6th Annual Supreme Court Term in Review

panel at event

UCI Law's 6th Annual Supreme Court Term in Review drew a record crowd in person (more than 800 RSVPs!), and hundreds more online via the live webcast, as distinguished panelists reviewed key cases decided in the historic October 2015 term. The event was held July 14, 2016 at UC Irvine. More about the event >

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  • Robert Barnes

    The Washington Post
  • Howard J. Bashman

    Law Offices of Howard J. Bashman and How Appealing Blog
  • Erwin Chemerinsky

    Dean, Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, UC Irvine School of Law
  • Kaaryn Gustafson

    Professor of Law and Co-Director, Center on Law, Equality and Race, UC Irvine School of Law
  • Dahlia Lithwick

  • Richard L. Hasen (Moderator)

    Chancellor's Professor of Law and Political Science

Podcast Transcript

[Narrator] Welcome to UCI Law Talks, presenting bold perspectives on law from the University of California, Irvine School of Law. Join the conversation on Twitter @UCILaw, #UCILawTalks.

[Rick Hasen] Good afternoon, and welcome. My name is Rick Hasen, of the UC Irvine School of Law. I'm pleased to welcome you to the sixth annual UCI Law Supreme Court Term in Review. This event brings together the law school, the University of California Irvine, the larger and broader Orange County community, and viewers on our livestream across the country and the world, to talk about one of the most important, but most publicly neglected institutions, the United States Supreme Court. We have an outstanding group of scholars, lawyers, and journalists, to talk about the remarkable Supreme Court term that just completed.

First, I want to thank the UCI Law staff for the tremendous support they've given to this event, especially our event manager, Crissandra Flores, and our communications staff, especially Colleen Taricani and Iris Yokoi. I also want to thank the law school's dean up on the panel, Erwin Chemerinsky for supporting this event, now in its sixth year. An event which started with fewer than 100 people in our law school's classroom, to this tremendous crowd today. In fact, one of our panelists, Dahlia Lithwick was at that first event, as well as our fourth event. At the first event, I recall her saying, and you can watch this on video, what a dud the Supreme Court's term had been that year. We would not say that about this year's term.

Last year at our event, Dean Erwin Chemerinsky commenting on the surprising liberal turn of the Supreme Court, including its decision in Obergefell v. Hodges, recognizing constitutional right to same sex marriage, and King v. Burwell, which saved Obamacare from being killed by what might have been a typographical error. He said though that if the 2014 term was Revenge of the Jedi, the 2015 term was likely to be the Empire Strikes Back, with cases on the docket, including one that could have killed public sector labor unions. Then Justice Antonin Scalia, brilliant conservative justice who helped make up a five justice conservative majority on the Supreme Court, died suddenly at a Texas ranch in February 2016, turning the entire term upside down. Leaving four liberals, four conservatives, and a vacancy that the Republican Senate has so far refused to fill.

This term saw decisions and non-decisions on not just labor unions, but on the President's immigration power, affirmative action, abortion, criminal procedure protections, the one person, one vote rule, the meaning of corruption, and much more. I'm going to briefly introduce our panelists, who will talk about these and other cases. I'm going to keep these introductions brief, you have the full bios in your program. I know that I could spend the entire time just giving the speakers' bios, but better to just get right to it.

I will introduce the speakers as we go down the line. Howard Bashman, to my immediate right, has always had a singular focus on the practice of law, achieving excellence in appellate advocacy. Today, Bashman is a nationally known appellate attorney, who's compiled a notable record of success, representing clients before the United States Court of Appeals for the Third Circuit, in Pennsylvania state appellate courts. Among his many other accomplishments, Howard is the author of the must read, How Appealing blog, where I turn really, literally the first thing before I even get out of bed every morning. That's no joke. The blog keeps track of developments of the Supreme Court and other key courts in the nation, and Supreme Court justices have been known to have it open on their browsers, as people have come through the court.

Dahlia Lithwick writes about the courts and law for Slate, and hosts the podcast “Amicus,” which I listen to on my commutes to school. Among her many accolades, her writing has been described as spicy, by Justice Ruth Bader Ginsburg, whose recent controversy we'll discuss later in the program. Ginsburg is after all the 90-pound gorilla in the room.

Dean Erwin Chemerinsky is the founding dean and distinguished professor of law, and Raymond Pike, Professor of First Amendment law at the University of California, Irvine School of Law, with a joint appointment in political science. He taught at Duke, where he won the Duke Scholar Teacher of the Year Award. Before that, he taught for 21 years at USC. He's one of the countries leading experts on constitutional law.

Robert Barnes has been a Washington Post reporter and editor since 1987. He joined the paper to cover Maryland politics, and has served in various editing positions, including metropolitan editor and national political editor. He has covered the Supreme Court since 2006, and I think this morning he was the first person to tweet out the Justice Ginsburg non-apology apology.

Professor Kaaryn Gustafson of UCI Law, focuses her research and scholarship in interdisciplinary matter, focusing on the role of law in remedying inequality and reinforcing inequality. Her research over the last decade has focused on expanding the administrative overlap between welfare and the criminal justice system, as well as experiences of those individuals and families caught in those systems. Her current research explores the history of law in regulating African American families and regulating labor among poor people and various ethnic backgrounds. She holds a J.D. and a Ph.D. from UC Berkeley, and previously taught at the University of Connecticut.

To keep this program moving, I've asked the panelists to speak for no more than seven minutes each on one of the Court's cases this term, as well as a theme of the term. That will leave us with hopefully over half the time for the panelists to engage with one another and to take questions from me, from the audience, where there are microphones set up in the back for people to queue up later, as well as for people watching the live webcast, who can put questions up on Twitter using the hashtag #UCILawSCOTUS, all one word.

At question time, I will have two requirements. First, the question must be brief, and second, it must be a question. There are no filibusters here, even if they continue in the United States Senate for now. Finally, a little housekeeping, please keep your applause until the end, so that we'll have maximum time to talk.

We'll start with Howard Bashman. Oh, I'm sorry, we're going to start with Kaaryn Gustafson. I forgot, sorry about that, and work our way this way.

[Kaaryn Gustafson] All right. For the second time, the Supreme Court took up the case of Abigail Fisher, the white plaintiff who challenged the University of Texas's undergraduate admissions policies. The admissions policies at the University of Texas have changed over the years in response to changing Supreme Court law, and most of the people in the room who have law degrees are familiar with those prior cases, starting with Bakke in 1978. The case that challenged UC Davis's Medical School's systems of admissions, which allocated 84 seats to white students and 16 seats to underrepresented disadvantaged minorities. The Supreme Court justices could not agree on that opinion. Justice Powell's opinion has been the most influential, and his diversity rationale is what's still in play in Fisher's case this year.

There's also Gratz v. Bollinger, the 2003 challenge to University of Michigan's undergraduate admissions system, which allocated pre-determined points to racial minority students, and Grutter v. Bollinger, where the Supreme Court upheld the University of Michigan's system at the law school, where they didn't assign pre-determined points to racial status, but did a holistic review, which considered as one of many factors, a student's racial or ethnic background.

