 My name is Rick Nassan of UC Irvine School of Law and I want to welcome you to the third annual Supreme Court term in review event. As with the law school itself, this event is growing. Our first event had 100 people. Last year's event had 200. This year we have 400. If we keep doubling every year, my calculation will be hosting about 50,000 people for our term today. I'm sure that will be a bit much for the UCI law support staff. I want to thank them now for the great support they've given to this event, especially our events coordinator, Brittany Rodriguez. I want to thank the law school and the university and Dean Chemerinsky for supporting this event. And we were able to get a one-time exemption from the no food in this auditorium rule. But the quick proposal is you can please take all of your garbage with you. Don't treat it as the AMC theater. It's fair to think of the past term of the Supreme Court as monumental. Dean Chemerinsky has called it amazing. Whatever we call the past Supreme Court term, the Court's decision on everything from same-sex marriage to voting rights and patenting of human DNA touches all of our lives. Many of its decisions are controversial. Some are hard to understand. Fortunately, we've assembled an all-star cast to help us sort through everything. Indeed, short of having the Chief Justice himself here, it's hard to imagine a more qualified and engaging group to discuss the Court's term. We have a PAC schedule, and so I'm only going to give a brief introduction, a very brief introduction to each of our six panelists. Mario Barnes is Professor of Law and Senior Associate Dean of Academic Affairs at the University of California Irvine School of Law. He also holds a joint appointment in UCI Criminology Law and Society Department. He teaches rights in the area of criminal law, constitutional law and national security, anti-discrimination, and critical theories. Author and veteran Washington journalist Joan Biskupic has covered the Supreme Court for 20 years and written several books on the judiciary, including a new biography, American Original, The Life and Constitution of Supreme Court Justice Antonin Scalia. She's a frequent speaker on law school campuses and before civic and government groups. Irwin Chemerinsky is the founding Dean and Distinguished Professor of Law and Raymond Prich Professor of First Amendment Law at the University of California Irvine School of Law with a joint appointment to Political Science, previously taught at Duke Law School, and before that for 21 years at the University of Southern California Law School. Miguel Estrada is a partner at the Washington, D.C. office of Gibson Dunn and Crutcher. He's co-chair of the firms of Pellet and Constitutional Law Practice Group. He has argued 21 cases before the United States Supreme Court and dozens of cases in the lower state and federal appellate courts. From 1992 to 1997, Mr. Estrada served as Assistant U.S. Attorney and Deputy Chief of the Appellate Section, U.S. Attorney's Office Southern District of New York. Adam Liptak, a lawyer, joined the Times Newstaff in 2002 and began covering the Supreme Court in 2008. He has written a column sidebar on developments of the law since 2007. Doug Najam is Professor of Law at UC Irvine School of Law where he teaches in the area of Family Law, Law and Sexuality and Constitutional Law. Before joining the UC Irvine faculty, he was Associate Professor of Law at Loyola Law School of Los Angeles and the Sears Teaching Fellow at the Wiggins Institute at UCLA School of Law. To keep this program moving, I've asked each panelist to speak for no more than seven to eight minutes on one of the court's cases as well as a theme of the court's term. That will leave us with about half the time for panelists to engage with one another and to take questions from you. At question time, you can queue up at the microphone to ask questions, but I have two requirements. First, your question must be brief. Second, your question must be a question. I will be ruthless in cutting off people who violate these two rules. If you are watching the webcast, you can tweet your question to hashtag UCI Law SCOTUS. Thank you and welcome and we'll begin with Mario Barnes. So I want to thank Professor Hassan for organizing this and inviting me to participate. It's a very daunting task to be on a panel with such an august group. The great thing, however, about going first is I don't have to go after Dean Chimerinsky. So good luck to you three down there. Also, as my students in the room will attest to, seven minutes will be a challenge, as you well know. I'm usually just finishing the clearing of my throat at seven minutes into class, but I will take this as an opportunity to bring myself in. I guess unlike the Dean who used words like amazing and monumental to describe this term of the court, I found myself reacting to a number of the cases as this being business as usual or business mostly as usual with what we find on the court's composition as a then conservative majority where Justice Kennedy is often the important swing vote. And so there are a number of cases, this term in areas in which I write or teach where this, what I guess I'm describing as a more typical non phenomena was the case. And so I'll mention them briefly before talking about the case that I'm principally going to speak about, which is Fisher versus the University of Texas. So at least in three areas, I saw the court being the court that I recognize as the Roberts Court and their approaches to key and important issues. For instance, in the area of workplace discrimination, we had two cases that to my mind further erode the scope of worker protection with regard to workplace anti-discrimination law, and those cases were Vance versus Ball State 5-4, a veto written decision which narrowed the definition of who can be treated as a supervisor for Title VII harassment claim purposes. We also had the University of Texas Southwestern Medical Center versus NASA, a 5-4 Kennedy decision, which held that for retaliation cases plaintiffs must now prove but for causation and may not use the perhaps more preferred motivating factor test allowed for other types of Title VII claims. In the area of the Fourth Amendment, we saw in addition to the growing list of police practices that will be found to be reasonable under the Fourth Amendment now, I guess, to include DNA swipes for persons who are arrested for serious offenses. There, again, we had a Kennedy 5-4 opinion. This case actually has a little bit of a twist in that Breyer and Scalia switch places in their typical majorities and dissents. And then finally, probably least surprising from the term as well, at least from where I said, in the area of civil rights jurisprudence, we had Shelby County, Alabama versus Holder, which was the 5-4 Robert's opinion striking down Section IV of the Voting Rights Act. And so all of these things were unsurprising to me with the exception of perhaps Maryland versus King, which included Scalia and Descent and Breyer and the majority. They were decisions along a very thin conservative liberal split, which is, at least for now, that's the hallmark of the Robert's Court. And so given that I wasn't surprised with these cases, I'm happy to report with the case that I'm going to turn to now, which is Fisher versus University of Texas. I was pleasantly surprised with the result because this is when I said business as usual. I don't think we ended up with the result that many people would have suggested was likely when the court decided to revisit the use of race and admissions within the educational context often referred to as educational affirmative action. We had last considered this in Gruder in 2003 with Justice O'Connor writing for the then majority now off the court. Many people expected that what we would see was a 5-3 decision to strike racial consideration by no longer finding that the diversity rationale met our test for or met our needs as a compelling interest. And so it would have been 5-3 of course, not 5-4 because Justice Kagan could not participate in this case. So instead of, however, the court handing down a 5-3 opinion with Justice Kennedy once again saying, although there are some programs that he would find constitutional that considered race, he's never in fact actually held one. He hasn't checked. I think I'm right. I don't think Kennedy ever has. So I thought we would basically see the depth of affirmative action. It's already been pretty much placed on life support in the areas of contracting and employment and it looks like we would see the same thing in education. And so certain of this was I that I was actually co-authoring a book chapter with the dean for which the title was the depth of affirmative action and education well under 25 years. And that's just when they announced they were hearing the case. And the reason it was so titled was a reference to the Gruder v. Bollinger case where Justice O'Connor in upholding affirmative action and the use of race as a part of admissions process indicated that she hoped in 25 years there would no longer be a need for such consideration. Of course Justice Scalia and Justice Thomas leapt onto that and said, so we've all heard it, Justice O'Connor just said affirmative action ends in 25 years. And so I thought, well, we didn't even get the 25 years. Gruder was 2003. And so I was incredibly surprised when what we actually got from the court was not a case that took the opportunity to overrule Gruder v. Bollinger, but instead what we got was a seven to one opinion on a very narrow basis, which was the court articulating that the Fifth Circuit in the case had actually misapplied the strict scrutiny standard. So again, if you're an advocate of affirmative action, even though in the end the case was the Fifth Circuit ruling was vacated and sent back, you couldn't have hope for a better result of what you wanted was the ability to continue