AFTER THE GAVEL: THE SUPREME COURT, THE FUTURE, AND YOU

Transcription

1 THE ASPEN INSTITUTE ASPEN IDEAS FESTIVAL 2014 PLENARY SESSION -- CIVIL LIBERTIES AFTER THE GAVEL: THE SUPREME COURT, THE FUTURE, AND YOU McNulty Room, Doerr-Hosier Center Aspen Meadows Campus, Colorado Wednesday, July 2, 2014 LIST OF PARTICIPANTS JEFFREY ROSEN President/CEO, The National Constitution Center; Professor of Law, George Washington University Law School; Legal Affairs Editor, The New Republic THEODORE B. OLSON Attorney, Gibson, Dunn and Crutcher LLP NEAL KATYAL Paul and Patricia Saunders Professor of National Security Law, Georgetown Law; Partner, Hogan Lovells SHERRILYN IFILL President/Director-Counsel NAACP Legal Defense and Educational Fund

2 AFTER THE GAVEL: THE SUPREME COURT, THE FUTURE, AND YOU MR. ROSEN: Ladies and gentlemen, welcome to our session on the Roberts Court and the future of America. I am Jeffrey Rosen and I bring you greetings from the National Constitution Center in Philadelphia. The National Constitution Center is the only institution in America chartered by Congress to disseminate information about the U.S. Constitution on a nonpartisan basis. And it is impossible -- I heard that laugh -- (Laughter) MR. ROSEN: But in fact you will see in our discussion today because you have the dream team of American Supreme Court Constitution lawyers. We are going to have a genuinely bipartisan -- SPEAKER: Are you selling cars? (Laughter) MR. ROSEN: Let me introduce you first and then you can make up your mind about what the discussion is going to be. But this is -- it's impossible to imagine three better people to help understand the momentous Supreme Court term that just ended on Monday and impossible to imagine a better date on which to doing it. This is July 2nd -- it is the 60th anniversary of the Civil Rights Act of It is also the day on which the Declaration of Independence was signed and which John Adams expected would be the day of national celebration in America. So we meet at an auspicious time. Let me briefly introduce my friends and co-panelists. I'm going to set the stage and we're going to have a freewheeling discussion about the Supreme Court. To my right is my dear former acting solicitor general of the United States. He's also my dear brother-in-law, Neal Katyal. (Applause)

3 MR. ROSEN: Sherrilyn Ifill is the president of the NAACP Legal Defense and Education Fund. (Applause) MR. ROSEN: And Ted Olson is the former solicitor general of the United States. And I have to put in a plug for his astonishing new book about marriage equality written with David Boies and Ted Olson. They came to the Constitution Center last week and it was the most moving discussion I've experienced there all year. There was not a dry eye in the house. You must read this incredible book about Ted and David's heroic crusade on behalf of marriage equality. (Applause) MR. ROSEN: So I'm really excited about this discussion because it comes at a time when many people are saying there are two visions of the Roberts Court. On the one hand there is the Roberts Court that's able to achieve bipartisan unanimity and to converge around decisions that unite Liberal and Conservative justices on momentous questions. And on the other is the familiar Roberts Court in the news, the five Conservatives against four Liberals -- five appointed by Republicans, four appointed by Democrats -- which seems to divide along ideological lines. And what's so exciting about this term is that it seemed to be the term that John Roberts actually achieved his pledge to ferment a kind of bipartisan unanimity. This is a pledge I'm especially interested in because at the end of his first term as chief justice I had the privilege of an interview with John Roberts. He set out in this interview his hope that he could persuade his colleagues to converge around narrow unanimous opinions that avoided constitutional divisions and would be an inspiration to the country in a polarized time. Obviously, he had mixed success in achieving that goal in the terms after we spoke. In the 2007 term, 33 percent of the decisions were 5-4. But this term, as Neal notes in a brilliant Op-Ed in The New York Times last week, 66 percent of the decisions of the Roberts Court were

4 unanimous. This was, as Neal notes, the lowest rate of division and the highest rate of unanimity since the 1940s. At the same time, we saw the familiar ideological divisions in 14 percent of the cases. That's the lowest 5-4 rate since Roberts' first term in 2005, but those involved cases like the Hobby Lobby contraceptives case and in the McCutcheon campaign finance case. So the reason that this discussion is going to be so great is because I want to figure out who is John Roberts, what is the Roberts Court, and how do we reconcile these two competing visions -- one which achieves unanimity, and the other division. I'm going to begin with Neal because that was just a phenomenal Op-Ed that you wrote. It was a definitive statement on the subject. Why do you think the chief justice was able to achieve a measure of unanimity this term that eluded him in past terms? MR. KATYAL: Well, thank you. I do think that, you know, the conventional story of the Court for many years has been -- particularly since Bush v. Gore which Ted brilliantly argued -- has been this is a divided Court, hostile to one another, they can't find ways to agree. And yet when you look at the numbers of this term, they did something they haven't done since the year 1940, which is agree on the bottom line in roughly twothirds of the cases. That is a remarkable achievement. And sure there's any amount of disagreement on the reasoning of how they got there, and sure that last third of the cases are significant. I mean -- and elections have consequences and of course the justices are going to think differently from one another. But I think this term, you know, led by the chief justice the Court did, I think, make a concerted effort to say let's try and find agreement you know. And you know, we're all just reading the tea leaves here. But I do suspect that one thing going on among those nine members of the Court is a deep belief -- hey, you know, our institution in the government works pretty well, you know, looking across the street at Congress and the rapidly divisive nature in which they can't even be in the same room with one another. And I think the Court is saying, look, we can actually show Americans a better way. Sure we all got here through

