Nearly 75 years after the Supreme Court infamously deferred to intentionally misleading government claims of military necessity in Korematsu v. United States, the Court in Trump v. Hawaii upheld on rational basis review the constitutionality of President Trump’s “travel ban.” This was his third attempt at effecting, in Trump’s own words, a “complete shutdown of Muslims entering the United States.” More recently, the President has asserted “national security” as a justification for imposing tariffs on steel coming from Canada and has relied upon dubious claims of a national security crisis to invoke the National Emergencies Act of 1976 to unlock other potential sources of funding for his border wall. Unsurprisingly, litigation has ensued. Principles of judicial deference, particularly in the context of national security, are rooted in the acknowledgment that the executive branch is more expert, experienced, and politically accountable than the judiciary. But is judicial deference appropriate when that expertise isn’t consulted, or in fact, repudiates the executive’s claims? Should deference give way when civil rights are in jeopardy? Should there be a more considered approach to when and how courts defer to the executive in these circumstances?
SPEAKERS
Hon. John Tunheim, Chief Judge, U.S. District Court for the District of Minnesota; Moderator
Baher Azmy, Legal Director, Center for Constitutional Rights
Jamil Jaffer, Founder and Executive Director, National Security Institute, George Mason University Antonin Scalia Law School
Mary McCord, Senior Litigator, Institute for Constitutional Advocacy and Protection, Georgetown University Law Center
Shirin Sinnar, Associate Professor and John A. Wilson Distinguished Faculty Scholar, Stanford Law School
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Providing exemptions from neutral laws for religious objectors used to be at the forefront of the progressive agenda. In fact, the leading case in this area was Sherbert v. Verner, a decision authored by Justice Brennan. Employment Division v. Smith, the case that overturned Sherbert, was written by Justice Scalia. Conservatives have since picked up the mantle of advocating for religious exemptions both under the Religious Freedom Restoration Act and the Free Exercise Clause. How should progressives respond to conservative efforts to reinvigorate what was once progressive doctrine? Should progressives consider using RFRA to advance their own causes, for example, to assert a right to assist undocumented immigrants or to make decisions about their intimate lives? What would a contemporary progressive view of free exercise look like?
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It has been 10 years since President Barack Obama signed into law the Lilly Ledbetter Fair Pay Act and more than 20 since the Beijing World Conference on Women pledged to remove all economic, social, cultural, and political obstacles to women’s participation in public and private life. In the last year, we’ve seen American women win more seats in the House of Representatives and in state and local government than ever before, and the Equal Rights Amendment has now been ratified by 37 states. Yet, many women continue to face serious obstacles in the workplace, from gender and pregnancy discrimination, to sexual harassment; and the United States remains the only country in the developed world that does not mandate paid leave for new mothers. The threat to women’s reproductive rights and health is also back in earnest with a conservative shift in the courts. And all these issues disproportionately impact women of color and low-income women. What legal strategies can be employed to improve gender equality—for all women—and what are the likely obstacles from the courts, the Trump administration, and state and local governments?
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From Siri to smart cars to facial recognition that forestalls terrorist attacks, artificial intelligence (AI) is already affecting everyday life, whether we realize it or not. AI tracks and predicts individuals’ shopping preferences, political preferences, and locations. But we do not understand the full range of rewards and risks that arise from the use of this technology and the data accumulation necessary for it to work effectively. Computers make trillions of decisions each day in search results and newsfeeds. Do these decisions merit First Amendment protection? Should a computer’s prediction about an individual’s propensity to commit a crime be admissible as evidence at trial? If a software program develops racial biases, could the program — or the programmer — be held liable for unlawful discrimination? And does it, or should it, make a difference if issues related to AI arise in the United States, the United Kingdom, or China?
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Walter Dellinger moderates a panel of three distinguished federal judges as they reflect on their experiences in the law and how one's role defines how they engage with the law.
Featuring:
Hon. David Barron, U.S. Court of Appeals for the First Circuit
Hon. Pamela Harris, U.S. Court of Appeals for the Fourth Circuit
Hon. Sri Srinivasan, U.S. Court of Appeals for the D.C. Circuit
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Washington AG Bob Ferguson has been on the front lines of legal challenges against the Trump administration, including successfully blocking the first travel ban against seven Muslim-majority nations. His office has filed more than 30 lawsuits against the Trump administration and won more than 20 legal victories against the federal government.
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