 They just have not. They actually could not have read the case. It isn't really a tool. If you throw a group here, I can't read it. They're very, very straight. They're very, very straight. So, they're not going to look for anything. They're just going to go like this. They're really not going to look for anything. This is a good idea. I'll grab this mic. I'm Professor Rick Hassan of UCI Law. I'm so pleased that many of you could make it here, in person to this event, and that many more of you are watching this via webcast. Each year the Supreme Court decides fewer than 100 cases, but those cases can have a major effect on the areas of public policy, ranging from criminal law to the environment, to sexual freedom, to immigration, to the law of politics. The Court just completed its October 2011 term, deciding 75 cases. Last year was the first year of our annual review, and during that review the panelist commented on the dullness of the term. It's a dogalyptically called a low-carb end to a sleepy term. What a difference a year makes. This year we have major decisions in a host of areas, from healthcare law to immigration to the First Amendment to criminal procedure. As the term ended, it allows us on an unusual amount of leaking from the court about discord among the justices over Chief Justice Robert's supposed change of vote in the healthcare case. One of the most recent articles on that cows entry comes from one of our panelists, Marcia Coyle. The next term promises to be another potential blockbuster with likely decisions on affirmative action, the constitutionality of the Voting Rights Act, and much more. So stay tuned for details to the third annual UCI term in review. To help us sort out what happened last term, and maybe what's likely to come in the coming term, we have an all-star panel of Supreme Court experts, some of whom come great distances to be here with us today. In alphabetical order they are Jess Braven, Jess became the Wall Street Journal's Supreme Court correspondent in 2005, following postings covering the United Nations and national legal affairs, and editing the weekly WSJ California section. He's the author of Squeaky the Life in Times of Lynette Alice Fromm, a contributor to books including Crime of Wars 2.0 and Violence in American Encyclopedia, and a lecturer at the University of California, Washington, San Jose, where he teaches a course on the Supreme Court. He received the American Bar Association Silver Gavel Workforce Coverage of Long Terrorism after 9-11, and the UN Correspondence Association Elizabeth Nuffler Memorial Prize for reporting on the International Criminal Court. Jennifer Chacon is a professor and former Senior Associate Dean for Academic Affairs here at the University of California Irvine School of Law. Her scholarship is focused on the nexus of immigration law and criminal law. She's examined U.S. efforts to curb human trafficking, anti-gang initiative launched by the Federal Immigration Enforcement Agency, and the implications of framing immigration enforcement as a national security issue. In addition to her scholarship and teaching, she has served as an outside advisor for the Immigration Transition Team of President-elect Barack Obama and the convener of the Immigration Policy Advisory Committee for Barack Obama's Presidential Campaign. Erwin Chemerinsky is the Founding Dean and Distinguished Professor of Law at the University of California Irvine School of Law with a joint appointment in Political Science. Previously, he taught at Duke Law School for four years during which he won the Duke University Teacher-Scholar of the Year Award. Before that, he taught for 21 years at the University of Southern California and served for four years as the Director of the Center for Communications Law and Policy. His areas of expertise are constitutional law, federal practice, civil rights, civil liberties, and appellate litigation. He's the author of seven books, most recently, The Conservative Assault on the Constitution. Marcia Coyle is the Chief Washington correspondent for National Journal, National Law Journal, a national weekly newspaper that covers law and litigation. Marcia, a lawyer as well as a journalist, has covered the Supreme Court for 25 years. She's also a regular contributor of Supreme Court analysis to PBS's News Hour. Before joining NLJ, she covered state and national government and politics for the Pennsylvania Times Mirror Daily newspaper for more than a decade. Besides her work for the law journal, she's written about the Supreme Court and other legal issues for publications such as Vogue, Miss Magazine, and the New York Times Book Review. And she's a contributing author to a book on the Supreme Court A Year in the Life of the Supreme Court. Her reporting has garnered national journalism awards such as the George Polk Award for Legal Reporting, the Investigative Reporter and Editors Award for Outstanding Investigative Reporting, the American Judicature Society's Tony House Journalism Award for a career body of work involving coverage of the nation's courts and justice system, and the Scripps-Howard Foundation Award for Environmental Journalism. Robert Pusha is the James Wilson and Dow Professor of Law at Pepperdine Law School in Malibu, California. After graduation from Yale Law School, Bob Clerk for Judge James Buckley gets Court of Appeals for the DC Circuit and then worked at Davis Wright Tremay in Seattle. Joining the University of Missouri Law Faculty in 1992, Professor Pusha taught Constitutional Law Federal Courts, Contracts of the States and Trust. In 1998, he won the Blackwell Sanders Distinguished Faculty Achievement Award as the school's top teacher. In 2000, Pusha received the William Kemper Fellowship for Teaching Excellence. The University of Missouri's highest teaching honor. He arrived at Pepperdine in 2001. His scholarship focuses on the influence of 18th century Anglo-American political and legal theory on the development of modern law governing the Constitution, especially the Commerce Clause and federal courts, particularly the Justiceability Doctrines and Inherent Judicial Powers. At the University of Missouri, he twice earned the Shook Hardy and Bacon Excellent in Research Award. A very distinguished panel. The format for today's event is as follows. I'll give each panelist about eight minutes to speak on two topics. First, the theme of the term, or overall impressions of the term, and some thoughts on an interesting or important case of the term. We've divided these up to get some breath of coverage. After this first round, we'll have some give and take with the panelists, and then we'll open it up to questions. This will leave us with about a half an hour for questions. We'll be taking questions from the audience, as well as, if you want to post a question, if you're watching on the webcast, you can post on Twitter using the hashtag UCILawScotus. If that doesn't mean anything to you, send an email to me at rhasen at law.uci.edu. With that, I'm going to turn it over very briefly to Dean Chemerinsky to welcome everyone and then to our panelists. Then please join me and thank the panelists for their time. Thank you so much, Rick. I want to take a moment to welcome all of you to UCI Law School. Also, I want to share some news that we received yesterday. On the lighter report, there was a link to a major study that's just been done about faculty scholarly impact in UCI Law School's rank number seven in the country of all law schools. Ahead of us were Yale, Harvard, Chicago, Stanford, NYU, and Columbia. So it's a wonderful company to be in, and it's certainly a reflection of my colleagues, Jennifer and Rick, and many others who are in this room. I want to take just a moment to thank Rick Hansen, who is very responsible for organizing this panel. It's become a key part of law school and one that I hope we'll continue to do every summer for a long time to come. I want to thank Brittany Rodriguez, who did so much with regard to the planning and logistics of this event. I want to thank my colleagues on the panel, especially those who come to a long distance, to be part of this discussion. And I want to thank all of you for being here today. We have 250 people today coming to this, which I think is the largest event we've yet had at UCI Law School. Oh, excuse me, alright. Well, it's a political year, so I thought I would start by pandering to the crowd. When I attended one of the sister UC law schools, I held the student seat on the Board of Regents and I voted against the professional fee differential for law schools and against all other fee increases, so I hope that buys me some sympathy today. Not for me. And I was outvoted. And I was not as disputatious as some recent officials who were outvoted in one of the matters we might discuss today. Well, as we said, it is a political year, and we saw at the end of the term, as Rick mentioned, the Supreme Court acting more like a political institution that we've seen in a long time, and that was from the remarkable and impressive leak that Janet Crawford of CBS News reported with the complaints from conservative dissenters in the healthcare case about the vote and the behavior of the Chief Justice in that case. And I certainly know that as a reporter covering it, I hope this would open a new day of transparency and politically and spitefully motivated leaks coming from the Supreme Court. But unfortunately, that has not yet fully come to pass. Marcia had a nice story the other day with some very genteel leaks from the court to justices saying that they will patch everything up in the fall just as they did after Bush v. Gore and other things, and that's certainly true. And you have nine members of the court and five to have a majority. It's not like the House of Representatives where you can have a grudge and it doesn't really matter because there are hundreds and hundreds of you there. They have to work together and they will for many years, and so we will certainly see people who might have been talking smack about each other this month having to make some kind of a court, at least in writing, in the future. But the political messy end, and I say political in the sense of accusations of vote switching and betrayal and that kind of thing, that in some ways does