AND

MAJOR RULINGS FROM THE U.S.

SUPREME COURT AS IT RAMPS UP

SESSION.

>> PROTESTERS

AT ABORTION

CLINICS CANNOT BE KEPT OFF

PUBLIC PROPERTY

AND PRESIDENT

OBAMA OVERSTEPPED HIS EXECUTIVE

POWERS

AND MAKING SOME RECESS

APPOINTMENTS.

THOSE WERE HEADED DOWN BY THE

U.S.

SUPREME COURT AS THE HIGH

COURT

NEWS THE END OF ITS TERM.

THAT LEAVES TWO

CLOSELY WATCHED

CASE IS YET TO COME

ON MONDAY.

JOINING US TO SHARE THEIR

THOUGHTS

ARE HAROLD KRENT, DEAN

AND PROFESSOR OF LAW

KENT

COLLEGE OF LAW, JOCELYN FLOYD,

SPECIAL COUNSEL AT THE

CHICAGO-BASED NATIONAL PUBLIC

INTEREST LAW FIRM

THE

THOMAS

MORE SOCIETY AND STEVE SCHWINN

THE COFOUNDER AND CO-EDITOR OF

THE CONSTITUTIONAL

LAW.

WELCOME TO CHICAGO TONIGHT.

WE HAVE QUITE A CASELOAD IN

FRONT OF US.

AND JOCELYN FLOYD, GOING TO

BEGIN

WITH YOU BECAUSE THE

THOMAS MORE SOCIETY

FILED AN

AMICUS BRIEF THE DECISION

INVOLVING PROTESTERS

AT AN

ABORTION

WITH IT.

GIVE US A BRIEF SUMMARY?

IT INVOLVES A MASSACHUSETTS

LAW THAT PROHIBITED ANYONE FROM

STANDING OR STAYING

IN PUBLIC

PROPERTY

SIDEWALKS, RIGHTS OF

WAY WITHIN 35

FEET OF THE

OCCURRENCE OF ANY ABORTION

CLINIC.

THEY DECIDED THIS WAS OVERBROAD

AND UNNECESSARY TO

REACH THE

AIM THE MASSACHUSETTS WAS

TRYING TO DO

WITH THE LAW IN

THE FIRST PLACE.

>> YOUR BRIEF

REFLECTED WITH

THE COURT DECIDED?

YES.

>> IS THIS A VICTORY

OF FREE

SPEECH FOR ANTIABORTION

PROTESTERS ARE BOTH?

BOTH.

THE CASE STILL STRONGLY

WITH

THE CONCEPT OF TRADITIONAL

PUBLIC FORUM THAT WE HAVE HELD

THAT STREETS AND SIDEWALKS OF

THE PLACE FOR PEOPLE TO SPEAK.

THIS IS THE PUBLIC SQUARE WHERE

PEOPLE CAN EXPRESS

OPINIONS.

WHAT MASSACHUSETTS HAD DONE

CLOSED AN ENTIRE SECTION

THIS TRADITIONAL FORM FOR

SPEECH TO

ESSENTIALLY TO ANY

SPEECH

IT WAS TOO SPECIFIC

SPEECHES

ON SPECIFIC ISSUES.

>> THE SUPREME COURT WANTED TO

GO FURTHER

AND SAY THIS LAW

TARGETED PROTESTERS

VIEWPOINTS.

YOU AGREE?

>> I THINK I AGREE WITH THE

DECISION.

IT'S A MUTUAL LAW

AND IS SPACE.

WHICH IS WHY THE COURT

COMMENDED

AND 901.

IN THE LAST WEEK

OF THE COURTS

TERM THREE IMPORTANT DECISIONS

ALL CAME OUT IN

90 EVEN THOUGH

HE POINTED OUT

THERE WERE

DIFFERENCES IN OPINIONS

RAISED

STEVE SCHWINN, GIVE US YOUR

THOUGHTS ON THIS.

SOME SAY THIS WILL HAVE FATHER

RANGING IMPLICATIONS THAN

ABORTION CLINICS

HOWEVER THEY

WANT TO CLASSIFY THEMSELVES

THIS COULD OPEN

THE GATES, IF

YOU WILL, TO PROTESTERS

AS SUCH

THINGS AS THE NATO SUMMIT WE

HAD IN CHICAGO AND AT OTHER

PUBLIC FORUMS.

>> I THINK IT IS A STATEMENT

FOR

FREE SPEECH.

FIRST OFF, THERE IS AN OPINION

OUT OF COLORADO

THAT PRESERVED

THESE BUBBLES

AROUND PEOPLE

TRYING TO COME INTO AND OUT OF

A CLINIC.

THE COURT DID NOT OVERTURN

THAT

DECISION.

