. i think the government ought to win. but again it's up to justice kennedy, as is becoming a theme here. and it's not entirely -- i think he wants to provide universal coverage for employees of this cost-free contraception. i think his vote will depend
9:34 pm
largely on the extent he thinks -- sort of like the affirmative action. has other options available to it that would enable it to provide this cost-free coverage in a reasonable way without using these insurance companies to do so. >> anybody else? >> sure. so we represent several of the petitioners in these cases, so i take issue with about 90% of what marty just said, but i'll try to keep it to just a few brief points. >> and that was my generous characterization. >> so we represent some universities in texas and seminary in the fifth circuit case and we represent the little sisters of the poor in the tenth circuit case. and just one procedural observation about all this. i don't know what cases the court will grant, but if it were really as anxious as it seems to defer for the government's suggestion about what is the
9:35 pm
best petition in which to resolve the case, then i'm not sure why they decided to pull before the split developed. so they had already decided to pull that from the long conference and it looks like they're waiting for the little sisters and other petition out of tenth circuit to be fully briefed. i think the government got an extension and actually won't be brief for a few more weeks at this point. to me that suggests that they are not at all committed at this point to taking any particular case or deferring to the government's view of the vehicle in which it would prefer that they solve a case involving the government. so i think it's an open question to see what they end up taking. the other thing that is notable about it, the main argument that has been offered for taking the d.c. circuit case is that it involves all three types of plans which is an odd argument because there is nobody in any of the cases who thinks the
9:36 pm
analysis is any different depending on what plan you have. the government think it's lawful no matter what plan you have. and objectors think it's unlawful, no matter what plan you have. so a couple courts -- there is the dissenting opinion in one that concluded it made a difference, but it's not something any of the parties think. there is also an interesting aspect -- little sisters also presents a separate question of whether this is unconstitutional even if it doesn't violate a religious freedom exercise. it's a question of whether the government's decision to discriminate among religious employers and completely allow churches to opt out while not allowing other -- basically entities that are not sufficiently associated with a church or a house of worship to opt out is essentially
9:37 pm
unconstitutional because the government shouldn't be drawing lines about which religious objections it will accommodate and which it's not. so that is just another aspect here and that has not been an issue that has gotten principal attention in the courts below. but it is an issue that has gotten a lot of attention. so it is possible the court will decide that they want to add that question into the mix here. we'll see. but i expect it to be the main issue now that there is a split expects that the court will take a case here. i will say one our two things on the merits of the issue because i feel duty bound to set the record straight on behalf of the challengers here. i think marty's analysis glosses over the principal problem that is the source of objection, which is that the government is not only using the plans of the
9:38 pm
employers, which it concedes in its most recent brief. the government conceded in at least in one of the contexts it is actually using the employer's own plan to provide the insurance, but also that the government is requiring the employer to affirmatively assist the government in achieving that end. it's not simply an option of opting out. you have to sign something and tell the government, here's my tpa, third party administrator or insurer, here's how to contact them so you can get them to provide the insurance that i find objectionable. and the government itself acknowledge that and say we need that assistance from the employers because they concede that they can't get that information if the employers don't help them get it. so it's hard for me to
9:39 pm
understand how people can say that the employer has no involvement in any of this when by the government's own telling it is saying that we need them to give them this information because if they don't, we can't then use their plans to provide the coverage that we want to provide. now, you can still have a debate about whether that is the least restrictive means of doing all this, but i don't see really how you can have a debate at that point about whether there is a substantial burden on religion because you're compelling people to do something and if they don't, they have to pay millions of dollars in penalties. that said, every court below that has gone the other way has managed to resolve this on the substantial merits. i'm not sure the government will fair nearly as well before the supreme court on that piece. but we shall see. >> for what it's worth, erin,
9:40 pm
i'm agreeing with you that to the extent it turns on the fact of the government providing information, but i don't think cases turn on that. >> the government says differently in its own brief. >> well -- >> anybody else have a comment on this case? i'll turn to the press. questions. yeah. >> will atmospherics on kim davis affect the justices' thoughts on this? >> i think the broad issue -- kim davis is raising a claim under the kentucky state rifra. her case is obviously a little different because she's a public official. but, yes, everyone knows that as we move toward more
9:41 pm