Now Gratz and Grutter together held that race-based quotas or assigning students admission points based solely on race is a problematic practice, but that race might be among a number of other factors to consider, in promoting the pedagogical goals of diversity. Now, in response to those decisions, the University of Texas, through legislative decree and then by working it out through a policy at the university level, developed what was known as the 10 percent program. Under that program, the top 10 percent of graduates from Texas high schools were eligible to attend public universities. In effect, because the University of Texas Austin, the flagship school, only had a limited number of seats, it meant that only the top 8.5 percent of students would be admitted.

Under the admissions program, 75 percent of the slots were reserved for students who had graduated within that top 10 tier. The remaining 25 percent of the seats were allocated to students who had graduated in the top 25 percent, but a broader, more holistic review was given to those students. They were assessed based on not only their grades and their SAT score, but also personal essays, recommendation letters, and personal achievement index, which took into account the readings of these documents in assessing students' skills at leadership, their participation in extracurriculars, their awards, community service, and special circumstances. Special circumstances could include consideration of race, ethnicity, whether a student was raised in a single parent family, whether the student spoke English as a second language.

Abigail Fisher challenged this practice. She was a white student who did not graduate within the top 10 percent of her class in Texas, which put her into the second tier of analysis. Based on that, she was not admitted into the University of Texas. In Fisher I, the majority opinion was written by Justice Kennedy. There, he wrote that strict scrutiny applies to the use of race in admissions, and that the burden falls on the University to demonstrate that its goals of diversity serve a compelling governmental interest, and that the means chosen are narrowly tailored. The Supreme Court kicked the case back to the Fifth Circuit, to determine whether the University had satisfied that burden. Many thought it was over.

Abigail Fisher, when the case came back, appealed. The Fifth Circuit ruled that the University had indeed met its burden, and Fisher appealed, arguing that her equal protection rights were still being violated. The decision in Fisher II, was again written by Justice Kennedy. All eyes were on Kennedy, wondering what he would do. It's an interesting opinion for several reasons. One, the Supreme Court acknowledged race as relevant, and diversity as an important pedagogical goal. Also, the Supreme Court really highlights that data matters. The Supreme Court encourages regular evaluation of data and consideration of student experience in assessing its values and tailoring its methods to achieving that. As someone with a social science background, I favor data analysis rather than ideological approaches and abstract reasoning. More significantly, the Court signals that achieving diversity may not be a short-term endeavor, and that it involves process and reassessment. That methods and timeframes should not be considered static.

Some of you may remember that Justice O'Connor's majority opinion in Grutter stated, "We expect that 25 years from now the use of racial preferences will no longer be necessary to further the interests approved today." Fisher II however, suggests that achieving diversity is a long-term goal. Still, my reaction to the opinions, the majority and dissent opinions, could be filed under this theme, don't make direct eye contact, avoid any direct discussion of race. The majority strongly signals that they don't want to hear any more affirmative action cases. The Alito dissent avoids employing the racial gaze in a number of ways. It makes a number of distracting arguments, that diversity and critical mass are slippery terms, that racial parity is not an acceptable governmental interest, and that the process discriminates against Asian Americans, a deflection and wedge argument, particularly in light of the fact that a number of Asian American advocacy groups supported the use of the system in place.

Finally, the dissent avoid race as a salient issue of identity or education, something I will just leave there and come back to later. There are a number of other cases that maybe we can talk about in the discussion, where the Supreme Court either touches upon or actively sidesteps race this term. Not only Fisher, but also Foster v. Chapman, which had to do with peremptory challenges when it comes to jury selection. University of Texas, which addressed the DACA case, and Utah v. Strieff, which Dean Chemerinsky will discuss. We are still grappling with race in this country. I hope that we and the Supreme Court will maintain a steady gaze on racial equality, and be brave enough not to avert its eyes.

[RH] Thanks. We'll turn it over to Bob.

[Robert Barnes] Hi, thanks very much for inviting me. It's great to be here. I'll make a couple of broad comments about the term, and then talk about a specific case. As you've heard, this was a year that was supposed to be teed up for the conservatives. There were cases, challenges to affirmative action, restrictions on abortion, complaints about labor union fees, bold attacks on the way electoral districts are drawn, and on President Obama's use of executive power. All of those ended either with liberal victories, or ties that set no precedent or didn't address some of those issues. It's often said that the addition of a Justice to the court creates a whole new court. We also found that the subtraction of a Justice from the court creates a whole new court. That's what happened this term, is really Scalia and post-Scalia. Many of those decisions were affected by his absence.

I think it also signals that the era, at least for a time, of conservative legal groups pushing cases towards the Supreme Court has ended. There is not going to be the reception that there was before. I think that, that could mark a big change, depending on of course what happens in the election, and who the ninth Justice becomes. As always, Justice Kennedy was the pivotal player, and he gave the left some important and I think somewhat surprisingly broad victories on abortion, and on affirmative action. Without Scalia there, you saw some interesting, you saw some of the other Justices emerge this term, in a way that sometimes you don't see.

Justice Clarence Thomas, of course, on February 29, asked a question at oral argument for the first time in a decade. My colleague, Dana Milbank, likes to say that he only asks questions on Leap Day, because he only did it that one time. He wrote a number of very pointed dissents, that got across his point. Justice Sotomayor used a series of dissents to speak quite frankly about race and discrimination, as what she sees as inequality in the justice system. Some say that she's becoming the heir to Thurgood Marshall in that. I think Justice Breyer played probably an interesting behind the scenes role in looking for compromise. He was given the abortion decision to write, by Justice Kennedy. Ginsburg, in her blunt way, issued a concurring opinion saying, "No more of these restriction on abortion cases, as long as Roe v. Wade remains in place." I think the Chief Justice and Justice Kagan played important roles in trying to get the Court past this period of four to four votes. I think it was interesting that Justice Kagan, often clearly on the liberal side of the Court, sided with Roberts and Kennedy about as often as she did with her fellow liberals. That's a quick rundown on the term that we can talk about.

I wanted to talk to you about the McDonnell case. This involves the Virginia Governor, Robert McDonnell, who along with his wife Maureen McDonnell were indicted by the federal government on fraud and Hobbs Act extortion charges, and it was related to their acceptance of $175,000 in loans, gifts, and other benefits from a Virginia businessman named Johnny Williams. He had developed a product, he wanted the universities in Virginia to study it and sort of give it the Good Housekeeping seal of approval. He did a lot for the Governor and his family.

This is one of those cases that I think really divides lawyers and the rest of the world. He had an awful lot of support, saying that his conviction was terrible and set a terrible precedent. As the Chief Justice wrote, "White House counsel who worked in every administration from President Reagan to President Obama, warned that the government's view of this law would chill federal officials' interactions with the people they serve, and damage their ability to perform their duties." He was supported by a huge number of former Attorney Generals from around the country, 41 Democrats and 35 Republicans. You had that on one side, and then you had all the people who wrote to me and said, "What? This isn't illegal?" It certainly seemed bad, and the Court went out of its way to say it probably was bad, but they ruled unanimously that an official act, which is what he has to perform, is something that is not just arranging meetings, as he did, or introducing Williams to people, or calling people in his administration saying, "I need you to talk to this guy, because he has something we may be interested in." He, in fact, in front of his staff, took one of these pills and said, "It's working well for me."

