Advisory Opinions - A Supreme Court Odyssey

Episode Date: July 20, 2020

The 2019-2020 Supreme Court term was quite the spectacle: the court canceled its March and April argument sessions, held oral arguments by telephone for the first time in May, and stretched its opinion announcements into July for the first time in many years. The term was packed with several blockbuster cases and ended with an announcement from Justice Ginsburg about a pancreatic cancer recurrence. And in the haze of it all, many Americans are still puzzled by some of the rulings. Our podcast hosts are here to help. Has the conservative legal movement failed?  Will disputes over mail-in ballot counting turn November into a Bush vs. Gore 2.0? And the million-dollar question: What’s up with Chief Justice John Roberts? On today’s episode, David and Sarah are joined by SCOTUSblog’s Amy Howe to field some questions about recent cases and tie a bow on what became a rather unprecedented year for the justices. Tune in for an exclusive look into the origins of SCOTUS Blog and some punditry on the cases that are on the docket for next term. Before founding SCOTUSblog, Amy Howe argued two cases before the Supreme Court and served as counsel for two dozen merit cases there. She has taught Supreme Court litigation at both Stanford Law and Harvard Law and served as an adjunct professor at Vanderbilt Law School and American University’s Washington College of Law. Show Notes: -Amy Howe and Lyell Denniston’s review of the term on the SCOTUStalk podcast. -Travel ban case, census case, DACA case, Trump v. Mazars and Trump v. Vance. Little Sisters of the Poor, Montana school case, CFPB case, robocall case, June Medical Services, Whole Woman's Health, Masterpiece Cakeshop, Guadalupe, McGirt v. Oklahoma, and Josh Hawley’s speech on the Bostock decision. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And before I announce our very, very special guest who is going to put the period on the end of the Supreme Court term for us, I want to give you all a special advisory opinions update. I was at last podcast, I think, we teased the possibility of a special edition of advisory opinions designed to relieve all of the pressure of law and politics and culture by discussing a lighter topic, a mass extinction event like the Yellowstone supervolcano. And I put out a request on Twitter, who is the best Yellowstone super volcano expert to talk to? And I now have a list of nine names, nine names,

many of them with the most glittering Yellowstone super volcano credentials to go through. So I'm not making any promises. I could go 0 for 9, but I have a pretty good feeling, Sarah, that we're going to talk about the destruction of the Earth on this podcast with a real expert. This isn't great news for our guest, who is concerningly close to the Yellowstone Super Volcano, by the way. So introduce her, and then we'll have to ask her whether she is concerned at all. Okay, let's do that.

So I'm very happy to welcome Amy Howe to our podcast. If you follow the Supreme Court closely at all, you're probably familiar with SCOTUSblog and you're familiar with Amy's work. And Amy's biography is far beyond SCOTUSblog, although that would be enough. Now, Amy is a graduate of UNC Chapel Hill, which I found interesting because I have to ask Amy, do you have a white-hot hatred of Duke basketball? More than you can imagine. And I have two dogs. One is named after Michael Jordan, and the other one is named after Dean Smith. So there. So I think you and I could probably have a whole conversation about how

much a rational American should hate Duke basketball. Cause I grew up in Kentucky and the Christian Leitner shot broke my heart. Um, and a game he cheated in, by the way, by stepping on Aminu Timberlake, but that's not all. She didn't just graduate from UNC Chapel Hill and learn to hate the worst basketball, most evil basketball program in the world. She has argued cases before the Supreme Court. She has done over two dozen. She's served as counsel in over two dozen cases at the Supreme Court. She's taught at Stanford Law School. She's taught at Harvard Law School. She has done a lot of different things. And we're here and welcome Amy. And we've invited Amy on to wrap up because I can't think of nobody better equipped to put this term in context than Amy Howe. And so we're so thankful you're here. Thanks so much.

Thank you. And I do just want to point out that Carolina didn't not make the NCAA tournament this year because it was canceled. True. Yes. That's right. True. Yeah. My husband went to Purdue and he was thrilled that the season was canceled. I'm not as happy because Kentucky was actually gelling and coming together and we were going to make another run for it. But that's the story for us every single March is we gel, we come together, we make a run for it. But that's what it's like to be a Kentucky basketball fan. So Amy, you're out there on the front lines. Are you hearing any

rumblings from the Yellowstone super volcano? So I had not heard that. I will say that we came out here at the end of March and back when things were, toilet paper was really at a premium. And we had spent the last two summers in California. And so I had purchased one of these earthquake go bags, and it's got N95 masks for state kids, water purification. And I brought it with me and I parked it by the door here in Wyoming. And my husband looked at me and he said, where exactly do you think we're going to go in an emergency? But see, now I have a reason to have it because apparently this super volcano event. Well, let me go ahead and give you a spoiler alert. I'm not a super volcano expert, but you can't outrun it. You cannot. Maybe I can in Tennessee. That's what

