Advisory Opinions - A Conversation with Chief Judge Sutton

Episode Date: May 16, 2022

It’s a special edition of Advisory Opinions as David and Sarah talk to Chief Judge Jeffrey Sutton of the 6th Circuit Court of Appeals. The discussion ranges far and wide but includes a focus on a subject we don’t talk enough about: state constitutional law.   Show Notes: -“51 Imperfect Solutions: States and the Making of American Constitutional Law” by Judge Jeffrey Sutton -“Who Decides?: States as Laboratories of Constitutional Experimentation” by Judge Jeffrey Sutton -Revisionist History: “The Tortoise and the Hare” Learn more about your ad choices. Visit megaphone.fm/adchoices

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You ready? I was born ready. Welcome to a special edition of the Advisory Opinion Podcast. I'm David French with Sarah Isker, and we're broadcasting. Do you say broadcasting when you're podcasting? We're broadcasting from a hotel in Miami at an undisclosed location because we have a special guest. No, it's not because we have a special guest. And we have a special guest. No, it's not because we have a special guest and we have a special guest today. Chief Judge Jeffrey Sutton from the Sixth Circuit Court of Appeals, my home circuit.

It covers Michigan, Ohio, Tennessee and Kentucky. Right. Yes, exactly. Yeah. So if it sounds a little odd, it's because we're in a hotel. But because we're in a hotel, we're delighted we get to have our Judge guest. So welcome. Thank you for inviting me. We have so many things to talk about with Judge Sutton. Two books that he has authored, Rights and Structure of the Constitution. But also, you may recognize Judge Sutton's name from his mention on the Malcolm Gladwell podcast about law school. His Wikipedia entry also has things that we're simply going to have to talk about. He was born in Saudi Arabia and spent a summer at an archaeological dig site

in Jordan. So endless things to discuss about the life and times to be Judge Sutton. Well, does being born in Saudi Arabia make you a joint Saudi-U.S. citizen? I looked into that. As a youth, I was very eager to make the American Olympic team. And one look at me would make you appreciate that that's unlikely. It did occur to me I might be able to make the Saudi ski team. So I did look into it. At the time, I don't know if this is still true, you had to be a Muslim to be a citizen. Interesting. That was not

a price I was willing to pay. So the Saudi ski team, very similar to the Jamaican bobsled team in my mind. Yeah. Is there a Saudi ski team? I'm very doubtful. He would have been the captain of the Saudi ski team. I thought I could make it if there were one. So I guess that's the way I would put it. I think that's fair. I think that's fair. So let's talk about the books. You've written two books, 51 Imperfect Solutions, States and the Making of American Constitutional Law.

And your most recent book that just came out, hardcover Kindle available on Amazon, Who Decides? States as Laboratories of Constitutional Experimentation. And as we talked about a little before the pod, while many people are super psyched to talk about our sort of rights part of the constitution, David and I are process nerds. We're structure nerds, all about these sort of separation of powers and federalism on sort of two different axes that are supposed to act to create self-government and perpetuate self-government. But I have to ask, you have a full-time job and this is not a small book. This is like, you know, you could whack someone with this book. How did you think about the idea of taking what little free time you have to do this? Why this?

How did the process go? Did your clerks help? Let's talk about the process of your book on process. Well, so the first book has one story, the second, a different one. The first book, I've got to credit Justice Breyer with some very good advice. He said, Jeff, soon after I become a judge, you're going to get a lot of invitations to speak. My first piece of advice is just say no. But once you can't do that anymore, pick a topic for a year that you like, keep giving speeches on it. You'll learn a lot. And by the

end of it, you'll have an article and possibly a chapter of the book. You decide. And then the next year, do a relate, but make it related. So something you're interested in. And he said, by the end of seven years, you'll have a book. And that's exactly what happened with 51 Imperfect Solutions. I was really interested in state constitutions because I'd been the Ohio Solicitor General. I'd been teaching state con law for about 25 years. And he was just totally right. It's a really clever thing to do. And I was really happy I did it. That's story number one. Story number two is when you write a book, you're inclined to go talk about it. Or if you accept invitations to speak, you're inclined to speak about the book. And so I spoke to a lot of state court judges, a lot of lawyers, a lot of professors,

and I learned all the mistakes I'd made, like all these like, oh, wait, that's an even better idea. And then I wanted to tell the second half of the story, which is not just rights, but structure. So that book was all a function of COVID. So I've been speaking for two to three years. I've been refining the arguments and ideas and shifting more of the discussion to structure, which is where I agree with you both. It's where all the action is. And so March of 2020, I'm going down to Florida for spring break with the family. And I was deciding that that was when I was going to start taking these speeches and start, you know, putting the book together. Boom, COVID hits. And I travel a lot. And I suddenly had 30, 40% free time. I mean, 30, 40% of my schedule is

just totally open. I had no idea what to do with myself. And so I wrote the second one in six months. And I can't use law clerks, unfortunately, because I have very good law clerks. So it's a real regret of mine. Now, I do share drafts with them. My theory is that they're allowed to share drafts of articles and books with me. I'll give them feedback. And then I think they can do the same. That seems fair to me. I do use interns, which aren't federal government paid. So, yeah, sad to say the books would be better if I could have used my clerks. So what what prompted the interest in state state constitutions? You know, I have found I find state constitutions fascinating. A lot of my practice before I got involved, before I started doing First Amendment cases was focused on our Kentucky Constitution. I was in Kentucky and, you know, you meet a whole host of Kentucky constitutional scholars and it's a fascinating history, but it was very directly relevant to me because I'm practicing. It's governing the rights of citizens in the states. What made you interested in covering this and sort of describing this nationally?