THE SECOND THING, THE COURT

THIS IS AN OPINION WRITTEN BY

CHIEF JUSTICE ROBERTS THE

COURT GAVE A ROADMAP FOR STATE

THAT WANT TO PRESERVE THE

RIGHTS OF PEOPLE GOING IN AND

OUT OF THE CLINIC TO GET AN

ABORTION

>> GIVE US DETAILS?

>> WHAT SHE'S

JUSTICE ROBERT

SAID

IF THE STATE WANTS TO MAKE

ILLEGAL TO OBSTRUCT SOMEBODY

FROM GOING INTO A CLINIC,

THEY

CAN DO THAT IN CERTAIN WAYS.

THEY CAN STILL

DO THESE BUBBLE

ZONES.

JOCELYN FLOYD, WHAT DO YOU

THINK ABOUT THAT, IS THAT AN

IMPEDIMENT OR A LOOPHOLE

THIS RULING?

>> I THINK THERE IS A

DIFFERENCE BETWEEN OBSTRUCTING

THE ENTRANCE AND NOT BEING

ALLOWED TO APPROACH SOMEONE

THAT IS WHAT THE COURT SAID IN

ITS OPINION

OF THE EFFECT OF A

BUBBLE ZONE.

THE BUBBLE ZONE

YOU CAN'T GET

CLOSER TO 18 FEET,

AS THEY

APPROACHED THE ENTRANCE.

I THINK THE IMPACT OF THE FREE

SPEECH ON FREE SPEECH

THE

SIDEWALK COUNSELORS ARE TRYING

TO HAVE ONE-ON-ONE

ILOG AND

THAT IS SOMETHING MOST

EFFECTIVE

AT A CLOSE RANGE.

ARE TRYING TO DISCUSS THINGS

WITH PEOPLE, NOT STOP THEM OR

BLOCK THEM, BUT PERHAPS OPEN

THEIR EYES

TO ALTERNATIVE

OPTIONS THEY MIGHT NOT BE AWARE

OF.

WHEN THEY'RE FORCED TO DO IT

FROM A DISTANCE

THEY ARE FORCED

TO YELL AND IT BRINGS THE

ELEMENT OF INTIMIDATION AND

HARASSMENT

IF THE STATE WANTS

TO AVOID.

THEY SIMPLY

ELIMINATE

INTIMIDATION AND HARASSMENT

THAT ALLOW FREE SPEECH THAT IS

TOTALLY ACCEPTABLE POLICY

>> HOW DOES ONE

GO ABOUT

LEGISLATING THAT?

>> THE BUBBLE ZONE

ID IS FINE

BUT YOU CAN ALSO SAY ANYBODY

WHO HARASSES OR LIMIT

ALLOW

FREE FLOW OF TRAFFIC

INTO

THE CLINIC.

THERE ARE MODELS

WHICH THE

COURT SEEMED TO EMBRACE.

LET'S GET TO THIS DECISION

WHICH WAS UNANIMOUS

INVOLVING

THE OBAMA APPOINTMENTS DURING

RECESSES OF THE SENATE.

AGAIN, THEY SAID HE DID NOT

ALLOW ENOUGH TIME

FOR CONGRESS

TO GO INTO RECESS

HE FOR MAKING

THESE APPOINTMENTS.

WHAT HAPPENS WHEN THE

PRESIDENT WANTS TO APPOINT

SOMEONE TO A VACANCY IN OFFICE

IN THE SENATE IS NOT IN

SESSION?

THE FOUNDERS OF THE

CONSTITUTION SAID THERE IS A

LIMITED POWER

TO MAKE A RECESS

APPOINTMENT.

BUT WHAT DOES RECESS MEAN?

DOES IT MEAN

IN THE MIDDLE OF

THE SESSION?

IN ONE PART OF THE RULING

RECENTLY THE COURT HELD A

RECESS

COULD BE ANYTHING AS

LONG

AS IT IS BETWEEN SESSIONS

ARE IN BETWEEN SESSIONS THE

PRESIDENT HAS THE POWER TO MAKE

AN APPOINTMENT

IN THOSE

RECESSES.

THE SECOND THING THE COURT SAID

THE VACANCY CAN BE BEFORE OR

DURING THE RECESS THE PRESIDENT

HAVE TO HAVE THESE APPOINTMENTS

MADE.

UP TO HERE,

SOUNDS LIKE A BIG

VICTORY FOR THE EXECUTIVE

BRANCH.

BUT

IT IS UP TO THE SENATE A

LARGELY TO DECIDE

WHAT IS A

RECESS.

THERE, THE QUESTION

IF THE

SENATE WANTS TO HAVE

A KIND OF

FAKE,

FALSE PROFORMA

RECESS

SOMEBODY HITS A GAVEL

AND NO

ONE IS THERE, THAT IS OKAY,

BECAUSE

THEY ARE AVAILABLE TO

DO BUSINESS

THEY ARE THEREFORE

INVALIDATED

THE PRESIDENT'S

RECENT

STATE OF RECESS

APPOINTMENTS.