I want to find out. But where you are, you cannot outrun it. I'm in trouble. You're in trouble. You're in trouble. Well, Sarah, should we start in on the Supreme Court? Yes. So Chris Walker, who's a professor at Ohio State University, he and I were going back and forth. And this is what he told me his thoughts were on the term. This has been such an unusual and important term at the Supreme Court, and Chief Justice Roberts has been at the center of it. So there's three parts there. He thinks it was unusual, important, and that the chief was the sun to all of our planets. Do you take issue with any of that? Do you agree? Do you disagree? How do you summarize this term? I think I pretty much agree with all of it. I mean, certainly unusual in the sense that the Supreme Court held oral arguments. They had to cancel the March and April argument sessions and then had to hold oral arguments by telephone for the first time, and we can talk more about that in May. And

then the opinion announcements stretched into July for the first time in many, many years. Second, important, after a relatively quiet term last term, for whatever reason. There was a lot of speculation that the court wanted to keep a relatively low profile after the contentious confirmation hearings of Justice Kavanaugh. For whatever reason it was, last term was relatively quiet, but this term was really packed with a lot of blockbusters. And then the chief justice was at the center of it for over a decade since the retirement of Justice Sandra Day O'Connor. There were always these jokes about, well, we call it the Roberts Court, but it's really the Kennedy Court. And this year it was the Roberts Court, both technically and literally in the sense that the chief justice

was not the swing justice, but as Adam Feldman called it in his statistics for SCOTUSblog, sort of the anchor justice. He was at the center of really all of the court's major decisions. We can unpack that however you'd like. Yeah, I'd like to try out some of our kind of pet theories that we've been kicking around for the last few weeks here on our podcast. And I have one Roberts theory that is quite simply, I guess one sentence would be, Roberts is over the Trump administration.

that if you look at, so he ruled with the Trump administration on the travel ban case. And when travel ban 3.0 got to the court. But then he jumped ship and ruled against them on census, on the census case in large part because it seemed like he just thought you guys were not,

you guys hit the ball. You guys weren't honest with the court. And then on DACA, it seems like he said, eh, you just didn't do a good enough job here in trying to repeal DACA. And part of me, it felt like I was looking at Roberts as not a chief justice of a Supreme Court, but almost like a trial court that was annoyed with one of the litigants and was saying,

do better, practice law better. I don't know. Does any of that strike you as plausible, or is that just completely over-reading? I think it's plausible. I mean, I do think you need to look at the big picture. I mean, you look at the census case. Coming out of the oral argument in remember, but in the weeks leading up to the decision in the census case, more and more sort of evidence and sort of backstory started coming out about what was really going on behind the scenes in the census case. And do we know whether what actually happened behind the scenes right now? Will we know for quite some time? No, but it really seemed like that may have made a difference. And that may have been what caused Roberts to change his mind, if he did change his mind and say to the Trump administration, you really need to square your corners and provide the proper reasoning. And then the same thing in DACA, there wasn't a backstory

as such, but but yes you need to do better but I think you also need to pull the lens back and look you know at what what legal scholars and lawyers who practice before the court on a regular basis call the shadow docket the the cases that aren't argued at the Supreme Court, but when the Trump administration in particular comes to the Supreme Court asking the justices to step in on what is called an emergency appeal, and it's usually decided relatively quickly on just the basis of the filings. The Trump administration, a law professor named Steve Fladek, who's at the University of Texas, has studied this in a lot of detail. The Trump administration has come to the

Supreme Court in the past three and a half years, you know, orders of, you know, several times more than the Obama administration and the Bush administration did in 16 years. And it has been very successful in those efforts. So I think just sort of depends on sort of what the lens is. I mean, I do think that there is a sense that Roberts is frustrated and annoyed by Trump's idea that the Supreme Court is sort of his court, that there are Obama judges and Trump judges, that it's political, because he does think that that detracts from the idea of the judiciary as a neutral arbiter. Absolutely. What was your biggest surprise this term? Oh, gosh. I think probably, I'm looking at the cases, I think probably with some, not necessarily any of the cases individually, but perhaps know, the Trump cases weren't five to four. They

were both seven to two. The Title VII case and LGBT employees and employment discrimination wasn't five to four. It was six to three. Were you surprised at all by the outcome in the Bostock case? I was not entirely surprised. I mean, there had been a case back, I think, in 1998 involving whether or not the same law, Title VII of the Civil Rights Act of 1964, applies to same-sex sexual harassment. And in that case, it was unanimous. to same-sex sexual harassment. And in that case, it was unanimous. And Justice Scalia actually wrote for the court and said, yeah, I don't think that Congress ever had this in mind when it drafted the civil rights laws back in 1964.