compliment the fact that the court was involved this year in the highly charged political issues where we had the last year being a snoozer, except of course for the distinguished faculty in ERISA studies, the employee retirement security and something-something act which makes up a strangely disproportionate number of cases on the docket. There wasn't that much, but this year of course we had the court involved in many of the toughest issues that befuddled the political branches as well. And while of course the focus is on the healthcare case that we saw at the end and the five to four vote and the, you know, and the affirmation of I guess what we will now refer to as Robert's Care, it does mask somewhat the fact that the court, as it evolves into what we will eventually capitalize the noun as the Robert's Court, we did see throughout the term a progression to the broad goals that the Chief Justice stated when he was applying for the job back in 2005. And while the attention has been on Robert's perhaps moving to the left in a unique way to affirm the Affordable Care Act, if you look at some of the important decisions early in the term, what we saw was really the liberal wing of the court moving towards the Chief Justice, at least for his goal of the court speaking in unanimous or near unanimous opinions. And so I think it's, for the context, as we try to look at the themes of the court, we should, you know, step back and look at some of those other cases, some which we'll talk about in more detail here. But, you know, we saw as well the same week, a 6-3 vote on the immigration case, which was, you know, more than perhaps, I'm sorry, not a 6-3 case, a 6-3 vote, forgive me, it was a unanimous vote on the immigration case. I'm going to fight, all right, sorry. Let me back up for a second, and for those of you in the Twitter universe who've unfortunately sent a tweet and then regret it, you'll understand. But to move back, I think we should instead look instead at, for example, the Hosanna to Bore case involving the ministerial exception that the court recognized in Employment Discrimination Law, which was a unanimous case. The SACAD versus EPA case, which found a requirement in the Administrative Procedure Act for the EPA, an EPA compliance order being a final agency action and thereby triggering the right of the property owner to go to federal court to challenge it. Those were unanimous decisions and ones that not necessarily would, one would have expected to have the liberal wing of the court to be joining in with the conservative majority. But we saw there, for whatever reason, one could imagine many arguments that Justice Ginsburg might have offered in at least writing a separate concurrence in the Hosanna to Bore case. This is the one that found that ministers and those regarded as ministers by religious institutions are not covered by Employment Discrimination Laws and have no remedy under federal law because of the establishment clause prohibiting the government from interfering in the organization of a religious institution. So one could have imagined some gloss on that coming from the liberal wing of the court, but there wasn't one. It was a unanimous opinion and similarly with the EPA case. And we saw that in a number of decisions. We even saw unanimity in the the FCC versus FOX, which was the language and decency case that the court had a couple years ago sent this case back on a five to four vote to the Second Circuit, which had ruled there was a violation of the Administrative Procedure Act when the FCC issued a ban on fleeting expletives on broadcast television. The court, it went back to the Second Circuit, which did exactly what it said it would do. It found that same rule unconstitutional, much as it had found it a violation of procedure. We expected the court to rule on the constitutional issue regarding indecent language over the airwaves, and instead they ducted it almost as if they reconsidered their first version because it found a procedural reason to affirm the Second Circuit without reaching the constitutional issue, and that was a 9-0 opinion, and perhaps that reflected a desire not to have another dispute on the court. So we should look at the fact that the court has in many ways spoken with greater consensus than one might have expected if you only looked at, say, oh, the last day of the term. Now let me talk, though, about one of the cases where the court did not find unanimity, and that, as we said, we've divided up some of the more interesting and amusing highlights. This is one that, had it been in the previous term, would be the thing we'd all be talking about endlessly, but you know, because it's a relative, we grade on a curve, and last year it would have been a very big deal this year, it's sort of a moderate one. This is the strip search case, which the court heard earlier in the term, and the question arose about whether it is a violation of the Fourth Amendment for jailers to have a blanket policy of strip searching every person who's taken into a jail. And this arose in Burlington County, New Jersey, where a state trooper arrested a man named Albert Florence, and Mr. Florence was arrested in error. There was a warrant still in the system saying that he had failed to pay a fine, which triggered his arrest, but in fact he had paid the fine, and the New Jersey computer record system failed to correct it. So he was arrested completely in error, although it was one that was understandable from the officer's point of view. He was taken to jail, and he was strip searched when he entered the Burlington County Jail, and later when he was transferred to the Essex County Jail, he was strip searched again. Now, he had many claims against the New Jersey justice system, such as being locked up in jail for a week when you hadn't done anything, but the case that he brought that got the attention, went to the Supreme Court, dealt with really only a few minutes of that week-long erroneous incarceration, and what, and distributed a story I have did, which looks at some of the reasons of that, and I found this case of interest ah, okay, I found this case of interest for well, I'll get to return to you later on perhaps, but for this reason principally, we've all, you know, or heard of at least Gideon's trumpet, which talks about the Gideon versus Wainwright decision and some of the many heroic ways that cases get to the Supreme Court. Well, the Florence case, Florence versus Board of Freeholders, also has a very interesting backstory to the Supreme Court, but it is somewhat different. And the story of how that happened is Brittany reproduced it in color for you here if you want to take a look, and perhaps we'll get back to it a little later. So, all right, I'll run over my time off to Jennifer. Good afternoon. Thank you all for coming, and thanks to Rick for organizing and to Irwin as always for everything he does to make these things happen. We were asked to think a little bit about how to describe this term, and so I thought when I was thinking about the Court, I agree with Jess. I think this was ultimately a year of preserving institutional legitimacy through a sort of surface moderation that I think doesn't really attempt to hide some deeply conservative underpinnings. I think that we'll look back at this year, particularly the end of this year, and see the beginning of a new era. But I'm not sure what this era is or what it portends, so I think we see plates shifting, and we know that the Earth is about a stake or it's shaking, but it's not clear where we'll land. So that's my soothsayer way of not saying anything at all about where I think we're going. But I want to illustrate this by looking at three slightly more specific points. In the area of criminal law, I thought one significant trend that I'd like to hear some panelists talk more about is the Court's growing efforts to focus not just on the courtroom, but on criminal pleas. Two cases of note in this regard, Laughler versus Cooper and Missouri versus Fry, involved ineffective assistance of counsel claims that were extended to plea agreements that defense counsel either improvidently rejected or allowed to lapse. And these were interesting to me, mostly because it was an immigration case from a couple of terms ago, Pedia versus Kentucky, that helped to bring us to this critical point with the Court looking with more attention to the plea bargaining stage. And I think this in some way sheds light on the ways that immigration law and criminal law are becoming increasingly intertwined and influence the jurisprudence of one another. And that obviously has relevance for the case of United States versus Arizona, which I'll talk about in a little bit. In the area of criminal procedure, I think we continue to see the grim times for the erstwhile criminal procedure revolution in cases like House versus Fields, which limits again in creative ways the definition of what constitutes custody for purposes of Miranda. In Messerschmitt versus Millender, further arose protections against General Lawrence and the Florence case that we just heard about. I think the notable exception to this is the case of Jones, which I think someone else on the panel will talk about with a no-no decision. But I still think it doesn't offer a particularly novel or new kind of rights protective vision of the Fourth Amendment, but is definitely worth highlighting. Finally, in immigration law, I know the case everybody wants to talk about is Kawashima versus Holder, of course, the appropriation of a false tax return is an aggravated felony under 8USC 1101 A43M, right? That's the case that has everybody buzzing, and so that's what I'll be focusing my remarks on today. Or maybe not. There were several statutory cases in immigration law, including one that involves an equal protection challenge to citizenship derivative citizenship provision that highlights the kind of the still backward states of many aspects of immigration law. But the big case in immigration obviously was US versus Arizona. In this case, of course, involved the federal government's challenge to the, quote, support our Law Enforcement and Safe Neighborhoods Act. The Arizona legislature has not yet gotten the hang of the catchy acronym type of law, so they refer to this not as a