5 different means, five appointed by Republicans, four by Democrats, and the confirmation hearings undoubtedly were controversial. But they sat there and said, we can agree on the bottom line in two-thirds of the cases. They're only divided 5-4 in 10 cases this year out of the roughly 70 they heard. That's a really low number compared to, you know, if you go back over time. MR. ROSEN: So Sherrilyn, do you agree with Neal's optimistic analysis? You've been highly critical of some of the 5-4 decisions in cases involving voting rights and affirmative action. Who's the real John Roberts to you? MS. IFILL: Well, first of all thank you. Second of all, it's also Thurgood Marshall's birthday. MR. ROSEN: Oh, wonderful. That's a great -- MS. IFILL: And thirdly, I love Neal but I can't really agree, and for these reasons. I think it's important to look at, you know, what are the 14 cases in which the split happens, in which the 5-4 happens. And I think you have to kind of go beneath the hood a little bit on this that if we just look at the judgments I think it's true that -- and I also think it's true by the way that Roberts has been making an effort to make this happen. But there's -- but we shouldn't dismiss the fact that even within these unanimous judgments there are these very powerful and strong difference in the reasoning that supports these opinions and suggests that another case coming through the pipe that even marginally, you know, twinges the facts would produce the kind of schisms that we're used to seeing. We shouldn't also forget that there are some cases that the Court took that the Court was not able to hear. One of them is the Mount Holly case which is a civil rights case of -- a case under the Fair Housing Act from New Jersey. This Court -- the Conservatives on this Court have been trying to get at this issue of disparate impact which they don't believe in, and they took this case even though there was no split in the circuit. The case was settled and so they

6 didn't hear it. And so you know, if that had been up for the Court to decide, I have no doubt that that would have been a 5-4 decision. And so while I think it's true that there has been some greater unanimity in the judgment, I think that the fundamental tensions that have to do with the kinds of issues that probably most people in this room care about, remain. And I think when you see the split, the 5-4 split, the nature of the split is so powerful, so visceral. If you look at, you know, Justice Sotomayor's dissent in the Schuette case, and you know, compared to the majority opinion, it's like two different worlds that justices are living in. That I think, you know, I'm not ready yet to be optimistic about the fact that this is a Court that's coming together around a united vision about power in this country. MR. ROSEN: Okay. Ted, you can now adjudicate between these two positions. Sherrilyn has noted cases like the Schuette affirmative action case where the Court is deeply divided. Neal has pointed to the points of unanimity. Which is the true Roberts Court, and why is Roberts able to achieve unanimity in some of these cases and not in all? MR. OLSON: Well, I think first of all it's risky taking a snapshot of one term. This is 70 decisions approximately and you have to look at the cases. The Court usually is unanimous in a third to 40 percent and this is a bit higher this time. As Neal pointed out, there were, what, cases, but there were another 10 approximately 6-3 cases which are -- so there's -- two-thirds of the cases were relatively unanimous. Some of those cases had very, very sharp concurring opinions. That's what we were just talking about. The justice -- in several of the cases Justice Scalia read aloud a concurring opinion which you don't do in the Supreme Court. I think most of you know when the Supreme Court decides a case there's a decision day and the justice who wrote the opinion for the Court will give a summary of the decision. And then occasionally a few times a year someone who is -- feels very strongly in dissent will give a summary of a dissent. In the years that I've been watching the Court, I've never seen anybody read or summarize aloud a concurring opinion.

7 So in a couple of these cases where the Court was unanimous on the judgment that's, for example, with respect to -- well, a couple of the cases Justice Scalia -- the recess appointment case which was the one big separation of powers case where the administration lost that case. The Supreme Court said the President had not properly exercised his right under the recess appointment clause of the Constitution to appoint members during the so-called recess of the Senate. The Court decided that relatively narrowly in an opinion by Justice Breyer. Justice Scalia said, well, you -- we blew it, you -- we had that -- we had our chance here to render a resounding decision and you've now given the executive branch -- even though the President lost, you've given the President opportunity to do things in the future which dislocate power in favor of the executive. Now, that's Justice Scalia speaking, who used to be the assistant attorney general for the Office of Legal Counsel who writes opinions usually from the standpoint of the executive branch when there are disputes between Congress and the executive branch. And there were a couple of other cases like that in interesting language that he used in those cases. And if you look over a period of time, the Court does come together in a lot of cases. You don't read about those in The New York Times. They're not front-page stories. But -- so I don't know that what's happening this term -- statistically, yes -- but what's happening this term is necessarily typical. I think another interesting statistic is the record of the administration. Neal and I have both been in the Office of the Solicitor General. And the solicitor general usually has a very, very compelling win/loss record in the United States Supreme Court either in cases in which the United States is a party, or in cases in which the United States comes in as a friend of the Court and offers an opinion to the Court as to the way the Court should come out. This year where the United States was a party, the United States won 12 but lost 10. So that's just slightly above 50 percent. And usually it's closer to 70, 75 percent. And they did better this year than last year when it was closer to 40 percent instead of 55 percent. So that's an interesting statistic. What's going on there? Is the