But if you look at the text of the statute, it applies. And so it didn't surprise me that much that his successor, Neil Gorsuch, would write something pretty similar for the court, you know, 12 years later. What do you make of, on the one hand, the Adrian Vermeule, Josh Hawley, the legal conservative movement is dead. We need to move on to some other theory because of Bostock. And then on the other hand, all of the opinions in Bostock are arguing over what the best way under the legal conservative umbrella is to interpret the statute. How have you squared that

circle? Where do you think the ball lies on the field right now? Yeah, I think you hit the nail on the head. I mean, I think it's definitely, as Justice Kagan said, we're all textualists now, and it's just a question of which textualist reading, you know, you want to go with. And, you know, in this case in particular, where you're looking back at 1964 and arguing about what the plain meaning was in 1964. But, you know, nobody is talking about what Congress had in mind, what the legislative history was or anything like that. It's just arguing over the meaning of that, of this particular phrase in the Civil Rights Act of 1964. Do you buy into the affirmative action is next, uh, argument on this textualism front? Oh gosh. Um, I hadn't really thought about it. I mean, I think affirmative action is,

is definitely heading towards the Supreme Court, you know, the, the Harvard case and I, I hadn't really thought about it. I mean, I think affirmative action is definitely heading towards the Supreme Court. You know, the Harvard case and I'm not sure what procedural posture the UNC case is in right now. But it certainly could be the next front in that war. So I don't think anyone would say that would, I think it's fair to say you're not part of the conservative legal movement in America. I'm not part of any legal movement in America. Right. Yeah. So, so someone who's not part of the conservative legal movement in America, but who has been looking at Supreme Court jurisprudence for a really long time, when you hear somebody say the conservative legal movement has failed, does that ring true to you?

How do you interpret that kind of claim? You know, I think of that as sort of the same way that I think of the claims of judicial activism. You know, judicial activism is a legal decision that you don't like. is a legal decision that you don't like. I think that there were certainly some victories for conservatives this term. I think that there was a lot of ink spilled or digital ink spilled talking about victories for conservatives in cases like, or victories for liberals, I'm sorry, in cases like Title VII and DACA and June Medical. But there were some pretty big victories in terms of religious liberties. The case out of Montana in which the Chief Justice, again, by a vote of, well, this one was a vote of five to four. It was much more closely divided.

And the Chief Justice said, states don't have to subsidize private education, but if they do, they can't treat religious schools differently just because they're religious. And then there was the Little Sisters of the Poor case, which was not a religious case per se, but Justice Thomas wrote and upheld the exemptions that the Trump administration had created from the Affordable Care Act, its birth control mandate, or the mandate issued pursuant to the birth control mandate. Then there was a pair of cases out of Southern California involving two elementary school teachers, and the Supreme Court ruled that they can be called ministers because they were heavily involved in teaching religion to children and therefore can't sue the elementary schools for that they can be called ministers because they were heavily involved in teaching religion to children and therefore can't sue the elementary schools

for employment discrimination. So there were many, I think there were, you know, definitely some real conservative victories. You know, I think arguably some of the so-called liberal victories weren't such big liberal victories. So, yeah, I saw that argument from Ian Millhiser,

especially who was saying that liberals shouldn't be too happy with these because the long-term effects of them are quite different. But one thing that seems to be coming into focus is the Consumer Financial Protection Bureau case and the robocall case, both in our listeners know that i love my severability uh little cul-de-sacs that i go down but the severability doctrine is really being focused in on and with

the obamacare case coming up next term that will look at the individual mandate again uh and you know there's an argument that roberts was pinned into a corner with his tax argument. Then in 2017, Congress zeroed out the tax. So now the case is back up. And largely, it seems to me, the question is going to turn on severability. Was the court really arguing about Obamacare this term in anticipation of next year? Right. There are, it's, you know, it's always a question of, are they arguing about what's before them? Are they arguing about something else? I mean, there was a case last term, a fairly obscure case about, you know, state sovereignty out of California and Nevada. And were they really arguing about that or were they arguing about

Roe versus Wade and stare decisis? I remember that, yeah. Yes. And so, yes, I mean, that's definitely and that is somewhere where I think that, you know, we talk about the chief justice, but I also think, you know, Justice Kagan and Justice Breyer are really playing a long, a long game. Well, you know, you brought up the because I remember having a discussion about that very case many months ago. Was it really about abortion? So where do you think, after June Medical, the abortion test sits? Is the Whole Women's Health test, is Whole Women's Health upheld in result, but the test of Whole Women's Health gone?