saw-less-nah, but as SB 1070. Judge Bolden of the Federal District of Arizona issued an injunction of SB 1070 in July of 2010 that prevented four of the key provisions of the law from going into effect on the ground that they were preempted by federal law. And on April 11th of 2011, the Ninth Circuit affirmed and Arizona appealed the case to the Supreme Court. On June 25th of 2012, the Supreme Court issued its widely anticipated decision in the case. And I would say the decision, one of the things that was notable when the Supreme Court handed down its decision is that both sides ran around proclaiming victory very loudly and beneath that kind of din of proclamations of victory there was some hand-ringing on both sides. I think that both, that my kind of take on what happened in that case, the way I would describe it, is that on the whole it's a pretty solid legal victory for the federal government because of its broad reiteration of federal powers in regulating immigration, it's fairly robust application of obstacle or conflict preemption to state immigration laws, and it's clear rejection and I think this is important of the new and bogus mirror image theory whereby states have attempted to avoid findings of preemption of their immigration regulations by arguing that their laws merely mirror the federal scheme and thereby can't be preempted. So I think the court in rejecting that handed a strong legal victory to the federal government. That said, on the ground I think this decision will not be effect of preventing the harms that many of the proponents of the lawsuit were hoping to avoid and I think that's a kind of an important take away from this that's also important to recognize. So I want to unpack this decision a little bit more if I have time and I think I do. I have three minutes to unpack this a little bit more and then I'll wrap up and turn this on. As I said, I think red as a whole but I think this reads as a legal victory for the federal government in many regards. Of the four challenge provisions three of them were held to be preempted. There was section 3 which criminalized failure to comply with federal alien registration requirements. There was section 5C which would have criminalized employment without federal authorization. And there was section 6 which would have authorized state officials to make warrantless arrests of individuals where they had probable cause to believe that the person had committed an offense that rendered him or her removable under federal immigration law. And we can get more into the weeds of these provisions that people want to during the Q&A. So those are the provisions that were struck down. Section 3, the alien registration requirement relying on Heinz versus Davidiwitz an older case that struck down similar alien registration requirements in Pennsylvania in the late 1980s. And section 5C, the employment provisions struck down on the ground that IRCA the Immigration Reform and Control Act of 1986 was a comprehensive scheme governing the employment of unauthorized workers and that this scheme of Arizona is conflicted with it. It created a conflict with a federal scheme. And section 6, authorizing state officials to conduct warrantless arrests, the courts found exceeded the time and ran the risk of being in tension with federal immigration priorities and resulting in harassment of individuals. So these provisions were held to be preempted. The provision that was spared, however, was section 2B. This was the most controversial provision of the law. It requires state officers to make a reasonable attempt when practicable to determine the immigration status of anyone who's been otherwise lawfully stopped, arrested, or detained. And it requires state officers to make a reasonable attempt when practicable to determine the immigration status of anyone who's been illegally stopped and shall have their immigration status determined before they are released. It's notable and I think important to stress that this provision was given a narrow reading by the court when they upheld it. They assumed for the purposes of their conclusion that any stop or arrest would not be prolonged by an immigration status inquiry. They declined to reach some other immigration crime. And they know where suggested that prolonging an otherwise lawful detention could be justified on the grounds of suspected civil immigration violations. So it left open the door to a host of Fourth Amendment challenges that might arise in the implementation of the law. It left open the door to possible challenges as well on preemption grounds if in the implementation of the law Arizona's implementation is in conflict with federal priorities. But I think perhaps most importantly for opponents of the law, the decision offers a strong restatement of federal primacy in the regulation of immigration law along with a Spiderman-esque invocation from Anthony Kennedy that with great power comes great responsibility, urging the federal government to use its powers wisely. On the other hand, as I said, the decision leaves the door open for some federal immigration regulation. It's likely to encourage more jurisdictions to enact provisions like Section 2B. It greenlights state and local law enforcement participation in immigration policing in ways that I think will result to almost a certainty to some degree of racial profiling in various jurisdictions across the nation and certainly increased litigation around these issues. So that's what we can expect to see in immigration, I think. I think it's now become the John Roberts Court. For the seven years in which John Roberts was chief justice, almost every ideologically divided case, Anthony Kennedy was the swing justice. So it's easy for me and others to say this was really the Kennedy Court. It's easy to just group Roberts together with Scalia, Thomas, and Alito as the conservative wing of the court. But three times in the last week, John Roberts was part of a majority primarily comprised of the liberal justices. He's now written the most important opinion in the decisions of seven years is chief justice. That's why I think we can now think of this much more than ever before is really being the Roberts Court. And I don't want to lessen the description of the importance of Anthony Kennedy on the court. Kennedy was in the majority this year more than any other justice, 93% of the time. But the justice next most often the majority was John Roberts, 92% of the time. Also this term there were 16, 5, 4, 5, 3 because the justice most often in the majority was Anthony Kennedy in 12 of those decisions. But I think that there is an important effect of having two swing justices rather than one swing justice. The last seven years if you've described the past six terms overall the conservatives have prevailed much more often than the liberals. Kennedy sides with the conservatives about 75% of the time when the court's ideologically divided 5 to 4. But now you have two different justices might join with the liberals. There were certainly important conservative victories this term. We're on to regard it as overall liberal term. But there were more important liberal victories this term than any of the prior six years of the Roberts Court. And I don't know if this predicts what will be in the future. We can't know until we have many more terms from now. But it does make this year ideologically much more mixed in results than we've seen. In a statistic I mentioned by way of overview that hasn't been said the court decided only 65 cases this term after briefing on an argument. That's the fewest number in many decades. The last two years it was 75 cases each. For much of the 1980s the court was averaging over 160 cases a term. For much of the 20th century the court was averaging over 200 cases a term. Now it's just down to 65. To put it another way the entire term John Roberts wrote 11 opinions that counts majority concurring and dissenting opinions. For the entire year of both Anthony Kennedy and Lady Kagan wrote 12 opinions that includes majority concurring and dissenting opinions. I assure you if you talk to any judge at any level of court they would love the idea of having to write 11 or 12 opinions for the entire year. It does continue to have a very pernicious consequence. As the number of decisions gone down the length of the opinion has gone dramatically up. The opinion, the affordable care case is 193 pages long. There are many opinions this term that were 100 pages long. I think we need to start a campaign for word and page limits on the United States. I think we agree with that. I was asked to talk about the two free speech cases of the term. One is United States versus Alvarez. It involves the Federal Stolen Valor Act. It's a federal law, makes it a federal law, for a person to falsely claim to receive military honors or decorations. The law is very broad. It doesn't have an intent requirement. So if a person makes a mistake saying I won the Medal of Honor, but it was really the purple heart that would violate the law is written. The lie doesn't have to be publicly uttered. If somebody say on a date to impress claims to have received the Medal of Honor that would violate the law. In fact even fictional depictions like Forrest Gump would violate the law is written. Case involves an official in a water district in Claremont who was, in the words of Justice Kennedy, a habitual liar and he claimed to have won the Medal of Honor. He didn't. Local newspapers and blogs quickly exposed this in ridicule to him but the United States attorney indicted him for violating the Stolen Valor Act. The Supreme Court in a six to three decision without a majority opinion struck the law down. Justice Kennedy wrote for a plurality his opinion was joined by Chief Justice Roberts and also Justice Ginsburg and Sotomayor. Justice Kennedy said this is a content based restriction on speech. It does has to be subjected to the most exacting scrutiny. If you allow it only if it's necessary to achieve a compelling purpose. So the government can't prove that it's been hurt by any of these lies. There's other less restrictive alternatives. Maybe in the most important part of this opinion he said there's no categorical exemption to the First Amendment. Just because people are lying. He said there's certain