Yeah, two basic ideas. I knew nothing about them in law school. It was not taught in law school, as it's not taught in most law schools. That's part of my mission to change that. And suddenly I become the Ohio Solicitor General. And perhaps because I didn't have a class in state constitutional law, I could teach a semester long class on state constitutional law based solely on cases I lost in the Ohio Supreme Court under the Ohio Constitution. So, and these were big cases. So school funding, Kentucky had a school funding case. I lost the vouchers case under state constitutional law, tort reform, criminal procedure cases. And so part of me might say, well, Jeff, I would think that would lead you to be disinclined to think state constitutions were a good idea.

It didn't lead me down that road. It made me think, why are we not talking about this? Why this single story? I would say danger of a single story of obsessing just about one court, the U.S. Supreme Court, one constitution, the U.S. Constitution. The second impulse is my day job being a federal judge where we never get state constitutional issues. But my concern about the federal courts in general and the U.S. Supreme Court in particular is we Americans are basically asking too much of them. No court in world history has embraced judicially enforceable rights more than we Americans, particularly more than the federal courts. And that's all well and good if we can figure out a way to select the judges and justices

to handle that job. And that's getting more and more tricky because at the same time, the federal courts in this country embrace judicially enforceable rights more than any country in world history. They're interpreting a constitution that basically can't be amended. It requires three quarters of the states to amend it. So that would mean to correct a decision that people don't care for. I think the Australian constitution maybe requires a 75 percent vote. But after that, it's really up there in terms of difficulty of amendment. And of course, the federal judges and justices are

life tenured. So that creates a tremendous amount of pressure, at least for people politically who disagree with the decision. And I think that's probably not sustainable. And I wonder, why are we not embracing the Brandeis idea of using state legislatures was Brandeis' focus as laboratories of experimentation? Why not extend that idea to the state court? I mean, we've got 50 state courts. There are 50 state constitutions. They're all different. They protect many of the same ideas.

And when a state or local law, state or local criminal prosecution is something your clients state constitutions, they're all different. They protect many of the same ideas. And when a state or local law, state or local criminal prosecution is something your client's unhappy with, why not invoke that second shot? I mean, it's just a math problem. Isn't two shots better than one? Yeah, fascinating. It's interesting. The state constitution issue might get suddenly a lot more relevant if this Dobbs majority leaked Dobbs majority opinion holds, then people will be going to state courts.

And in fact, one of the one of the issues we've talked about, free speech of teachers is getting a state constitutional treatment in Virginia. There's an alliance defending freedom case filed. And I remember when they filed it, I thought, how are they getting past Garcetti? And then I looked, all under the Virginia Constitution. Yeah, so, I mean, this is a really, everybody believes in state constitutions, they just don't know it. So for conservatives who believe in original public meaning, you can't do that or think that

and not believe in state constitutions because the state constitutions are the source code for everything in the federal constitution, perhaps save for federalism. So right structure all comes out of the state constitutions. But the more important point, more responsive to the initial point of your question, when the U.S. Supreme Court puts up a big red stop sign and they say, you know, we're just not open for business here. The right is not covered under the federal document. Rucho is a very good example of that. I'll circle back to abortion, but Rucho has already happened. That was 2019.

The U.S. Supreme Court for 20 years had struggled over whether to, the 14th Amendment placed limits on extreme partisan gerrymandering in the state governments. And they've really struggled to figure out what to do with this. And finally, in Rucho, Chief Justice Roberts writes, I think, a really good, I mean, he's at the top of his game. He's writing for the five. Justice Kagan's writing for the dissent. There's only two opinions.

That doesn't happen very often. And I think it's because they're both very good opinions. They really illustrate the debate. Now, the Roberts side comes out on top, which means there is no 14th Amendment right. And what's happened since? I mean, the states have amended their state constitutions to try to address extreme partisan gerrymandering. You've had state court decisions addressing its state statutes.

And, you know, God only knows what's going to happen in Dobbs. But if it does either say we're not open for business or it says our role here is limited, the spotlight is going to shift to the states and that state legislatures, that state courts. And there actually already are some state court decisions that have addressed some of these issues. In your example, in the First Amendment, I mean, there's already a path on the First Amendment, just a different clause. So after Justice Scalia's opinion in Smith, which to some people under-enforced free exercise, the states responded very aggressively. So my state, a case called Humphrey's, they rejected Smith under the Ohio free exercise guarantee. And, you know, the other thing people don't appreciate is the state guarantees are often have different words,

more expansive language. And this is a, I bet Kentucky fits this. I know Ohio does. The Ohio free exercise guarantee not only includes that language, it is a right to conscience. I mean, surely that goes beyond exercise. And so, you know, it's really surprising to me, you know, most American lawyers like to win, their clients even more so. Why wouldn't you take this second shot, particularly since it might actually be an easier shot, you know, a little closer to the hoop and a bigger hoop. All right, let's stick on the federalism. I call this the vertical axis, right? Because federal government sort of on top, states below, maybe voters as sort of the third layer of that tasty cake. How much of this failure to focus on the state constitution and state legislatures do you think comes from the 17th Amendment, which was the direct election of

senators for listeners? We used to have was the direct election of senators for listeners. We used to have these state legislatures pick senators for their state because the senator represents the state, not the people, under sort of our original theory of the Constitution. 17th Amendment changes that, so then it becomes a direct election of the senators by the people of the state. So they're elected in a similar fashion to House of Representatives, though they're elected statewide instead of by congressional district. Yeah, so you go directly to the people as opposed to through the state legislature. Which gave the state legislature enormous power.