And we're back to sort of the Casey test and nothing but the Casey test? Or do we really not know? You know, I'm not, well, I think that we are more back towards Casey. And part of the reason why I think that is because for some time, the Supreme Court had been holding on to a couple of cases out of Indiana. One involved an ultrasound requirement. A pregnant woman who wanted to get an abortion had to get an ultrasound at least 18 hours before she had an abortion. And the other one involved a parental notification requirement. And in both cases, the U.S. Court of Appeals for the Seventh Circuit struck down the laws. And after June medical, the Supreme Court sent those cases back to the Seventh Circuit with instructions for the lower court to reconsider in light of June medical.

And so it seems to me that if whole woman's health were the law, then they would have just left those decisions in place. But, you know, I'm not really sure. On the other hand, you know, we'll see. I mean, the one thing that was interesting, I did a podcast the other day with Lyle Denniston, and he thought that the chief's opinion was actually, on the other hand, quite good for Casey, that it reaffirmed Casey. So that cuts both ways. I mean, it says that the Casey test is in effect, but on the other hand, reaffirms that Casey is the law, perhaps making it harder to undermine later. Well, Lyle and I see things similarly, but my thought was because Thomas wrote a concurrence that called into question Roe and Casey and nobody joined him in that concurrence, we can overread that.

I know that's susceptible to overreading, but I had the same thought that it was right there. It was laying right there the option of someone to simply join in the Thomas dissent to signal that more than one justice was ready to revisit Casey in any substantial way, and none of them did. politics than I am. I mean, you know, I thought that the June medical decision was a decision in which the Trump administration won by losing from a political perspective so that, you know, had they won, you know, their base would have been happy and liberals would have been- A happy base doesn't vote. Yeah. Right. Happy base doesn't vote. Liberals would have been... A happy base doesn't vote. Yeah. Right. Happy base doesn't vote. Liberals would have been outraged. Democrats don't usually vote based on the Supreme Court. This might have actually been something that might have galvanized, you know, young suburban women.

But, you know, instead you've got the flip. And Trump can say when he's out campaigning, I gave you Neil Gorsuch and Brett Kavanaugh, but we've got that lefty John Roberts who's still standing in our way and we need another four years. Speaking of which, I want to talk about the thesis of Roberts as the institutionalist, that he is first and foremost the chief justice and that a lot of the cases, particularly in election year, that he views this through the lens of the court's legitimacy and public approval of the court, perhaps. So according to Gallup, the Supreme Court's approval rating is the highest

it's been in more than a decade. FiveThirtyEight cited in New York Times cited this study from Stanford, Harvard, UT that looked at the sort of top 10 cases with polling. And the rulings came out in line with public opinion in eight out of the 10 cases. And the two that it didn't, by the way, it sort of depends how you see the Trump finance cases, which I want to talk about as well. A, do you buy into Roberts as institutionalist as a way to explain Obamacare, Trump finances, any number of these sort of hot button cases that either end up in very narrow opinions or as the legal conservatives view it, the court squishes out? I mean, I think that there is probably a fair amount of overlap between his institutionalist

inclinations and his minimalist inclinations. I mean, if he were truly an institutionalist, you have to wonder about some of the other decisions that arguably have eroded sort of goodwill towards the court, like Shelby County or Citizens United or the travel ban decision, to be honest. If he were purely making decisions based on how he thought they were going to poll, I think he would have made some other decisions differently. That's a really good point on the minimalism. So we have the orders list today and the Supreme Court denied the House of Representatives petition to try to speed up the Trump financial record subpoenas. Sotomayor said she would have granted the application, but that's the only noted dissent. So the Trump finance cases have been a bit of a Rorschach test for how people actually think those came out.

Yes. Let's get your take on how did those cases come out, Amy? Yes. So I think I am sort of somewhere in the middle. I do not regard them as I mean, I think I regard them as they've rejected the president's sort of sweeping claims, but I don't think that they were terrible for the president. And, you know, in both cases, he will get the opportunity to go back and make arguments about why the subpoenas shouldn't be enforced. I think he will have the opportunity to make some. I think that the standard is going to be still quite high in the congressional case. And I think that, I'm not sure, I think it'll be more of an uphill battle in the New York district, in the New York grand jury case. It may be harder for him to prevail, but on the other hand, even if he loses those cases and in that case, those documents are going to be then going to the grand jury. And so I think he wins in the sense that he will be able to keep those documents in all likelihood out of public view for some time, including in all likelihood before the 2020 election.