to have race as a one factor to be considered in an admissions process. So for those of you who aren't familiar, the actual Fisher case involved a petitioner who was Caucasian who was rejected from the University of Texas in 2008 who was offered admission to a different Texas school and ultimately went to LSU, which everyone would say created a standing problem that the court did not take up. But essentially she claimed that the admissions policy, which considered race as a factor, violated the 14th Amendment. And so instead of the court taking on whether such programs which consider race are somehow violative of the Constitution because they either fail for being a compelling interest or the program wasn't sufficiently narrowly tailored, they looked at the Fifth Circuit's approach and said they had a misapplied gruder and that gruder does require the court to give some deference to the school's claim about the educational benefit of the use of race in admissions. They however do not require them to give such deference when they're applying the narrow tailored problem of the test. And here the court said the Fifth Circuit had given such deference to the University in accepting that their articulation of the need to use race was in good faith without actually strictly applying narrow tailoring. So it basically was set back for not being a strict enough application of strict scrutiny leaving in place gruder. And so I see that I am out of time. I think if questions present the opportunity, the things I would say more about is that this is surprising again because it didn't strike down gruder, but probably the most provocative decision is not the majority but the concurrence written by Justice Thomas that has very certainly interesting analogies between the University's use of race and segregation and slavery. So I'll turn it over and hopefully we'll have an opportunity to talk about that. Seven minutes goes by very quickly. Thank you. Thanks, Rick. And thanks to my fellow panelists. It's a treat to be with everyone. Several folks who I see a couple times during the summer on panels like this. And it's also very special to be at the law school that's come so far in such a short time. So thank you again, Rick. My mission today is to actually take on one of the few civil cases that don't involve civil rights that we're going to bring up today and then offer some broader themes. I'm going to open with the Association for Molecular Pathology versus Myriad Genetics, a case that in some ways was groundbreaking but broke like no ground. This is a case that the Justices, it was their first foray into the whole idea of whether companies can get patents for naturally occurring human genes that have been removed from the body. And the Justices heard this case on April 15th and decided it on June 15th, which immediately tells you something. They did very little. Typically the kinds of cases that you'll see more ground broken, more important consequences down the road are the ones that they sit on for a while that take some time. And they obviously decided here that they did not want to do too much. They clearly reached a compromise that sort of in some ways flew in the face of what we had heard at oral arguments. But let me tell you what the Justices did and what some of the reaction was and then I'll move into some of the larger themes that really do matter for this term. The court said you cannot patent a naturally occurring human gene that's been removed from the body, but you can obtain a patent for synthetically produced genetic material. That's the C-DNA that's been artificially created in a lab. The decision appears to try to strike a balance of companies to make money off of inventions, but not to impinge access to discoveries that would lead to more progress in this area. And both sides here found something to like about the ruling, which again is a key to how narrowly written this decision was. First of all, as some of you might know, both from the case and just the major science issue here, but then also all the attention that came from Angelina Jolie's situation, it goes to the heart of important genetic tests for breast cancer, muscular dystrophy, ovarian cancer, and other diseases that would have a genetic hereditary element and just how accessible tests are going to be. The company that was sued here, Myriad Genetics, based in Salt Lake City, had discovered the precise location and sequence of the BRCA genes that reveal a high risk for breast cancer. The average American woman, according to what was filed in this case, has generally a 12 to 13% risk for breast cancer. But with these BRCA genes, with the mutation, it goes up to 50 to 80%. And many of you might remember that shortly before we received the ruling, actress Angelina Jolie announced that she had had a double mastectomy after undergoing the test and finding that she had an extremely high risk of developing breast cancer. Anyway, so Myriad Genetics has located this very important set of genes, and a group of medical researchers, associations, and patients represented by the ACLU, sued saying, okay, they did something really important here, very brilliant here, but Myriad Genetics should not be able to hold the patent on these human genes, both the natural occurring ones, but also the synthetically produced ones. And what the justices ruled unanimously in an opinion by Clarence Thomas was that a naturally occurring DNA segment is a product of nature and is not patent-eligible. Justice Thomas, writing for the majority, said that for the entire court with only Justice Scalia splintering off in a small way, said that naturally occurring DNA is a product of nature and it isn't eligible simply because it's been isolated. Now, as I said in the beginning, the synthetically produced DNA done in a lab would be patent-eligible. And the main idea here, as many of you probably know, is that laws of nature, natural phenomena, and abstract ideas are not subject to patents. And there's a balance that the court is constantly trying to strike at the same time also, whether it be in a naturally occurring situation or just any kind of mechanical patent that would be given. And that's that patent protection is intended to strike this delicate balance between creating incentives for inventors for any kind of company to discover new things and to then make money off of these inventions, but also try to not just put any kind of impingement on further discoveries that would help in any kind of scientific way. And making sure that the flow of information for future progress isn't impeded. And it seemed to me from the reactions that the court did just strike a nice balance here. Now, you should know that the justices got a lot of criticism, first internally by Justice Scalia who said, essentially, I mostly agree with this, but I really don't get it and I don't want to pretend I get it. And after he wrote that, some of us happened to see another justice who said that he was tempted to write a paragraph saying, well, I got it. But anyway, many of us were sort of heartened by Justice Scalia's comment that I'm unable to affirm any of the details of what we've been told here. I only know what I know in the briefs, which as many of you know, we're voluminous. And it's a big question for out in California especially, for the biotech industry and just what was going to be able to be patented. And both sides were able to claim a measure of victory here and Muria said it is plenty of patents that will still allow it to remain strong and the challengers also though said that these kinds of tests for ovarian and breast cancer will now become much more accessible. Apparently they cost about 3,000 now. And just to give you one example of a reaction, a man writing in Slate referred to the BRCA patent ruling is reading like an earnest seventh graders book report which we kind of all get a bit. But anyway, he also said that the court's strain to understand the science is manifesting the overtly respectful declarative language in the ruling. Statements such as the study of genetics can lead to valuable medical breakthroughs are simply adorable. But in a serious vein, and I do want to be serious about this because clearly there's a lot of money at stake and a lot of really important medical research at stake. You know, a lot of folks who follow this said that, you know, the important of the ruling is that, you know, more scientists are going to be able to look at these databases. Oh my gosh, and I only have a minute left. So anyway, okay, so that tells you about their first foray into DNA patents and it was an important ruling but certainly not groundbreaking in the way that it potentially could have been. Some broader themes that I'll touch on real quick picking up from where Mario was. We had two huge back-to-back terms. That used to not happen at the Supreme Court. It was as if the justices could only handle so much tension in a short period of time. But after healthcare and then we have the big race cases and gay rights matters, you can really start, you know, seeing clearer and clearer patterns from the Roberts Court. And I think two themes are evident. First of all, the court mainly operates in deep grooves, moving slowly and hewing to precedent. And certainly moving slowly would be reflected in the myriad decision. And even though it was a surprise to Mario and to some of the rest of us, the University of Texas ruling certainly hewed to precedent and the gay rights rulings certainly hewed to precedent using a lot of the same language from 1996 and 2003 gay rights-related rulings. But on an issue, and here's the other theme that we saw so loudly and clearly in what would arguably be the most important ruling of the term. And that's Shelby County v. Holder. And that's where they offered to use Chief Justice John Roberts' word, a jolt. They, you know, turned away from decades of federal practices and court precedent