8 Court citing against the executive, or is the solicitor general deciding to get involved in the wrong cases and then wind up losing them? With respect to the recess appointment case it's an interesting case that the President obviously had advice from the Office of Legal Counsel and maybe from the White House counsel's office to make those recess appointments. If I was in the Office of Legal Counsel I would have said, don't take a chance on that kind of a recess -- it was a very short recess. The Senate was claiming that it was still in business -- don't take a chance on that because when you take chances with that sort of thing you run the risk that there'll be a court decision that erodes executive power. So I don't know what's going on there, but it's an interesting little data point. MR. ROSEN: Fascinating observation. You've heard, ladies and gentlemen, that reasons matter a lot at the Supreme Court. And as Ted was just saying, the Obama administration lost the narrow question of whether the President can make a recess appointment when the Senate is out of session for less than 3 days, but he won the broader ability to make recess appointment when it's out for more than 10 days. And Justice Scalia was not able to persuade five justices that recess appointments in general are not permissible. Okay. Neal, you have some strong challenges to your vision that Roberts really made the Court his own in making it unanimous. Defend it, and then let's get into the particular cases. I heard a cell phone going off a moment ago. First of all I want to turn off your cell phones. And then Neal, tell us what you think about the incredible case about cell phone privacy where the Court held 9-0 that the police may not, when they arrest us -- or when they arrest you -- (Laughter) MR. ROSEN: -- they may not search your cell phone without a warrant -- an incredible victory for privacy in a digital age. How did that happen? MR. KATYAL: Yeah. So I don't mean to disagree actually with

9 anything that's been said. That is I think Ted's absolutely right -- the reasoning matters and sometimes they sharply divide on the reasoning like recess appointments, and sometimes they don't. And Sherrilyn is absolutely right that in the remaining third of the cases there were some really hot feelings on the subject and we're going to see 5-4 decisions for years to come unless there's a change in the composition of the Court. That said, I do think there is remarkable unanimity in really important cases. And Jeff, you asked about the cell phone case. That's a perfect example. And this is one where I think Ted's statistic about the solicitor general is a little misleading -- not intentionally, but you know, this was a -- the cell phone position of the government has been the same for the -- for several administrations, which is if you're searching someone subject to incidental arrest you can search -- you can grab whatever is on their cell phone. This Justice Department defended it as prior Justice Departments in the Bush administration had. So yes, they racked up a 9-0 loss, and it is a pretty interesting loss. I don't think if we sat and thought through the confirmation, watched the confirmation hearings of the last four justices we would have predicted that all of them would have voted to say, huh-uh, your cell phone is your domain and it's so special and different. And unlike just a piece of paper or a diary or something like that, it contains a snapshot of your whole life, therefore special privacy protections adhere to it. And indeed if they went so far as to say that rummaging -- the police rummaging around on your cell phone is kind of like the Founders' general warrants that they were so aghast about -- the idea that the government could just come in and read anything of yours. This was a really powerful pro-liberty opinion signed by every justice on the Supreme Court. And so when we talk about do these unanimous decisions matter to you in your daily lives, the answer is yes. Even the unanimous ones sometimes were broad, resounding victories for freedom. MR. ROSEN: Let's just show -- MR. OLSON: Can I say something about that?

10 MR. ROSEN: Go ahead. MR. OLSON: If you'd watched the Court's recent -- as you have -- we all have -- recent Fourth Amendment cases you'll see how strongly Justice Scalia -- for example, the Conservative -- or one of the leading Conservatives on the Court has been in support of individual rights in the Fourth Amendment and couple of other areas. And the administration could have just -- could have seen this coming, I think. They lost the case 9-0 two terms ago with respect to whether they could put a GPS device on a suspected drug dealer's car and track him from Washington, D.C., into Baltimore and a few other places. The administration took that to the Supreme Court and lost 9-0. So there are some things that go into this deciding which case to take and which case not to take. But I do agree the fact that the Court is deciding some of these Fourth Amendment cases on a pretty sustained, across-theboard basis does mean a lot for everyone. It's individual liberty. MR. KATYAL: And Ted, that's exactly right. And the tragedy about the administration in these Fourth Amendment cases is that they haven't set out rules on GPS surveillance or on cell phone surveillance or anything like that to give the Court comfort. And you saw Justice Alito in the cell phone case saying look, if the government had rules on when they would be used and how they'd be used, maybe it's a different matter. But to just simply assert anytime, anytime, anyplace we can go do this, either GPS or cell phone search, that goes too far. MR. ROSEN: And doesn't the -- does the Court get credit for the 9-0 decision? And why would the Conservative justices rule this way? Is it because they can imagine their own cell phones being searched? MS. IFILL: Yeah, I think so. I -- you know, I want to make sure we don't see this solely as a contest between the Supreme Court and the Obama administration. I'm frankly concerned about, you know, the Fourth Amendment from the perspective of the clients that we represent. And I think that the Court is able to understand and feel discomfort about things like GPS tracking devices, about things like the cell phone where they can imagine the kind of information that might be included on it.