areas where false speech can be punished. False and deceptive advertising isn't protected by the First Amendment. False defamatory statements are generally not protected but he rejected the government's argument that just because something is false is without First Amendment protection. Justice Breyer concurred in the judgment joined by Justice Kagan. He said he would use a lower level of review what's called intermediate scrutiny but said the law was not sufficiently nearly tailored to meet First Amendment review. The other free speech case I want to talk about I think is even more important. In fact I regard it as one of the sleeper cases of the term. It hasn't got much media attention but it's got an enormous practical political impact. It's a case called NOx versus SCIU. In 1977 in a boot versus Detroit Board of Education the Supreme Court said if there's a public employee union nobody can be forced to join but non-members can be required to pay the portion of the dues that go to support the collective bargaining activities of the union. The non-members are still benefiting from collective bargaining in terms of pay work conditions hours so they should have to pay for the collective bargaining. But nobody can be forced to pay for the political activities they don't want to. The process then developed that if somebody doesn't want to join a public employees union they can opt out of supporting the political activities. In Chicago teachers versus Hudson the Supreme Court said each year a union should give non-members an accounting. It's the percentage of dues that went to collective bargaining they have to pay versus the percentage of dues that were going to political activities and they can opt out of the latter. Knox versus the SCU arose remember several years ago in California then Governor Arnold Schwarzenegger successfully got on the ballot a couple of initiatives that have greatly lessened the influence of public employees union. The SCIU that represents many public employees in the state organized a campaign to defeat them the SCIU was successful in defeating the initiatives and the SCIU proposed an assessment of the members and both members and non-members of public employee unions to pay for the campaign. The issue that was briefed and argued to the Supreme Court was whether or not the SCIU had to give the non-members of notice so they could opt out of supporting the political campaign. But that's not how the Supreme Court decided the issue. Justice Salido wrote for five person maturity is joined by Chief Justice Roberts, discreet Kennedy and Thomas. And he said it violated the First Amendment because the non-members should have been required to opt in if they wanted to support the political campaign. In other words at least with regard to the special assessment opting out wasn't good enough they would have to opt in. Justice Sotomayor said in her opinion occurring the judgment it's just a friar said dissent this is a major change in the law it wasn't briefed or argued to the Supreme Court. To try to understand why this matters so much the best metaphor I can think of is Book of the Month Club or Columbia Records how did they make all their money? But once you sign up you are then charged for the book or the CD unless you choose to opt out. Had they been an opt-in system maybe they wouldn't have financially survived they certainly made a lot less money. What this is going to mean if non-members always have to opt in to supporting political activities is a tremendous lessening in the political influence of public employee unions in the United States. Combine this with the Supreme Court's decision a couple of years ago and citizens united for his federal election commission which tremendously increased the political influence of corporations and I think you can see why I say this is the sleeper case that's going to matter so much. Thank you for inviting me here I'm very happy to be here today especially since I looked at the temperature in Washington D.C. which is about 100 but nevertheless I'm very happy to be here. I wanted to pick up on something Dean Timorese said about this being the Roberts Court I had this interview not too long ago with a certain justice and it was off the record so I can't tell you who the justice was and I probably shouldn't even tell you this little anecdote but we'll call the justice he who shall not be named thank you Harry Potter and this justice said he didn't understand why Supreme Courts are named after their chief justice he said why should William Rehnquist be blamed for what that court did instead he suggested the court should be named after the president who appointed the last member of the Supreme Court which would make this the Obama Court now it may be that the president is willing to raise this court after the last day of the term but I'm not so sure he would fully embrace the Roberts Court right now I agree with everything everybody has said about the assessment of the court thus far as I've ticked off the points I wanted to make that everybody else has made but I would like to just also point out that this was an unusual term I think for Justice Scalia he's never been shy about stating his feelings in oral arguments or in his decisions but in a sense he was almost I mean could you say Scalia unbound as one of the themes this term because he made comments from the bench that attracted a lot of attention because of their political nature almost their bias in terms of the parties that were arguing for them and that was most notable in the immigration case the Arizona immigration case and also in the healthcare case also I noticed and this goes with the theme of greater unanimity greater consensus that there were really a lot more shifting alignments among the justices than we had seen in the past for example Justice Sotomayor led just the Chief Justice and Justice Scalia Thomas and Alito in a bankruptcy decision and I know it's dull and it's probably one of the most important cases of the term but it was to the owners of a farm there's some bankruptcy just sitting there sorry but it was very important to be able to care about that chapter of bankruptcy code those same four conservatives joined Justice Breyer in his majority opinion in a case involving the internal revenue code and there was movement in the other direction as well Justice Breyer joined Justice Alito's decision in Williams versus Illinois which is a confrontation clause case while Justice Kagan's dissent was joined by Justices Scalia Ginsburg and Sotomayor and then of course the grand daddy of surprising alignments occurred in the healthcare decision which I know Professor Bouchard's going to talk about I also wanted to point out that Justice Kagan continues to expand the court's modern legal vocabulary last term she introduced the words Ditto and Lucy Goosey in decisions and this term she said that the majority's approach in the confrontation clause case would make constitutional giga of the confrontation clause there's this wonderful website and I don't have it for you where you can actually plug in a word and it has all of the Supreme Court decisions going back almost a hundred years but it stops with the Rehnquist Court to see how often that word appears then she's got Lucy Goosey nailed I picked a case to talk about that was one of the bigger cases of the term and was not an example of unanimity or greater consensus and that was the case involving the sentence of mandatory life in prison without parole for juveniles who commit murders and this was really two cases and it involved two young men who were 14 at the time the murders were committed and the main difference between the two was one of the 14 year olds at the time was not actually the murderer per se he was involved in an attempted robbery that turned into homicide he was not the trigger person but both of them received mandatory sentences of life in prison without parole and I picked this case because one this case was assigned to the majority opinion it was a 5-4 decision the majority opinion was assigned to Justice Kagan which is probably her most important decision since she's been on the court and it was assigned to her by Justice Kennedy the Chief Justice and Justice Scalia were both in dissent which then left to whoever was the most senior justice in the majority and that was Kennedy to do the assigning and he gave it to Justice Kagan and the other reason I picked it was that we often don't get a chance to explain in any depth that the Supreme Court rarely writes on a clean slate and this case is a good example of how Justice Kagan saw two lines of Supreme Court precedent coming together to reach the decision that there should not be mandatory sentences of life in prison without parole for juvenile murders the first line of precedence that she saw began fairly recently in 2005 the Supreme Court took off the table the death penalty for juveniles and then just the term before the one that just ended the court took off the table life in prison without parole for juveniles who commit non-homicide crimes so she drew from that that youth matters and those opinions talked about the culpability of young people the lack of maturity and all the scientific tests we've seen recently about that frontal lobe not maturing that explains why my children act the way they act the second line of precedent had to do with the death penalty where the court has said that if you're going to impose death penalty you have to have individualized consideration you can't just have a mandatory penalty well she took from that that life in prison without parole for juveniles is really analogous to the death penalty they were going to die in prison and so between youth matters and the need for individualized consideration she found and the majority found that the mandatory nature of this penalty should be taken on the table judges still can impose life in prison without parole but they have to look at the nature of the individual and the nature of the crime she also hinted in her decision that she thought that life in prison without parole for juveniles even if it's not mandatory is going to be a rare sentence the dissenters looked at this very differently the Chief Justice wrote the main dissent and he fell back on what does the