to say that, no, we're not going to uphold Congress's reauthorization of Section 4 and 5 the way they were written. And I'm out of time, but we'll be back. Thank you. I want to begin by taking a moment to speak in my capacity as dean. I want to thank Rick for all the hard work in putting together this trip to panel. I too want to thank Brittany Rodriguez. I want to thank Joan and Macadal and Adam for making the trip from Washington to make this panel so special. And of course my colleagues, Mario and Doug, is just joining to our faculty. If I had a theme for this term, it would be that the Supreme Court's decisions affect each of us, often the most important and intimate aspects of our lives. On Wednesday, June 26, the Supreme Court dismissed the litigation concerning California's Proposition 8. On Friday, June 28, same-sex couples began to marry in California. If you think about the decisions just this panel is talking about, they're going to determine who gets into college who doesn't, what we have to pay for medical tests and medical treatment and who can afford them, who gets elected and what voting systems are in place. We can go on with all of the examples of what the Court did and how it affects all of us. I agree with Mario that another theme of the term is that it's again the Anthony Kennedy Court. Justice Kennedy was the majority more than any other justice this term, 91% of the time. So of course, if you look at the 5-4 decisions that you really see affect Justice Kennedy, 73 cases were decided after briefing and roll argument. 23 were resolved by a 5-4 margin. That's notable in itself that a third of the docket was decided 5-4. Justice Kennedy was the majority by far more than any other justice in the 5-4 cases. He was the majority in 20 of the 23 5-4 cases. Justice Scalia was the runner-up being in the majority in 13 of the 23 5-4 cases. Therefore, I think you can get a sense of the overall ideology of the term by focusing on the 5-4 decisions that were split along traditional ideological lines. There were 16 cases where on the one side were Robert, Scalia, Thomas, and Alito, and on the other, Ginsburg, Breyer, Senator Mary Kagan. Justice Kennedy was at the Conservatives in 10 with the Liberals in 6. It's really been the pattern for the 8 years in which John Robert's been Chief Justice. Kennedy votes with the Conservatives about 70% of the time when the Court is ideologically divided 5-4. The other theme that I would identify, at least the cases I want to talk about, is that this is a very pro-business Supreme Court. Adam wrote a terrific article in The New York Times a few months ago about the Roberts Court being a pro-business court. I agree very much with what he said, that it is the most pro-business court that there's been since the mid-1930s. Now, amidst the headline cases of the term, less attention was paid to some of the business cases, but I want to suggest that these two are ones that are going to affect each of us. Let me start with a case about the ability to sue generic drug companies. It's a case called Neutral Pharmaceuticals vs. Barclay. Founded a woman who took a prescription pain reliever, sold an act. She developed a horrible, rare side effect. The skin on 65% of her body blistered in decay. She spent months in a medically induced coma. She's permanently disfigured. She's blind. She sued the maker of the generic drug, the product she took, on a design defect theory. The Supreme Court ruled 5-4 that that claim was preempted by federal law. Just a little bit of background. In 2009, in a case called Wyeth vs. Levine, the Supreme Court said that makers of brand-name drugs could be sued on a failure to warn theory, even if they're warning labeled and approved by the FDA. Just as Steven said, drug companies always engage in advertising and in more speech. It could be to warn consumers who warn doctors. Drug companies can send dear doctor letters to physicians, warning them of these side effects. Just as Steven said, allowing liability would further the underlying regulatory goals. But two years ago, the court decided a case called Pleva vs. Mensing. It involved a drug that's often prescribed for those with diabetes to aid digestion. It's now known that about 30% of prolonged users will suffer horrible, irreversible neurological side effects. The Supreme Court ruled 5-4 that makers of generic drugs cannot be sued on a failure to warn theory. Just as Thomas wrote for the court and said, a generic drug can be sold that's the same as the brand-name drug. And it was the warning label that proved the brand-name drug. He said, generic drug companies can't change the warning label, so they can't be sued. Justice Sotomayor wrote in a penis saying, this turns the statute on its head. The statute was meant to protect consumers. It makes no sense that for the same drug, the brand-name version can lead to a lawsuit, but the maker of the generic drug is immune. Well, in the case I started with, Mutual Pharmaceuticals vs. Bartlett, Justice Alito said, the maker of a generic drug has two choices. Either change the chemical compound to avoid liability, or change the warning label. Both, he said, are preempted by the law. Justice Breyer and Sotomayor each wrote dissents, and they said, the majority is ignoring another alternative. Don't sell the drug, or pay the damages if you do. The reason this matters so much is that according to the FDA, almost 80% of all prescriptions in the United States are filled with generic drugs. When there's a generic equivalent to a non-generic, that goes to over 90%. All of us now are at risk when we take generic drugs. We can't sue for our injuries, not for failure to warn, not for design defect. Let me briefly mention a second case. In this case, it's called American Express vs. Italian Colors Restaurant. Italian Colors is a small restaurant. Italian Colors is a small restaurant. It took American Express cards. It believed that American Express was leveraging its market share to charge much higher rates than other similar cards were. It wanted to bring a class-action suit against American Express for violating the anti-trust law. However, in its agreement with American Express, there was a clause that said that any dispute had to be individual arbitration. American Express went to invoke the clause to rent the class-action suit. But Italian Colors said it cost hundreds of thousands or millions of dollars to win an anti-trust action. Under the anti-trust law, the maximum recovery for a claim is $39,000. No one will sue. It'll cost millions of dollars to bring the suit, but you only get $39,000. There has to be the ability to bring a class-action suit. The Supreme Court 5-4 said that this wasn't permissible, that the arbitration clause had to be enforced. Justice Scalia wrote, joined by the Justices, this is the second case in three years in which the Supreme Court has said that arbitration clauses must be enforced, even if it means the claimant can't go forward. The reason I mention this to include is that arbitration clauses are increasingly ubiquitous. There are consumer contracts, employment contracts, even medical contracts. Not long ago, I went to a new eye doctor for the first time. There was even a big stack of papers that fell out. In the middle was a form that was asked to sign that if I had any claims against the doctor, I would have got arbitration. I couldn't go to court. I asked the receptionist if the doctor would still see me if I didn't sign the form. She said she didn't know. Nobody ever asked the question. About the same time, I bought a new Dell computer. Thank you. About the same time, I bought a new Dell computer. You know, to use a computer, you have to click, you read the terms in a grade. I usually just click a grade. But this instance, I read the terms. In paragraph 8, said if I need to dispute with Dell arising out of the computer, I'd have to go to arbitration. I couldn't go to court. I wrote Dell a letter saying I didn't agree to paragraph 8. And by opening the envelope of my letter, they agreed I could sue them if we had any fear. Dell didn't write back that the computer still works. That's the mic now. All right. Thank you all for having me here. It's always very entertaining and informative to appear with Irwin. The, you know, I was asked to think about themes from the past term or the recent terms. But I want to start with a larger point, which is since we're in a law school, maybe we should all agree on an initial premise that the Supreme Court of the United States ought to do law. Seem somewhat, basically an objectionable. But one of the hallmarks of panels like this every year is that we all get together. And the people who won their pet little case are exultant and the people who lost, bemoan, you know, they've lost cost to civil rights or to consumers or whatever the issue of the juror might be. And, you know, the theme of the court is that, by and large, thank God, they do law. And a lot of the stuff that they do, including some of these statues dealing with drug labeling, is really dry statutory law. You have a statue that deals with non-generic drugs and a different statue that deal with generic drugs. They say different things. That may be dumb, but that's Congress. That's not the court's fault. And we do the court a disservice when we come here and we sort of think that because it would be good social policy we should just care about what the outcome is because you folks shouldn't be in law school if that's the case. And so there is something to be said in giving the court a little bit of slack about all of these things. And we should start by recognizing that of all of the cases that the court gets, about half of them are 9-0. They're nine good lawyers. They have good training. Most of these issues are very clear to a trained legal advocate. That's the good news. There are a number of cases in which they divide. I think we have to avoid the