11 And they imagine being -- you know, maybe someone they know who could be pulled over and have that searched and how intrusive that would be. But frankly -- well, two things. One is I would have to say in a place like Baltimore where I've lived for the last 20 years I don't think that this is going to particularly stop the police. They're quite able to get warrants fairly easily. They enjoy a tremendous amount of deference from judges. And so I don't think this is going to change law enforcement in a demonstrable way. But obviously if you're in a position to know your rights and to have counsel, the ability to suppress evidence that comes through a cell phone -- obviously pretty important. But if you look at some of the other cases that the Court has decided in the Fourth Amendment realm, I'm not sure how excited I should be. I'm happy for this case, but take, for example, the Court's decision -- I guess it was last term or term before last -- Maryland v. King in which the Court said that if you were arrested, the arresting authorities can swab your cheek and get your DNA which seems to me -- I mean if your cell phone's got information, then your DNA's got serious information there, right -- (Laughter) MS. IFILL: -- that you wouldn't want to share, that people would not find even if they searched your home. And yet post-arrest -- I think about the Florence v. Freeholders case in which the Court said that if you are arrested local authorities can strip search you even if there is no evidence that you are threat, that you are in a gang. And in that particular case it happened to an African-American man, fairly well-off business owner who was arrested and who was strip searched twice in New Jersey, and then later all charges against him were dropped. So post-arrest the Court kind of is willing to now give law enforcement the benefit of the doubt, even notwithstanding the intrusiveness of DNA evidence. Pre-arrest the Court is concerned about this technology. And so I think, you know, this is a reason to celebrate, but I have a

12 tremendous deal amount of caution about how the Court is approaching privacy issues as it relates to individuals who've been arrested by the authorities, and the recognition of course that, you know, many false arrests happen. People are arrested all the time and no charges ever attached to those arrests. And to imagine that individuals like that can have their DNA placed in a database and also can be strip searched seems to me kind of has to be balanced against the Court's decision around GPS and cell phone searches. MR. ROSEN: That's a very powerful point. It is true that the GPS case many people think was lost when the government lawyer was asked by Chief Justice Roberts, is it your position that the government could put GPS devices on the bottom of my car, and the lawyer said yes, and at that moment lost the case. (Laughter) MR. ROSEN: Ted, Justice Breyer is important here. Sherrilyn noted the DNA case last term and that was one where he joined the Conservative justices, as he often does in criminal procedure cases. On the other hand, this term, Justice Breyer joined the Conservatives in upholding a Michigan initiative banning affirmative action. It was an extremely interesting concurrence where Justice Breyer said, here when the voters of Michigan tried to overturn a U.S. Supreme Court decision allowing affirmative action they were allowed to do that because the affirmative action plan had been adopted by bureaucrats at the University of Michigan, and here it was a democratic decision-making body that was overturning that. What is your take on Justice Breyer in that Schuette affirmative action case and his role more broadly? MR. OLSON: Well, you have to look at Justice Breyer's jurisprudence and the jurisprudence of all of the justices on affirmative action. They have been everywhere. This goes back to the Bakke case -- was that '76?

13 MR. ROSEN: '78. MS. IFILL: '78. MR. OLSON: '78 -- and then subsequent cases since then. The Michigan case has preceded this change in Michigan law, and the Kentucky and Seattle cases a couple years after that. I once counted out the number of opinions in those cases from 5-4 decisions. And in the Michigan case the Supreme Court upheld the affirmative action program and the law school, but struck down the one in the undergraduate program, the same Board of Regents adopting programs to achieve supposedly the same purposes -- one was upheld, one was struck down. In those two cases there was something like 10 or 11 opinions, 200 or 300 pages. Then the Kentucky and the Seattle cases come along and then this case comes along, and there's decision after -- opinion after opinion after opinion. Someone points out that if the Court can't make up its mind with respect to limits or the permissible scope of affirmative action programs to achieve diversity in public education systems, how are school boards supposed to figure anything out. Now, Justice Breyer in the Kentucky cases, as I recall, wrote a very, very strong dissenting opinion. I think he said -- that was maybe at that point the longest opinion that he had written. And so the -- and the Court is in the middle on this. And Justice Kennedy in almost all of these cases is a pivotal point. He's against racial preferences but he's -- doesn't want to go all the way that the more Conservative member of the courts do and say you can't make these decisions on the basis of racial grounds unless you're attempting to provide a remedy for past discrimination. And in the Michigan case what the Michigan voters did and the Michigan Constitution did was say, we won't have those kind of programs. And the defense of it was -- whether you agree with it or not, the defense of it was if it's not required by the Constitution in a particular case, we can say let's not have to have it. So it's -- that was kind of a different context in which this comes up, but you really have to read all those opinions. And where you come out on these things really is the Rorschach test.