controversial social norms that have not been accepted in the context of both same-sex marriage and contraception, that there will be religious objections from some folks and that where rifra is available, they will seek exemptions from being required to do what in their view makes them complicit in that allegedly sinful conduct. so i don't know that kim davis itself will affect the justices, but everyone knows that this is just representative of a broader problem that will be -- that the courts will have to confront both in the same-sex marriage context and as well as things like contraception. >> anybody else on kim davis? >> two quick questions. how big a deal is the outcome of this case if there is a finding that it's a substantial burden but that it's the least restrictive means? so you get some and the
9:42 pm
government gets some. and then the second question, just assuming for a second that the justices may not be as eager as you think to take on this case, what are the prospects of waiting for the government's brief out of the eighth circuit which would have the effect possibly of pushing the case back a term? >> just to answer the first question, if the government loses substantial burden but wins on compelling interest, that's a huge win for the government. >> on the second question, my expectation is that when the government files its reply briefs in the pending tenth circuit cases, they will tell the court that they either plan to file a petition in the eighth circuit case or they don't. and to kind of tell the court what they think it makes sense to do in light of kind of that development. it's hard to see the court deciding the right thing to do is to deny all these petitions
9:43 pm
that will leave religious employers who lost in the position of actually having to comply with the accommodation if the court intends to later take up the question. so it seems to me that even if they wanted to give the government an opportunity to have its own petition, which there is no need for them to do that, they would hold on to the petitions and deal with them all at once still rather than denying cases in which religious employers lost where there is a decent part of the court that are going to think those came out the wrong way. >> and just to tack on to that, congress for the similar reasons -- it seems unlikely that this is the sort of case that they would try to push a term just because you have important status quo interests on either side. either you're going to have religious organizations having to violate their religious belief for another year, or if the injunctions remain in place, employees aren't getting
9:44 pm
contraception. so i don't think it's in anyone's interests to kick this for another year and i don't think the case is so controversial that they would want to push it just for the delay sake. >> i mean, i think if the government files tomorrow, i agree with erin, it will either say we think the d.c. circuit case remains the best case to take now that there is a split you should take it, or if they have some reason for thinking the eighth circuit case is a better vehicle, then they'll say wait for our petition. but off the top of my head, it's not obvious to me why that would be a better vehicle. >> so they could be top side? if they're the petitioner, they get to file the reply brief, which is something the government might care about. >> you don't care about it? you can just agree to give them the -- >> fair enough. >> i would say the government will not file the brief tomorrow saying take the eighth circuit
9:45 pm
case. >> i didn't think they were going to say that. >> any other questions? if not, we'll turn to the last of the big five, whole woman's health versus cole. the court has not heard an abortion case since 2007, and since then a number of states have sort of tested the limits of their authority to regulate or restrict abortions. some of those have been struck down by lower courts, others have been upheld. and so far the supreme court has stayed out of it. this year it seems likely that the court will return to the subject of abortion in this case. this case involves two requirements that are imposed on abortion providers. admitting privileges requirement provides that a physician who performs an abortion has to have admitting privileges at a hospital that is within 30 miles of where the abortion is performed.
9:46 pm
and the ambulatory surgical center requirements, or asc, provide that abortion providers must comply with certain minimum physical plant requirements that apply to all ambulatory or most ambulatory surgical centers. it's claimed that it would leave approximately ten concentrated in the urban centers of dallas, houston and an antonio. the closures would result from the fact that some of the facilities have doctors who can't gain admitting privileges to nearby hospitals for reasons that have nothing to do with their qualifications as doctors. and from the fact that it would be prohibitively expensive for many of the facilities to reconstruct their centers to comply with the physical plant requirements. so a group of abortion providers
9:47 pm
have challenged these requirements under the undue burden test that was set forth in the casey decision which reaffirmed roe in part but modified it significantly. they allege that neither requirement advances the state's interest in the health of a woman seeking an abortion. and that both create serious obstacles to obtaining an abortion, particularly for women in the southern and western parts of the states who would have long travel distances to the nearest abortion facility should their nearest ones be closed. the district court invalidated the requirements, but the court of appeals for the fifth circuit reversed except with respect to one facility. that court read casey and subsequent cases to establish two requirements for analyzing abortion restrictions.