IT'S A SPLIT THE BABY

APPROACH

REFLECTS THE REALITY OF THE

COURT WANTS TO DO IS UNRAVEL

THE ISSUE OF HAVING THE SENATE

AND PRESIDENT WORK TOGETHER

>> STEVE SCHWINN IS A MAJOR

CURTAILING OF PRESIDENTIAL

POWER?

I DON'T THINK SO.

THE ONLY THING I WOULD ADD

THE SENATE CHANGE THE

FILIBUSTER FOR THE END OF LAST

YEAR

>> THIS WAS DEMOCRATS THAT LED

THE CHANGE?

>> THAT'S EXACTLY RIGHT.

THE CHANGE TODAY WE SEE IS

GOING TO HAVE AN EFFECT IF

REPUBLICANS CONTROL THE SENATE

AND IF THEY DECIDE

TO HAVE PRO

FORMA SESSIONS

IN A WAY THAT

FRUSTRATES PRESIDENT OBAMA IS

ABILITY TO MAKE APPOINTMENTS IN

A RECESS

BUT THE FILIBUSTER IS

A MECHANISM THE MINORITY HAS

BEEN USING TO FRUSTRATE

THE

PRESIDENT'S ABILITY

TO MAKE

APPOINTMENTS

ANYWAY AND THAT

HAS FORCED HIS HAND TO USE

THE

RECESS APPOINTMENT IN THE FIRST

PLACE.

WITH THE CHANGE IN THE

FILIBUSTER RULE IT 10 PERCENT A

LITTLE BIT .

>> HAROLD KRENT,

IS THIS PART

OF THE OBSTRUCTIONISM THAT HAS

BEEN LEVELED AGAINST THE

REPUBLICANS AND IS THE SUPREME

COURT SIDED WITH THEM

EVEN

THOUGH THIS IS UNANIMOUS,

ESPECIALLY THE MORE

CONSERVATIVE

JUDGES, THAT

IMPEDE HIM

GETTING THINGS DONE?

>> I DON'T THINK SO

HE CAN SET

THINK BOTH SIDES

RECESS

APPOINTMENTS.

WHAT IS INTERESTING ,

AND THE

JUSTICE SCALIA DOES CONCUR IS

IN THIS CASE, HE HAS BEEN NO

BE IN THE EXECUTIVE

POWER CAMP

SO THIS IS A DISTANCING AWAY SO

THERE IS A NOTION OF A SHIFT A

LITTLE BIT

IN THE TERMS OF THE

FLOOR CONCURRENCE.

>> I'M GOING ASK YOU TO GIVE

A BRIEF SUMMARY OF RILEY

VERSUS THE STATE OF CALIFORNIA

THAT SAID THE GOVERNMENT IS A

WANT

FOR SEARCHING YOUR CELL

PHONE.

>> POLICE ARREST SOMEBODY

THEY

CAN DO A SEARCH INCIDENT TO

ARREST WITHOUT GETTING

WARRANT.

WHAT THE SUPREME COURT WILL

DONE IS CAN THEY

DO SOMETHING

LIKE CELL PHONE, ONE IS A SMART

PHONE CONTAINS

VAST AMOUNTS

INFORMATION

THE OTHER IS AN

OLD-STYLE FLIP PHONE.

WITH THE COURT DIDN'T DO

DISTINGUISH BETWEEN THE TWO.

IT SAYS THESE FONTS CONTAIN

MUCH PRIVATE INFORMATION THAT

FOR THE POLICE TO GO INTO THEM

IN A REGULAR ARREST IS A HUGE

INVASION OF PRIVACY

AND THERE

IS NO GOOD REASON TO DO THAT

BECAUSE THE GOVERNMENT

COULD

GET A WARRANT.

>> THAT IS MY QUESTION, IS IT

THAT BIG OF A DEAL

BECAUSE

GETTING A WARRANT FOR THE PLACE

IS NOT A BIG DEAL?

>> I THINK WHAT POLICE WILL DO

IS DROP IT

IN A FAIR DAY BAG

GO GET A WARRANT AND EVERYTHING

WILL BE FINE.

DOES THIS APPLY TO THE NSA?

I THINK IT IS TRUE IT WILL

NOT IMPEDE

POLICE

INVESTIGATION.

IT TAKES DOCTRINE THAT WERE

USED

IN TERMS OF INCIDENT OF

ARREST AND IT SAYS IT DOESN'T

APPLY

INTO THE DIGITAL WORLD.

WE ARE NO LONGER GOING TO APPLY

OUR DOCTRINE EVEN KNOW THE

PERSON IN THE BOOK AND

BRIEFCASE SHOULD BE TREATED

JUST LIKE A SMART PHONE.