Previously, exactly. So I really do think that makes a difference. It also fits, one of the things I so enjoyed about looking at the structure side of this in Who Decides was appreciating two really interesting kind of historical developments. So on the federal side, you've got two things going on that I think are creating a lot of tension. One is the federal power, if we think of it in zero-sum terms, the federal slice just has grown throughout history. The 17th Amendment has facilitated that, I suppose, and it's given it a slightly democratic feature because it's direct election.

You're not going to this process through the state legislatures. But the federal power has really grown, and particularly the last, let's say, 90 years, I mean, since the New Deal. But most of the federal government structure is stuck in this 18th century, pretty non-democratic model, right? I mean, the Electoral College, two senators per state, judicial review, the most non-democratic thing you could have, particularly if it's used aggressively, as it has been since the 60s.

Now, contrasts that are juxtap it to what's gone up the states. So it's from the states, because the federal constitution is so hard to amend, they rarely respond to new developments. The state constitutions can be amended with 51%. So they're like this perfect archaeological view of what Americans want at different parts in American history. Well, what do they want? They want to vote more often for more people and more things. And so Jacksonian, more people can

vote. And then they just said, well, why don't we vote for our judges? Hey, why just vote for governors? Why not AGs, Secretary of States, auditors, superintendents of insurance? And then it ends where you might expect it, direct democracy, with a progressive era where half the states now can directly either overrule a statute by the legislature or directly amend a state constitution. And that just seems so strange to me. The states get more and more democratic with less power. The feds are getting more power, with less power. The feds are getting more power and they're largely stuck in a very non-democratic mold. That seems like it's bound to generate tension. One question that I enjoy quizzing law students on, or the law curious, so I'll give listeners

a second to think in their head. What is a right not incorporated against the states in the Bill of Rights? Okay, so you've had a chance to think about it. It's the grand jury. That's right. It's the grand jury. It's really hard to think of. I didn't know I was going to be so stressed out. No more questions.

And certainly not cold calling. Although this isn't cold calling, but there's only one student. So it is effectively cold calling. I don't think we should be doing this. Extra Socratic. No, it's not Socratic. That is full calling with one person. Socrates only had one student.

Well, you can turn to David next time for a little question. Judge, I'm glad you spoke up because I was saying, uh, okay. So I'm hoping that you can explain. Most people don't realize that the Bill of Rights was really only supposed to bind or did only bind the federal government against infringing on your rights. So the states could infringe all they wanted on your Bill of Rights constitutional rights. And often did. And often did. You have the 14th Amendment and we start the long journey through the incorporation doctrine. Most recently, we just had a unanimous

jury verdict incorporation. Before that, of course, we had the Second Amendment incorporation case. So incorporation still very much like moving lava flow. It moves slowly, but it's still there. How does that interact on the federalism side between states and the federal government if states aren't getting maybe to experiment as much, except if whether they want to have grand juries. That's all that's left. Yeah. So this is a two directional point. So on one hand, incorporation, which mainly happens in the 60s, right? So the Bill of Rights was applied to the federal government, federal laws only, and then incorporation 50s, 60s, and then concluding

Ramos, McDonald. And it's almost, as you say, it's almost done with everything. So on the one hand, that contributes to the story narrative of more and more federal power, right? That's federal judges, federal courts, that's part of the federal government. So that's consistent with the federal power point. But the other thing about incorporation that to me is kind of fun in the other direction is when I talk about state constitutions, people are like, Jeff, you're making it sound like you've come up with some new idea. We've had this government for 245 years. I'm kind of skeptical that you suddenly hit on something that's that new, like American lawyers aren't that stupid. And, you know, the answer is incorporation. It is a new idea. So the idea of two shots

answer is incorporation. It is a new idea. So the idea of two shots is very new. It really is. We didn't have that through most of American history. You had the federal sphere, federal courts, bill of rights, state, local laws, or state law. You went to your state constitution and state courts and, you know, never the twain shall meet. So incorporation suddenly says to state and local laws, I have two options here. The state option, even though you now have two shots after, say, the 60s, no one really cared because federal courts were very open for business, arguably on a mission. So it would be malpractice to think, oh, let's use Jeff's state constitutional idea to protect criminal defendants because the federal courts were so productive in protecting individual rights. It's really only the last decade or so where we have this dynamic

where the federal courts aren't quite as innovative and indeed cutting back. Like, you know, Rucho was 20 years of maybe we will, maybe we won't. Abortion is one where, you know, Casey obviously cut back in row. God only knows what will happen with Dobbs. But we definitely have other areas where the court is either cutting back on rights that previously existed or definitely not innovating as much. So this idea of using the state courts and state constitutions actually is new. Like this is something for young lawyers to really think about and be able to solve problems for their clients, particularly when the U.S. Supreme Court puts up a big red stop sign. So incorporation is so significant, but it's I see the silver lining in it. And, you know, and I also think it's not going to be revisited.