Nothing ever happened for Johnny Williams. The universities didn't do the studies. There was no testimony presented that officials had been pressured by the Governor to actually do it, and so the Court said that there has to be more than that. You have to show that you took some official action, and it's more than what he did. Now, the Court did leave it open for prosecutors to go after him again. They said that they weren't expressing any opinion on that, but that the jury that convicted him got the wrong instructions. They were informed that almost any act that the Governor did could count toward this official act. The Court said that, that was wrong.

We don't know if Governor McDonnell will be retried, but we do know that things look a lot better for him than they did last fall, when he was about to report to prison for two years.

[RH] Thanks very much. We'll turn it over to Erwin.

[EC] I want to begin by speaking in my role as Dean. I want to thank my terrific colleague, Rick Hasen, for suggesting the idea for this program, and for organizing it each year. I want to thank our wonderful events coordinator Crissandra Flores, putting together an event with an audience of 825 people is a major undertaking, and she does it so flawlessly. I want to thank the panelists who are giving time from their busy schedules to be here. Most of all, I want to thank all of you for coming here today.

Everything changed in the Supreme Court on February 13, when Justice Scalia passed away. From 1971, when Richard Nixon's third and fourth nominees to the Supreme Court were confirmed, until February 13, there were always at least five, and sometimes as many as seven Justices who had been appointed by Republican presidents. Much more often than not, when the Court was ideologically divided, the result was in a conservative direction. No longer are there five Justices on the Court who are described as conservative. No longer are there five Justices that have been appointed by Republican presidents. Thus, what you saw this year was if the Supreme Court, if the conservatives on the Court got Justice Kennedy's vote, then they split four to four. If the liberals got Justice Kennedy's vote, as they did say on affirmative action, abortion, then there was a majority for that result.

To give you some statistics about the term, the Supreme Court decided 63 cases, after briefing and oral argument. It's the fewest number since at least 1932, which is as far back as I can find statistics. Justice Kennedy was in the majority in 98 percent of all the cases, which is stunning and maybe unprecedented.

I want to talk about the one ideologically divided case that I can identify, where there was a conservative majority. The case was Utah v. Strieff. I think it's a very important case about police behavior and also about race in society. Police in Utah got an anonymous tip that there was drug dealing going on from a house. The police decided to watch the house. They saw a man briefly go into the house and then come out. An officer by the name of Douglas Frackle, stopped the man and asked him his name. He said that his name was Edward Strieff. At this point, the officer did a warrant check with regard to Strieff. He found an outstanding warrant for an old traffic violation. At this point, he arrested Strieff. He did a search incident to the arrest, he found drugs.

The question in the case is whether the drugs had to be excluded because the search was the result of an illegal stop. No one disputed, the state of Utah conceded that the stop of Strieff lacked reasonable suspicion. The Utah Supreme Court said that the evidence had to be excluded as the fruit of the poisonous tree, but the United States Supreme Court reversed in a five to four decision. The Supreme Court said that the exclusionary rule didn't apply, that the evidence should be admitted. Justice Clarence Thomas wrote the opinion for the Court, joined by Chief Justice Roberts, and Justice Kennedy, Breyer, and Alito. Justice Sotomayor wrote a dissent, joined in large part by Justice Ginsburg. Justice Kagan also wrote a dissent.

In other words, there was a conservative majority here because Justice Breyer joined with the four conservative Justices, Roberts, Kennedy, Thomas, and Alito. We shouldn't be surprised by this. There have been a number of instances in recent years, where Justice Breyer joined with the conservative Justices to create a majority in fourth amendment search and seizure cases. A few years ago, in Maryland v. King, the Court ruled five to four that the police can take DNA from somebody arrested for a serious crime, to see if it matches for an unsolved crime in the police database. It was the same five Justices in the majority, Justice Scalia wrote the dissent.

There was another case, just a few years ago, that involved whether if police get an anonymous tip that a car is driving erratically, where the police can then pull over the car without observing erratic behavior. Justice Breyer again votes with the conservative Justices to create the majority. Justice Breyer has become a very pro-law enforcement judge, with regard to fourth amendment cases. Justice Thomas writing for the Court here said that the exclusionary rule did not apply because of the so-called attenuation exception to the exclusionary rule. If between the illegal stop and the search, enough has occurred that one could say that the taint is attenuated, then the evidence is admissible.

Justice Thomas said three factors are looked at with regard to attenuation. First, how close in time is the search to the illegal stop? Here, the search occurred almost immediately after the illegal stop. That would say there's not very much attenuation. Second, are there intervening circumstances? Justice Thomas said there's an important intervening circumstance here, the police found an outstanding warrant. Third, was the police misconduct flagrant? Justice Thomas says there was nothing flagrant about what the police did. Based on all of that, the Court said that the evidence should have been admitted, the exclusionary rule didn't apply.

Justice Sotomayor wrote a very powerful dissent. She talked about the number of outstanding warrants that exist. She had statistics that in some communities, like in Ferguson, Missouri, a substantial part of the population has outstanding warrants. She talked about how degrading a stop is to those who suggest this by the police. In a part of the opinion, writing just for herself, she spoke as a woman of color, of what this means in minority communities. How parents of color need to talk to their children about how to behave when the police have stopped them. She said what this case means is that the police can illegally stop somebody hoping to find an outstanding warrant, and then if they do, they can do a search, and what's found will be admitted into evidence. Justice Kagan wrote a separate dissent, making the same point, that this gives the police an incentive to illegally stop people, knowing that they'll benefit if they find a warrant and the evidence is admissible.

This case comes down in a time when there's a great deal of necessary focus on our society about policing. What's so disturbing about the case is just what Justices Sotomayor and Kagan say, it encourages the police to illegally stop people, knowing they can benefit from it if evidence is gained.

[RH] Thank you. Dahlia.

[Dahlia Lithwick] I guess I'm going to add my thanks for inviting me. It's a thrill to be back. I also, in terms of just sort of precatory comments about the term, I would sort of second what you've already heard, which is one, the shadow of Justice Scalia's loss over the second half of the term can't be overstated. It was an entirely different Court that reconvened, with his chair draped in black after his death. I would say right to the very end of the term, you could really see that people were grieving, his colleagues were grieving, and that it was not the same Court it was when we started in the first Monday of October.

The other theme that I think you've heard from other panelists, that absolutely overarches this term again, is that it's Justice Anthony Kennedy's world and we all just get to live in it. Again, it's one thing to be the swing Justice on a Court of nine members, but to be the swing Justice on a Court with an even number, is a real feat. Yet, he still manages to do it. This was very much a term where, and we'll talk about the cases in a more granular way, but where we really see the ways that Kennedy's imprimatur is on absolutely everything that is of consequence by the end of the term.

The last thing I would just say, in terms of big themes, is that we really did see after Justice Scalia died, I think we saw Justices Alito and Thomas kind of stay on the right of the Court, and I think we watched Kennedy and Roberts sort of move to the center with Justice Breyer and Justice Kagan, so that you really had a sense that the center was going to try to keep the Court out of the front pages of the newspaper. This was not going to be a riven four, four term. This was going to be, as much as they could, try to be a minimalist, careful Court, and that the Justices who didn't want to play that game, stayed in their corners. There was a big, I think, attempt to modulate the voice of the Court around something that looked like the center.