9:48 pm
first, does the challenge requirement satisfy the most lenient form of rational basis review, which is, can you conceive any state of facts possible that would justify the restriction. and second, does it substantially burden a woman's access to abortion. the court rejected the approach of the seventh circuit in an opinion who said that abortion related statute sought to be justified on medical grounds not only need evidence that the medical grounds are legitimate, but also that the strength of the government's interests outweighs that of the burden. so under that approach, even a very slight burden on abortion access would be undue if the justification for this restriction was weak.
9:49 pm
and applying that approach, the seventh circuit invalidated or actually primarily enjoined an admitting privileges requirement. the fifth circuit applied the two part test, found there was a rational basis for each requirement, it found that building standards were ones that were generally rational in light of upgrading care. the court then held that neither requirement imposed an undue burden. on travel distances, the court thought up to so miles and three hours in travel time do not impose undue burden. they got that from reading between the lines of casey's
9:50 pm
holding that the 24-hour waiting period did not impose an undue burden in the face of district court findings that there could be travel distances -- or travel times from 1 to 3 hours as a result of that requirement. it further found that any times that are greater than 150 miles and 3 hours could pose an undue burden, but that the plaintiffs hadn't shown that enough women face that burden to pay it to facially invalidate the requirements across the board. it focused on two facilities, one in rio grande area and struck the application of the requirements as applied to that area because the closing of the facility there would result in women having to travel 235 miles. as to a second facility in the el paso area, the nearest texas abortion facility was 550 miles away, but it concluded there was
9:51 pm
no undue burden because women in that area could go to a facility in santa theresa, new mexico. only 12 miles away. the court distinguished its own holding where they said that mississippi could not offload its obligation to provide abortion facilities to another state. but it distinguished that case on the ground that the travel distances there were greater to the second state and because probably most importantly el paso and santa theresa are part of the same metropolitan area. now, by a 5-4 vote, the supreme court stayed the fifth circuit's mandate, which the effect of that is to preclude enforcement of the physical plant requirements across the board
9:52 pm
throughout the state and to preclude the enforcement of the admitting privileges requirements to el paso and to the rio grande area. it seems likely that the court will grant tertiary in this case. the vote to stay enforcement is an indication that five justices view it as reasonably likely. there is a seeming conflict in the circuit between the approach articulated by the fifth circuit and of that the seventh circuit. i don't think a serc grant is a 100% thing because there are procedural complications arising that could stand in the way. i doubt that they will. but there is also no opposition to serc filed and what looks like a clear candidate for serc when you only see the top side brief, sometimes considerations that are brought to bear when the opposition is filed that could alert the court to things that it didn't know about before and cause it not to take the
9:53 pm
case. but all things considered, i think it's a safe bet that the court is going to take this case based on the 5-4 stay motion. assuming serc is granted, this is another case where justice kennedy will likely be the key vote. in terms of prof sizeing how he'll come out, i don't think his votes in other abortion cases really tell us all that much. he voted to uphold a physician's only requirement for performing abortions, but that seems like the kind of common sense requirement and one that is very, very unlikely to impose any kind of burden on women seeking abortion. and he voted to, most recently, to uphold a prohibition on partial birth abortions and authored that decision. but that involved a particularly gruesome procedure that was performed in the third trimester, and here we have
9:54 pm
something i think all together different from that. based on his general juris prudence, i think he is prepared to give a fair measure of discorrection to states adopting rules and regulations that promote the health of women seeking abortions. i don't think, though, that he will be prepared to apply the kind of brand of rational basis review applied by the fifth circuit under which any conceivable state of facts could support -- if any conceivable state of facts could support the restriction, then the restriction should be upheld. and i particularly think that he won't be prepared to do that in situations in which there are signs that the reason for this may not be -- or may be to really close down abortion facilities rather than to promote women's health.