temptation of sort of assuming that they're good guys and they're the bad guys. I mean, there was a statement earlier about the case I was going to talk about, which is Maryland versus King. Now, there was some expression of surprise about the fact that Antonin Scalia, whom we all know to be a neanderthal, sort of struck a blow for the Fourth Amendment and sort of sided with the criminal defendant, which we all know those right-wing people just don't do. And the fact is Antonin Scalia has been voting on the side of the Fourth Amendment for years and years. And there are other of the left-of-center justices who usually vote on the other side, including Justice Breyer. If you're just a little bit cynical, you might think that that picked up after the home invasion and after the mugging, but he was doing it even before then. And so, I mean, you know, the court is a court. They do law. Many of these cases are honestly difficult. They don't all simply involve the expression of personal preference, and that's all to the gut. Now, Maryland versus King, it's a very interesting case in terms of what the law is. For those who care what the law is, the Fourth Amendment has two sentences, and they're a little bit unclear. The first sentence says, the right of the people to be secure in their person's houses, papers, and effects against unreasonable searches and seizures shall not be violated. Common, and no warrant shall issue other than upon probable cause, et cetera. In the earlier 20th century, there was a lot of back-and-forth about whether you needed a warrant for a search to be reasonable, because they appeared to be independent clauses, and there was a view that you can be okay under the Fourth Amendment if you act reasonably, but if you do want to go get a warrant, then you have to show a probable cause. That view has lost out as a matter of doctrine, but it has given rise to a little bit of instability because there are lots of things that we all want to do for which it would be absurd to ask for a warrant. You go through the airport and everybody gets searched. There's no warrant for that. You do any number of things in daily life where people say, yes, of course you gotta do that, and that's reasonable even though there is a search ongoing. You know, they have drug testing of athletes, of people who run trains, and the court has said in all of those cases, oh, we don't apply the warrant law to that because we still use the reasonableness aspect of this for searches that are unrelated to law enforcement. So you go to the airport and the theory is that you're just trying to keep you safe. If you're testing, you know, the guy in Amtrak, the theory is we just want him not to be high while driving the train. That's a safety issue. It has nothing to do with targeting him personally. What's extraordinary about the King case is that we have a case here in which somebody was already in the criminal justice system. Mr. King was exercising his Second Amendment rights by menacing people with a shotgun, and he was arrested and taken into custody. So far so good. That was in 2009. As part of the arrest for the shotgun menacing, a law in Maryland was applied to him that said that anybody who gets arrested for a violent crime gets a swab in the cheek for DNA. And that swab in the cheek in due course led to the arrest of Mr. King for a cold rape that had happened six years earlier. And so the case that went to the Supreme Court was not the shotgun case, but the case that was uncovered as a result of the swab in the DNA. The court ultimately holds 5-4 that this is reasonable because it is part of the booking process just like fingerprinting and photographs. And that sounds right if you think about the airport, except that it is the first time that the court really has applied this reasonableness analysis on tether to the warrant apart from or in the setting of a purely targeted individual in law enforcement. The opinion was by 4, Justice Kalia wrote a very spirited dissent about which more later. See, I'm better than Erwin. Only one note. The only one note. So I want to thank Rick for including me and also just say how great it is to be having joined the faculty this month at UCI to be here with my colleagues and with these great panelists. Okay, so same-sex marriage in seven minutes. The marriage cases, we had two at the Supreme Court, Hollingsworth versus Perry, which was the challenge to California's Proposition 8 and United States versus Windsor, which was the challenge to Section 3 of the Federal Defense of Marriage Act, or DOMA. Prop 8 provided that only marriage between a man and a woman is valid or recognized in the state of California. The case was at every step about the constitutionality of a state marriage ban, and yet in the court's decision, we have nothing at all about that question. The court held that the proponents of Proposition 8 here in California called Protect Marriage had no standing to appeal the district court's judgment. This vacated the Ninth Circuit's opinion, effectively restoring Judge Walker's 2010 district court decision ruling Prop 8 unconstitutional. And while same-sex couples are getting married in California, Protect Marriage continues to challenge this. The California Supreme Court is involved again, as the proponents have asked the court to consider whether the federal district court exceeded its authority in issuing a statewide injunction against enforcement of Prop 8. I don't see this leading to a stoppage of marriage in California, but others on this panel are probably more equipped to address that particular issue. We have Chief Justice Roberts joined by Justice's Scalia, Ginsburg, Breyer, and Kagan, and the dissent was led by Justice Kennedy, joined by Justice Thomas Alito and Sotomayor. The odd configuration of justices here is explained by the fact that the resolution didn't involve the merits, same-sex marriage, and in Windsor we get a more predictable configuration. Kennedy actually would have reached the merits, it seems, even though he would have apparently, for moral argument, preferred to avoid the case in the first place. But once the case was there, he clearly didn't want a ruling that California state officials can effectively veto a citizen initiative by not defending it. So basically then, on the question of same-sex marriage, we got no resolution regarding the substantive issues of the Equal Protection Challenge to a state marriage ban, the level of scrutiny for sexual orientation classifications, the fundamental right to marry. Remember this is why the suit was filed to get this big question up to the Supreme Court, and the court didn't answer it. So to understand more about the substance of same-sex marriage, we have to look to Windsor, which involved a challenge to Section 3 of DOMA, which provided that the federal government couldn't recognize valid state law marriages of same-sex couples for federal purposes. And the court held Section 3 unconstitutional. So now married same-sex couples gain federal recognition and receive federal rights and benefits. This generally applies only to couples with valid state law marriages. So if you live in a state that allows you to get married or that recognizes your marriage from another state, you get federal rights and benefits. If you don't, for the most part, you don't get such rights, though I'm going to qualify that in a moment. Justice Kennedy here was joined by justices Ginsburg, Breyer, Sotomayor, and Kagan. And the opinion is a classic Justice Kennedy opinion. It's littered with federalism and liberty and equality, but at base it's an Equal Protection decision. But the court doesn't engage the question of heightened scrutiny. The Justice Department had argued that like classifications based on gender, classifications based on sexual orientation should be subjected to heightened constitutional review. The Second Circuit, the opinion below that was being reviewed had actually taken that approach, and the Supreme Court doesn't say anything about it. Instead, it seems to be that DOMA Section 3 doesn't pass even the most deferential form of constitutional review, at least in Justice Kennedy's eyes. Okay, so where do these two decisions leave us? First, I think they exacerbate the two Americas that exist for same-sex couples. 13 states plus DC provide marriage. Those couples now get federal recognition. Six states provide domestic partnership or civil union with all the state-based rights of marriage. Those couples do not at this moment get federal rights and benefits. One state, Wisconsin, provides limited domestic partnership rights. Aside from New Jersey and New Mexico, the states without marriage have constitutional amendments or statutes banning same-sex marriage. New Mexico is the only state in the odd position of providing no relationship rights and also not having any law against same-sex marriage. So the majority of states, we have no relationship rights, no state-based marriage rights, and therefore no federal rights. It's important to note, though, that clearly for some federal rights and benefits, the statute looks to the place of celebration rather than the place of residence. So most importantly for immigration purposes, if a couple gets married, even if they live in Alabama, they're going to be able to get the immigration rights that go along with that marriage. And it seems at this point that the Obama administration is trying to look for other avenues to actually provide more federal rights and benefits based on place of celebration rather than place of residence. The big looming question is, what about all of these state marriage bans? Are laws restricting marriage for same-sex couples unconstitutional? Chief Justice Roberts clearly tried to say the court has not decided that question. In dissent, he said the court doesn't have before it and the logic of its opinion does not decide the distinct question whether the states may continue to