Yeah, I mean, the delay itself was a win as well. Yes, exactly. Switching gears. So what I found interesting, so we had a guest last week and I tried to come up with, I had this fun game that no one would play that I said, hey, let's try to see if we could all sum up the Supreme Court term in two sentences. And nobody else did it but me. But my sentence number one was, and I already asked the first question, was Roberts turns on Trump administration, ties himself to Kagan, and tries to settle the culture war. I have found it very fascinating that since Obergefell, because the big flashpoint in

religious liberty is the interplay between religious liberty and LGBT rights, is that in every case since then that touches on that interplay, there has been a supermajority and Roberts and Kagan have been together. So Masterpiece Cake Shop, Bostock, and Guadalupe. And it seems to me that what is emerging is a legal regime that gives a lot of protection to LGBT rights in secular spaces and a lot of autonomy to religious institutions in their own space, which is a lot like this thing called the Utah Compromise or has echoes of this fairness for all legislation that was introduced.

And it just seemed to me that that's where the court seems to be heading in the arena of religious liberty is greater autonomy for lawmakers who are legislating in secular spaces and less autonomy, greater autonomy for religious institutions in their own spaces. And I was just wondering if you thought this seems to be where the court's headed. Is it reached sort of an equilibrium, a degree of stability here? How do you see it? I think that's possible. I mean, I think the interesting thing is that next term, we're going to have sort of masterpiece cake shop part two in the case called Fulton versus City of Philadelphia, which is a case involving a challenge by

a faith-based adoption agency, Catholic Social Services, that has been excluded from the city's foster care system because it won't place children with same-sex couples. And so, you know, at some point, at some point, there are going to be places where those two sets of sort of arenas collide. And the question is, what happens when they do? It's the question that the court did not decide in Masterpiece Cake Shop. That's one that I have a harder time seeing that being 7-2, especially because one of the key issues there is going to be, is the Smith test still viable? The Employment Division v. Smith test. And because it was interesting

that if you looked at Guadalupe and if you looked at Espinoza, Smith didn't really figure in those decisions much at all. It was, you know, here you have one of the most prominent religious liberty cases of the last 30 years and it's barely mentioned.

Yes. No, I mean, and I think that part of one of the questions presented is whether or not Smith is going to be still viable. So it is all on the table. Let's pause for a moment and thank our sponsor, Gabby Insurance. We're all looking for ways to save money, especially now. When's the last time you looked at how much you're spending every month on car insurance, on homeowner's insurance? Now's the time to check out Gabby and see about getting a lower rate for the exact same coverage you already have.

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never sell your info. So no annoying spam or robocalls. It's totally free to check your rate and there's no obligation. Take two minutes right now to see how much you can save on your car and homeowner's insurance. Go to Gabby.com slash advisory. That's Gabby.com slash advisory. Gabby.com slash advisory. Well, let's jump into next term a little. They turned down cases on qualified immunity on guns. That was a surprise to a lot of people. There's also, though, these percolating voting cases, Wisconsin, Florida, a lot of questions over how voting is going to work in the fall.

And a lot of people eager to run to the Supreme Court to get them to resolve some of this. Even Congress seems in on some of that. What are you looking forward to next term? What do you think the court's going to weigh in on? What do you think they're going to pass on? So, yeah. So, we have the Fulton v. City of Philadelphia, the faith-based adoption. We have the Affordable Care Act already on the docket. Then the other big one that we have on the docket is Department of Justice v. the House Judiciary Committee, which is the effort by the House Judiciary Committee to get their hands on the grand jury materials from the Mueller report. So that's, you know,

as you said, they are not going to have not taken up any gun cases despite Justice Kavanaugh's strong suggestion that they should after they got rid of the New York gun case earlier this year. I do think we were sort of bracing for a lot of election related disputes even before the COVID pandemic hit. And I think that those are going to be magnified. The Supreme Court has already had several requests to intervene related to the primaries. There was the Wisconsin case. There was the Texas case just last week not related to COVID. in a Florida dispute over a law involving the right to vote for residents who have prior felony convictions. So I think that there is going to be a fair number of laws, a fair number of disputes in the weeks and months leading up until the election. And then there's a question with all of the mail-in ballots of whether or not we're going to have something along the lines, God forbid, of Bush versus Gore after the election. People, I think, have already sort of said no one should expect to know who won the election on the night of the election or the day after the election and whether or not there are going to be disputes over how those mail-in ballots are counted. It could be a busy fall and winter for the Supreme Court. And it's exactly that prospect

that makes me think about the Yellowstone supervolcano fondly. because the very idea of waiting day, maybe a week, two weeks as these numbers sort of trickle in, uh, in swing States. Uh, I just, that,

that just thinking of the political and cultural atmosphere in the country at that moment, I just, my mind doesn't want to go there. So I want to talk about covering the Supreme Court a little. SCOTUS blog comes onto the scene as kind of a disruptor in Supreme Court coverage. Major newspapers all had their Supreme Court reporters.