So, you know, it is what it is. So just to be super basic for folks, because there might be people listening, we've got a big mix of people from folks who practice in, you know, have been practicing constitutional law for years to law curious folks who might be wondering, wait a minute, if the First Amendment is the First Amendment, how can a state version of the First Amendment be of any use? And, you know, the way I look at it is sort of it's, you can't have fewer First Amendment rights through a state constitution, but you can have more. You can have more freedom. So maybe walk through how you, just a little bit and kind of basic, how you can use a state constitutional provision when there is already a federal constitutional provision,

say in the Bill of Rights, that would seem to be on point. Yeah. Ohio borders two of the greatest basketball states in the country, Kentucky and Indiana. And I promise you, it has never happened in a basketball game from CYO League Up that the referee awarded a two-shot foul, the player missed the first shot and did not take the second shot. That like has never happened. And this proves American basketball players are smarter than most American lawyers. So when you have a state or local law that your client's unhappy with, a state or local criminal prosecution you think is unfair, and the federal shot doesn't work, you miss. Like the U.S. Supreme Court has just put up a stop sign or for whatever reason it's not protected, the state constitutions give you this second shot. Now it doesn't apply

to the federal government, but it does apply to a Kentucky law, a Louisville law, or criminal prosecution. And you're allowed to invoke it in state court and get protection. In fact, the Kentucky courts, and this is really interesting. I mean, we think of Kentucky right now as a fairly conservative state. The Kentucky Supreme Court has historically been very innovative in a lot of rights areas. I mean, they had school funding. They rejected the Bowers decision as a matter of state constitutional law, which is, you know, right to intimate sexual conduct. So those are cases where the U.S. Supreme Court said, no, there's no right here. There's no right under Rodriguez for

equality of school funding among Kentucky school districts. Bowers said there's no right here. There's no right under Rodriguez for equality of school funding among Kentucky school districts. Bauer said there's no federal constitutional right to engage in sexual intimate conduct that is inconsistent with this or that state law. Both times the Kentucky Supreme Court comes back and said, but we have our own constitution. It has its own history. It's written not too long after the federal constitution is ratified. And those two cases go through the Kentucky history and explain why in Kentucky, anyway, this right is protected. I mean, it kind of makes sense. I mean, just think of it this way. It's not surprising to the average

American or listener that different states have different tax rates. Yeah. They don't say to themselves, well, the federal tax rate is this. We have to do the same one. Sad to say they only add. This is consistent with your point. It's rarely a, we'll give you money back because we know the federal tax burden. But I will say this is very nerdy. So just forgive me for making one highly technical point. very nerdy. So just forgive me for making one highly technical point. In fact, the Kentucky courts can say that the Kentucky constitution gives less protection. So in free speech, for

example, you have the federal first amendment stuff, which the Kentucky courts have to honor for sure. But the Kentucky courts could say, theoretically, we don't have this particular free speech doctrine, whether it's the government speech exception or the other direction. They can give less protection or more when they're in that elevator bank. So think of it as two elevator banks. And when you're in the state constitutional elevator bank, you can go up as many floors as you want and down as many floors. But when they're in the federal elevator bank, they have to honor the federal floor, wherever that is. You know, lots of folks would be surprised to know until recently the Tennessee Supreme

Court was very strongly protective of abortion rights. And it took a state constitutional amendment through the referenda process to quite literally reverse Tennessee Supreme Court precedent. And so this is highly, it's highly relevant, going to be more relevant. I mean, I think Florida may have, some states put rights to privacy in their constitution. Why it might have it, I'm thinking vaguely, perhaps Florida does. You know, it's not clear whether they were trying to codify Roe or its right to privacy with respect to contraception or maybe privacy in quite other ways.

But, yes, surely they can do that. I mean, the Tennessee case in that example just reminds me of another reason why I'm a really big advocate of independent state constitutions, using state courts as a source of rights protection, is if the people of a state don't care for a decision, they can do something the American people cannot do with a federal court decision. Because most state constitutions can be amended by 51%. They're allowed to decide, well, I'm sorry, we really are not comfortable with constitutional protections, say, for abortion or some other area.

And that's legitimate. Now, you know, maybe 51% is too low a threshold, that would be a fair response. But the idea that we're going to only have one set of rights protection, the federal, race to DC, winner take all, one size fits all, and then you can't correct it. It's very strange. It seems like we've inverted the system. We should have the people at the vanguard with new, clever constitutional rights and claims being the innovators. And then the people say, oh, you're way ahead of your skis or whatever the cliche of the day is, we can correct it and replace the judges. 90% of state court judges are elected. So there's a lot of ways to remedy mistaken state constitutional decisions. And at the federal level,

I would say there's zero at this point. When you're working out at Planet Fitness, it's a judgment-free zone, so you can really step up your workout. That's why we've got at this point. Get started at Planet Fitness today for $1 down and then only $15 a month. Hurry, this great offer ends April 12th. $49 annual fee applies. See Home Club for details. So your former boss, Justice Scalia, was a big proponent of the idea that the federal Constitution needed to be easier to amend, that we were headed in a bad direction. And I think the last six years has really proven out the problem with a sclerotic, unamendable U.S. Constitution. It's the last chapter of your book, Should It Be Easier to Amend the U.S. Constitution? I'm curious, you know, you look at like the Texas

Constitution and there's thousands of constitutional amendments, as you said, like it might be too easy. It might be too hard. You've got to sort of find this Goldilocks point in between. But I really thought of it as President Biden created his Supreme Court commission as they were looking at ways to change the Supreme Court, adding seats, changing the tenure on the court, that actually what they really needed was to make the Constitution easier to amend, because that's sort of the boss of the Supreme Court in a way. Are we ever going to, is there going to be a movement, or is it just the three of us in this room that are going to be protesting to make it easier to amend? Who knows? I too was surprised that that was not on their mission statement. I don't understand why that shouldn't be part of the conversation.

