HIGHLY ANTICIPATED SUPREME COURT
TERM.
PARIS?
>> THAT IS RIGHT.
THE SUPREME COURT RETURNED TO
IN-PERSON TODAY FOR THE FIRST
TIME SINCE MARCH 2020 WITH THE
EXCEPTION OF JUSTICE BRETT
KAVANAUGH WHO JOINED BY PHONE
AFTER TESTING POSITIVE FOR
COVID.
THE COURT'S NEW TERM IS FULL OF
HIGH PROFILE CASES INCLUDING HOT
BUTTON ISSUES LIKE ABORTION,
SECOND AMENDMENT RIGHTS AND
RELIGION.
AND JOINING US TO TALK ABOUT
SOME OF THOSE BIG CASES AND HOW
THINGS HAVE CHANGED ON THE COURT
ARE JULIE M.K. SIEGEL, A PARTNER
AT KIRKLAND & ELLIS AND A FORMER
CLERK TO CHIEF JUSTICE JOHN
ROBERTS.
AZIZ HUQ A PROFESSOR AT THE
UNIVERSITY OF CHICAGO LAW SCHOOL
WHO CLERKED FOR RUTH BADER
GINSBURG.
AND MATTHEW HELLMAN A PARTNER AT
JENNER AND BLOCK HE CLERKED FOR
FORMER JUSTICE DAVID SOUTHER
WELCOME ALL OF YOU TO "CHICAGO
TONIGHT."
JULIE I WILL START WITH YOU THIS
IS THE FIRST TIME THAT JUSTICES
HAVE BEEN BACK IN-PERSON FOR
HEARINGS SINCE MARCH OF 2020 HOW
HAS COVID CHANGED ORAL ARGUMENTS
AND HOW JUSTICES INTERACTED WITH
THESE CASES?
>> WELL, ONE THING CHANGED
DURING COVID WHEN THE COURT WAS
HOLDING ARGUMENTS OVER THE PHONE
WAS THE WAY THAT THE JUSTICES
ASKED QUESTIONS.
SO IN THE COURTROOM, THEY ARE
USED TO ASKING QUESTIONS IN
WHATEVER ORDER THEY WANT OFTEN
INTERRUPTING EACH OTHER AND THE
ADVOCATES THAT WAS NOT POSSIBLE
OVER THE PHONE SO THEY TRIED A
MUCH MORE ORDERLY METHOD OF
GOING IN ORDER OF SENIORITY
ASKING QUESTIONS ONE AT A TIME.
AND NOW THAT THEY ARE BACK IN
THE COURTROOM WE ARE SEEING AN
EXPERIMENT OF A HYBRID MODEL.
FOR THE MAJORITY OF THE ARGUMENT
THE JUSTICES ARE ASKING
QUESTIONS AT WILL AND AT THE END
THERE IS MORE OF A ROUND ROBIN
FORMAT WHERE THEY EACH HAVE A
CHANCE TO ASK ANY FINAL
QUESTIONS AGAIN IN ORDER OF
SENIORITY.
AND ONE EXCITING THING WE SAW
TODAY WAS THAT JUSTICE THOMAS
ACTUALLY STARTED OFF THE
QUESTIONING FOR THE TERM.
AND THAT IS NOTEWORTHY BECAUSE
BEFORE COVID JUSTICE THOMAS WENT
MOST ARGUMENTS WITHOUT ASKING
ANY QUESTIONS AT ALL.
AND HE BECAME MORE ACTIVE DURING
THE PHONE ARGUMENTS AND TODAY
INDICATED THAT HE MIGHT REMAIN
ACTIVE THOUGH THEY ARE BACK TO
THE COURTROOM.
>> THOMAS HAD BEEN SILENT FOR
YEARS UNTIL COVID WHEN HE
STARTED REQUESTING QUESTIONS VIA
THE PHONE ARGUMENTS.
MATTHEW WE MENTIONED SO MANY
HIGH PROFILE ISSUES IN THIS
TERM.
DO YOU ANTICIPATE BIG SWEEPING
DECISIONS ON THESE ISSUES THAT
INVOLVE ABORTION RIGHTS,
SEPARATION OF CHURCH AND STATE
GUN RIGHTS OR MORE NARROW
RULINGS ON THE CASES?
>> WELL, THAT'S THE QUESTION
THAT A LOT OF PEOPLE HAVE BEEN
WONDERING.