14 MR. ROSEN: Sherrilyn, I'm sure the audience just wants to know the bottom line about is there a constitutional future for affirmative action. Is there? MS. IFILL: Yes. And some of the difficulty is we tend to talk about all these cases as affirmative action cases. So any case that raises the issue of integration in the schools or -- actually affirmative action even as an underlying matter is perceived as an affirmative action case. And in fact the Schuette case actually wasn't an affirmative action case. It was a case about political restructuring. It was a case about whether or not a state -- in this case Michigan -- could use a ballotwide referendum to basically undo the Supreme Court's decision in the Grutter and Gratz case which were affirmative action cases. And what the ballot initiative proposition 2 said in Michigan was if you want to use race in admissions in Michigan, you have to essentially amend the Constitution to do so, right, that you no longer can use race. And the issue was, can they do that, can they create this barrier to those who are advocates of the use of race in admissions when those who are advocates of the use of athletic prowess or musical prowess or those who think that people from the Upper Michigan Peninsula deserve special treatment in admissions. They can simply lobby, these bureaucrats that you referred to, on the border regions and have that considered. But those who wish to have the board consider race, which is after all constitutional following the Grutter case, they have to amend the state constitution. And that was really the question -- can you set that barrier up. And it's an important one. And when we talk about Breyer's opinion, this is a circumstance in which you really have to look to what is the relationship between the political process and the issue of racial minorities in this country. And you know, in -- it was many, many decades ago that the Supreme Court in the famous Footnote Four in Carolene Products talked about the ways in which you look especially to protect racial minorities when the political processes are not open to them, work against them. And if you look at the debate in the Michigan Proposal 2, the affirmative

15 action ballot initiative, it was the most racially polarized election in 50 years in Michigan. There was a 51 percent split between the way white voters felt and the way black voters felt -- bigger than the split between white and black voters in 1956 about Brown, bigger than the split between white and black voters in 1964 about the 1964 Civil Rights Act and public accommodations, bigger than the split between white and black voters in 1968 after the riots in Los Angeles and Detroit. So this was a racially charged election in which you have a minority of blacks who are always going to be submerged within a white majority. And so simply saying any issue involving race we throw it to a ballotwide initiative, you're essentially saying that minority groups can never win because they're always going to be submerged within this larger electorate. MR. ROSEN: Neal, you've worked for Justice Breyer. I want you to give us a sense of his opinion in the Schuette case. Was he -- do you think he was right? MR. KATYAL: I do think he was right. And indeed the bigger point is I think that this is Justice Breyer's best term in 20 years on the Court. We can talk about recess appointments in Ted's point in a minute. But on Schuette I think what Justice Breyer said is this -- and I wholeheartedly agree with it. I believe in affirmative action in the university context, as does he. And what he's saying is, look, persuade people that this is the right thing to do at the ballot box. We can have a debate about whether it's constitutional or not. The Conservatives on the Court want to take it off the table. And even if legislatures, university administrators want to have affirmative action, the Conservatives want to say no, we want to use the power of judicial review to take that decision away from the people. And Breyer's jurisprudence for the last two decades I think culminates in this opinion in this case. He's saying, look, that's a question for voters to decide. If they want to -- after we decide the University of Michigan affirmative action case in 2003, if they want to prohibit affirmative action, that's their choice.

16 And yes, it's going to burden minorities in many ways. Of course I think one theory of affirmative action and the dominant theory of the Court is affirmative action isn't just for minorities, it's for everyone. And if we say that it's constitutionally compelled -- and I think this is Breyer's point -- if we force them to have affirmative action, how are we ever going to really persuade people that it's the right thing to do? Rather we should do that organically; we should sell it at the ballot box and persuade people this is the right way for our universities to operate. MS. IFILL: But the problem is that was exactly the same argument that was made in earlier cases to develop this political restructuring doctrine about busing, right, about housing desegregation. And what the Supreme Court said in those cases is that you can't just throw it to the voters. And that is not simply by referendum -- SPEAKER: Absolutely -- MS. IFILL: -- and that when you do, you're essentially consigning minority groups to never being able to exercise rights that are held under the Constitution as in the Grutter and Gratz case. And you're essentially creating a higher bar for them that every other special interest group can simply make their appeals through the process of negotiation, and this one particular group which is a minority, is always going to have to appeal to the entire electorate in order to win. MR. ROSEN: I think these restructuring cases are on tenuous ground. But I think that they at least can be justified on the idea that busing or something like that is to prevent a constitutional violation. I think affirmative action is in a different category. I don't think that people have a constitutional right to affirmative action, rather I think that's something that people have to decide and voters have to decide for themselves. MR. OLSON: I had one more thing -- we could discuss this for a long time obviously, but the whole issue of referenda and initiatives came up in the sexual orientation context in Romer v. Colorado (sic) a few years ago where a -- was there was Amendment 2 or something like that that took away rights of gays and lesbians for -- from protection by statutes