In fact, that's the key topic when we have these stare decisis debates. I mean, stare decisis is this intense debate about when to overrule a Supreme Court decision, and we're forgetting what it means to have a mistaken decision that either adds something that's not there or subtracts something that is. What you've done is you've circumvented Article 5. You've circumvented the requirement for changing the Constitution, going through three-quarters of the states. And a great kind of approach to that might be, well, is it a harmless error

because the states have moved on and three-quarters of the states have come to accept it? You know, I quite agree with Justice Scalia used to say, I don't know if he thought this by the end of his life, but I definitely heard him say he thought that was the one thing in the federal constitution we're changing. He never told me what the change should be, but he thought three quarters was too much and that Madison's, you know, venerability of the constitution that kind of overcompensated for that. I don't think two thirds is a bad idea. That would be a four state differential. For what it's worth, that would have made the difference in the ERA, which came up two states short.

But there's something else going on that I think is like a legal, political, cultural feature of America right now. We used to have a tradition of amending constitutions, even with the three quarters requirement to actually correct Supreme Court decisions. I mean, it's not surprising people would go to the Supreme Court first, it's faster, they would lose. And then you would start this movement and people say, oh, it just takes too much time. It's trench warfare, state by state. I think back then the political parties thought, hey, the longer the better. We're winning. We're winning with this political movement. We think we're on the right side of this point. We love the idea of the Saloon League being started in Kentucky and then Ohio and bringing voters to

our party through this one issue, prohibition, women's right to vote, whatever it might be. But those movements all were state by state, and they were perceived as helping political parties, which I guess we've decided. I mean, anyone trusting me for advice on politics is in real trouble. So obviously, they've made a different judgment. But the ERA, just to go back to it, is kind of a sad story because we have an initial 10-year period. They get very close in the first couple of years of getting what they need, and they just can't get it over the line with the last two states. And then, you know, I'm not being critical of Justice Ginsburg or the U.S.

I'm not being critical of Justice Ginsburg or the U.S. v. Virginia, the VMI case, but then through case law, the court essentially gives the people everything they wanted through the ERA by saying strict scrutiny, rigorous scrutiny applies to gender classifications. And so what's the lesson? The lesson is control of the court is a lot easier. It can help you with lots of issues, not just one. And that's an unfortunate lesson. But when you think of reasonable people thinking the court should innovate things that aren't in the Constitution, the best response the reasonable person gives is, but Jeff, it's impossible to amend the Constitution every time circumstances change or norms change.

And I think, you know, I'm not saying that's an excuse. I'm just saying these are people with good intentions that think that. And I appreciate the point. So it's consistent with Justice Scalia's point. Okay, let's just make it a little easier. Not too easy, but a little easier. Okay, should we move on to some other topics? Yeah, but I have one theory I

want to float by you, Judge. So it is interesting to me that we see fewer, we see less litigation seeking to vindicate state constitutional rights on hot button issues like free speech, free exercise, et cetera. And I have a theory and I want to run it by you. What you have is a lot of people who are, a lot of this litigation has been consolidated in national litigation groups. And so they're formed around a cause and they also have clients. And so they're always aiming big. They want to set a national precedent or a circuit precedent that's going to govern multiple states. And I do wonder if that has meant that a lot of times they're just not thinking at the state level because they have the cause along with the client. And that's one thing when I would teach, speak to law students, I would say, if you are a cause-oriented lawyer, you have to realize your

client still comes first. I mean, you might be motivated by the cause, realize your client still comes first. I mean, you might be motivated by the cause, but the client still comes first. And that's why I've been intrigued a bit to see maybe a little bit more state litigation happening when that federal atmosphere is, you know, where that federal atmosphere is bad, legal atmosphere is bad. But, you know, are you seeing people swinging for the fences because they're just wanting to do stuff nationally? Or is it just never really thought about going through the state route? Your intuition is totally right. I think incentives are everything. And, of course, the incentive, if you have an interest group that cares about something deeply, has a bunch of constituents, whether they're representing people or they're people that have joined this group or supported, of course you'd like to nationalize your issue.

I mean, I can't, I have no answer to that. And I particularly don't have an answer if they're right. Like it's a really good insight. The problem is we have lots of interest groups that are on opposite sides. In fact, proving the point, we've gone the longest in American history without a successful state constitutional convention. There's been 350 in American history. They used to happen all the time. And it's really easy to understand why they wouldn't happen today

because you would have interest groups on opposite side of a politically salient issue and they would hold up the convention if they didn't get what they wanted. And of course, they both can't get what they want because they're opposites. So the only way this changes the rush for winner take all at the Supreme Court is when the US Supreme Court says no. That happened with school funding. It's happening now with Rucho, the political gerrymandering cases. So, you know, I think