WHAT THE COURT IS NOW

RECOGNIZING

THAT MAYBE WE

SHOULD APPROACH DIGITAL DATA

WEATHER FROM AN ESSAY

OR POLICE

OR HELD BY AN SEARCH

PROVIDER

OR IN A CLOUD

A LITTLE

DIFFERENTLY AND PERHAPS GIVE MY

SCRIPT AND HE CHOOSE SEARCHES

>> DOES IT APPLY

TO THE NSA?

IT COULD.

THIS WAS ONLY

ABOUT POLICE IN

AREAS WHERE THERE IS NO WARRANT

REQUIRED.

NSA

USUALLY DOESN'T

EVEN WANT

TO GET INFORMATION

ON THIRD

PARTIES.

LET'S LOOK AHEAD TO MONDAY

THE LAST DAY OF THE TERM.

WE'RE CERTAIN THAT IS WHEN THEY

ARE GOING

TO GO ON THE HOBBY

LOBBY

CASES.

>> THESE ARE CASES WITH

REFERENCE TO THE HHS MANDATE

REQUIRING EMPLOYERS TO PROVIDE

CERTAIN CONTRACEPTIVE

COVERAGE

IN THEIR INSURANCE PLANS

FOR

THEIR EMPLOYEES.

WITH TWO SPECIFIC COMPANIES

THAT CLOSELY HELD,

FAMILY OWNED

AND THAT HAVE RELIGIOUS

OBJECTIONS TO SOME OF THESE

CONTRACEPTIVES.

>> THE THOMAS MORE SOCIETY

FILED AN AMICUS BRIEF

SUPPORT, CORRECT?

>> YES.

WHAT DO YOU ANTICIPATE

THE

DECISION IS GOING TO BE?

>> I DO NOT LIKE TO PREDICT

FUTURE, BUT WE HOPE THEY WILL

COME OUT

IN FAVOR OF RELIGIOUS

FREEDOM.

THESE ARE CLOSELY HELD

CORPORATIONS, FAMILY OWNED

BUSINESSES,

AND THESE FAMILIES

HAVE

DEEPLY HELD CONVICTIONS

AND WANT TO PROVIDE INSURANCE ,

GENEROUS BENEFITS

BUT THEY ARE

BETWEEN A ROCK AND A HARD

PLACE.

SO THEY HAVE TO DROP ALL

INSURANCE COVERAGE COMPLETELY

PAY A FINE

>> STEVE SCHWINN, YOU'RE

SHAKING YOUR HEAD.

>> IT'S NOT AN EMPLOYER

MANDATE IT'S AN EMPLOYEE

ON THE

INSURANCE CARRIER.

FOR AN ORGANIZATION LIKE HOBBY

LOBBY

THE ANSWER IS QUITE

SIMPLE IF THEY DON'T WANT TO

PROVIDE THIS

THEY CAN DROP THE

INSURANCE FROM THEIR EMPLOYEE

PLAN AND SIMPLY RAISE THE

SALARY ,

ALL INDICATIONS ARE

THAT SOLUTION MIGHT BE CHEAPER

THAN PROVIDING

THE INSURANCE.

>> HOW DO YOU THINK THE

JUSTICES

WILL RULE?

>> I THINK

IT WILL BE VERY

>> HAROLD KRENT,

DO YOU WANT

TO CHIME IN?

>> I DON'T UNDERSTAND THE

NOTION, THAT HAVE SOULS,

SPIRITS

AND RELIGION.

>> IF THEY

IF A CORPORATION

AND HAVE A MINORITY RACE WHY

CAN'T IT HAVE A RELIGION?

WHO CONSTITUTES THE

COMPANY?

>> WHEN YOU HAVE WE'RE NOT

TALKING ABOUT FACEBOOK CORP.

ON THE STOCK EXCHANGE.

WHEN YOU ENTER THE BUSINESS

PLACE

YOU DO NOT HAVE TO GIVE

UP YOUR IDENTITY

OR RELIGION.

>> THE OWNERS OF THE

CORPORATION ARE ACTING IN A WAY

THAT WORKS

TO THE DETRIMENT OF

THEIR VERY EMPLOYEES SIMPLY

PRESERVE THE RELIGIOUS RIGHT.

>> NO, THEY ARE NOT.

THEY ARE TRYING TO PROVIDE

INSURANCE TO THEIR EMPLOYEES

AND GENEROUS BENEFITS

IF THEY

ARE FORCED TO DROP THE

INSURANCE

AND SIMPLY RAISE THE

SALARIES,

IT HURTS THEM IN

GETTING GOOD EMPLOYEES AND IT

HURTS THEM IN PROTECTING THEM.

>> WE HAVE TO END IT HERE.

WE GOT TO THE LIVELIEST

PART OF

THE DISCUSSION AND MAYBE WHEN A

DECISION COMES DOWN