utilize the traditional definition of marriage. Justice Scalia in dissent disagreed. He said the view that this court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today's opinion. And I think to a great extent, Scalia's position here is supported by language in Justice Kennedy's opinion. Justice Kennedy said the differentiation in DOMA demeans the couple whose moral and sexual choices the Constitution protects. DOMA for Kennedy was at base an attempt to single out and express disapproval of an unpopular minority group, which he deemed unacceptable under any level of constitutional scrutiny. I think certainly as Justice Scalia points out, these same types of rationales fit any analysis of a state marriage ban. And more broadly, in Windsor, Justice Kennedy conceptualizes marriage in a way that fits with same-sex couples. Rather than defining marriage by procreation or sex differentiated roles, Justice Kennedy talks about marriage and the right to marry through the language of adult intimate romantic affiliation, mutual emotional support, financial interdependence, public recognition and dignity. These are all qualities that seem equally applicable to different sex and same-sex couples. Justice Alito, in fact, points this out in his dissent. Justice Kennedy so extensively describes the meaning of marriage and its easy application to same-sex couples and Edie Windsor in particular suggests that he might have little tolerance for state marriage bans. And his focus on dignity and stigma suggests that he may also find societal regimes like domestic partnership and civil unions constitutionally inadequate. He wrote that DOMA imposed, quote, a separate status and so a stigma, and that stigma had constitutional significance. Notice in this that there's also a strong message about marriage itself. Marriage is the highest status for Justice Kennedy. It marks families as worthy of respect and dignity. The message isn't only that same-sex couples should be allowed to marry, but that they should want to marry, it seems. Okay, so where do we go from here? Well, there's already litigation pending challenging state marriage bans. There's litigation against the ban in Nevada, in Hawaii, in New Jersey, in Illinois. Just in the wake of Windsor, we see new lawsuits being filed in Pennsylvania, North Carolina, and Virginia. The Pennsylvania suit was the first to challenge a state marriage ban after Windsor. The case is called Whitewood v. Corbett, and the ACLU attorneys use Windsor's language throughout the complaint to make their claim for the unconstitutionality of Pennsylvania's law. We'll see some additional initiative efforts. It seems like Oregon will be the first to go in November of 2014 to try and repeal their marriage ban. And we see continuing legislative activity, including in Illinois, Hawaii, and New Jersey. So the question is, how long can the Supreme Court avoid the issue? Can they really kick the can down the road for many more terms? It seems not particularly likely, but certainly the next time the court confronts the issue, we will have more states in the marriage equality column, which given all the anxiety we saw at Oral Argument, it seems like that will make at least some of the justices who favor same-sex marriage more comfortable intervening. Thank you. So it's a real pleasure to be here. I have a somewhat amusing task of giving an account of Shelby County against Holder while to my left is the nation's leading election law obsessive. The decision's three weeks old, so Rick has now written about 1,500 law closed. Half a dozen law review articles and a three-volume fetus on the case. And I'm going to try to draw on all of that. I want to pick up, as a thematic frame, something that Miguel said, and I think I half agree with him, this is a court that does law in statutory cases. I would propose to say that in the three leading cases, the three most important cases, the Fisher Affirmative Action, Windsor, the Dome of Same-Sex Marriage case, and now Shelby County Voting Rights Act case, it's a little hard to support that proposition. And I want to draw on my favorite footnote from Justice Scalia because I think it's the mildest thing he's ever written, and yet so wringingly true, from the Maryland v. King decision that Miguel described. In passing, he says, the opinion does not really contain what you would call a rule of decision. And I think that theme, you could run through all three of the big cases. So in Fisher, we get a rule of decision that they refuse to apply. In the other two cases, it's not only, I think as you've heard, that you can't tell what standard of review is being applied. You cannot tell me what constitutional provision is being used to strike down these statutes. And that seems to me to be unworthy of the Supreme Court. So what the Shelby County case considered was the Voting Rights Act of 1965, a towering achievement of the Civil Rights Movement for which people bled and died, and which everyone agrees was enormously valuable in achieving voting rights of the most basic kind, of boosting minority voter registration in the South. And it did that by doing something really radical. It turned federalism upside down in Section 5 by requiring states, when they enacted laws, as independent sovereigns, to first, before those laws would count, come to Washington and get the permission of the Justice Department or the Three Judge Court in Washington. So that's strong medicine, as the Chief Justice said in his opinion. And then it did something else. It didn't apply this to every state. It applied it to a large handful of states, a double handful of states over time, because those states had it based on the data from the 60s and then later from the 70s, very bad track records. So it's not only turning federalism upside down, but it's applying this unequally among the states. And Congress repeatedly reenacted the Voting Rights Act five years, five years, seven years, 25 years, 25 years. But it never updated the coverage formula from, like, 1972. So it's relying on very old data to apply this, you know, badge of shame to states that say that they've moved beyond that era. And I think, you know, the critique in the Shelby County opinion from the majority that something doesn't smell right here, that if Congress is going to do this, to take this significant intrusion on federalism and to single out some set of states, maybe it should rely on contemporary data, makes very good sense of the matter of policy. But as a matter of law, it's a little hard to know what business it is of the Supreme Court to make this decision. The Reconstructionary Amendments, after all, specifically gave Congress the right to decide how to protect the right to vote of newly freed slaves. It did that because it was skeptical of the Supreme Court, which had just issued the Dred Scott decision. So it specifically gives Congress the right. And while I think, so just to give you the bottom line in the Shelby County case, the court doesn't strike down Section 5, the part of the law that requires pre-clearance, that requires people to come to Washington to get permission to have their laws count. But it did strike down the coverage formula in Section 4. And there again, you have to struggle to figure out on what legal theory. Chief Justice Roberts said that there's a constitutional doctrine known as the Equal Treatment of States. And I would challenge you to find that in the Constitution. It's true that states must be admitted to the Union on equal footing. But Congress treats different states differently all the time. So this proposition that it exists somewhere is very hard to find except in a 2009 decision from the last time the court looked at the Voting Rights Act and kicked the can down the road, but eight justices including four liberals agreed that there existed such a proposition. And so maybe that will give me the second theme and I know it's one Rip cares about quite a lot. But why is it that the liberals signed on to that proposition in 2009 only to see it used against them? Why did, you'll have your chance. Why did the liberals sign on to Fisher, which to my mind not everyone agrees, significantly tightened up the narrow tailoring part of strict scrutiny. So it fairly applied to the Texas program. I think Texas may have some real trouble. Why did the liberals sign on, in a case we haven't talked about, about Arizona's law that required proof of citizenship to vote, why did they sign on to a theory of how the states have the right to decide on voter qualifications. And I don't really have an answer. Rick wrote a nice piece in Slate saying that maybe the liberals are just waiting for the court to be differently composed and they can come back and clean up this mess. But that's my second concluding theme. And I think perhaps I'm the one person who will not use up all of his time. That's right. Everyone will take some of your time left. So before we open up to questions, if you do have a question, please feel free to line up with the mic and I have some questions that have come in online. But I wanted to give the panelists, if anyone wanted to respond to anything that they've heard from the other panelists. Can I just say something to Doug? Well, Joan and then Miguel. I just wanted to respond to something Doug said about the same sex marriage cases when he was talking about Anthony Kennedy's rhetoric in the Windsor one. I really agree that it was a very open, generous, affirming sort of statement about same sex marriage. But I think there was a message there from Justice Kennedy and the others, especially even the liberal justices about where they really are at same sex marriage for the nation. And I think they're not ready for it at all. I think that's why we saw that unusual vote in the Prop 8 case that splintered the liberals. I think some of those liberals might have been more willing to accept the standing issue, but they didn't want to