17 and municipal codes that provided them for protection against discrimination. And in a sense, that Supreme Court decision written by Justice Kennedy was a restructuring case. Way back in California Proposition remember that? -- in 1960s California -- that was another one -- it was a referendum. In a gay marriage case that I was involved in in California, we had political scientists talk about what happens to minorities in the statewide -- the referendum process was developed initially to provide a check on corrupt legislatures and throw the power back to the people. But we had testimony in the case in Californian law in sexual orientation and marriage equality that gays and lesbian had lost something like 30 straight elections like that because people would put it on the ballots. And minorities lose when you put things on the ballot like that as opposed to what's happened in the give and take in legislature. I'm not necessarily on one side or the other about that, but there is strong empirical evidence that minorities do suffer in those kind of statewide elections even though the power is being given to the people where we all think that is supposed to reside. MS. IFILL: Let me just say one thing because I think people do get confused. So the Grutter case still survives, affirmative action is still constitutional. What was decided in that case is that a state can have a referendum that decides not to use it in their particular state. And so the question now is how many other states will follow Michigan. There are few others who have already done so. Obviously California led with this. And that's the question on the table. Are there going to be now copycat states that are going to pass these referenda as Michigan did. MR. ROSEN: So we've seen two big areas at least in this fascinating discussion where the Court could have taken a broad decision saying affirmative action is completely banned, or in Ted's case last year, marriage equality is absolutely compelled by the Constitution. And it rejected both of those positions. It took a narrower, more legalistic position as Chief Justice Roberts pledged to do when he said that these

18 more narrow legalistic positions could get people of both sides to converge. I want to ask about one unanimous decision I'm sure will interest our audience, and we all want to know what to think of it, and that's the abortion clinic protest case. Why was it, Neal, that the four liberal justices joined the five conservatives in striking down Massachusetts' "bubble law" and does that call into question the other state laws which say that you can't come within a certain distance of an abortion clinic? MR. KATYAL: I'm going to refer to my co-counsel on that question because I'm not following that case quite as closely as maybe some others. MR. OLSON: Well, the interesting thing was at 35-feet, the buffer zone. Abortion protestors outside of an abortion clinic could not come within 35 feet. So you have the issue of people seeking to exercise their constitutional right under the Supreme Court's decision to have an abortion, and people exercising their constitutional right under the First Amendment to tell people, and harangue people, harass people, or to provide information, whatever it might be, the abortion protestors, the supreme -- it's interesting because the buffer zone around the Supreme Court itself is larger than 35 feet. (Laughter) MR. OLSON: The -- if you've ever tried to protest, those of you in this Aspen group I know are there often. (Laughter) MR. ROSEN: Yes. MR. OLSON: But what the Court was struggling with, and why the liberal justices went along with the majority there in that case is that it's a relatively fact-specific decision, the Court was deciding 35 feet is too far, that people can't -- and they had decided just a year or two ago, the protestors, this Baptist church in the Midwestern place --

19 MS. IFILL: Westboro. MR. OLSON: -- that wanted to protest at military funerals and holler out nasty, nasty things to the poor, bereaved families trying to put a soldier to rest, and the Supreme Court upheld the right of the protestors to make noise and to protest on a fact-specific decision given -- based upon how far away they were, how much noise they were -- could they be heard, and that sort of thing. So the liberal justices went along I think with that -- this decision saying that the Massachusetts limitation was too broad, that people were entitled to be closer to that, it's going to throw it back to the legislature. It angered the four conservative members of the Court who very -- I think it was four, the conservative members of the Court saying you are putting speech in different categories, Justice Scalia said before -- right in his concurring opinions, this is one where he's very strong, he said we're writing in the majority here an abridged edition of the First Amendment applicable to speech against abortion, and any coincidental, and the subsequent page, abortion speech only jurisprudence. The point that they were making is that you are making content decisions with respect to the nature of speech. If it was about speech about some other subject, you wouldn't have the idea of these buffer zones at all. But because speech -- abortion is perceived in a certain way, protesting abortion is going to be perceived more harshly, and limits are going to be -- even limits such as the one they were talking about here, there's -- it's going to be more severe restrictions permitted by people, you know, in the abortion context than in other contexts. And so that was a content restriction and the dissent -- the concurrence was very strongly on that basis. MR. ROSEN: Do you want to weigh in with -- MS. IFILL: Yeah, I do. So this was a case where you had to really carefully parse what the Court purported to be looking at and the record, and since I'm a believer in the record I'm -- you have to accept the record that you get. And in fact this case wasn't about abortion