9:55 pm
justice pozner pointed out in his opinion that that requirement was not applying to procedures that propose greater risks, and petitioners have pointed out that there are grandfathering and waivering provisions available to other surgical centers if they can show compliance with the building requirements is not necessary to promote women's health. i don't think that's the end of the case for him, but i do think it raises sufficient red flags for him to want to see exactly what evidence supports each of these restrictions. and so that part of it i don't think he will agree with the fifth circuit, but where that leaves us, i'm not sure. i don't think he will agree that
9:56 pm
state can offload its constitutional responsibilities to another state. the way i think the fifth circuit would put it, there is really no undue burden if i can go to a facility across state lines and get the abortion that i need. so i've never been the best reader of justice kennedy. maybe others on the panel are. i do think it comes down to his vote, but until i see the briefing and argument in this case, i'm not prepared to venture an opinion yet. anybody else have thought on this particular one, any questions from the press? okay. well, we're getting near the end, but for those of you who would like to stick around a little longer, we'll do a couple other cases, at least maybe two and see who stays and who doesn't. but this is the second five and i was hoping to get to the two
9:57 pm
big business cases of the term. and so let's see if we can do that. erin, you have tyson foods which, i think, judging by the emeka support is probably viewed as the biggest business case this term. >> sure. so tyson food case certainly looks to be the latest in the roberts courts continuing efforts to rein in what i think a majority of this court views as abuses of the class action device. the case involves what the walmart opinion kind of pejoratively labeled trial by formula, which is the concept of basically using a sample set of plaintiffs or taking statistics to arrive at a composite plaintiff and then essentially litigating the case as if every class member were that plaintiff. even in a context where it's
9:58 pm
really indisputable that not every class member actually shares those characteristics of that plaintiff. now, i don't think anybody really likes the idea of defending the notion of trial by formula is a great idea, so i think there will be a fair amount of fighting of whether that is a fairway of characterizing what happened here. but that's essentially the issue that the court is principally dealing with here. this case arises in the context we've all gotten to know and love recently which is the donning and doffing doctrine. this involves a tyson food processing company where people don and doff protective equipment to work on the slaughtering floor and processing floor and employees get compensated for two sets of time, one set of time for when they're at their stations and assembly lines are running, and then on top of it, this they get this extra time called k time which is supposed to basically approximate in tyson's view the amount of compensable time spent donning and doffing protective
9:59 pm
gear. so this has ranged from 4 to 8 minutes in dinner scenarios. and the class' assertion is that they are spending much more time donning and doffing and that they are working on compensated overtime in violation of the flsa and of state law. now, the complication with all of this and proceeding with a class action is take there is really no question that all the class members spend very different amounts of time donning and doffing protective gear because they don't all have the same job, some of the gear is not required but employees choose to wear the
10:00 pm
gear that is optional. so some of the jobs don't requires a much protective gear as others. so there is all of these differences that are indisputable that demonstrate that there is no kind of exact number that you can attribute to what time is actually being spent donning and doffing and then the complicating problem of nobody is keeping track of the time probably because there was this k time being compensated. so in the employer's view, they're already compensating it and most employees didn't think that they didn't need to keep track of time that they didn't think was compensable anyway. so you have no evidence to demonstrate what the amount of time is yet you have a class that wants to litigate on behalf of all of these employees who may be spending different amounts of time and how much time is being spent matters a great deal here because this isn't a case where there is no compensation going on for donning and doffing. there is a little bit going on. and there is also a dispute about when you get into overtime.