go there. They didn't trust where Justice Kennedy might be. And the conservatives, I don't think, trusted where Justice Kennedy might be on it either. And I think that even though we've seen a lot of challenges in the wake, that some were already pending and some have since been filed, and I'm sure we'll see more from Ted Olson and David Boyce, who brought the one in California here. I think that it's in their interest probably and the Supreme Court's to let it take a couple more years because I think the underlying messages, we're not ready for it yet from the Supreme Court. Micah. I have agreed with what Adam said. That's far greater. Yeah, the other half. I mean, I think it is one of the themes of the court to me, if you read all of the opinions, is the different strategy that, you know, what people call the liberals or the left-of-center justices and some of the conservative justices use an opinion right. And I'll give you three or four examples of what that is. There were like a couple of big business cases, which, you know, the liberals lost, causing, you know, the end of the republic and us to be all sort of on the street and destitute. And the dissents by the liberals are very interesting. There was this Comcast case where Justice Ginsburg and Justice Breyer felt so strongly about it, they both dissented from the bench. That's an open court. If you look at the opinion, it says nothing happened today. This is a ticket for one ride only. This was a very unusual case. Lots of statements like that. There was another case. Who was the advocate in that case? Awesome, short, fat Latin guy. And there was another case, Genesis, which again, it was sort of somewhat of a glass action case. Justice Kagan wrote the dissent. The first line is this is a ticket for this ride only. Extremely unusual facts. Nothing happened today. You look at how they deal with their losses. And yeah, yeah, it lost, but it was a very unusual case. Nothing happened today. You compare what they do when they sign on to the North Austin case on the voting rights case some years ago, or the Fisher case. And they're willing to sign on to something that puts off the day of reckoning because they're waiting for more Democrats to get elected to the White House and for Justice Kennedy and Justice Scalia either to be called by their maker or to retire. And it is a very clear strategy of minimizing their losses and saying no, no, no, nothing happened today and trying to put off the day of reckoning even if they lose in the end. And that's what they did in the voting rights case. Yes, they did lose in the end, but they got another election turn out of it. And Fisher, maybe they will lose in the end, but in the interim it's still the law. And that's a very different strategy from Antonin Scalia who is not only willing to write an incendiary dissent in the case that he just lost, but he will explain to you at length how he's already lost the next one. And if you read the dissent in the Windsor case, he has blocked quotes from the Kennedy opinion explaining to you how they will be used to require same-sex marriage in every state, be it Alabama or Mississippi. It's a very different, very, very different strategy. The liberal justices are playing for time and Justice Scalia is acting like he's out of time. I just want to, I guess... Sorry, I have a response to Mikhail and I guess maybe Doug a little bit, which is an answer to why the liberals would sign on to the more restrictive form of narrow tailoring in Fisher. I think the answer is for them it might just be the devil's bargain, right? If they believe that it's beneficial, useful, and constitutional to allow race considerations and admissions, this might be what you will have to have as a form of judicial scrutiny to allow the plan to exist at all. And the only reason I say that is if they actually had some different articulation but they just wanted to preserve it, they could have voted and then wrote concurring opinions that carved out some nuance for what they thought and they didn't. And actually, like I said, even the dissent is tepid if what you want is some really heartfelt defense of the practice. I think Justice Ginsburg, other than to say she thought that the plan which considered race of a factor of a factor of a factor should have passed a gruder, doesn't offer some vision to help us move forward. Actually, I found unhelpful for advocates her claim that even the race neutral, the top 10% plan that Texas uses for part of its admissions might be race conscious in and of itself, right? She basically says, I don't know why you're calling that race neutral, I think it's done for racial purposes. And so none of the opinions seems to be the type of spirited defensive what you want is a real conversation about the salience of race and admissions except for Justice Thomas and I'll wait to talk about that later. It's got a lot of interesting all over it. I don't respond where Miguel began and that Adam adopted, that it's the court's role to do law and that that's different than social policy. Of course, anything the Supreme Court does is by definition law because anything the Supreme Court holds is the law of the land. But I think there's a connotation of what Miguel says that when something is said to be doing law, that's really good. But if it's called social policy, that's really bad. Now if you push, I think what it is, is the decisions we like are doing law and the decisions we don't like are doing social policy. This is like judicial activism. I think the definition is judicial activism, the term we use for the decisions that we don't like. What I want to make is a much larger jurisprudential point that I think there is no way when it comes to Supreme Court decisions, discussing here, to draw a distinction between what doing law means and what doing social policy is. Let's take the marriage case as an example. The issue before the Supreme Court wins was whether or not section 3 of the Defense of Marriage Act violates equal protection. There's no doubt that it treats gays and lesbians different from straights. The question before the Supreme Court was is a legitimate government interest served by this discrimination against gays and lesbians? I don't know how you can answer the question of what's a legitimate government interest without reference to social policy. You're not going to find the answer in the text of the Constitution. You're not going to find the answer in the framers intent. It's a question of is there a legitimate government interest? We'll take Fisher in the context of affirmative action. The question is, is diversity in the classroom a compelling government interest? And what must be proven with regard to the ability of race-neutral alternatives to work in order for affirmative action to exist? Again, whether diversity is a compelling interest is inherently a valued choice. That's why the Court splits five to four on questions like that. But I don't know what it means to say it's doing social policy or it's doing law. We'll take one more example from a case here. He's taking a DNA via cotton swab in somebody's cheek a violation of the Fourth Amendment and it's for a crime for which the person was not accused. Justice Kennedy writing for the Court said it's a matter of reason-less balancing the law enforcement needs against the intrusion on privacy. Whenever you're balancing law enforcement needs against intrusion on privacy, isn't that inherently about social policy? And so I think what we talk about doing law versus doing social policy, I think that we really have to keep in mind what's before the Supreme Court inevitably is about both. I would love to, but I won't do it. I think that there's a lot to what you say, but nonetheless it doesn't seem to me too much to ask that the Court do law in the sense of rooting its decisions in legal materials, precedent and rational explanation where the propositions fit together and I think both the voting rights case and the DOMA case are subject to the criticism that it did not do that kind of rudimentary law school legal work. So I just want to say that on Joan's point I completely agree. I actually think so this underscores the fact that for the same-sex marriage issues and I think this bleeds to other issues, the Court is as concerned sometimes with institutional considerations and its own role and its relationship to other institutions as it is with doctrinal and substantive consideration of the issues. And remember in the Perry case, when Prop 8 was passed in California, all of the leading advocates for the LGBT rights groups issued statements saying don't file a federal lawsuit against Proposition 8. The reason they did that was not because they believed Proposition 8 is constitutional. They believed that the Supreme Court wasn't ready to say that such laws are unconstitutional and the Olsen Boyle's lawsuit went forward without the groups getting on board and we can debate whether that was a good thing or a bad thing, but it was animated the decision-making there by institutional considerations more than substantive considerations and we saw that play out or argument where Ted Olsen continues to try to talk about the fundamental right to marry and the justices who we think are sympathetic to same-sex marriage kept reeling them back in at one point Justice Ginsburg was talking about, well we have a very narrow decision from the Court below, can't we just deal with that decision? And then in between oral argument and the Court's issues of the decision, three states passed marriage equality at the state level, which I think for probably some of the justices only underscores the fact that they can keep out of it for now and things will keep moving in one direction before they have eventually placed some sort of cleanup rule. Okay, so we'll open it up to questions. We can start right here. This is on. Now it's on. Go ahead. Okay, briefly the, I'm kind of