Eighth Amendment say it says it bans cruel and unusual punishment and he found there was nothing unusual about this punishment 29 states had mandatory life in prison without parole for juveniles and he also did some statistics on how often it's imposed just as Kagan came back and said well really the 29 states is less than the number of states that had the death penalty excuse me for juvenile or life in prison without parole for juveniles who didn't commit murders and so she felt the weight still was on her side of the opinion this was a good example also of I think some of the more important criminal cases this term that were briefly mentioned where the liberals on the bench did quite well there was the Sixth Amendment case involving effective assistance of counsel at the plea bargaining stage court said you are entitled to an effective lawyer if a plea bargain is not offered the lawyer fails to offer the bargain that the prosecution puts on the table also there were two cases involving crack cocaine there's a fairly recent law called the Fair Sentencing Act in which Congress tried to deal with the racial disparity in those who are convicted of crack offenses versus those who are convicted of cocaine powder crack offenses are considered a minority offense cocaine powder is the drug of preference for white people and so the act reduced that disparity in what it actually did was it made the sentence more lenient but the question before the court was kind of narrow to deal with people who were convicted before this act took effect but were sentenced after was the act going to apply to them and the court found that yes it would because Congress wanted to lessen the disparity and then also there was the GPS case which was a unanimous case in which all of the justices found that it is a search under the Fourth Amendment to have police attach a GPS unit to your car and then another case was 6-3 and that involved applying a line of cases involving sentencing where this case involved criminal fines and the court said that any fact that increases a potential fine that a defendant faces upon conviction must be found by a jury beyond a reasonable doubt and the court had applied that theory to criminal law mandatory sentences that judges used to be able to go above the mandatory sentence in their own discretion but now juries have to find that now it's going to apply to criminal fines as well this was a corporate case and I'm sure corporations were very happy to hear that so it was a very important term for criminal decisions and they did go more to the liberal side than to the conservative side my fellow panelists agree that this term John Roberts made the court his own and achieved greater consensus that may be correct as to trivial cases and it's sometimes true even in constitutional decisions like Jones but the image of a consensus building Roberts court shatters in cases raising the big constitutional issues like affirmative action campaign finance reform and abortion the court's divisions are clear on one side you have four conservative republicans who have four main goals first cut back on liberal individual rights precedent especially in the areas of criminal procedure privacy and equality second limit congress power and narrowly interpret liberal statutes like environmental laws third promote business fourth decrease litigation on the other side you have four liberal democrats who take the opposite positions typically justice Kennedy breaks the tie although sometimes it's Roberts political and ideological factors have become paramount because modern constitutional law is about policy not the constitution as intended and understood constitutional decision making is a form of common law the court creates a doctrine that strikes the majority as wise policy and then they tweak it case by case unlike real common law however there ain't no legislative override if the court gets it wrong therefore maybe it's good that the court is so polarized because that keeps either side from going off the deep end but it means we don't really have a court an institution striving to find common ground in interpreting and applying the constitution as law rather we have nine justices doing their own thing the court's decision on the affordable care act the ACA or obama care illustrates these points Roberts wrote an opinion that no one else joined in full the four conservative republican appointees bitterly dissented and justices Ginsburg and Sotomayor expressed alarm that the court imposed any limits on congress so what does the ACA do well it forces insurance companies to issue medical insurance to all applicants to help insurers stay afloat uninsured Americans must obtain minimum coverage and if they defy this individual mandate pay a penalty to the IRS the ACA also dramatically expands Medicaid by requiring states to provide health care to all citizens who fall below a certain income level before examining the ACA provisions the court unanimously ruled that the anti injunction act which prohibits federal courts from enjoining the assessment or collection of any tax did not apply why because the individual mandate was not a tax it was a penalty for violating the legal mandate to buy health insurance the court then fractured as to whether congress had constitutional power to enact obama care first Roberts and his four fellow Republicans concluded that the individual mandate could not be sustained under the commerce clause which authorized congress only to regulate existing commercial activity not to compel Americans to buy an unwanted product the court also reaffirmed its Lopez holding that the activity congress can regulate must be commercial in nature these limits however hang on the vote of one justice the four liberals are not on board so if a Democratic appointee replaces a Republican one these cases will be overturned second Roberts joined the four conservatives plus Breyer and Kagan to rule that the Medicaid expansion exceeded congress' power under the spending clause by coercing states to obey federally imposed conditions this holding is surprising because since 1937 the court has rejected every challenge to the spending power so the court's identified limits on that power seem to be theoretical the Medicaid expansion however was extreme congress threatened to withdraw all federal funding a huge amount of previous cases had established that a 5% reduction involving relatively small change was permissible thus the court will now have to determine case by case how much withholding goes too far third and shockingly Roberts agreed with the four liberals that the individual mandate could reasonably be interpreted as a tax on those who would forego health insurance and hence could be upheld under the taxing power this ruling confirmed the court's post 1936 precedent that the taxing power has no real limits but this undermines the court's effort to restrict congress' other powers and thereby revive the principle that the constitution limits the federal government to its enumerated powers and reserves all other powers to the states this disregard of federalism is troubling enough when congress actually exercises its taxing power it is far worse when congress declines to do so but then the court construes the legislation as a tax anyway why is this a problem because it destroys the only restraint on the taxing power that voters will not tolerate tax increases above a certain level in the ACA congress explicitly declared that the mandate was not a tax but rather a penalty indeed that's why all the justices concluded that the mandate was not a tax under the anti-injunction act only through legal mumbo jumbo did the majority magically transform the mandate back into a tax for constitutional purposes the roberts court thereby missed an opportunity to issue a transformative opinion beginning in 1937 the court dismantled the constitution's federalist structure and embraced centralized government control of the economy and social welfare that move has created huge problems and the court could have addressed them and given federalism legal teeth by invalidating the ACA indeed roberts himself was prepared to do so until he switched his vote in may well some of the accused chief justices of caving into political pressure from Obama and his supporters in congress the media and academia a more flattering possibility is that the chief acted as a statesman to preserve the court's reputation as governed by law not politics deference to the to the elected branches would be seen as judicial restraint unfortunately any beliefs that the court could remain above the political prey was misguided finally some have portrayed roberts as a latter day john marshal in marbury who achieved his long range goal of asserting judicial review yet avoided a direct confrontation with the hostile jeberson administration similarly roberts supposedly handed the democrats an immediate victory but advanced long term republican interests by curtailing congress power under the commerce and spending clauses i don't buy that analogy for openers marshal and the federalist justices faced impeachment if they came out the other way whereas roberts and his republican colleagues could have done so and actually been applauded by most americans who oppose obama care and sustaining obama care will not produce the long lasting gains desired especially if a democratic justice replaces a republican another critical difference is that marshal led a unanimous court whereas roberts wrote an opinion that no other justice joined in full finally and most significantly marshal was a career politician by contrast roberts was an appellate lawyer striving to cobble together at the supreme court at least five votes typically by crafting a centrist position that relies on hyper technical legal analysis the pragmatic goal is to win even by making inconsistent or hair splitting arguments it hardly impunes john roberts integrity to suggest that he was acting as a skilled appellate litigator that's what he is it is not necessarily bad to have a legal technician crafting compromise opinions nonetheless great chief justices like marshal and warren had a broad and coherent constitutional vision and each individual decision reinforced that by contrast the roberts court is playing small ball