Very normal, right? There's a headline, there's a story. But SCOTUS blog is, I don't know what to even compare it to. To me, it's like, do y'all have Luby's where you are? It's like a cafeteria where you get to go through the line, but it's like real entrees.

But then there's the statistics page. There's the Twitter feed. I mean, you've become the go-to, so much so that people actually confuse the SCOTUSblog Twitter feed, of course, for the Supreme Court itself. I love the tweets every, what, month or so. Y'all write back to someone and, you know, once again, note that you are not the Supreme Court itself. I love the tweets every month or so. Y'all write back to someone and

once again, note that you are not the Supreme Court. Yes. So how have y'all built that out? What was the initial vision for SCOTUSblog and how has that changed over time? And then of course, we have to get into the phone arguments and we'll call it Lyle's tirade. Sure, sure. So for starters, I used to be a practicing lawyer. I was practicing back in 2002, just to sort of age myself and the blog, with my husband. And we had a small firm and neither one of us had done the sort of thing that people do normally when they have a full-time Supreme Court practice. We didn't clerk at the court, we didn't go to Harvard or Yale or Stanford, and we didn't work in the office of the Solicitor General. And so we actually started the

blog as a business development tool to try and set ourselves apart from other law practices. And it turned out to be a relative failure as a business development tool, but it was a lot of fun. So we kept on going with it. And in 2004, I think was when we hired Lyle Denniston as the reporter for the blog. And Lyle, that was after Lyle's maybe third retirement. Yes. And so you have to start putting retirement in air quotes when you talk about it in the context of Lyle. He was only in his 70s then. And he really took the blog to the next level, working sort of tirelessly in the quality of the coverage that he brought to the court. And over time, I started practicing law less and working on the blog more. And, you know,

other people worked on it. Many other people have worked on it as well. And it's just been so much fun to do. And every time, not going to the Supreme Court now because the building is closed, but every time I get dressed up to go down to the Supreme Court now because the building is closed, but every time I get dressed up to go down to the Supreme Court, I just think, wow, I can't believe this is my job to go and do this. My like fun little trivia, but my husband, Scott Keller, who you know,

we think he was actually the first person to go to the court in person with an emergency petition when after COVID started in the Wisconsin case. So that was like, I have a picture of him outside of the court holding his little petition with a mask. We used to do that back when we were practicing, you know, occasionally you'd like wind up filing yourself late at night because you couldn't get your act together in time to do it properly during the day. And so you'd be at the guard hut outside. That's exactly what this is, yes.

So a bit of SCOTUSblog trivia. You have the live blog on Decision Days. Yes. Which I love, which I love. And I have scolded Sarah because she will sometimes just simply refresh the SupremeCourt.gov page. Come on, Sarah.

You have to be on the live blog. No, Scott and I sit there and we hit refresh over and over and over again. But we also have SCOTUS blog up. It's just a different tab. Okay. Right. But it's the refreshing. You cover all your bases. Yeah. What's the peak number of people you've had watching the SCOTUS blog live blog? So we actually had, and it was sort of the confluence of circumstances because it was the last day of the court's term. So everybody knew it was coming and it was 2012. We had a million simultaneous viewers on the live blog for the Obamacare decision.

We have like not come anywhere close to that since then, just to be totally clear. Well, to some extent that put y'all on the map because so many of the networks got it wrong. And you guys did not get it wrong. Right. And other people got it right as well. But yes. Cable news. It was not the best moment for cable news in my memory. No. Oh, man. I remember seeing some live reads of the opinion that did not go very well. Shall we hear more about Lyle's rant? Because this is the first I'm hearing about Lyle's rant. Oh, I loved Lyle's rant.

So after the Supreme Court moved to having oral arguments in May, they also moved to having them over the phone. And it was live. This was a big deal because there's been this ongoing debate over whether to do televised Supreme Court arguments. And before this, you could always get the oral arguments, but it was the next day usually. And so there was this delay and therefore only really the reporters who cover the Supreme Court and have credentials get to hear the arguments live.