that's interest groups should be allowed to pursue their rational interests. I can't say they're wrong to do it. It's reasonable. But that means it is up to the court. I mean, if the court says they're open for business, people will bring them business. They say we're not open in that area or sometimes quite appropriately to say it's too early. We want this experiment to unfold, see what the states do with it, as Congress might wait for state legislatures, say, to experiment with the problem. I mean, the pandemic has had a couple, we know that's had a couple of constitutional issues going through the courts, but the pandemic's a really great illustration of federalism. I mean,

you have a very good idea of the national government mass producing the vaccines, but it's also there was some method to having states experiment with different types of mandates and let the data come in. Why should we do the same thing when we're construing, say, substantive due process, which there's no words to, there's nothing to go on. And if you're going to make that stuff up, I'd like you at least to point to a state where it worked or maybe a bunch of states. Right, right. Okay, we have gotten this question frequently over the several years of our podcast since Malcolm Gladwell aired his episode on revisionist history called The Tortoise and the Hare, where he looks at legal education and has critiques, pretty strong

critiques of the LSAT. And the Tortoise and the Hare title comes from the idea that law schools currently, by putting so much emphasis on the LSAT reward hairs, people who can think really quickly on their feet because the LSAT is such a strict time exam compared to the number of questions and what you're asked to do and the logic games. When in fact, you want plotting tortoises going to law school, if not primarily, at least as well. And that you want lawyers who take the time to work out the solutions, that law as a practice is actually far more about being a tortoise than a hare. And to do this, he talks about Justice Scalia hiring law clerks and the Supreme Court hiring, clerk hiring process in general, whole lot of hares at the Supreme Court. Justice Scalia,

in general, whole lot of hairs at the Supreme Court. Justice Scalia keen on hiring hairs throughout his tenure, except if you ask him who his best clerk was, he names a tortoise. And that tortoise went to not Harvard, not Yale, not Stanford, not Chicago, went to The Ohio State University. And that tortoise is you. And it, I mean, it makes you pretty famous. Malcolm Gladwell, not a niche podcast. Right. I'm curious. Neither is this. Neither is this, obviously. I'm curious what you thought about the piece, what you thought about your role in the piece. And if you agree with his thesis, which in the end, I mean, fascinating what he then comes to, which is law schools, the most prestigious law school should accept more applicants, more students, and that no one should ever put down where they went to law school on their resumes because it's not predictive. C.E.G. Jeffrey Sutton, chief judge of the Sixth Circuit. Yeah, well, I really admire his work.

So I was honored to go on his program. He's such an interesting thinker. And I just admire him. I've read a lot of his books. So that's why I was willing to do it. Was it a good idea? You know, do all these people need to know I only got into one law school and struggled with standardized tests?

I'm not so sure what I think about that. I will tell you one story that comes out of that LSAT score, which obviously is scarring. Even though I'm in my 20s and married, the first person I called after I get my bad score, I don't think was my wife. I think it was my mother. I said, oh, mom, you know, I just took this. I wasn't sure. Law was a third choice for me. There were no lawyers in my family. And I go, mom, I just got the score. It's just not that good. I'm just not sure about this. And she goes, well, Jeff, you know, you may not want to be a lawyer, but you know, you got to take it again. You can't let this stupid thing defeat you. So like one of the greatest things my mother ever said to me, but then I said, well, mom, you know, we're conversations

finishing up. And I said, well, mom, you know, at least it's going to keep me humble. And then she goes with way too much seriousness. Oh, but Jeff, you already have so many reasons to be humble. We don't need to be adding to the humble pile, not at this point in your life. It's time to be, you know, casting those aside. You know, back to your question, you know, I don't, I think it's really hard to figure out how to admit people to a school. You know, if you go down the road of interviewing everybody, that's a great way to learn a lot of other things. You know, I think one thing Justice Scalia said, Justice Scalia is a really smart guy. And he would just say, I'm playing the odds. And there's something to the point. The better the law school, the better

the LSAT score, the better the GPA. Why wouldn't you think those odds are high after you interview And just, I was not his best clerk. I was one of five in OT91, and I was fifth that year. So I don't want to go any further than that, but I can promise you I was fifth that year. But you think I'm being modest. I'm not being modest because I'm going to say something self-promoting. He did love that I milked the clerkship. I did get a lot out of the clerkship and I learned a lot from him. And I think he liked that. And that is true. That was life changing.

It's interesting because Malcolm Gladwell also has a series on why interviews are pointless and people are actually really bad at judging someone's ability to do a job in a normal job interview. And so that I think undermines his law school criticism to some extent because there's just nothing then. Yeah, how does he say you can decide anything? I'm not totally sure. Yeah. And then, of course, what I think, I'm listening to this.

I can picture where I am as I'm listening to this part of the podcast. And I'm crossing Chain Bridge over the Potomac and about to just hurl my car off the bridge because in my head I'm screaming, Judge Sutton, though, doesn't follow your plan. He follows a very Scalia-esque plan where most of your clerks come from high-end, prestigious-y things. Not all. Justice Scalia wasn't all either. But you are a feeder judge, sir. One of the top feeder judges,

if not the top feeder judge for last year. So this is the hypocrisy part of the program? We're entering guests. This is good. I love it. We have cold calling and hypocrisy challenges. Well, fair point. I have hired from Harvard and Yale and Stanford and Chicago. So what can I say? But I do hire from a lot of other schools. So I would say I do, like I've hired more from Ohio State than Yale. I mean, so, I mean, who could say that? I hire a lot from UVA, George Washington.