becoming a Court of Amendment jockey and I'm always concerned with the Court of Amendment and I understand it on the legal side it's about the government, whether or not the government violates your rights to privacy but also just on the general societal side we see increasingly individuals are having technology with the reality shows people are pretty much being taped first and then we ask questions they will publish your information first we ask questions and then sign away later. But just on the legal side the Court of Amendment appears to me from reading on its face it was to prevent the police from actually violating like ransacking your home or violating your right and increasingly it's becoming the question of whether or not they can just enter the evidence and prove to be of the invasion into evidence and so and it's less about if you want to call it the actual dignitary harm of violating your own is that something that we're just going to have to live with in the future is just give up the fact that the police or the government is just going to enter your home and then the question will be whether or not they can enter it in evidence and we just have to live with the idea that maybe they'll destroy the evidence if they don't if they're not able to enter it into in trial If anyone would like to answer that and also maybe talk about what the Court has been doing with privacy more generally We'll take that I mean I think it's too early to despair about the laws of privacy vis-a-vis the government It is true that a lot of us for our own convenience give a lot of personal information to Amazon, to Dell, to Facebook and you're doing that by consent but the Fourth Amendment does not apply to private parties it only applies to the government and with respect to actions by the government the Court has had a number of cases in the last few years where the Court has been very leery to allow government to use technology to invade privacy There's a case called Kilo some eight or ten years ago which involved the placement of thermal imaging equipment that's at the house just to see if the house was too warm and use that as an indication that you were growing pot in it and the Court said you couldn't do that There was a case last term you know the GPS case that ultimately turned on whether the placement of the GPS device had been put in your car which is one of the Fourth Amendment effects but the Court said you couldn't do that without getting a warrant What is unusual about the DNA case is that the Court clearly heard the siren song of this is a nothing this is like taking a photo and it's so useful to the government we want to catch rapists it is I mean I think Justice Kalia did a very good job of showing that under the state of current Fourth Amendment doctrine the Kennedy opinion is doctrinally indefensible but if you ask most of the American public most people would say it's okay because it only applies to people who are already in the criminal justice system and it's such a nothing and it catches a lot of criminals and only time will tell whether this is a setback for the Court's concern about the impact of technology or whether it is a new way for the Court to look at whether something is allowed based on pure social utility Here's a question that came in over Twitter so it's short Given the stalemate in Congress given the stalemate in Congress and between Congress and the White House has the Supreme Court become too powerful as an American institution kind of a big think question I really think now I'm becoming Rick Hassen's publicist completely but Rick wrote an interesting study updating something Bill Eskridge at Yale had done on the following questions so we've talked about two kinds of cases constitutional and statutory in constitutional cases of course the Supreme Court has the last word and everyone goes home in statutory cases, remember Lily Ledbetter if the Supreme Court does something and says we interpret the statute to mean X and Congress says no in fact we meant it to mean Y Congress is free to come back and overrule the Supreme Court in statutory cases but in this polarized gridlocked Congress that's happening less and less and the Supreme Court is now becoming even more powerful across not only Constitution but also statutory cases because it's very hard for Congress to come back and overrule the Supreme Court in that set of cases I'll just add that actually we saw a couple pieces of evidence of that just this term in two of the cases that Morrow referred to they could have been Lily Ledbetter revisited the Title VII cases that Justice Ginsburg dissented from the bench on the last week of the term and this clause in Title VII you know don't hold your breath I mean Lily Ledbetter had a lot of energy behind that legislation back in 2009 and President Obama I believe signed it as his first act of official act when he became president and I think that's unlikely and then I also think the more potent example will be on sections four and five of the Voting Rights Act in Shelby County back in 2006 when Congress reauthorized section five of the Voting Rights Act it just could not come up with a new formula and that was you know 2006 I think that we're first of all because it's hard it's hard to create a new formula given where the states are at and it's not just that it's not just the political gridlock but it's also the difficulty of the task and I think now it's really unlikely even though hearings have started that we'll see any kind of congressional action on that that would take the section five anywhere in a different manner than it would have gone in 2006 We should also mention that sometimes this need for statutory correction is itself created by the action of the court at least in the two employment cases it was the court's reading it wasn't the definitions in the statutes themselves it was the court saying with this type of claim you only get X and with regard to Supervisor which comes from the EOC guidelines we interpreted differently than the agency actually and so it's interesting that we think about statutory as so I guess bright line when lots of what is created as statutory confusion or ambiguity comes from the court's interpretation We're a very long way from 1989 to 1991 because as all of us have been around a long time remember in the 88-89 term we had like seven different rulings from the Supreme Court that rolled back the scope of civil rights laws and Congress came back in 1990 Yes, Congress came back with the Civil Rights Act of 1991 which had a lot of potent remedies especially in the disparate impact area and we all used to talk about this conversation between the court and Congress that produced that and we don't really see much of a conversation Each of the answers so far has been wonderful and it's focused on the statutory cases is I was thinking about the question of is the court too powerful the question is how do we begin to assess with too powerful means? The TOEFL wrote in the 19th century that scarcely any question in the United States that doesn't sooner or later get resolved by the courts we're at a moment in American history where society is deeply divided think of the questions that most divide our society abortion rights affirmative action and we go on with the list these are all inherently constitutional questions and this country has decided from early in American history that we're going to give to the courts the power to interpret the Constitution and to declare unconstitutional statutes that they believe violated and so I don't think that the court is too powerful I do think it's much too conservative I do like that the we decided Mr. Justice Marbury it's Marbury versus Madison I don't know that we decided so much How many areas the court is not very far out of step with public opinion so that in the marriage cases the court basically did exactly what polling suggests what people want which is to A leave matters to the states that's prop 8 but B treat people who are married in states that allow such marriages fairly that's Windsor People seem to be shy about asking questions in person First I just want to say thank you for putting this on this is wonderfully informative and I could only hope to one day be able to sit on the panel like that but my question was for Mr. Nejane and I hope I pronounced that right but during your presentation I heard you mention that the federal benefits go towards the place of celebration and not towards place of residence is that what I took that to mean was that the federal benefits are if I for say lived in Nevada and I wanted to get married and I came to California to get married would I be able to go back to Nevada and keep the benefits that I would have gotten in California so generally no so the general result from Windsor is that if you have a valid state law marriage then you get federal rights and benefits we then have to look to the various federal statutes and also the interpretations of those statutes and for the most part most federal rights and benefits have turned on state of residence or what some of the laws called domicile meaning that your state has to actually recognize your marriage as valid for then the federal government to give you rights and benefits one important exception to that is immigration which looks to place of celebration so if you go to California and get married even if you live in Nevada the federal government would look to your California marriage and then you'd be able to sponsor your spouse for immigration purposes what's happening now is that the Obama administration is trying to look for other ways to extend federal benefits based on place of celebration and there's a lot of folks making arguments for more broadly using place of celebration there's something a little bit uncomfortable about some of those arguments given the position of some of the advocates during the litigation that basically what the federal