20 protestors, right? So what the individual said or what the group said in this particular case was that they weren't abortion protestors, that in fact they were counselors, right, that what they wanted to do within this 35- foot zone was quite different than holding up placards and signs, that essentially what they would say was, you know, can I walk with you, do you want me to counsel you. And some people would have the rosary or whatever they claim. And this was apparently unrefuted, that this is what this particular group was engaged in. And I think the four justices were very much aware that many other states, New York and others, have pretty powerful laws about buffer zones for protestors and have actually criminal penalties that attach to harassing, following, intimidating, obstructing anyone from entering an abortion clinic. And I think what they -- what the Court thought was that those kinds of means are sufficient to hold back the people who would be the kinds of more aggressive protestors. And so they were willing to go along with this 35-foot "may I walk with you." Now, I think many of us are not satisfied with that because frankly this is a very personal decision, it's personal space, it's personal time. And frankly 35 feet, electioneering, you go to the polls, it's a 100 feet. You can't hand out leaflets before you go into a polling place. I don't think anybody thinks that 35 feet is an incredible amount of space. So it's a bit of a strange decision, but I read it very carefully and I think that the four more -- I wouldn't call them liberal, but more centrist justices, thought that they were engaged, as Ted said, in a very specific fact situation. MR. OLSON: But some of the speech and there was a -- the record was broader than what the Court was actually dealing with. MS. IFILL: Yes. MR. OLSON: And some of it wasn't "may I walk with you." Okay, some of it was this is -- you know, you're killing a life. And that slippery slope there is if you start making decisions based upon this is counseling as opposed to protesting, is it nice speech, is it benign speech, is it polite speech, is it robust speech, that is really tricky.

21 MS. IFILL: No question, and you remember that Justice Scalia's concurrence, what he was so angry about was that he believes that any buffer is attacking a speech based on its content, that he believes that this is about people as you say who are opposed to abortion. And the Court refused to accept the idea that this was some kind of attack on the content of the speech. And that's what he was mostly angry about. He wanted the buffer zones branded as being efforts to get, you know, at those who are against abortion. And so I think the decision is deeply, deeply troubling in many ways. I'm not exactly sure what the four justices were up to, but I think they are hoping, and I frankly -- one of the reasons I worry is because I've seen these justices do that in other cases where they hope as in the Northwest Austin case before Shelby case and so forth, that if they walk this narrow path, they may be able to circumvent greater damage and I'm not sure it's true. MR. ROSEN: So what Sherrilyn is saying here is a real concern that she has, the Northwest Austin case was one that Neal argued so ably, and that was the first big voting rights case and lots of people expected the Supreme Court to strike down the Voting Rights Act by a vote of 5 to 4, which they ended up doing last year, but in that case the -- Chief Justice Roberts came up with the position that hadn't, I think, occurred even to Neal, arguing for the government, a very legalistic exception for this particular fact pattern, the liberal justices went along -- MR. OLSON: Neal was silently advocating the position that ultimately won. (Laughter) MR. ROSEN: They were channeling him for sort of brain scans or something like that. You would have thought -- MS. IFILL: I would say -- I would just say the Legal Defense Fund also argued that case, the Northwest Austin case.

22 MR. ROSEN: Had you thought of the position that Chief Justice Roberts came up with? MS. IFILL: Internally yes. MR. ROSEN: Internally yes. No, he sort of pulled it out of the hat and the liberal justices went along, and later they suggested that they'd been duped because the Court actually pulled the trigger and took the broad position that it resisted during before. We've been talking about the First Amendment. There are two other really big First Amendment cases that we need to talk about at least before starting a conversation with our friends in the audience. The first and most closely watched was the Hobby Lobby case which came down on Monday. Neal, tell us what Justice Alito held, and tell us whether you agree with him or with Justice Ginsburg who found the decision startling in its breadth when it held that religiously motivated for-profit corporations are entitled to an exemption from the Affordable Care Act's contraception amendment. MR. KATYAL: Great. And so the big point about this is not about Hobby Lobby, it's just about Justice Alito. I mean, I -- and Ted, you may agree with this, as I go up and argue at the Court, I've been struck each year by how good Alito's questions are each time. I mean they are so analytic, so powerful. And this term I think we saw him emerge as a leader, not in the oral arguments, but actually in the written opinions. And so the last day of the term, usually those opinions are written by the chief justice or the second-most senior justice. Justice Alito hands down both opinions, both in Hobby Lobby, which I'll talk about in a moment, there's also Harris versus Quinn, the big public union case as well. So Alito has really, I think, emerged as a leader this term. It's a really interesting thing to see. The question in the Hobby Lobby case is whether a closely held corporation that objects to the part of Obamacare that requires them to

23 pay for contraceptive, the so-called contraception mandate, whether or not that violates religions freedom principles that Congress has laid down in a statute called RFRA, the Religious Freedom Restoration Act. And what Justice Alito said is this is a corporation, it's a closely held corporation. They have rights too just like ordinary people and they can -- and you know, this should not be surprising, as I said elections have consequences. This is I think a position that this lineup on the Court is held for a while. Ted I think was one of the leaders in pushing it in the Citizens United case. Corporations have First Amendment -- MR. OLSON: Geez, you mentioned Bush versus Gore and Citizens United. I'm going to be run out of town on a rail. (Laughter) MR. ROSEN: I told you -- MR. OLSON: This is dangerous stuff. MR. KATYAL: I think you've got some insulation. We'll talk about the -- we'll talk about your future in a moment and I think they'll be perfectly happy with your advocacy. But at the end of the day, Justice Alito says 5 to 4 that corporations have these rights, and that Hobby Lobby shouldn't be forced to pay for this contraception. And what they say is, look, the government has a less restrictive means available to it. The government can just pay for it. There's no reason to have the government forcing these religious corporations to have to pay for it. Justice Ginsburg in her dissent says this is a sweeping decision, that this is going to change the landscape of law, that people are -- employers are going to object to vaccinations and the like. She says it's not limited to just closely-held corporations, it might apply to public corporations. There's no logical stopping point. So this debate is going to continue for a long time. It's a, you know, full employment act for lawyers -- (Laughter)