Now, I'm going to talk about Whole Women's Health, and if I have a minute, I'll talk about Zubik, but these are the two big reproductive freedom cases. It can't be overstated what a big deal it is, that since 1992, the Court has not had an abortion case in the order of magnitude of Whole Women's Health v. Hellerstedt. This is, as you know, an appeal of HB2, that was the Texas statute that was passed in 2013, famously over Wendy Davis's pink sneakered filibuster.

The two provisions that were at issue before the Court this year were one, the admitting privileges provision, that said that physicians who were going to perform abortions had to have admitting privileges at local hospitals, 30 miles away, and the ambulatory surgical center, the ASC requirement that says that any clinic performing abortions in Texas had to be retrofitted as an ambulatory surgical center, which meant widening hallways, changing broom closets. You had to be able to push two gurneys past each other in the hall, even though gurneys are never used. The idea was that this was so prohibitively expensive that clinics would be put out of business.

If HB2 had been allowed to go into effect, we would have gone from about 42 clinics in Texas to 20, and then had it fully gone into effect, had the Court not stayed it, we would have been down to about seven or eight clinics, serving the 5.4 million women of childbearing age in the state of Texas. That was what was on the line. Constitutionally, the question was what is an undue burden? Does this place, this is the language of Casey, does this place an undue burden on a woman seeking to protect her constitutional right to abortion. The question for the Court is what does undue burden even really mean, other than in the heads of Sandra Day O'Connor, and David Souter, and Anthony Kennedy, who crafted the majority opinion in Casey. What does it mean to burden a woman's right to choose?

Even though we know that technically it means you can't put a quote, “substantial obstacle” in the way, what does a substantial obstacle look like? The Fifth Circuit had upheld these provisions. When it comes to the Supreme Court, and this is a case where Erwin is exactly right, had Scalia been sitting on the Court, it looked very much as though this was going to be a five four decision to pretty much eviscerate whatever was remaining of Roe, because if you could be allowed to put this kind of burden on a woman's right to choose, pretty much anything would be permissible.

It's important to understand that even though the Court has not heard a major abortion case since the 1990s, in the states, the regulations placed on the right to choose have been unbelievable in the last few years. Since 2011, there have been 288 restrictions placed by the states on a woman's right to choose. This has enormous consequences, not just for ambulatory surgical centers and admitting privileges, but for all of the so-called TRAP laws, targeted regulation of abortion providers, that say that what they're doing is regulating women's health. They're protecting mothers' health, but what they're in fact doing in many instances is really precluding women from accessing clinics at all.

The Fifth Circuit rationale in upholding HB2 was that they said this doesn't affect that many women. It's only a quote, small fraction of women in Texas who are being prevented. Only about 1.7 million women they said, would have to drive between 100 and 200 miles, to get an abortion. That was not a significant enough number. The other thing that the Fifth Circuit did, and this is important, is they said, "It's not for us to reason why. We're not going to second guess the legislature. If the legislature has put these laws into effect to protect women, we defer to that."

Needless to say, oral argument, which happens very shortly after Justice Scalia dies is, and I just say this as a woman, watching three women at the Supreme Court in an abortion case for the first time ever was pretty cool. The three women Justices just strapped on their skates and went to town, particularly in this case on poor Scott Keller, who was the Solicitor General of Texas, who kept trying to explain that these laws really do protect women's health. The three women Justices were just, "What? What?" We sort of had a sense, I think, coming out of it, that this was going to be a four-four, and then Justice Kennedy, who has never upheld, I'm sorry, struck down an abortion regulation, save for one, suddenly flipped and joined the progressive branch of the Court, and said, "Yes, this is a bridge too far. These regulations are too much. They do burden women."

The case was assigned by Kennedy, who would have been the senior Justice in the majority, to Stephen Breyer, to the white guy, and Breyer goes on to write a very, very crisp and thoughtful explanation of why we do have the prerogative to probe into why the states did these regulations, and these regulations do not in fact make women healthier or safer. They in fact harm women, and therefore HB2 falls. Really, I think the takeaway from this one is Justice Kennedy, we don't know why this was too much for him, but this was too much for him. It was really a fascinating moment to see him join on with an opinion that not just did away with these two provisions, but makes a lot of these TRAP laws going forward very, very difficult to enforce.

[RH] Thanks, and let's turn to Howard.

[Howard Bashman] Thank you so much for having me here today. Thanks to this wonderful audience for turning out. In terms of the themes of this year at the Court, I have nothing to add to what my wonderful predecessors have said. I think that I'm in complete agreement with their views on that.

The case that I'm going to talk about today arises from my home state of Pennsylvania, and arose in the city of Philadelphia, which is where I was born so many years ago. It's a case involving the death penalty, the appearance of judicial bias, and issues of judicial recusal. The name of the case is Williams against Pennsylvania, and it has the distinction of having been argued on the day that Clarence Thomas spoke, but was not the case in which he did speak. Minutes after everyone's in shock that he said something, that case concluded and the next case that was called was the case that I'm going to discuss this afternoon.

It was argued on February 29 of this year, and it was decided on June the 9 of this year. It was a case in which Justice Kennedy wrote the majority opinion for a 5-3 Court, and in dissent were the Chief Justice, Justice Alito, who joined the Chief Justice's dissent, and Clarence Thomas, who wrote a separate dissent. The holding of the case was that the due process clause requires the recusal of judges who had significant personal involvement as a prosecutor in critical decisions regarding a defendant's case. The critical decision that was involved in this case was whether or not the prosecution would seek the death penalty when the case was going to trial.

Now, the case went to trial some 28 to 30 years before it reached the U.S. Supreme Court. At that time, a fellow by the name of Ronald Castille, was the District Attorney for the city of Philadelphia. He was a tough on crime prosecutor who had sent more than 40 people to death row during his tenure. At some point during that tenure, back in the 1980s, a memo came across his desk, asking whether or not in this particular case involving an 18 year old man who had murdered two people at least, one a year before, and then the second one, which gave rise to this prosecution, should face the death penalty in the second prosecution. District Attorney Castille wrote him a memo, "Yes, I approve seeking the death penalty in this case." The case was tried to a jury, and the jury returned a guilty verdict, and the death penalty was imposed as the sentence in this case.

Time goes by, there's a direct appeal, there's a federal habeas corpus action. The defendant receives no relief. In Pennsylvania, you can come back to court time after time it seems, to argue that your sentence should be set aside and you should have a new sentencing hearing. At some point in this decade, the defendant came back into court and argued that there had been prosecutorial misconduct in this case, and that the prosecution had failed to turn over certain Grady materials, which had they been given to his lawyer, allowed the lawyer to argue that the motive for committing the killing was something different than what the prosecution argued. The prosecution had argued a motive of theft, that they were robbing the victim. What the prosecution supposedly hid from the defendant's counsel, was that the actual motive was that the defendant had been sexually abused by the victim. Why the defendants couldn't tell that to his own lawyer himself, is certainly a question. What the defendant argued in his defense was that he wasn't there, so his defense was he had nothing to do with it. This other defense seems to be in conflict with the defense that he took the stand and testified to in his own case.