10:01 pm
so it matters a great deal exactly how much time each individual is spending. now, the class said we've got a great way to solve this problem, we're going to have an expert observe 744 random employees don and doff protective gear and then draw some averages from that and procedure as if every class member spends that average amount of time donning and doffing even if that's not actually what they spend. there is an obvious lurking problem, not even so lurking with all of that, which is made even clearer when you get to trial and the class representatives are providing testimony that even they spend less time than these averages that are being attributed to it and there is plenty of evidence to demonstrate that for various different reasons, they clearly don't even have any claim at all that they are working uncompensated overtime. but the eighth circuit says it's fine because there is this older supreme court case mount clemsons that deals with the
10:02 pm
specific question of compensable time in the context of lacking records and suggests that you can use averages and statistics to figure out how to determine how much compensable time there is. tysons has objected to this right from the get-go and always said, look, the real problem is there was never a class with a common issue because individualized individuals dominate because it matters how much time they're donning and doffing and there won't be a common answer to that question and we can't take an average that is not true as to these employers and thereby subvert -- get around the basic problem and
10:03 pm
this is a class that shouldn't be certified at all in the first place. given what we've seen from the roberts court in the area of class action jurisprudence over the past decade, i'd be surprised if they took this case because they want the world to know that what was done here is the model of how class actions are supposed to operate. it's a little bit of an unusual case to take if they even were taking to resolve a circuit split or something like that because it involves these issues that are a little distinct to the context of the flsa and employment issues. so my strong suspicion is that they have taken this case to deal with a little bit more of their broader project of trial by formula is not something that we will sanction and when we say common issues, we really mean common issues, not common issues
10:04 pm
that are manufactured by things like coming up with a composite plaintiff to paper over the problem that the class members are all really in very differently situated. so i think this is -- and to go back to something that irv said at the beginning -- one of those cases will be looking to see how broadly the court speaks in resolving this case and if they really try to use it to pick up on and run with the discussion in the walmart decision from a few terms ago about what it is that makes issues common and to say things that are going to have a pretty lasting impact in the class action context in general. or if they will keep it a little narrower to just the question of whatever else you can do, you can't have these ideas where you
10:05 pm
use a subset of plaintiffs which was always going on in walmart or here, a hypothetical life that is not even reflective of any actual class member to litigate the case when in fact you have class members that have a lot of differences among them. >> spokeo. >> like tysons, it's being argued in november, so it's a little earlier. and it involves a broad and important question under article 3 standing that has bedeviled the court for several decades and it seems to have -- this seems to have -- it was before the court several terms ago and the court ended up dismissing the case improperly granted this the case called edwards versus first american that had been argued early in the term and on the last day the court decided not to decide it. it was widely surmised that the opinion was assigned to justice
10:06 pm
thomas and for whatever reason, the court wasn't able to settle on resolution of it. it raises the following question, when can congress create substantive rights for individuals and then allow the individuals to go into federal court to complain about the violation of those substantive rights. so since approximately the dawn of time, both common law courts and legislatures have often created substantive rights for individuals, that is to say they have required some other actor, a governmental actor or another actor to act in a particular way, either prohibits them from disclosing information about you, whatever it may be. it's very common. for instance, just to give familiar examples, the law of trespass was developed so that
10:07 pm
if someone trespasses on your land, you have a right to exclude them into court to court to complain and get damages without showing any further injury. it's sufficient that you show that the person violated the rule that was laid down to prevent them from doing whatever it was they did. in copyright, you can get damages just from the violation without showing that it damaged you in any other way, that it caused you physical or economic harm or the like. so there are a number of common law doctrines that allow for people to complain about the violation. and also statutory rights. and this case involves a statutory right. so under the fair credit reporting act, congress required that consumer reporting agencies, which are defined as entities that for a monetary fee or cooperative basis regularly engage in the process of assembling information about us and either selling to others or putting it out online. this has become a very big business. that they have to take certain
10:08 pm
statutory steps before they can disseminate information about you or they're required to give certain notice. there are a bunch of different statutory rules imposed on entities that share information about other individuals. and the primary statutory requirement at issue in this case is one that requires a consumer reporting agency to follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom an information report relates. so it's a requirement that they take reasonable steps to ensure the accuracy of what they say about you to others and the government construes this statute to only be triggered when they actually disseminate the information about the report. and this case involve as claim against, one of the
10:09 pm