government has always done is deferred to state-based definitions and we should just do what we've always done and now you're seeing action to actually try and flip things in some ways and there's also respect for marriage act legislation pending introduced in congress that would use place of celebration rather than place of residence for all federal benefits purposes I don't think that's gonna go anywhere the other issue is if you have a civil union or domestic partnership that is not a marriage for federal purposes so you don't get federal rights and benefits so if you live in Nevada where you have a domestic partnership you wouldn't get federal rights and benefits we're seeing some pressure on the Obama administration and agencies to try and say well we should extend and because state law interprets the civil union and domestic partner folks as spouses so should federal law I don't think that's gonna happen anytime very soon but what does happen now is litigation that was challenging laws in states where you have civil union or domestic partnership you now have a new harm that people are focusing on so it used to be if you challenged the Nevada domestic partnership law or the Hawaii civil union law the state says well we give you all the rights and benefits of marriage and we just call it something else so the only harm you have is really dignitary and now what the states doing the advocates can argue is effectively foreclosing you from receipt of federal rights and benefits and so that litigation is gonna look different than it looked before the Windsor decision I want to follow up and actually address this to Adam since he's been plugging my work let me plug his work he has a wonderful short e-book that gives the history of the same-sex marriage litigation at the Supreme Court and there's one point that I disagreed with near the end where Adam thinks that it'll be a while before the court agrees to take another one of these cases and I'm wondering how can the court avoid Doug told us about the Nevada case that's coming in some of these other cases that are lining up it sounds like there's a lot of open questions so the court can deny avoid in the following ways cert deny and and there's good history on that because as you recall many many states used to ban interracial marriage and the court did procedural cartwheels to avoid deciding that question really unseemly procedural cartwheels in an era when it was there were many more direct appeals and it wasn't until 1967 in the Loving case when only 16 states still banned interracial marriage very late 1967 very late in the civil rights here that the court finally gets around to saying those bans violate the constitution so my thinking is some similar number of states would have to the number would have to fall the map would have to look very different it wouldn't be 13 to 37 but 25 25 30 20 at which point the Supreme Court which as I indicated earlier doesn't like to be very far of step with public opinion might get around to striking down bans on same-sex marriage Rick thinks sooner and if I read your piece right Rick you also think that it's not clear what they would do if forced to decide and I think I disagree with you on that if forced to decide Justice Kennedy who has now created an incredible legacy of being the leading judicial creator of gay rights in America through three different landmark decisions is not going all of a sudden take a left turn and say you know what federalism never mind I don't see that happening I don't either I think Garvin wrote that to me too I'll withdraw that part of my opinion I want to address this to Miguel and then we'll take a question on the side and then to the rest of the panel to talk about shaping up to be at least one of the biggest cases for next term the recess appointments case can you just give us background on that where things are going well I should start with a point of disclosure I argued that case in the DC circuit on behalf of the Republican caucus and I will I have filed a brief in the Supreme Court and we'll be filing a brief on the merits the the framers of the Constitution had a little bit of distrust of the appointments that were on check because the King used to do really bad things with appointments it was one of the worst things of you know despotism is what they said but in any event they have a structure for naming certain officers which says you need to get the advice and consent of the Senate general rule but for vacancies that arise or that happen I think is the language during the recess of the Senate you can fill it in with a commission that will lapse at the end of the next session of Congress for many years presidents of both parties have used that power to name officers including judges when they could not get speedy or any consent from the Senate the US ambassador and the Bush administration there is a long list of people and the way the history goes is the first AG issued an opinion saying well it has to be intersession recesses only when when Congress ends the session and adjourns CNADA that's a real recess and the vacancy has to occur during the recess of the Senate and those were things that were suggested by the language of the Constitution but have not actually been followed by the executive for quite some time the notion that the vacancy has to occur during the actual recess has not been followed by the executive since 1823 and the notion that you cannot do this during intersession recess they come back from the Christmas recess and go up for Easter and they're gone that's an intersession recess it's not in between sessions of Congress you know the notion that you can't do that in that type of recess has not been followed by the executive since 1921 and so these are issues that some people thought had been basically adjudicated as between the branches by push and shove now comes the conflict that we had in the recent implicitness of lack of ability to get along and when Senator Reid was worried that he was going to leave town and the W. Bush was going to name a whole bunch of rowing loons he came up with this notion that he was not going to allow the Senate to be in recess and the way they did that unanimous consent resolution that says they're going to meet in a pro-format session every three days so every three days the Senate will be calling to session there will be two guys on the floor and so that actually is a session of Congress they have passed laws during that sort of session on January 4th 2012 someone impatient with his inability to get confirmation from people the president appointed several members of the NLRB to a different agency purporting to use the racist appointment power there had been a pro-format session the day before and a pro-format session on January 6th there was a lawsuit file long story short claiming that the Senate simply was not in recess period full stop and the issue with the DC circuit which ultimately did not deal with the question whether pro-format sessions are enough not to be in recess but held that the original meaning of the Constitution means that the president can only exercise this power in between sessions of Congress and then only if the vacancy actually occurred during the recess so the guy has to die in office or leave during the recess since then two courts of appeals the third and the fourth circuit have agreed that only intercession recess counts there are some earlier cases from the 11th, 2nd and 9th taking a different view of that cases now in the Supreme Court the court added the pro-format recess issue to one of the questions that it will be addressing so the questions in the next term are going to be does it have to be intercession only or the intercession breaks count does the vacancy actually have to occur during the recess and was the senate in recess anyway while they were holding pro-format sessions is that a good summary? Yes, thank you so in the case of no canning versus NLRB I think it's a great transition as we move from this past term to next term to also know some of the other cases on the docket for next term if that's okay there is a case in terms of abortion rights the client case which involves an Oklahoma law that limits the ability to use prescription drugs to induce abortion. I know the Supreme Court is granted and he has to open the Supreme Court for more clarification but it's there there's an affirmative action case UEDA versus coalition to stop affirmative action which involves an initiative passed by the voters which says that they cannot do the use of race or gender to discriminate or give preferences in education, contracting, employment to California's Prop 209 the Sixth Circuit declared that unconstitutional and that's before the Supreme Court there's a major case in terms of campaign finance, the Cushing versus Federal Election Commission which involves whether or not restrictions on campaign contributions violate the First Amendment. The court since 1976 has generally said there can be limits on contributions but not expenditures well what about now might the court declare limits on contributions to be unconstitutional. There's a major case involving separation of church and state the town of Greece case involves whether or not sectarian legislative prayers before city council sessions violate the Establishment Clause and many think there might be 5 votes on the court to significantly change the law of the Establishment Clause all of which says it's going to be another amazing term and I hope Rick you'll do this program again next year I guess I'm on the line we are out of time we are out of time and I'm sorry we didn't get to all of the questions I want to thank all of our panelists especially our panelists who came all the way from the east coast to give off 103 degree weather and humidity to come and see beautiful southern California and politicians please join me in thanking our we'll see you again next summer