Putting that all aside, when this fifth collateral challenge finally reached the Supreme Court of Pennsylvania, the defense had access to the prosecution's files, which showed that District Attorney Castille had approved in this memo the seeking of the death penalty. When the case came before the PA Supreme Court, at that point the defense asked for Chief Justice Castille to step aside. Chief Justice Castille refused to step aside in this case involving the Grady issue, and the PA Supreme Court, which was also shorthanded by a Justice at the time, unanimously ruled six to zero that the trial court's setting aside of the death sentence due to this alleged prosecutorial misconduct was wrong, and reinstated the death penalty in the case.

Of course, now the case was going to be sent back to the PA Supreme Court to hold a new hearing, to decide whether or not the death penalty should be set aside. Chief Justice Castille has since retired from the Court, due to having reached the mandatory retirement age of 70, and so he won't be there in any event to decide the case now that it's been sent back. As to why the decision is important, I think that we realized that many judges reach the bench as former prosecutors. The holding may give defendants the ability to raise challenges in many cases, if the judge somehow was involved in the defendant's case at some earlier stage. Now you might think most judges might realize that you shouldn't sit as the judge in such a case, and maybe that's true, but now it's a constitutional principle of due process, that they can't do it. If they feel otherwise, the case will be reversed.

The decision is also important secondarily, because it continues the federalization and due processization of recusal grounds. In an earlier U.S. Supreme Court decision from 2009, which was 5-4, involved judicial contributions, that was the Caperton v. Massey Coal case. And the Supreme Court ruled there, in another Justice Kennedy opinion, that the judge who received all these campaign contributions should not have heard a case involving the donor who had invested lots of money in running ads against the opposing candidate for the courts.

Some people thought that perhaps the Chief Justice would join the majority in the Williams case, in saying that the death sentence had to be set aside because the judge had an impermissible conflict, due to the fact that the Chief Justice wrote the decision Williams v. Lee, the term before, which upheld against a first amendment challenge, Florida's prohibition on direct solicitation of funds by judges. Of course, the Chief Justice did not.

In the case itself, the impact of the ruling is likely to be very insignificant, because it seems to me this particular habeas collateral attack does not have a whole lot of merit. I don't anticipate that the PA Supreme Court, in reconsidering the case, is likely to do anything different. Chances are, the death penalty will be reimposed, but the case still is likely to be very significant for other prosecutions.

[RH] Thank you. All right. We've now completed the first part of the program. For the next part of the program, we'll be doing questions and answers. I'll ask some questions. Questions from the audience, there are four microphones, so you can start queuing up at those four microphones. As well as questions that will be coming over the internet, using the hashtag #UCILawSCOTUS.

Let me use the moderator's prerogative to ask the first question, and it's the question I alluded to earlier, involving Justice Ginsburg. If you happen to have been without internet access for the last week, you might have missed this. Justice Ginsburg gave an interview last Friday to the Associated Press, in which she made some comments about how she was concerned about Donald Trump becoming President. She then gave an interview that appeared Sunday, although the interview, I think, was given on the same day, that last Friday, to Adam Lipteck of The New York Times, in which she went further. She said that she might follow her late husband's advice that it's time to move to New Zealand if Trump would be elected. She said she feared for the country and for the Court, if he would be elected.

Then on Monday, Joan Biscupick, who's a reporter for Reuters and CNN, and who's actually going to be in residence at UCI next year, this coming academic year, we're very happy about that, she had a pre-scheduled interview with Justice Ginsburg, because she's writing a book about Chief Justice Roberts, and asked about this. Rather than pull back in the face of some criticism, it's not every day that Chief Justice Ginsburg gets criticized in an editorial in The New York Times, which is what happened to her. She doubled down and she called Trump a faker, among other things.

This led to a series of commentaries, including commentary by the Dean, commentary by Dahlia, commentary by me, everyone taking a different position on whether this is a problem. Then, this morning, as Bob first reported, Justice Ginsburg issued a statement of sort of apology, not really apology, where she said, "I'm sorry if what I said hurt you," variety kind of thing, "Sorry if you might have been offended."

I want to open it up to the panel to reflect on what's happened in the last few days, and I specifically want to ask two questions. First, if there is a Trump campaign case that makes it to the Supreme Court on an emergency basis, which could certainly happen. We've had a lot of election litigation make it to the Court, would Justice Ginsburg have to recuse? Should she have to recuse? Second, if this were Justice Alito on Fox saying that he would move to England rather than vote for Crooked Hillary, would we be having a different discussion? Let me open it up to anyone on the panel who'd like to talk on this.

[RB] First, let me read exactly what Justice Ginsburg said in her statement this morning, rather than Rick's interpretation. She said, "On reflection, my recent remarks in response to press inquiries were ill advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future, I will be more circumspect." That was it. I think you could look at it as she made her point and this is a way to end the inquiries that all of us were making about, "Why did you do this?" It doesn't exactly fall into the category that I think Mr. Trump would have wanted, when he said that her mind was shot, she should resign and apologize. It's somewhere in between.

I think it was surprising that she did this. I think it's really unprecedented in the modern Supreme Court times, for a Justice to comment so directly on an official, someone running for president. As far as recusal, I think the legal ethicists seem somewhat conflicted on that. Certainly, I think we didn't need Justice Ginsburg to say this, to all think that we knew who she was going to be voting for in the fall. I think that we can say that about the other Justices as well, or most of them we can figure out. Certainly, they would not be recused from a case that involved him. Does the fact that she said it out loud make it different from the others, is a question that I, as a reporter, shouldn't answer, but leave up to the distinguished panel.

[RH] Erwin.

[EC] Imagine that you're a person with great influence, highly respected, a powerful voice that commands enormous attention. Imagine you see the country is facing a choice that you believe has the potential of undoing everything you've worked for in your career, and even worse, heading the country down a very destructive, dangerous path, that in your lifetime you've seen other countries go through. Do you sit silently and if the worst happens, always regret that choice, or do you speak out, even if it's against conventions and will subject you to criticism?

That's the choice that Ruth Bader Ginsburg faced, and unlike most commentators, I applaud her for speaking out. In general, there's a strong presumption that more speech is better in a democracy. I'm not persuaded by the harms of her speaking out. I do not believe that she has to recuse herself if a case involving Trump comes before her. She was not speaking about a case that was pending before the Court. In fact, in 2000, Sandra Day O'Connor was widely quoted as saying that it would be terrible for the country if Al Gore was elected, and she still participated in Bush v. Gore. Maybe even more important, Justice Ginsburg isn't going to recuse herself. Whether a Justice is disqualified in a case is left entirely up to him or her. I don't believe that Justice Ginsburg would recuse herself.

I don't think this tarnishes the image of the Court. Justices have political views, there's nothing surprising about that. No one should be shocked or surprised about Ginsburg's views about Trump. I don't think this hurts the Court, and it's not unprecedented. In fact, in the election of 1800, they couldn't get a quorum on the Supreme Court, because the Justices were all out campaigning for John Adams' reelection. We'll never know what motivated Ruth Bader Ginsburg to say this, but I think she perceives there being a candidate unlike any other in recent memory, who's truly a demagogue who could set the country down such a dangerous path. I feel she saw the need to speak up about it.