main organizations that engages in this activity, they publish tons of pore about all of us online and for fees to various folks. and the allegation in this case is that the information they published, that they not only violated this statutory rule, that they have to take reasonable steps to ensure accuracy, but their violation caused them to publish inaccurate information about the plaintiff in this case, mr. robbins. the information that they published that is said to have been inaccurate involved his age, wealth, employment, education and marital status. and in virtually all of those contexts, they published information that was inaccurate but that would appear to be done to his benefit. they alleged that he was more well educated and well employed and wealthier and younger than he actually is. so in some sense spokeo is saying, hey, we did you a favor. it might be inaccurate, but you were defamed by it, it didn't
10:10 pm
reveal any private facts you didn't want anybody to know. and more importantly, you're not required by this law to demonstrate that this inaccurate publication caused you any additional harm. the statute provides that if we didn't follow reasonable steps, we are liable for each instance in which we do that. and he's seeking class certification. so that could add up to a lot of money. and the complaint is in order to get into federal court, you ought to be required to show that not only we violate this had statutory right but that it caused you what the supreme court has described as injury in in-fact. what does that mean? the phrase was developed, i think, in a 1970 case by the court to expand the concept of article 3. at the outset, the court said, even if you haven't suffered an
10:11 pm
injury by virtue of a legal right that has been violated, if you can show that you were actually injured by someone 's conduct, that gives you standing for going to court. in more recent decades, the majority of the court has suggested that injury in-fact is not a floor, it's not something that gets you into court, but something that keeps you out if you can't show injury in-fact. and some of the justices have suggested that in addition to showing violation of a statutory right, you have to additionally show an injury in-fact without ever quite figuring out what that means. but suggesting that it doesn't simply mean the vie election of your statutory right that congress conferred about you, the suggestion is that you have to show something more elemental or physical or economic arm would be the obvious cases.
10:12 pm
but it also includes at least being discriminated against or not receiving information that a statute entitles you to receive. they claim there is no injury in-fact. that the mere publication of false information without having -- alledgedly without having gone through the requisite procedures creates -- we violated your statutory rights, but it didn't harm you or at the very least you have to show that it harmed you in ordered to recover damages. so that is the basic issue of whether congress can give you the opportunity to go into court and get damages for those violation of those rights without showing more. it was teed up in this earlier case, chief justice during the oral argument suggested that the statutory rights, he said that's not injury in-fact, that's injury at-law. that's the law establishes injury by creating the substantive right.
10:13 pm
i thought that's distinguished, he said, from injury in-fact. that's something that an injury that recedes the law, i guess. or that is the suggestion. so the implications of there are quite dramatic because there are bunches of statutes not to mention common law doctrines that establish rights on your behalf that allow you to sue for violation of those rights without showing any more injury. if there were five justices, they say you need to show some sort of additional injury, it could have a pretty dramatic impact on the ability of legislatures to create redressable statutory rights. >> and the interplay between this case and class actions, often it's very easy to establish a common issue if you show that a defendant had an established procedure that was violating a statute. that would be a common question. but if you have to show additional injury, then it's very quickly going to turn into
10:14 pm
individualized issues pre-dominating. and so i think this is why we see most of the business bar very interested in this case because of the interplay between the injury in-fact requirement and the ability to establish that common issues pre-dominate in a case. it's not always the case. there's not a 100% correlation between the two because it's not clear to me that on plaintiffs' theory of the case they will get the case certified. because they are focusing on whether there is false information. and i have to say that they may or may not get class certification. but if they just had to show, for example, that they failed to follow reasonable procedures, which looks like that is all the statute requires, then you obviously would have a statutory violation that would be common to everybody whose name was then
10:15 pm
in the pool of people. whereas -- and this is true of some other statutes that where it's very easy to show a common question if all you have to show is a violation of a statutory prohibition. but if you have to show additional harm, there will be individual issues that overwhelm the common ones and therefore preclude class certification. >> irv is absolutely right. both the plaintiff and u.s. government have urged the court to confine its holding to cases alleging false information. they haven't said in their briefs what would be the case or the right rule if the claim were publication of true information with a failure to have followed reasonable steps to ensure its accuracy, which would be much broader but seems to be covered by the statute but perhaps not this case. just one other point and i'll turn it over. the purpose behind a statute
10:16 pm
like this, of course, is the legislature's understanding that usually most of the time, if this statutory requirement is not followed, it will involve -- it will result in some other kind of injury that we all care about to individuals. so most of the time when false information is published about us, it will cause injury. and the government and plaintiffs stress in fact that is true even in many cases where the information seems to be to your benefit. because employers will regularly, when they find out that the information is not true, isn't comport with, for instance, what you have on your resume, they will just say well i'm not going consider her because who knows, maybe she's been lying to somebody else. she gave somebody else some false information, spokeo put it online, i can't trust her. sometimes she'll say things that are false even if her resume turns out to be true. and that even in these cases, it might result in harm to you. so congress creates a prophylactic rule, basically don't publish anything without ensuring its accuracy to get at those cases that will cause some other form of harm.