I THINK IT'S USEFUL TO TAKE A
STEP BACK AND LOOK AT WHERE THE
COURT HAS BEEN AND MAYBE WHERE
IT'S GOING.
FOR THOSE OF US WHO REMEMBER
CLERKING FOR THE JUSTICE DURING
THAT TIME ON THE COURT IT WAS
OFTEN SAID THAT JUSTICE O'CONOR
AND JUSTICE KENNEDY WERE THE
SWING JUSTICES.
I DON'T THEY NECESSARILY ENJOYED
THAT TERM BUT THAT WHAT
SOMETIMES PEOPLE SAID ON 5-4
CASES THE ONES CLOSE THEY WERE
OFTEN THE JUSTICES IN THE
MAJORITY.
AFTER JUSTICES O'CONOR RETIRED
JUSTICE KENNEDY HAD THAT MAN
TELL.
AND THEN WHEN JUSTICE KENNEDY
RETIRED IT WAS THE CHIEF JUSTICE
ROBERTS WHO, I THINK, WAS MOST
OFTEN IN THE MAJORITY.
97% OF THE TIME TWO YEARS AGO HE
WAS IN THE MAJORITY IN CASES.
NOW, THE CENTER JUSTICE ON THE
COURT HAS MOVED A LITTLE BIT.
I THINK FURTHER STILL TOWARDS
MAYBE JUSTICE KAVANAUGH MIGHT
BE.
AND WHETHER THAT WILL LEAD TO
BROADER SWEEPING OPINIONS, I
THINK IS HARD TO KNOW.
BUT THERE ARE MORE WAYS TO GET
TO A BROADER OPINION WITH THE
CURRENT COMPOSITION OF THE
COURT.
>> IT SEEMS TO BE MORE OF A 6-3
CONSERVATIVE MAJORITY WHERE IN
THE PAST IT WAS 5-4 WHERE
JUSTICE ROBERTS WHO IS
JUDICIALLY CONSERVATIVE WOULD BE
THE SWING VOTE.
AZIZ HUQ LET'S TALK ABOUT CASES
GETTING A LOT OF ATTENTION AND
THAT IS THE STATE OF
MISSISSIPPI'S BAN ON ABORTION
AFTER 15 WEEKS THAT IS BEING
CHALLENGED.
WHAT ARE THE IMPLICATIONS OF A
DECISION FOR ROE V. WADE?
>> ROE V. WADE WHICH IS A CASE
FROM THE EARLY 1970s, ON
PLANNED PARENTHOOD, CASEY THE
CASE FROM THE EARLY 1990s,
TOGETHER PROTECT A WOMAN'S RIGHT
TO AN ABORTION AFTER A --
UP UNTIL THE POINT THAT THE
FETUS IS VIABLE.
IT'S GENERALLY CONSIDERED THAT
VIABILITY OCCURS AROUND 24
WEEKS.
THE STATE OF MISSISSIPPI HAS
PASSED A STATUTE THAT PROHIBITS
CATEGORICALLY WITH A FEW
RELATIVELY NARROW EXCEPTIONS,
PROHIBITS CATEGORICALLY ABORTION
AFTER 15 WEEKS RATHER THAN 24
WEEKS.
IN DOING THIS, THE STATE OF
MISSISSIPPI IS PURPOSEFULLY
CHALLENGING THE NOT JUST THE
FRAMEWORK FOR ANALYZING ABORTION
RIGHTS UNDER ROE AND CASEY IT'S
CHALLENGING THE IDEA THAT THE
14TH AMENDMENT TO THE
CONSTITUTION PROTECTS ABORTION
RIGHTS AT ALL.
SO LOOKING AT MISSISSIPPI'S
BRIEF IN THIS CASE WHICH IS
CALLED DOBBS VERSUS JACKSON
WOMEN'S HEALTH CLINIC,
MISSISSIPPI ESSENTIALLY DOESN'T
TRY AND ARGUE THE MERITS OF ITS
LAW UNDER ROE OR CASEY.
IT'S ENTIRE BRIEF IS FOCUSED
UPON THE IDEA THAT ROE WAS
WRONGLY DECIDED.
THAT'S THE ISSUE THAT
MISSISSIPPI IS TRYING TO TEE UP.
IF THE JUSTICES ENDORSE
MISSISSIPPI'S POSITION,
OBVIOUSLY THAT WILL HAVE
SWEEPING LEGAL IMPLICATIONS AT
LEAST OUTSIDE TEXAS WHERE SBA
HAS ALREADY DEFACTOD PROHIBITED
ABORTION.