[DL] I would just add, and I say this as somebody who's been sitting through the incredibly shrinking Merrick Garland story this year. The fact that we're more than halfway through this panel and his name has not come up, tells you all you need to know about the urgency felt around the fact that there's a vacant seat on the Court, that there is a manifestly well-qualified candidate that everybody agrees should have been given a hearing. He's not only not going to get a hearing and a vote, but that nobody cares. I think that is of a piece of what I've seen this term as a pretty systemic series of attacks on the Court and the legitimacy of the Court. For me, the suggestion that the Court could go for a year or two years or seven years without filling a vacancy because they could just muddle along, is very symptomatic of the ways in which the Court is treated with contempt, if it's noticed at all.

My slight spin on what Erwin just said is that I feel that throughout this term, we saw a vicious attack on Judge Curial and the implication that his heritage by definition makes him biased in all cases against Trump, met with almost silence by the Judicial Branch. We saw an unprecedented attack by Chuck Grassley, who said that the U.S. Supreme Court, chief amongst them John Roberts, are wildly political and they should be ashamed of themselves, met with silence at the Court. A Court that limped along four-four, and nobody complained about it, except by the way, Ruth Bader Ginsburg, who said, "We need an odd number."

To me, this sort of progression of attacks on the Judicial Branch, attacks on the Judicial Branch, attacks on the Judicial Branch, and the continued suggestion that it doesn't matter because nobody fights for them, was a little bit of what Ruth Bader Ginsburg was responding to. I completely think that what she did violated the judicial canons. I don't think it was good for the Court, but I think she also had to say something in a year where nobody was getting up and saying, "You know what? The Court really matters. What it does matters. The weird nihilism that allows the other two branches to eat themselves alive and then bring it to the Court, cannot persist." To me, part of what she was doing, when she said it's bad for the country and bad for the Court, was putting her hat in the ring and saying, "Let's at least have a conversation about the fact that for the first time ever, we have a nominee who's not even being listened to, because that's how little the Court matters."

[HB] I guess my views lie with Justice Ginsburg's statement of today, which is upon reflection she realizes she shouldn't have said it. I think that the Court is better off if they do stay out of the political arena, which is what everyone expects of the Court. Like someone said earlier, we know what the political proclivities of the Justices happen to be, we just don't need to hear about it on a day to day basis to be reminded. I think that this ended up at the right place, even if it didn't begin there.

What might have been interesting, and maybe there's still a chance that we could see it, is whether Justice Ginsburg can remain a member of the Court, even if she's in New Zealand. That could be an issue that could arise.

[RH] Kaaryn.

[KG] I think we pretend that the Justices are apolitical and that the decision-making is apolitical. Justice Ginsburg simply, it's a façade we all acknowledge, but she brought attention to that façade. Is that a problem? I think yes, in that it gives people who've been so critical of the Court a claim of impartiality. At the same time, this is such an unusual moment. Now, she could have just been a little bit more coy, and when asked about what was going on in the world said, "I have some great concerns about future leader's beliefs and the rule of law." Would that be the same thing? We all know what that means. I think a lot of us in the room are concerned at this very moment, about investment in the rule of law.

I think she did go too far, and clearly the apology was not an apology, certainly not to Donald Trump, but I think there is a little bit of taint to the institution. Should she recuse herself? I know she wouldn't. Maybe just for appearances, but that's where I am.

[RH] Thanks. I'll take myself out of the moderator role for two sentences, and say that the standard is could a Justice's impropriety reasonably be questioned? Just put yourself back in the time of Bush v. Gore, when the motives of everyone were up for grabs. Imagine if you are a Republican and the case goes up to the Supreme Court, Clinton versus Trump, and you know that this Justice has said that she would rather move to New Zealand than live under Trump. It calls into question the legitimacy of both the election and the institution.

Now we'll open it up to questions. I'll come back into my moderator role. Let's start over here.

[Audience Member] Well, first of all. Testing, is this on? Testing, is this on? Testing one, two, three, testing.

[DL] I can hear him.

[Audience Member] First of all, thank you all for coming to the wild, wooly, Republican backwater of Orange County. This is a tremendous panel. It's unbelievable what you all have come to present us. It's just great. A question, the great Dean Chemerinsky, how I salute you sir, even though you're a liberal, points out very cogently that we've had 45 years of conservative Supreme Court. In that 45 years, the statistics that I track, because of my nieces and nephews, on education, has basically gone down the toilet. When Hillary names her candidate to the Supreme Court next year, and it will be a liberal, what can we expect from the Court? Does the Court have any influence on the quality of education in this country, for the millions of children?

[EC] I'm going to answer with two points. The first is did you know that since 1960, 78 years old is the average age when a Justice has left the bench? By coincidence, Justice Scalia was 79 years old when he passed away. There will be three Justices on the Supreme Court who are 78 or older in 2017, the year the next President is inaugurated. Ruth Bader Ginsburg turned 83 on March 16 of this year. Anthony Kennedy turns 80 this year. Stephen Breyer turns 78. The next President, especially if he or she serves for two terms, there's a chance to fill three and maybe four vacancies on the Supreme Court. If you want to put this in political terms, whether you're a liberal or conservative, whether you see yourself as a Democrat or Republican, I think there's no issue in the November election more important than who's going to fill those four seats on the Supreme Court.

My second point goes directly to your question. In 1973, in San Antonio Board of Education v. Rodriguez, the Supreme Court held 5-4  that there is no right to education under the Constitution. The Court held therefore that disparities in school funding within a metropolitan area don't violate the Constitution. It was the four Nixon appointees in the majority, joined by Justice Potter Stewart, an Eisenhower appointee. My hope would be if there's a liberal majority on the Supreme Court, they will reconsider Rodriguez. If anything should be a fundamental right, it should be education. If we're ever going to be a more equal society, it has to be through education.

[RH] We'll take a question from my colleague Henry Weinstein, who's in the back.

[Henry Weinstein] First, I'd like to thank all the panelists for a terrific presentation. My question is designed primarily for Robert Barnes and Dahlia, but anybody else can weigh in, because it's about the two cases that you discussed, the McDonnell case and the Texas healthcare case. Bob, you said in your remarks that the McDonnell case was a case that really separated sort of lawyers from what I guess we'll call normal, regular human beings. I try to think of myself as both on occasion.

[RH] You might be the rare one.

[HW] I'm sorry?

[RH] You might be the rare one.

[HW] If you look at those two cases, particularly if you look at first the Texas case, the Justices who ruled in the majority really scrutinized the facts very closely. It seemed to be a very fact based decision. I mean whatever you think about, I mean they really went through, "Does this protect women? Does it not?" Etc., etc. Then if you look at the McDonnell case, I don't mean to sound too tendentious about this, but I mean the way they describe that was as if this is what politicians did every day. Every day, they're getting watches, they're getting Rolexes. I mean they're getting Mazaratis, and they describe this as basically the norm of political life. It could only be described as a sort of ... It sort of made me wonder, like a lot of other Supreme Court cases that I read, about how much they know about what's going on down on the ground. To sort of quote the great line that Abe Fortis used when he was arguing the Gideon case and saying that the Justices on the Supreme Court sort of didn't know often what was going on in lower courts.