24 MR. KATYAL: -- and you know, to be sure, but this is one in which the Court was closely divided, and Alito really leads the Court in a certain direction. MR. ROSEN: Ted, Neal referenced the Citizens United Case where you successfully argued -- MR. OLSON: So you are going to rub it in? MR. ROSEN: No, no, no. Well, I promised, a nonpartisan debate here in Aspen, Colorado. Citizens United, Justice Kennedy held that corporations have the same First Amendment rights as natural persons when it comes to campaign finance spending. Hobby Lobby was not decided on constitutional grounds, it was the Religious Freedom Restoration Act. Do you feel however that a majority of the Supreme Court is sympathetic to the idea that corporations have First Amendment, free speech, and religious liberty rights? MR. OLSON: Well, first of all the question is do corporations have constitutional rights under the Bill of Rights, and that sort of became an issue after Citizens United because people were very unhappy with Citizens United because some of the people said, well, corporations aren't entitled to constitutional rights under the Bill of Rights. But the Supreme Court had held dozens, scores of times, and there's footnotes elaborating all of these decisions that corporations do have constitutional rights. One of the leading cases, notwithstanding The New York Time's editorials against Citizens United was a case called New York Times versus Sullivan, and another one was United States versus New York Times, which was the Pentagon papers case in which the New York Times really did think that they had constitutional rights and they won. And corporations have rights against searches, they have rights when the government wants to take property of corporations. So that was one issue. The other issue in the Citizens United case -- and there's many, what another issue was that was a nonprofit ideological corporation. It wasn't a public shareholder. Speaking of

25 closely held corporations, that was pretty much -- that was a very, very tiny little corporation that wanted to make a movie about whether or not a particular person should be qualified to run for president. Now, this case is rather interesting because it extends or it talks about the rights of -- it was a statutory case, not a constitutional case, but it talked about whether or not corporations can have religious views. I'm sort of sympathetic to the dissent in this case because -- and I was thinking as we were talking about it just this week before the decision that -- and they talk about the corporation might be against vaccinations. What about the Christian scientists, you know, against doctors, you know, and I may be not stating their doctrine correctly, but you can see people in -- having those kind of views saying I don't want to pay for insurance for my -- health insurance for my employees at all. I don't know where the line can be drawn and we're -- justice -- the pivotal point here is this is really a decision. Justice Kennedy writes a relatively short concurring opinion putting oil on troubled waters saying it's not going very far, it's not going to happen with public corporations. It's just closely held corporations. It's just this one particular piece of insurance, it's not all kinds of insurance and all of those things. But I agree with Neal, this is just a minefield for lawyers. What in the world is a closely-held corporation? I mean, how many shareholders, you know, how many -- small a number is it, and when you get -- does the corporation have religious conviction? Certainly its owners do. But they have decided to engage in commerce, you know. So it's got a lot of issues that are -- people are going to be litigating for years. MR. ROSEN: Closely held corporation can be five family members, the Walmart Corporation could qualify as closely held under that definition. MR. OLSON: Oh, you want to talk about the devil, talk about David and Charles Co (phonetic). (Laughter)

26 basis. MR. ROSEN: No, constitutional debate on a nonpartisan (Applause) MR. ROSEN: None of that, ladies and gentlemen. MS. IFILL: Hobby Lobby has -- MR. ROSEN: So -- and about Hobby Lobby? MS. IFILL: Hobby Lobby has 16,000 employees. A for-profit corporation exists first and foremost to make money, to make profits. And it's true that its owners may have a whole range of beliefs. But I think notwithstanding that corporations have some constitutional rights of the kind involving search and seizure and so forth that Ted described, I think we're -- many of us are astonished to learn that corporations have feelings for private corporations, that they have feelings and sincere beliefs. This is -- so we're defining what is a closely held corporation. We're also defining how can we tell that your beliefs are sincerely held? I mean, I think for an individual, a person, I can imagine how as a lawyer I would go about probing whether a belief they purport to hold is a sincerely held belief. I'm not sure how I do that with a corporation. Does it matter that Hobby Lobby's employee retirement plan is invested in the very pharmaceutical countries that make -- companies that make the morningafter pill for example. Does that hold up with the idea that they have this sincere belief about the morning-after pill and abortion? So how do we cabin this? I, like Ted, beyond being concerned about this particular case in which a woman's access to the full range of contraception can be inhibited by the beliefs, even if those beliefs are irrational, the belief that an IUD is an abortive fashion, even if their belief is irrational that that belief can prevent a company from having to extend their health benefits, I really actually am interested in Ted's view about how this affects the issue of