AND SO WE'RE LIKELY TO SEE A LOT
OF EMPTY ABORTION CRIMINAL
STATUTES PUT BACK IN.
>> STRIKING AT THE WAY THE 73
LAW WAS DECIDED.
DOES THAT MEAN THERE IS A
POTENTIAL RULING HERE THAT WOULD
OVERTURN ROE V. WADE?
>> WELL, THAT IS WHAT THE STATE
IS ASKING FOR.
I WOULD NOTE THAT ONE
INTERESTING FEATURE OF THIS CASE
IS THAT THE STRATEGY SEEMS TO
HAVE SHIFTED FROM THE TIME IT
WAS ASKING THE SUPREME COURT TO
HEAR THE CASE TO THE MERITS
STAGE BRIEFING.
THE BRIEF NOW ARGUES THAT THE
COURT SHOULD OVERRULE ROE VS.
WADE BUT WHEN THEY WERE ASKING
THE COURT TO REVIEW THE CASE
THEY TOLD THE COURT THEY DIDN'T
HAVE TO OVERRULE ANY PRECEDENT
TO DECIDE THE CASE.
SO THERE IS A LITTLE BIT OF
INTERESTING DYNAMIC THERE WITH
THE CHANGE OF IN STRATEGY AND WE
HAVE TO SEE HOW THE COURT REACTS
TO THAT.
>> MATTHEW ANOTHER CASE GETTING
ATTENTION A SECOND AMENDMENT
CASE OUT OF NEW YORK STATE.
EXPLAIN THIS CASE AND THE
RAMIFICATIONS HERE?
>> SURE.
SO THE CASE IS ABOUT WHETHER OR
NOT NEW YORK CAN JUSTIFY
RESTRICTIONS ON CARRYING
CONCEALED HANDGUNS OUTSIDE THE
HOME, CONCEAL CARRY LICENSES AND
WHAT IT TAKES TO GET ONE OF
THOSE LICENSES IN NEW YORK.
BUT WHAT IS GOING ON FROM THE
COURT'S PERSPECTIVE IS AT THIS
POINT A FEW YEARS BACK MORE THAN
10 YEARS AGO THE COURT ISSUED A
MAJOR SECOND AMENDMENT DECISION
REGARDING DC GUN LAWS AND STRUCK
THEM DOWN.
AND SINCE THAT TIME, THERE HAS
NOT BEEN A BIG SUBSTANTIVE
SECOND AMENDMENT CASE.
AND SOME MEMBERS OF THE COURT
HAVE EXPRESSED DISSATISFACTION
WITH THAT IN OPINIONS DISSENTING
FROM THE COURT'S DECISION NOT TO
TAKE THE CASES SAYING IT HAS THE
SECOND AMENDMENT AND THE FIRST
AMENDMENT AND WE TAKE FIRST
AMENDMENT CASES ALL THE TIME WE
SHOULD WORKOUT WHAT THE SECOND
AMENDMENT REQUIRE AS WELL.
THE COURT HAD NOT TAKEN ONE OF
THOSE CASES UNTIL RECENTLY AND
THE CASE WENT AWAY FOR OTHER
REASONS AND NOW THEY HAVE TAKEN
THE CASE OUT OF NEW YORK ABOUT
CONCEALED PERMITS AND WHAT IT
COULD DETERMINE IS HOW GOOD A
RATIONALE THE STATE NEEDS TO
HAVE TO PREVENT SOMEONE FROM
CARRYING A CONCEALED WEAPON
OUTSIDE THE HOME.
>> WE'LL SEE WHAT THAT WILL BE
NOT ONLY IN NEW YORK AND ACROSS
THE COUNTRY.
AZIZ HUQ I WANT TO ZOOM OUT ALL
THE DECISIONS ARE COMING AS
TRUST IN THE COURT IN THE
COURT'S IMPARTIALITY OR BEING A
NONPOLITICAL ACTOR HAS ERODED.
YOU HAVE JUSTICES LIKE ALIT TOW,
TRYING TO DEFEND THE COURT,
CONEY BARRETT DEFENDING THE
IMPARTIALITY OF THE COURT.
TO WHAT EXTENT IS THIS DISTRUST
EARNED RIGHT NOW?
>> I THINK IT'S VERY HARD TO
CALL THE COURT AN INSTITUTION
THAT IS IMPERMEABLE THAT IS
OUTSIDE OF POLITICS.