10:17 pm
>> and i was going to point out one sort of general point. from marty's presentation, which i totally agree with everything he said, but it's hard to say why anyone would want to say you need to have an injury in-fact. it helps to understand why the court cares if you come in the other direction, which is there are a couple of cases where the court said congress can't just say that anyone in the country can sue over illegal violation. and the reason they have said that is it's predominantly a concern about separation of powers. they don't want courts opining on legal disputes in the abstract. they want a plaintiff who actually cares about the violation and not just cares in the abstract for ideological reason, but cares in the concrete sense that it affects them personally. and so on one end of the pole you have situations like congress passes a statute that says anytime there is, for
10:18 pm
example, an environmental violation, anyone in the country can sue. doesn't matter if they're near the violation or even seen it. and the court said no standing there. >> all parties in this case agreed that that case there would not be standing. so if congress created a statute and said lederman you have a right to make sure no one says anything inaccurate about hash, that would not provide me with a cause of action. >> and on the other side, you have a concrete injury to a specific person that opposes real tangible harm. and this case is sort of in between. you have a legal violation that is in some sense personalized in that it violates the individual -- robbins. it's information about him. it's not information about some other person. so he's not suing to vindicate some other person's legal rights. but on the other hand, if he can't identify some sort of concrete harm that is personal
10:19 pm
to him, then in a sense, it's sort of irrelevant that it's a personal injury for him, he's no better a plaintiff than anyone else to sue. so that's the conceptual fight and why people might want to restrict a standing separate and apart from implications for class actions. it's ensuring that you have the right plaintiffs bringing suits over legal violations. >> and it if i could add one thought. i would take a little issue with the idea that if the court decides that you need injury in-fact that will invalidate like every statute that gives people a statutory right to bring suit. many a statute that gives people a statutory right to bring suit does so because the circumstances under which they have that right by definition kind of necessarily satisfy injury in-fact. so that's why this doesn't come up that much because it's really kind of a narrow and unusual category of statutes as to which there is a dispute about whether you've been given a right that doesn't correspond to any injury in-fact.