What do you look for then? Why are you getting such a nice hybrid vigor? And what's your attitude towards Michigan clerks if you're from the Ohio State University? Yeah, yeah. In Michigan, that was the other school I applied to. I didn't get into Michigan. Oh, even all the more. Yeah, so, no, I've hired Michigan students.

Justice Scalia, one thing I do, this is a slightly different point, but I want to make it. I've hired people that don't think like me. Justice Scalia had that view. It was a good idea to have diversity ideologically, methods of interpretation. I've done that as well. A good example of that is Leah Littman. She teaches at Michigan Law School, just got tenure, and is, you know, a really prominent constitutional scholar. And so that didn't, I was a double win. She was Michigan and more liberal than I am. I hired her anyway. So I don't know what you can

say. Justice Scalia was known for hiring an opposition clerk, as he called them, though that waned over time. Toward the end, he was, he even publicly said he was less likely to hire. I, you know, I didn't, I haven't gone and kind of examined it. It's kind of a hard thing to figure out, but I, you know, one possibility there, and I do appreciate the point. I've now done this for 19 years. The reason it's great to have ideological diversity in chambers is, you know, he knows how he thinks. It's really helpful to make sure you're not missing something. You know, just blind spots. And I can think of so many times where I knew what I wanted to do.

I actually ended up doing it. But I had a clerk who would say, okay, but I just want you to know the way you're saying this, there's a whole group of people out there that are going to think you're being super insensitive or you're not appreciating this other point that really helped the opinions. So I, I think Justice Scalia was quite right about that. Now the thing, I really don't know how it worked out later in his career. But the one thing I might say is the longer you're on the job, the fewer truly new questions there are. That's exactly what his reason was.

Well, I don't think it's a terrible reason for what it's worth. I mean, he had a theory. He wasn't just making it up each day. He was trying to be consistent. So, um, I'm, you know, you know, whatever. I don't, he had a lot of great clerks and I feel really privileged to know so many of them. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos.

So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day.

Listeners can save on the perfect gift by visiting AuraFrames.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A frames dot com. Use code advisory at checkout to save. Terms and conditions apply. So this is kind of a practical question. What does it mean to be a chief judge of a circuit? Yeah, well, it's an acquired taste and I'm still acquiring it. It's a lot more work than I appreciate it. So Chief Judge Cole was the chief of the Sixth Circuit before me. And he was kind enough the last couple of years of his tenure to get me involved in some of the stuff he was doing.

So that helped me a little. But I had no idea. And I'm now so grateful to the prior chief judges on the court. I mean, I think the goal is to do as many things for the court that you can so that the rest of the judges can do their job of deciding cases. I really think that is the mission. Now, happily, there's a hundred people that work in Cincinnati. We've got this terrific circuit executive, terrific clerk of court and, you know, wonderful staff. And so one really fun part of it, and I guess this is the thing I think I'm actually starting to really like about it, is I know I'm learning and getting to know these people, not in a superficial way,

but we're actually doing things together. And so you really spend a lot of your time working with the career folks and the circuit. And then also working a little bit with the National Judicial Administration as well, which chief judges are asked to do. So I've enjoyed it. I mean, you know, having been a judge for 19 years, I'm going to have some opinions about how we do things. And it's nice to have an opportunity to make some suggestions. Obviously, I don't get any more votes with being chief judge.

It's just like the Supreme Court. So, you know, you've got to make sure there are things everybody in the court wants to do and try to make sure you're not getting too far ahead of anyone. So the joke part is it's just taking more time than I thought it would, which means less time for other things. But I'm actually enjoying it, and I guess it's my time to do it. time for other things, but I'm actually enjoying it. And I guess it's my time to do it. A lot of conspiracy theories about the courts, by the way, always involve the circuit panel not being randomly selected just for folks out there who do not practice before federal circuits, or maybe even those that do. Is there a way to game that or is it always random? Yeah. So, you know, I think most judges are really comfortable.

So we're on the inside. We see it. We see with whom we're sitting. We see the cases being allocated and we're just busy doing our work and no one gets that worked up about it. Partly there's an in-bank process if the whole court thinks something's really important ought to be done differently. That said, we live in an era where people love to second guess the courts,

look for things where they're not being perfect or not getting it just right. And so that is one of the things I've been focused on is trying to understand how we do that and make sure we've got kind of the state of the art in terms of rant. There's a lot of random issues. It's random composition of panels. It's random assignment of the cases. It's trying to make sure there's some variation in the cases for each panel. It's not that easy to get perfectly right. And then you have these random events where someone has to recuse or getlong process of trying to make sure it's very random and then super transparent. So what we want to do at the end of the day is have it all public. So people that have, say, the cynical reaction can just look and say, no, here's what they do. And, you know, heads can come out, you know, five times in a row, heads, but that doesn't mean it wasn't random. All right. Last thing. You just returned from 2022 Legal Eagles Sixth Circuit trip.