perhaps he will start hitting home runs if romney becomes president and replaces some liberal justices with conservatives but if obama is reelected and replaces one of the conservatives with liberal the roberts court is toast virtually all the five to four opinions are going to be overruled it is unfortunate the constitutional law now depends on elections rather than fundamental legal principles but that is our brave new world i want to thank all of our panelists for their additional statements and what i'd like to do before we turn to questions is just open it up if anyone on the panel would like to respond to anyone else on the panel sure did you have something to say then i can't promise actually a quick thought on each of the things that were said in terms of the fourth amendment cases i long had a predictive principle that if the supreme court justices can imagine what happened to them then it violates the fourth amendment they can't imagine having a amendment doesn't violate the fourth amendment notice the two fourth amendment cases term putting a gps device on a car is a search but strip searching those in jail even if they're wrong there it doesn't i want to say a word about the case marsha talked about i think it's going to change procedure and trial courts in a very fundamental way i think now if a prosecutor wants to seek a sentence of life without parole for juvenile homicide there's going to need to be a penalty phase where the jury is going to have to find the aggravating factors warrant that we've never had those penalty phase before except in death cases um if you know me at all i disagree with everything bob said three quick points first the theme of what he says the court was not interpreting the constitution as law that was policy choices not what the constitution attended the constitution was written in very broad language using phrases like cruel and unusual punishment it was written for a very different world john marshall said we must never forget that it was a constitution we're interpreting constitution may be a deafening door for ages to come the constitution has always depended on judicial interpretation that's always depended on who's on the court presidential elections there's nothing new second he says the court found the individual mandate as a tax as i'll use his word shocking i didn't find it shocking at all it made a great deal of sense to me the individual mandate operates as a tax it's calculated as a percentage of income or flat rate it's 1% of income or $95 in the year 2014 it's collected by the internal revenue service the funds go to general federal revenue $4 billion in 2014 that seems to be a tax now it's true the obama administration didn't want to use that three letter word there's such political consequences and connotations but the supreme court held in other cases that whether something is retreated as a tax for purpose of congress power doesn't depend on the label that's used now bob says well the court had to use in his words mumbo jumbo to make this not a tax for purpose the anti injunction act but a tax for purpose of congress power interpreting a statute is different than interpreting a constitutional provision something certainly could fit within the broad meaning of tax under article 1 section 8 even if it doesn't fit into the narrow meaning of a statutory word 30 says the court had the opportunity to dismantle what they've done since 1937 with regard to federalism I think he's right this case continues with the laws been since 1937 in terms of the court deferring to congress when it comes to social and economic policy I think it's a good thing but I think underlying this is two different views about federalism at the beginning of the country a view that says we need to equip the national government to deal with national problems and one that really emphasizes states' rights and throughout American history conservatives have tried to defeat progressive efforts by invoking states' rights the opposition to the abolition of slavery was done not by the defense of slavery but by invoking states' rights in the late 19th and early 20th century progressive federal legislation like the child labor law was defeated by invoking states' rights the opposition to desegregation was done in the name of states' rights so if we're going to talk about that vision of constitutional law let's associate it with what it's always been about finally why did John Roberts vote the way he did I think it's because he believes that it really is a tax and the scope of congress attacked his spending power and I think it's insulting to him to apply anything else with no evidence to support that well just to add to the put the mic a little closer I mean just to add to the the tax question there were two versions of this bill one in the house and one in the senate and the house version used the term tax and it was unclear I think when the senate passed this version which word was going up in the final measure and in fact a number of the messy parts of the law were because they this was one of the bills that was in progress in one of the houses of congress but when the democrats lost their super majority in the senate to their surprise in early 2010 for procedural reasons they were frozen into the version the senate had passed so the presumption that the many members of congress had that they were going to work out these things in a conference committee as they normally do and then come up with another bill was over the only way they could the democrats could proceed would be to pass the version that the senate already had passed the house would have to pass it identically with no changes so the same provision that that the chief justice called said fell under the taxing power which was labeled a penalty was in fact labeled a tax for those failing to carry required minimum coverage so congress actually used the term interchangeably and it's sort of a historical accident that the one called penalty arose it is true that though many people on Cabell Hill thought that they wanted to stay away from the word tax and I actually found maybe because you're Erwin because you also have a political science appointment you can explain this what is the rationale for believing that Americans prefer to be penalized by being taxed I didn't understand why that was considered a better political move should we turn to a question we'll let that one hang let me I'll use the moderates to ask the first question this is directed I think mostly to the journalists on the panel but anyone can answer Jen Crawford's the link to Jen Crawford was unusual in the sense that it was contemporaneous with the decision usually we find out what happens at the court but it's many years later what explains an injustice or a clerk I assume that's where it had to come from or more than one of those going down to the media for what end and is it likely to have any impact on how the court actually decides cases or does its business I'll try that one I don't have any inside information on the motivation of the leakers I think from where most people said I would think that it appeared that they wanted to undermine the credibility of the decision and I think they also wanted to show they were really angry about it but I don't know why they would do it it was highly unusual and I'm not even sure it had to come from a justice or a clerk and I don't question Jen's reporting that she has very good sources as far as impact in the long term I think in the short term it has an impact but as I was told the justice is left for most of them left for the summer to go to some really nice places to teach abroad and they have been through this something similar to this after Bush v. Gore there was a lot of dissension and unhappiness I've used for the Roberts Court my barometer for when the court severely divided the last day of the 2006-07 term when they handed down the school race cases and it was so obvious how divided they were and how unhappy and angry the justices on the left were for what that opinion did but they did get over that as well I have no reason to doubt when every single one of them says that this is one of the most collegial courts that they will find a way to work together in the fall the fall is going to be very unusual and it's going to test that collegiality once again because the court has already agreed to take up an affirmative action case race divides this court races what divided it in that most unhappy day on the Roberts Court in 2007 there's also the potential I'm almost certain they're going to take a case relating to same-sex marriage the defense of marriage act cases have already come into the court and I think they're going to have to take one of those cases and so that also may divide them so I think maybe we'll get an idea this coming term how they're going to put it back together again but I can't believe I mean these are adults and they've worked together a long time and several of them have senses of humor so I have to believe that they're going to do it I mean this is the branch of government that seems to be working so I think we just have to wait and see I think next term is going to be a real test Well I would say I certainly wish I had had a GPS tracker on Jan Crawford's car on Thursday because they might have helped us if we had traced her movements to see where this came from but there is one though I think critical difference in the Affordable Care Act case and the other recent contentious ones is that we have a different group of losers and I don't know that they will react the same way the Liberals, they're basically the Washington Generals of the Supreme Court I mean it's their job to lose on the big ones and they sort of know how to do it and so this was a role reversal and I don't know that the Globetrotters are going to be so content with losing that game there are there are only nine votes and therefore they need to get along they have no choice the only dynamic, sort of the speculative dynamic I think to look at is as most of us here sort of see this evolving towards being the Roberts Court it seems that the Chief Justice is more motivated to take votes where he finds them from either of the factions to the extent that he has a peculiar vision of the Constitution and the