And then they would come out and tell us how they went, or if you were lucky enough to get a ticket, or the public ticket, or the lawyer ticket, either way. But again, we're talking about a very few number of people. And so there's been this like, should the Supreme Court be more the court of the people, or should it maintain this elevated Olympus status? So May was kind of this foray into that. And all of us got to listen in live. I listened into the first argument, which was great. Two female advocates, which was kind of fun. Little like, unfortunately, like so unrepresentative. But it was a fun case in the sense that so many people only think the Supreme Court takes these, you know, abortion

cases. And in fact, it was on a copyright issue with booking.com. So on the one hand, it's something everyone knows the name of. And then they got to like hear a copyright case. So I was, I thought it was great. I enjoyed listening to it because- And Lisa Blatt is like fantastic. She's an incredible lawyer, but also like highly entertaining. Like, you know, she had these metaphors, you know, she was talking about like, well, you know, like when I entertaining. She had these metaphors. She was talking about, well, when I was looking for toilet paper online, because this was hype in the middle of the pandemic. And she's so comfortable. I think as a listener, it makes you more comfortable when the advocate's comfortable. And it's so different than just

reading a transcript later as well. So I was very into it, really enjoyed it. Scott and I sort of went back and forth on pluses and minuses. But for the most part, we were very in favor of it. And then enters Lyle with this just, I mean, he eviscerated the whole thing and he had strong, strong feelings that start with, I have covered the Supreme Court for 60 years. Please continue from there, Amy. And then where you fall. So I, you know, I, first of all, was thrilled that they had live audio. You know, I thought that, you know,

I would get text messages, emails from people, you know, around the country. I'm watching, I'm listening. You know, I've got C-SPAN on. Terrific that people were sort of engaged, especially at a time when everybody was at home. I thought that the court came off marvelously. Everybody asked questions, including Justice Thomas, who normally does not ask questions. His questions were terrific. Other colleagues keyed off of his questions later on.

There was the toilet flush. There was the toilet flush. The toilet flush would not happen if they had live audio in the courtroom. I mean, it's clearly, you know, I felt bad for Roman Martinez during whose argument it happened. It was obviously clearly not him. But everyone thought it was, which was embarrassing for him. But everyone thought it was, which was embarrassing for him. Right. But, you know, so I thought I thought there were many positives to it, you know, and I thought if you were listening, you know, as someone who didn't normally listen to Supreme Court arguments, you wouldn't notice a difference. You know, it was not my favorite as a reporter because I thought it made it harder to know what the justices'

true concerns were. You know, everybody has a set slot in which to ask questions. You have a set amount of time. There's no back and forth between the justices. So it's harder for them to talk to each other. You know, it was, and so I found it much harder to sort of game the May arguments. I was surprised with a couple of the outcomes of some of the May arguments or like that some of the votes came out a little bit differently than I might have expected them to based on the oral argument. But having said that, you know, I think it was really the only way for them to go about it. I can't imagine having nine justices, eight of whom under normal circumstances, regularly ask a lot of questions on an open phone line with no way to see each other, asking questions for just a half an hour. Like, it would just be a disaster.

You know, they'd be constantly interrupting each other. I enjoyed them being longer as well. Each of the arguments was significant, you know, much longer than it normally would have been. And I enjoyed that. Yeah. No, I thought, I mean, I thought given what they were dealing with, I thought it was the only way to go about it. It wasn't a perfect system, but, you know, I wouldn't want them to use it in the courtroom. But for telephone arguments, I thought it was, you know, if they have to use some sort of remote argument

format in the fall, you know, is there another way to do it? Could they do, for example, something in which they provide live audio, but the justices are on a private Zoom call with the advocates so that they could see each other, for example? Exactly what we're doing here. Exactly. I mean, I do think that that works nicely. But if they're going to do it just with audio, I think that's really, I'm not sure that there's a better way to do it. Okay. But Lyle disagreed. Lyle did disagree and far be it for me to argue with someone who's been covering the Supreme Court, uh, for longer than I've been alive. Um, but cover some of Lyle's main critiques.

I mean, I think I kind of did, but you know, I just, I critiques. I mean, I think I kind of did, but I think his main critique is basically that it would have been better to not do it at all than to use this format. And I disagree with that. Okay. So circling back to the term, am still with all due respect to lyle that's implied that's implied yes absolutely um just circling back to the term i find myself endlessly fascinated by the oklahoma case the mcgirt case uh and the justice gorsuch opinion opinion and the sort of the john roberts like shock and horror at the gorsuch opinion and the sort of the John Roberts like shock and horror at the Gorsuch opinion. And is that a case you had been following closely? Because honestly, I'm embarrassed to say