WE'VE SEEN IN PARTICULAR IN THE
NOMINATION CONTEXT FIGHTS THAT
ARE PARTISAN IN NATURE OVER
TRADITIONAL APPOINTMENTS.
AND WHAT WE'RE SEEING IN THE
ABORTION AND THE GUN CASE IS THE
IMMEDIATE CONSEQUENCE OF
REPLACING JUSTICE GINSBURG WITH
JUSTICE BARRETT.
JUST THE FACT IS THAT THE COURT
AND THE COUNTRY ARE DIVIDED OVER
QUESTIONS OF CONSTITUTIONAL
RIGHTS AND CONSTITUTIONAL
MEANING IN WAYS THAT TRACK
PARTISAN LINES.
I THINK IT'S BETTER NOT TO BLAME
THE COURT.
AND BETTER TO THINK ABOUT THE
COURT IN THE CONTEXT OF A
COUNTRY THAT IS INCREASINGLY
POLARIZED ALONG LINES.
AND WHERE DEMOCRATS AND
REPUBLICANS HAVE VERY DIFFERENT
VIEWS WITH ABORTION, GUN RIGHTS,
RELIGIOUS LIBERTY, AND LGBTQ
RIGHTS AND THE LIKE.
>> AND THE NOMINATION AND
CONFIRMATION PROCESSES HAVE BEEN
POLITICALLY CHARGED.
JULIE M.K. SIEGEL, YOU CLERKED
FOR CHIEF JUSTICE ROBERTS.
IT'S EVIDENT THAT THIS LEGACY OF
THE COURT WEIGHED ON HIM.
HIS RULING IN THE OBAMACARE CASE
SEVERAL YEARS AGO WAS A SURPRISE
BUT SEEMED TO INDICATE HIS
BELIEF IN INCREMENTALISM ON THE
COURT.
HOW DOES THE PERCEPTION WEIGH ON
THE WAY HE MIGHT STEER THIS
COURT?
>> WELL, ONE QUESTION IS WHETHER
HE IS STILL AT THE CENTER OF THE
COURT AND IT SEEMS LIKE MAYBE HE
IS NOT.
SO WE'LL HAVE TO SEE HOW THE
COURT HANDLES THESE REALLY BIG
HOT BUTTON ISSUES THIS YEAR TO
SEE WHETHER HE IS ABLE TO PUT
TOGETHER COALITIONS FOR MORE
INCREMENTAL DECISIONS OR WHETHER
THE COURT HAS AN APPETITE TO
MAKE MORE SWEEPING, BROADER
RULINGS.
>> AND IT SEEMS LIKE KAVANAUGH
MIGHT BE MORE TOWARD WHERE THE
CENTER OF THE COURT IS AT THIS
POINT.
AND MATTHEW, THERE'S ANOTHER
VERY HEATED CASE DEALING WITH
THE SEPARATION OF CHURCH AND
STATE COMING OUT OF MAINE.
EXPLAIN THIS CASE FOR US.
>> SURE.
WELL, THIS IS A FOLLOW ON TO A
CASE THAT THE COURT DECIDED
RECENTLY COMING OUT OF MONTANA.
AND IT DEALS WITH WHEN A STATE
CAN DECIDE THAT MONEY IT
PROVIDES TO EDUCATIONAL
INSTITUTIONS CAN OR CANNOT BE
SPENT IN RELIGIOUS INSTITUTIONS.
OR I THINK THIS CASE DEALS
SPECIFICALLY RELIGIOUS
INSTITUTIONS OR INSTITUTIONS
AFFILIATED WITH RELIGION THAT
HAVE RELIGIOUS INSTRUCTION AS A
CORE COMPONENT OF WHAT IT IS
THAT THEY TEACH.
AND IN THE MONTANA CASE THAT
PRECEDED THIS ONE, THE COURT
HELD THAT MONTANA COULDN'T
LIMITS FUNDING JUST TO SECULAR
SCHOOLS IT HAD TO ALLOW FUNDING
FOR SCHOLARSHIPS AND THE LIKE
FOR RELIGIOUS SCHOOLS AND THIS
NEXT CASE IS THE NEXT STEP
FORWARD BECAUSE THEY LEFT OPEN
IN THE MONTANA CASE WHAT HAPPENS
IF IT'S NOT JUST A RELIGIOUS
SCHOOL, BUT ONE WHERE THERE IS
RELIGIOUS EDUCATION.
>> SO MANY HIGH PROFILE CASES TO