law and is willing to shape it creating new coalitions that might be what we see but I don't think there's going to be any change in the fact that the most important constitutional principle remains that so we need to and they all know that something left to the question this question is I guess primarily really appreciated the immigration decision as a legal victory which it certainly is for those who believe in federal primacy but I have to say I find the decision very worrisome on a practical level I wanted to know what you thought a little more about this I mean if a cop stops me in Arizona he's not going to think that I have an immigration question if he stops the people sitting up there but there's lots of other people that they think they will stop I don't see how you could possibly enforce Section 2B without having racial profiling so instead of thanking racial profiling feel free to disagree with me I'm actually not going to disagree with you I think that it's impossible for me to visualize how this law is implemented on the ground how 2B is implemented on the ground without racial profiling so how do you develop a reasonable suspicion that someone someone's immigration status has lapsed how do you develop a reasonable suspicion that someone's student visa has lapsed that someone never had a student visa to begin with how do you assess those things by looking at a person these are not assessments that can be made by looking at a person so there will be reliance on certain factors in order to assist law enforcement in making those preliminary determinations and developing a reasonable suspicion I assume that race, skin color class and accent language will be primary drivers is presumed to be out of status and who is not and then I think that to a certain extent the decision minimizes the burden that this will put on people who are having their immigration status determined during these otherwise lawful stops and I think that's something that will be the subject of litigation the court was very careful to suggest that detentions couldn't be prolonged while these inquiries were made that perhaps the inquiries could be made after individuals had been released that as a practical matter you will have instances as you do with drugs taking dogs for example where detentions are effectively kind of stretched and prolonged and that will happen that those kind of burdens will fall particularly on certain groups of people so I think we'll see litigation around that issue I think we'll see equal protection challenges I think we'll see Fourth Amendment challenges for unreasonably protracted detentions and I think those sorts of things can't be avoided in the implementation to be I think the other thing to kind of keep in mind is that the decision in kind of fleshing out to be really kind of talks about the fact that there's at least the federal immigration officers make these determinations and we have case law on this bringing on the ponce from 1975 saying things like Mexican appearance in conjunction with other factors can be the basis for a determination that an individual lacks status and that's a determination that the court was comfortable saying that immigration officers could make given their superior training etc etc this decision kind of elides the distinction between trained officers and state and local officers who have no training in immigration enforcement and suggest that everybody can kind of do this and make these calls so I do think there will be there will be litigation there will be a lot of interesting developments in the future Yes, go back Professor Jim Moritzki Most of the pundits predicted that the healthcare act would be overturned but you warned the few that did not My question is, were you surprised the way it works on it? I wouldn't have been surprised by anything that's looking for it here My own prediction which I said on many occasions was I thought it was going to be 6 to 3 to uphold the law for 5 to 4 to strike it down and I predicted if the court was to uphold that they would do so on the basis of the taxing power because it was an easier argument but had the court 5 to 4 struck down the individual mandate I wouldn't have been surprised I do have to say I would have been surprised that the court struck down the entire patient protection which was the 4 descending justices I thought if they were going to strike down the individual mandate they would then say some provisions that were invalidated I was surprised that the 4 justices in dissent would have invalidated the entire act and this would have been the first time since 1937 that a major federal social welfare or economic law had been struck down by the Supreme Court I actually have a question that came in on email, you'll know it's email not twitter because it's longer than 140 characters but it's related to the health question so maybe Bob or any of the panelists want to come in on this Why did the more liberal justices medicaid what are the likely implications of this or might this aspect of the ruling be so narrow that for practical purposes it will only apply to this case and the questioner also asks whether given what Robert said about the commerce clause and the necessary proper clause whether he strayed from his conservative principles on the taxing question I can take this I think that the spending clause limitation probably will prove to be very narrow if you actually read the statute and understand what it does the percentage of funds being withheld from the states basically what congress did is to say to the states look you've got to massively expand your medicaid they're medicaid funds to get them you have to do this covering many many many more people and if you don't it's not just that we're not going to fund the new medicaid expand we're going to take away all your medicaid funding if you were to look medicaid fund this is an enormous amount of money so it's 100% and it's just untold billions of dollars and no state has a realistic choice you could not turn down that money why because if you did let's say california turned it down you're turning down all this federal money that's coming back from you and you taxpayers have paid that and their federal taxes then you have to make up the money by imposing more state taxes so politically it would be suicide and so I think this is an extreme case both in terms of the percentage of funds being threatened to be withdrawn and the dollar amounts and as I mentioned I think the court is just going to have to work this out on a case by case basis my prediction is particularly with bryer and kagan are going to be very deferential to congress they're basically saying just try to be a little more reasonable although frankly if you read the spending power cases there have been past cases where where congress has imposed pretty draconian punishments on states that might be considered coercion no child left behind act is one that pops into my mind but I was candidly surprised that particularly kagan peeled off but again I think it's going to be a very narrow exception I think the commerce clause is going to be a very narrow exception it's rare congress has never ordered people not engaged in commerce to buy products or services and so you draw a line in the sand but that's not going to affect that many statutes you got to agree with something I said throw me a bone I agree that I don't think what the five just said about the commerce clause is likely to have much effect it's not very often that congress compels economic transactions I think it would be even less likely after the controversy of the affordable care act on the other hand just to the commerce clause what the supreme court has done for the first time is say that congress can't regulate inactivity only activity I worry whenever a court draws a distinction like that it's an open invitation to lawyers let me give you an example title II of the 1964 civil rights act which was adopted by congress to its commerce power so it tells in restaurants from discriminating on the basis of race it's a teller restaurant that refused to serve African Americans engaged in inactivity or is it activity and I don't think the court is going to strike down title II of the 1964 civil rights act but I do think it shows how much turns on characterization when distinctions like this are drawn I think that the part about the 10th amendment in coming during the states is going to lead to a tremendous amount of litigation but I don't know what's going to be the outcome of that litigation this is the first time the supreme court has ever found that conditions on states are so coercive is to exceed congress' power to violate the 10th amendment Bob's right it's an enormous amount of money for the states but it's also an enormous amount of money for the federal government who says well why can't it say the state takes the money as to meet the conditions the key is that the supreme court said that this is unduly coercive of the states Chief Justice Robert's exact word was ragooning of the states but he doesn't offer criteria for when something is unduly coercive think of the Solomon amendment it says that if a law school refuses to allow the military to recruit within the law school then that university will lose all of its federal funds is that unduly coercive is that a law that says that if any part of a university discriminates based on race or gender not that part of program but the entire university loses all of its federal funds is that unduly coercive or your example of no child left behind that puts so many strings on the grants to state and local education programs and the federal government is encompassing all those costs is that unduly coercive I think you're going to see a wave of challenges to a large number of laws and I don't know what's going to happen I'd like to go back to the SB 1070 case for just a moment I'll just start by saying I think it's bad policy but the legal questions are something different and as I understand the majority opinion when they upheld a part of the law that they upheld they said we're holding it as written not as applied and we're not cutting off the potential for a challenge to the constitutionality of the statute as applied correct? that's right and then the other thing to envision how