I hadn't followed it that closely because I just assumed, you know, I had for no good reason assumed the status quo would prevail. But then when I read the opinion, you know, I found myself completely nodding along with Justice Gorsuch. But it was a fascinating sort of masterclass in American history and law regarding, you know, an issue that has enduring relevance for a large number of people

in the United States of America, but is out completely outside the consciousness of the vast majority. I just thought it was an absolutely fascinating case. Yeah, no, I did had not, I like you had not actually been following it that closely. And it was the second time that they had had arguments on this question. time that they had had arguments on this question. They'd had to punt essentially on the first case because presumably they were deadlocked with Justice Gorsuch recused. You know, it was kind of the exception to one of the sort of principles that was sort of running throughout the term, which was like, don't blow things up. You know, like in the Puerto Rico case, in the CELA law case, there were, you know, like, we're not, in the faithless electors case, we're just going to, like, even in like the CELA law,

like, okay, we're going to say that the leadership structure of the CFPB is unconstitutional, but, you know, we're not going to go so far as to blow up the whole CFPB. Faithless electors, like, they were very concerned about that, you know, the little-known chaos principle of constitutional interpretation really, I think, had a lot to do with the result that they reached in that case. But, you know, there were five justices in the Indian case, the McGirt case, who were willing to say, like, this is what the agreement says, you know, that they reserved this land as a reservation, and Congress never explicitly took it back. And I'm not, you know, not at all surprised that it was Justice Gorsuch who wrote that. Again,

sort of a masterclass. And so much interesting stuff that'll come from that. Just today, there was a story quoting a number of folks in the energy sector who have energy interests on that land. And now that's all sort of been thrown into chaos and oil and gas law, someone who had to take the Texas bar, oil and gas law is a mess anyway. And so this adds a whole nother complication to, you know, if you've watched, what is it? There Will Be Blood.

Like you're now drinking someone else's milkshake than you thought you were drinking. Right, right. Yeah, that case is fascinating because he essentially said, you know, look, as you said, Congress acted. It didn't undo its action. And you know what? It's not my job to think through the implications of that. I felt like a majority of the court was saying, hey, if there's a mess, you know, I know exactly the entity that's supposed to work this out. And I felt like as I was reading the, not the Vance case, but Mazars, and can we clear up the proper pronunciation? Is it Mazars? I say Mazars. That does not mean it is the proper way to say it. Okay. Because I said something like Mazars and Sarah had like a

physical reaction. Well, you mispronounce a lot of things, including the name of our organization. Whether it's the dispatch or the dispatch, Amy. It's the dispatch. No. And I have friends who make fun of my pronunciation so much. You know what they now call us? The dispatch. so much, you know what they now call the, they now call us the dispatch. But anyway, I got a distinct impression in Mazars that Justice Roberts was saying, you know, there's a job, Congress, you can do here and you should have done it. And all I'm doing is I'm just putting words on a page that do one thing, get rid of sort of the absolute immunity,

but the other, just punt it right back to you and to these political branches that should have settled this and have settled this for all this time, settle it. Yeah, no, that is for sure. I mean, and that you really heard that at the oral argument too, like everybody else has worked this out. Why can't you guys work this out?

Right. Right. And I mean, and that goes that works both ways. I mean, that with both Congress and, you know, this comes back to Roberts and the Trump administration. Right. Exactly. All right, David, we should let Amy get back to covering the court. Feel like, I mean, she has to get antsy, not being able to read all the orders yet. I can feel the tension. I think actually when I was last, the last podcast I taped with Lyle, we got the other, we got some other order. You know, I do feel sorry for the folks who work at the court

and thought they were going to have a quiet week once the term was over. Nope, nope. So we have to end with something more fun. David, I don't know if you had something in mind. If you have something in mind, I'm sure it's better than mine. Okay. You talked about your go bag that's at the door that's now going to be super volcano ready. And you're going to flee the super volcano. This means you're going to be, you know, and you're going to flee the super volcano, this means you're going to be, you know, stuck on the road for a long time, driving fast. What are you listening to?

What am I listening to? Probably whatever my 17 and 13 year old want to be, want to listen to. Oh, you're taking them with you. How nice of you. Do you like their musical taste or do you just sort of shut your ears? Pretty good musical taste. They like my musical taste better than I like their musical taste a lot better than they like my musical taste. Interesting. So yes, I wasn't sure if the kids were into throwback music anymore.

Like back in my day, it was very cool to be into, you know, the doors or I don't know, flaming lips or stuff, but like maybe the kids aren't into retro now. I think they are into like what I would even consider retro, but you know, the sort of the stuff that I listened to is hopelessly uncool. Well, you, you are mom. So by definition, it's probably uncool.

Yes. Well, thank you so much. Thanks. It was great to talk to you guys. Well, thanks for coming on. This was great to get your expertise and analysis, and we really appreciate it. And we've bonded over hatred of Duke basketball, which... Always. Anytime, anywhere. Thank you.