Please describe this Sixth Circuit tradition that all other circuits are envious of. Wow. This podcast must have quite a staff that you've figured out that there's a group of lawyers and judges going to Gettysburg every year. Sarah knows everything. You just have to understand that. That's really quite impressive. So this is a wonderful tradition in the Sixth Circuit. It started by a colleague of mine named Judge Alan Norris. Judge Norris is a Reagan appointee. When he went senior, he'd always loved history. I mean, he's a frustrated history professor, if you ask me. So when he went senior, he had more time. And so he and his lovely wife, Carol, started doing these trips, mainly through the South South where they take Civil War picture books and go and find like,

where's that fence where Stonewall Jackson was shot or whatever the thing might be, or, or it probably was a horse, but anyway, where did this happen? And they'd go do this. And then they really got focused on Gettysburg. Perhaps it's a little closer, Perhaps it's lovely. I mean, it's absolutely a beautiful community. They've gone there about 50 times. And so when you'd see Alan, when you're sitting with him, you'd ask, what have you done recently? And so finally, we started saying to him, Judge Radler, who clerked for Judge Norris and now is a colleague

of mine on the Sixth Circuit, the two of us would say, well, why don't you start taking us and, you know, take us there? And so Alan and Carol started this in, gosh, what was this? I guess it was 2014 was the first legal Eagles trip. I'm not even sure it had the trademark yet. I'm sure they hadn't filed for it by then. And it was so much fun. Initially, it had a mix of people from the Columbus legal community, some judges, clerks. This last trip we just finished a week ago, 32 people was only judges and clerks because there was so much demand. He couldn't let other friends, other lawyers get in. It is so wonderful. So we get there on a Sunday.

It's basically like a school field trip. You know, you got to get up at six in the morning, you know, that you do something till eight at night. The whole thing is programmed. And here he's 86 years old, this incredible energy. We walk the battlefield going through day one, day two, day three of the battle. Day three, we walk the mile long pickets charge. I mean, it is so much fun. And I mean, it's obviously kind of a bonding experience with the people on the court, but it's almost, I just, every year I love it. I've gone every year because, you know, what a way to honor these kids. They were kids, 18 to 35 years old and, you know, what they went through and you know the Gettysburg Address of course it's Gettysburg so we go there this year one of the the clerks

had been asked to learn to memorize it as a kid and still had it memorized so she recited it right near where Lincoln gave it and so yeah and then we have a couple lectures. This year I gave a lecture on the Constitution of the Confederacy, which is, anyway, Alan's a huge historian, and it's a huge service to our court, and everybody loves it. And his wife, Carol, what a gem. Anyway, it's really great. So you should clerk on the Sixth Circuit would be my recommendation.

It's not too late. The reason to clerk on the Fifth Circuit is sitting in New Orleans and the incredible food that you get and the World War II Museum, which is wonderful in New Orleans. And I've always said that that makes the Fifth Circuit the best, that there's nothing else on any other circuit that is quite the draw that is the New Orleans per diem food allocation. That is the New Orleans per diem food allocation. But I am going to stand corrected as of today. I think that this makes the Sixth Circuit a better draw if you are only picking your judge and circuit by cool thing you get to do. I don't know. I hate to, like, abandon my circuit, but Legal Eagle sounds amazing. I will accept the concession.

Legal Eagle sounds amazing. I will accept the concession. But even if you are never able to go to Legal Eagles, which 99.9999% going to Gettysburg is a tremendous educational experience. It is standing there and looking down and seeing the path of the charge and then the mark of the high, the high water mark of the Confederacy. the path of the charge and then the mark of the high, the high water mark of the Confederacy. And you really realize how close this experiment came to ending, like right where you're standing. It's a, it's a, it's a, it's a moving experience because you understand the heroism and it's a sobering experience because you really,

when you have that sort of geographic sense of how close this all came by standing right on the spot, it's sobering. It's sobering too. Well, if you want an invitation for next year, I could get you one. But that's one of Alan's big points. I mean, there's about nine, 10 times where the Confederacy could, should have won the battle. It's remarkable. And then the heroism. What's the point of this? I mean, that's the Gettysburg Address part of it. So you have the whole thing together.

And I think wars that are civil, not international, but that are civil are usually lawyers' failures. I mean, it's lawyers and judges. We're the ones that are supposed to be in charge of system design. And when system design is falling apart or not working, you've got to be more creative. And I know people try it. I'm not second guessing them, but I do think lawyers have a responsibility there. And you say that, it's interesting. One of the best defenses of small L liberalism that I've read, it comes from a blog post actually from several years ago by a guy writing under

the name Scott Alexander. And he said, don't think of small l, classical liberalism as utopianism because it's not. Think of it as this alien technology for the avoidance of civil war. Couldn't agree more. And that the ways to avoid in highly polarized environment, the ways to avoid the main way to avoid civil war is protecting this alien technology of small l classical liberalism as zealously as you can. That's always stuck with me. Agreed. A hundred percent.

Well, what I hear is that we will have a special podcasting series, a bonus series, perhaps from Legal Eagles 2023, Revenge of the Advisory Opinions. Maybe we can worm our way into a circuit trip and share it with all the other circuits who are jealous. Thank you. Yes, thank you. So much for joining us today. Thanks for inviting me and good for you in doing this. Yeah, this has been fun. And thank you. So much for joining us today. Thanks for inviting me and good for you in doing this. Yeah, this has been fun. And thank you all for listening and bearing with us. I'm just going to go ahead and apologize in advance, everyone, if the audio isn't perfect. But it's worth it for a good conversation.

So thanks for tuning in to Advisory Opinions. And we'll be back on Thursday. That's the sound of fried chicken with a spicy history. Thornton Prince was a ladies' man. To get revenge, his girlfriend hid spices in his fried chicken. He loved it so much, he opened Prince's Hot Chicken. Hot chicken in the window. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com.

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