it might be applied police as it stands when they arrest someone are obligated to ask what's your country of origin what is your citizenship and one of the reasons they're obligated to ask that is because if they arrest a foreign citizen they're supposed to offer that person the opportunity to contact their embassy so this is not a far cry from what police are often doing or are supposed to do as it is to have a little card that you can walk around with to make a Miranda warning that says ask these five questions and everybody that you arrest I can at least envision that that might not be profiling that might be constitutional what do you think? I think that there'll be a great deal of training around this issue and that will be kind of a fundamental part that determines how much litigation and where the litigation is how departments train their officers and the things that most departments will seek to avoid is a lot of litigation around profiling so there'll be protocols about how you ask about country of origin etc in order to make these determination the difficulty is that determinations of immigration status are not always simple they can sometimes be incredibly complex and so you have individuals who maybe have temporary protective status and aren't in the federal databases listed as such who will be detained for long periods of time they may be individuals who's asylum applications are in the pipeline they may be individuals whose green card applications are in the pipeline but there are a variety of people who have some form of twilight status millions of them really around the country where these determinations are not kind of on or off style determinations and so then the question is well who gets detained for lengthy periods of time when those determinations are murky and I think there is where we're going to see it's difficult to train around that and some of the impulses that are driving this law and I do think it's important to kind of flag the backdrop of some of the impulses that are driving this law because this law doesn't come in isolation it also comes in conjunction with a number of other laws including laws to prohibit the kind of a Mexican-American studies program some kind of wave of efforts to promote English only legislation so there's something more going on here than simply immigration regulation and I do think that those kinds of motivations will bubble to the surface as it's being implemented on the ground. Just want to throw a very quick point on this you know the court the previous term upheld another Arizona immigration statute in the Chamber of Commerce where it upheld the state's law that pulled business licenses and even corporate charters from employers that repeatedly hire illegal immigrants and this case of course the court made a big deal the fact that the federal immigration statute requires the government to respond when local officials seek information on immigration status of people they detain and so I think the court in both cases was really looking to what Congress has said here and in its view applying that statute and with the section to be issue it seemed that the court was saying well if Congress you know why is it that only an officer can make an ad-hoc decision to check immigration status what's wrong with the officers employer just establishing a policy to always do that in other words why I mean that was the government's argument that officers can make ad-hoc decisions but the sovereign that employees the officers can't make a policy decision to always do that in the interest of the state so without I mean it seems that like you say as a legal matter the court would say they're not they're trying to follow what Congress said whether it's wise or unwise policies as we had in you know Justice Kennedy's inspiring conclusion to the Arizona case at the end so you know the God bless American part I'm seeing some questions about both the affirmative action case that the court's taking and also a bunch of gay rights cases that are on their way to the court asking about what the court is likely to do in the next term so if anybody wants to instead of looking backwards look forward to talk about these issues as they come to the court in the next term or not maybe now's the time for the penalty versus tax question last year I think both Erwin and John Eastman predicted that the court would uphold the affordable care act so you're ratting a thousand on affirmative action I think the Supreme Court is going to substantially cut back on versus Bollinger, not overrule versus Bollinger the race case that Marcia referred to parents involved in the community schools for sales school is number one was a 5-4 decision Chief Justice Roberts wrote an opinion which was joined by Justice Scalia Thomas and Alito saying the Constitution requires color-blindedness and he did so in very powerful language that leaves no doubt where these four justices are going to be and I think they will vote overrule versus Bollinger and in this case concurred in part and concurred in the judgment part he said that well diversity is compelling interest the government can use race as a factor only if you can show that no race neutral means can achieve diversity and desegregation I would not be surprised to see the Supreme Court do something like that with regard to the case that's before Fisher vs. Texas Austin also keep in mind Justice Kennedy has never voted to uphold any affirmative action program and is now 25 years on the court so I think this is going to be a very significant blow to diversity and again it's all about how Justice O'Connor who wrote the majority in Grutter is in place by Justice Alito and I'll offer as long as I'm doing predictions I think the Supreme Court is going to find a right to marriage equality for gays and lesbians I think Justice Kennedy is going to write the opinion for the Court I think it's going to be joined by Ginsburg Breyer, Sotomayor and Kagan ultimately Kennedy has to decide does he want to write the next Plessy vs. Ferguson there's no doubt where society is going on this issue there have been two Supreme Court cases in history advancing rights for gays and lesbians Rome River 7s in 1996 Lawrence vs. Texas in 2003 both were written by Anthony Kennedy I think he's going to see this as his most important legacy from the Supreme Court I concur on both of those I agree on Fisher I think substantial limitations on diversity and I agree and I agree optimistically on marriage equality as well what about voting rights that also may be on the docket next term and we're all going to be watching to see if the the sort of unspoken threat in the Court's last voting rights case about Section 5 which is the pre-clearance requirement in the Voting Rights Act for states that have a history of past discrimination is going to be found unconstitutional Erwin? I think the Court's going to strike it down 5 to 4. I hope I'm wrong this is the provision of the Voting Rights Act that says that as for jurisdictions that have history raised discrimination voting any significant change in election practices have to be approved and it's usually pre-clearance by the Attorney General Marcia mentions a case from a couple of years ago where the Supreme Court 8 to 1 ducked the issue by narrowly intermingling the statute but Chief Justice Roberts wrote an opinion that went at some length as to all of the reasons why it's likely unconstitutional exceeding the scope of Congress's power that Congress's authority is remedial that the problem of race discrimination voting isn't the same as it was when it was adopted in 1965 in the light I think that Roberts's opinion leaves no doubt I think where he's going to be and I think that we're Scalia and then it's again guessing where Justice Kennedy is going to be and Justice Kennedy's most important issue as we saw in National Federation of Benefits for Civiliers is federalism in states' rights and I think this is likely to proceed just too much of an affront to states' rights to require some states to have pre-clearance and I hope on this one I'm really wrong in my prediction. Just a question on that states' rights point other than writing a decision finding a right to same-sex marriage is there are much more modest steps that the Court could take and both the First Circuit and the Ninth Circuit opinions in the two case, the Prop 8 case and the Defense of Marriage Act case were really written to be as narrow as those courts could make them and isn't it possible is the question really whether Justice Kennedy wants to find a narrow reason to respect federalism in the DOMA case or a narrow way that the peculiar instances of Prop 8 fall under Romer v. Evans rule and avoid the bigger question or do you think that this is my big chance to really get my name out there and he's going to go all the way. I would be surprised to see the Court strike down Section 3 of the Defense of Marriage Act without reaching the larger question or affirm the Ninth Circuit that Prop 8 is unconstitutional without reaching the larger question but ultimately underlying issue in those cases does the state, does the federal government have any legitimate interest in denying gays and lesbians of marriage equality and if the Court writes the opinion that Justice Kennedy will that there's no legitimate government interest in keeping gays and lesbians just loving commitment through marriage and getting all the legal benefits of marriage I think that's the clear signal and even if they don't go all the way to striking down all the laws in one opinion it will leave no doubt where the Court's going to be and remember in Romer he said there was no legitimate interest for Colorado law the law is protecting gays and lesbians discrimination and Lawrence he said there was no legitimate interest for law that made same-sex sexual behavior of crime I think that's the opinion he's going to write and however the implications are drawn in this case I think it will leave no doubt where the future is going to be so he'll just adopt Justice Scalia's dissent which said this case creates a right to gay marriage basically except that we are out of time I want to take a moment to thank Brittany Rodriguez and the UCI staff and the IT staff for putting this event together thank you so much