10:20 pm
most of them, when people try to raise the issue, you can deal with it by saying you'd have injury anyway because the statute gave and you statutory right because you have an injury. so i'm not sure it's really -- it would have as broad of an impact as some might suggest. >> and i think the difficulty with it is in some ways it's analogous to the critical mass difficulty. how do you define injury in-fact except by reference to some legal concept. the whole concept of a right is a law that has defined that when somebody does something, it causes harm that is compensable. that's the definition of a right. and so justices have long said that congress has the power to create rights which then afford people the ability to bring suits to enforce those rights. and so it seems to me it's one thing if there is no individualized effect, which is
10:21 pm
the case with the environmental injury case, but here there is clearly an individualized effect. this particular individual was -- had false information distributed about him. so if you're concerned about having concrete people and not ideological plaintiffs, it does it. so i think it would be hard -- the court has never really been able to define what injury in-fact is without reference to law. and so i don't understand chief justice roberts' question. >> yes. >> so a lot of the briefs go to the underlying lawsuit and concerns about privacy and so
10:22 pm
forth and other laws. i wonder if the justices if they might be -- their cars might be followed with gps devices, would they maybe wonder in this case if there will is false information about them on a website like this, would that play a role. >> seems unlikely. especially because it would have to be false information about them that is seemingly beneficial for them. and then they would still want to sue for some reason besides getting the statutory damages. so doesn't seem like the sort of case where personal things would be likely. >> any other questions? so if there is any other questions on any other case, we'll take them now. if not, we'll end this session. yeah. >> not on any of these cases. i'm just wondering if, in addition to contraception and abortion, you see any possibility this term or waiting another term for any of the others including immigration out of the fifth circuit or voting rights out of north carolina or texas or any of the others
10:23 pm
percolating. any other wild cards. >> to some extent it depends on when those cases get decided. if they get quickly enough, they could be lined up for this term. that could include immigration which argument has been heard and still waiting a decision by the fifth circuit. the d.c. circuit just decided a gun case and so that is potentially -- if d.c. decides to go forward, then that could potentially get to the court. >> texas voter i.d. might be in time. >> that they have already ruled on. so it depends on whether -- did the state petition? >> i don't think they have petitioned yet. i can't imagine that they won't petition. >> yeah, it was a kind of narrow win for the plaintiffs. but still in all -- so i wouldn't be shocked if they didn't petition because it seemed like a pretty easy fix.
10:24 pm
but maybe they will petition anyway. and so that is -- definitely if they petition there will be time to get to that case. >> the state of texas will also be a big player. >> any other questions about other cases? okay. thank you very much for coming. . the pope attended a welcoming ceremony at the white house on wednesday. he spoke about the united states being a country of immigrants and the need for a clean global environment. here's part of his remarks.
10:25 pm
mr president, i am deeply grateful for your welcome in the name of all americans. as the son of an immigrant family, i am happy to be a guest in this country, which was largely built by such families.
10:26 pm
it seems clear to me also that climate change is a problem we can no longer be left to our future generation. [ applause ] when it comes to the care of our common home, we are living at a critical moment of history. we still have time to make the changes needed to bring about a sustainable and integral development, for we know that things can change.
10:27 pm
[ applause ] such change demands on our part a serious and responsible recognition not only of the kind of world we may be leaving to our children, but also to the millions of people living under a system which has overlooked them. our common home has been part of this group of the excluded which cries out to heaven and which today powerfully strikes our homes, our cities and our societies. to use a telling phrase of the reverend martin luther king, we
10:28 pm
can say that we have defaulted on a promissory note and now is the time to honor it. [ applause ] the pope's visit to the u.s. c-span has live coverage from washington, d.c., the first stop on the pope's tour. thursday morning at 8:30, c-span's live coverage begins from capitol hill as pope francis makes history becoming the first pontiff to address a joint meeting of congress. and friday morning at 10:00, live conch from new york as the pope speak to the united nations general assembly on c-span3, c-span radio and he'll hold a multireligious ceremony at the woshld trade center. follow c-span's coverage live on tv or online at
10:29 pm
navy admiral michael rogers will testify about cybersecurity. we'll have live coverage at 2:30 p.m. and here on c-span 3. up next, a conversation on pope francis's u.s. visit. jim nicholson within a former u.s. ambassador to the holy see joined us on washington journal. this is 35 minutes. >> joining us on the set is jim nicholson, the former u.s. ambassador to the holy see. ambassador, just talk right now about u.s.-vatican relations. what's the state of them right now. >> u.s.-vatican relations with good. i think there's a good chemistry and a lot of interaction going on between the united states and the vatican and the two heads of
10:30 pm
state. we're being paid a state visit by the sovereign head of the holy see right now. and so at the surface the relationship is good. i think below that there's some pretty serious important issues about which we differ. >> and they are? >> well they are issues of faith and morals and religious liberty. this administration is a strong advocate proponent of abortion. they're supporting planned parenthood who has apparently sold the body parts of aborted fetuses. that is not something the vatican or this pope condones. they don't condone the imperatives of providing contraceptives to employees that come out of the obamacare act. they don't condone gay marriage. i mean, this pope has been


info Stream Only

Uploaded by TV Archive on