I was just curious about what the two of you thought about it. One of these cases seemed to really pay close attention to the facts, and the other one seemed to not pay much attention to facts at all. F

[RB] I think that you make a good point. I think that the oral argument in the McDonnell case was very puzzling. We now have a Court in which no one has ever run for office, none of the members. Justice O'Connor was the last who had run for office and been elected to one. You often hear the Justices' campaign finance decisions criticized by those who say they don't really reflect the reality of how things work in the world. There was a lot of talk about, "What if," and Justice Breyer, "What if someone helped someone get their passport, and the person who got it just took them out for lunch and bought them an expensive lunch with a really nice bottle of wine?"

[DL] Chateau Lafit or something, he named the wine, just to be clear that he does this frequently.

[RB] It's like when in the world does that ever happen. I can't tell you the number of emails I got from, being in Washington, from federal employees who said, "Wait, we're not allowed to take anything. Our rules are that we can't accept anything from anyone, so what are they talking about?" They tried to address that a little bit in the opinion. The Chief Justice wrote that this isn't the way they see politics as usual. That this was especially tawdry, he called it. He mentioned the Rolexes and the Ferrari, the ball gowns, but still said that it wasn't enough, and that maybe they could prove the case, but maybe not.

There was an interesting thing that came out in the testimony, when the Governor told his counsel, "What's happened on this request from Williams?" The counsel wrote back, "We have to be really careful with this issue," and they were, apparently, careful enough.

[DL] I would just add, I think one of the best examples of what you're describing is in Strieff, the case that Erwin was talking about, where it became manifest pretty quickly that Justice Alito and Sotomayor had totally different notions of where warrants originate and how warrants happen. Literally on the bench, it became clear that this is stuff you should know. That's very problematic. That's their job. It's not like the cases where they don't know how pagers work and garage door openers. We love the cases where they're like, "A pager?" This wasn't that, this was warrants, and they still didn't know.

I thought one of the most telling moments, I think the moment where in Whole Women's Health, probably Texas loses, is when Stephen Breyer says to the SG from Texas, "How many people have died from not having access to someone with admitting privileges?" Unfortunately he has to go, "None," and it's over. There's like one instance of it. I think those kind of factual questions are really important. I think it's just worth saying again, we've got eight Justices now who went to two law schools. All of them are from New York. The totality of jobs that they've racked up is three. Their clerks originate from 13 law schools and five feeder judges. The Supreme Court, the bubble is getting smaller every single year.

It can't be stated enough, but I guess I'll say it again, what Erwin's saying about when Sonia Sotomayor says, "This is what it's like to drive when you are black or brown," and those are the words she uses. What she's telling her colleagues is, "You have no idea how life is experienced by the people for whom you make these decisions." I think there is a huge disjunction between life as experienced in the Chateau Lafit world and life as experienced among the rest of us. It's not a slam on the Justices. It sounds like a slam actually, but it's not. What it is, is me saying there needs to be an apparatus in place to educate them about what they don't know, and that's what worries me. What worries me is if your clerks only come from four schools and you've only come off an academic track or out of the Executive Branch, it's not clear how you're going to learn these things.

[HW] Thank you both.

[RH] I've got some questions that have come in on Twitter, but let me take the question over here first.

[Audience Member] Thank you. Question for Dahlia Lithwick, because you mentioned two points that I thought were interesting. One was you decried the Senate's failure to give a hearing to Merrick Garland, despite the fact that he is smart and qualified by any measure, and also that perhaps the attacks that the Supreme Court's legitimacy is under gives some cover to Justice Ginsburg for her comments about the Republican nominee.

Here are a couple of criticisms to the Court's decisions in the case that you discussed, the United Women's Healthcare. The Court's been accused of using made up tests. One commentator said, "The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case." Another commentator said that, "Nothing but empty words separates our constitutional decision making from judicial fiat." Another commentator said, "The Court's patent refusal to apply well established law in a neutral way is indefensible and will undermine public confidence in the Court as a fair and neutral arbitrator."

Of course, as you know, these commentators were Justices in the dissent of the United Women's Healthcare case. My question is isn't the Court itself crying out to us that what they are doing, in many cases, is nothing but naked policy making? Isn't the Court giving us a roadmap to undermine its own legitimacy?

[DL] It's a really thoughtful ... First of all, I'd say all of those dissenting comments are the kinds of things you heard from the dissenters in Heller, right? This is not a right/left game. This is people say, when they're in the dissent, they tend to say, "This is lawless, and you're making stuff up as you go along." It doesn't actually have a ton of force behind it. I don't think that the fact that we have dissents suggests that open season on the Court is what follows. Dissents are supposed to be robustly argued counterarguments. At their best, that's what dissents do. The best dissents say, "This is the world as it should be."

I think just naked attacks from Ted Cruz for instance, going after John Roberts, or Chuck Grassley going after John Roberts, that's not a dissent, that's just demagoguing. Because of the posture of the Court, because the Court cannot respond to political branches criticizing them, there's silence in response. I guess what I would just say is you're describing a conversation between the majority and the dissent. That's not the Court crying out for lawlessness, that's the Court having a conversation about doctrine. I think that when political actors use the Court as a whipping boy to make a point, and the Court has no apparatus to respond to that, I just think that's shooting ducks in a barrel, it's just not fair.

[Audience Member] Does it give the Senate cover to care more about Merrick Garland's political preferences than his academic qualifications?

[EC] I think that the criticisms that you read fundamentally misunderstand what Supreme Court Justices and judges do. Let's take the Constitution, no right in the Constitution is absolute, not freedom of speech, not the prohibition of race discrimination. The government can infringe free speech or discriminate based on race if it has a compelling interest. In fact, the key question in Fisher was whether diversity is a compelling interest. Even when there's discrimination that isn't against a suspect class, the government has to have at least a legitimate interest.

What's a compelling interest? What's a legitimate interest? We're focused on the fourth amendment, which I was talking about, it prohibits unreasonable searches and seizures. What's unreasonable? There's no value neutral way to answer the question of what's compelling, or what's legitimate, or what's reasonable. Justices are always making value choices. That's not unique to this era. It's not unique to the Supreme Court. It's inevitable. Inherently, the views that Justices come to the bench with, the life experience they bring, will determine how they decide cases. It's not that Justice Scalia's smarter than Justice Ginsburg, or Justice Ginsburg is smarter than Justice Scalia, it's their different values that lead to different conclusions. That too has been true throughout American history.

To answer your latter question, Presidents throughout history have appointed Justices who share their values. Presidents who are more ideologically oriented, like a Roosevelt or a Reagan, do it more than Presidents who are less ideologically oriented, like an Eisenhower. It's equally appropriate for the Senate to consider the views of the nominee, in deciding whether to advise and consent. This too goes back to the earliest days of the country. It's inherent to a Constitution.

[RH] It's an important question. I just want to give anyone else on the panel wants to weigh in.

[HB] I think certainly the Senate has the power not to approve a nominee if that's what it decides to do. With regard to how acerbic the dissents were in Whole Women's Health, if Justice Scalia had still be on the Court, maybe they would have been even more acerbic. We'll just never know, although we can probably predict.

[RH] We have a little under 10 minutes left. Let me take a question that came in on Twitter. It's about looking ahead. If Secretary Clinton is elected President, does anyone anticipate Judge Garland getting a hearing in the Senate before mid-January? Let me just add to that, what does a Garland Court look like? Does he become the new Anthony Kennedy, and we don't care what Kennedy had for breakfast anymore?

[RB] I think part of the answer to the first question depends on whether Republicans still control the Senate or not, after the election. I certainly think that many people think that Justice Garland will get a hearing, Judge Garland, if the Democrats capture the White House and the Senate. I think that it makes sense for ... One thing we don't like to talk about too much, but he's 63 years old. That is quite old for a nominee to the Supreme Court. The oldest, most recently, was Justice Ginsburg, and she was 60 at the time. Of course, she's been there 23 years, so it worked out for her.

On your second point, I think that it's absolutely right that Justice Kennedy's power will shift quite a bit if there's a new, more liberal Justice appointed, and by all sort of tracking that people have done, Merrick Garland would seem to be more moderate than certainly most of the liberal Justices. Maybe he and Justice Breyer agree a lot more. I think it certainly would shift the center of the Court.

[RH] Anyone else want to weigh in on this? No? Okay, we'll take a question in the back.

[Audience Member] I had a question for Dean Chemerinsky. For the abortion ruling, does that have any broader applications for how rational basis is determined? Will there need to be more evidence they need to provide for even rational basis cases, or will it be restricted to abortion cases?

[EC] In Planned Parenthood versus Casey in 1992, the opinion of Justices Kennedy, O'Connor, and Souter, replaced strict scrutiny for abortion with the so-called undue burden test. For those who aren't lawyers, the Supreme Court treats different claims of rights with a different degree of suspicion of the legislature. Where they're very suspicious of the legislature, they use what's called strict scrutiny. The government action has to be necessary to achieve a compelling purpose. Where they're not suspicious of the legislature, it's what you referred to, the rational basis test. The government action has to be actually related to a legitimate government purpose.

Unique to abortion, the Supreme Court has said that a government restriction of abortion, before viability, be allowed, so long as it does not place an undue burden on the right. The Supreme Court and Justice Breyer's opinion in Whole Women's Health, uses the undue burden test and strikes down the Texas law. I think it was clearly more than the kind of review there'd be under rational basis review. I don't think this changes rational basis. I think it does give real teeth to the undue burden test. It makes it likely that so many of the laws they've adopted that Dahlia refers to, will be declared unconstitutional.

[RH] For the final question, I just want to ask the panel to reflect, we've heard a little bit about this, on the four-four Supreme Court, and what that has meant for the Court's decisions. Justice Breyer yesterday said, "Ah, no big deal." Again, I'm paraphrasing Bob. I know you're a journalist, while I spoke it.

[RB] I try to keep them accurate, you know?

[RH] It was only four cases, no big deal. I'm thinking about the Zubik compromise, which Dahlia alluded to earlier, as well as Justice Thomas getting his voice, and all kinds of weird dynamics. I don't know the numbers, the statistics, but in terms of the number of dissents that Justice Thomas wrote, I think he certainly set a personal record. Anyone want to reflect on that?

[HB] I mean it certainly affected the California Teacher's Union case, which is a very important case. It's prevented Zubik from having a majority resolution one way or the other on the merits. The Texas immigration case would have had a decision, probably a conservative one. It's possible that the Texas affirmative action case could have been four-four, because Justice Kagan was recused from that case due to her previous involvement in the Solicitor General's Office. I think that it certainly did have a huge impact. I meant the immigration case has a huge impact on people. There was a nationwide injunction by a single federal district judge, that was affirmed by the Fifth Circuit, and now those policies can't take effect, as I understand.

[DL] I think Zubik, which I'm sorry we didn't get to, but that was the Little Sisters case, the religious freedom case, and this question of whether it burdened the Little Sisters, the sort of non-profit, to force them to provide contraception for their employees. This is, I think, and maybe Erwin is going to say I'm overstating it, but I think this is the central crisis we are facing in this country. Because it inflects on this conflict between religious liberty on the one hand, and statues and the sort of regulatory state on the other, I think is the most urgent question that we have to face in this country, because there's so many iterations of it.

For the Court to not get to it, and not only not get to it, but do the just bizarre divorce magistrate judge, "Work it out parties. Take it back home. I think you're close. Good luck." It was bizarre. I don't even class that with the four-fours. I class that in the mayhem four-fours, because they vacated all the lower court rulings. They have to all go back now, and nobody knows what the law is. It just seems to me that, that's a really good example of the sort of pernicious problem of the four-four Court. Both sides thought they won that, the four-four. Both sides were doing touchdown dances, as though this was a huge win, which suggests to me that nobody knows what just happened.

I just think if we don't get this issue resolved crisply and cleanly, we really, really have just a ripple effect that really impacts so many questions of religious liberty and where it intersects with the laws. For me, this is an example of why the four-four Court is a disaster. It looks like, "Oh look, they solved it in a minimalist way and everybody's happy," but they actually didn't solve anything.

[RB] I would say, beyond the cases that actually went off on a four to four vote, there were a lot of cases that were decided unanimously or with a great majority, that really weren't decided. They were decided as to the specific question, but they didn't really have much guidance for the future. One of those was on Rick's area of expertise, the redistricting case. Evan Wahl from Texas, that you have to use the total population when you're drawing legislative districts, or do you use just voter, eligible voters? The courts said, "Well, it's fine to use everyone," but they didn't say you had to use everyone. They said, "Later, if another case comes to us, we'll answer that question."

A redistricting case from Virginia, that resulted in a federal court deciding that there should be another minority district, the Court got rid of that by saying that the challengers didn't have standing to bring the suit, and they didn't really rule on a pretty important question, it seems to me. I think, besides the one we can count as four to four, I think we saw a number of decisions in which the Court took the easiest way out that they could find, and thus didn't provide a whole lot of guidance for the future.

[KG] I'll just speak to the DAPA case, and Rick, this case has been mentioned, but it addressed Obama's Executive Decision to bypass the Administrative Procedures Act, and create procedures by which undocumented parents who had children who were here and protected under DACA, could apply for some limited protections from removal, and could apply for work permits. That affects a lot of lives, not just the parents, but entire families. I don't think the outcome would have been different, but it's one of those cases where it's not, it doesn't feel like there was a real resolution. It seems like such an important issue, and it came up because Congress is at an impasse. Congress will not act on that issue. This shouldn't have been a judicial decision in the first place. It should be something that Congress acts on.

[RH] Erwin, this will be the last word.

[EC] Okay. One of the ways, that we haven't talked about, that there's been an effect of only eight Justices, is with regard to the cases that have been taken for next year. Prior to Monday, June 27, the Supreme Court had taken only 18 cases for next term. They then took 11 cases on June 27 and June 28, so they now have 29 cases on the docket. There are almost no cases on the docket for next term posing constitutional issues. It seems very clear that the Justices are trying to stay away from the kinds of matters that would produce four-four splits. It will be a very unusual term next year, but I hope so much that you all come back for discussing on October term of 2016.

[Narrator] Thank you for joining us for UCI Law Talks, produced by the University of California, Irvine School of Law.