Advisory Opinions - Biden’s Supreme Court Commission Part II

Episode Date: October 21, 2021

It’s weeping and gnashing of teeth for David in today's podcast as the Supreme Court deals a devastating blow to his dreams of abolishing qualified immunity. But Sarah saves the AO crew from despair by conducting another Supreme Court symphony regarding the Biden commission. Come for the despair, stay for the analysis, and relish a deep dive into Supreme Court reform. Show Notes: -Supreme Court order list -Presidential Commission on SCOTUS Learn more about your ad choices. Visit megaphone.fm/adchoices

That's the sound of unaged whiskey transforming into Jack Daniel's Tennessee whiskey in Lynchburg, Tennessee. Around 1860, Nearest Green taught Jack Daniel how to filter whiskey through charcoal for a smoother taste, one drop at a time. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger, and we've got Supreme Court, Supreme Court, and Supreme Court today. Let's start, Sarah. Well, before I start, before I start, I do want to do a dispatch-related plug. Okay, so I'm going to try something new

next week. So next week, I'm going to have an AMA after I send my newsletter. So what I'm going to do, and this is going to be for dispatch members only, after I send my newsletter what I'm going to do, and this is going to be for dispatch members only, after I send my newsletter, I'm going to launch a Zoom seminar where that time will be in the email and we'll email the time where you can ask me anything about the newsletter or anything about anything else I've written. And so this is something we're trying and I'm the guinea pig to have better contact and with our dispatch members and answer your questions. Because one of the things that's so great about the dispatch is that the comments section is really good and very smart. And I read it all the time. And I think if I had time, I'd answer that question.

And I don't have the time, but it's a lot easier to do it in real time in a real conversation style format. So we're going to try that next week. So if you're not a member of the dispatch, you'd like to ask me a question about something that I've written or something else,

because it's going to be an ask me anything, please join the dispatchispatch.com. Go to thedispatch.com and please join, and you can be a part of that conversation. So that's a new thing. We'll see how it goes. I hope people show up for it. That's the big thing. I can't wait to pick out my pseudonym. I think I'll be able to pick out any pseudonym you choose, Sarah. I think I will. I've been spending a lot more time, by the way,

in the advisory opinions comment section the last couple weeks. I now look forward to every time I get a little notification that there's a new comment. So I'm really enjoying that. I don't know. It's like the fall weather and AO comments. It's bringing me a lot of joy. So thank you to our members and the comment section,

which always just has smart things to talk about. But speaking of smart things to talk about, David, this week, we're talking about two very different parts of the Supreme Court. But for me, there is a through line and that is they're missing it. It's all wrong. Everything's wrong. Okay. Well, here's let's just start. Let's start with qualified immunity. And Sarah, I feel like, so long-time listeners know that I have long been arguing that the Supreme Court needs to reverse its precedents regarding qualified immunity. Qualified immunity is this doctrine that says that agents of the state, not just police officers, for them to be held liable for violations of civil rights, essentially what you have to show is that they are on notice in a very specific way that the

actions they're taking are violating your rights. In other words, you have to show a case in a court of controlling jurisdiction that is remarkably similar to your case if you're going to prevail. And the classic example of how difficult this can be actually comes from my state, the town next door to me, or the county next door to me, and my circuit, the sixth circuit court

of appeals where a, um, a suspect surrendered. He was on his knees and the police sicked the police dog on him. So they had the police dog attack him after he had already surrendered after his head, his hands were above his head and he was in clear surrender posture, the police dog attacked him and sent him to the ER. So he filed a lawsuit saying that was an unreasonable seizure and he lost. He lost. And he lost one reason. And he lost was because he was unable to show a sufficiently similar case

where a court had found a violation of civil rights. He was able to show Sarah a case where a suspect surrendered and was lying down when the dogs attacked him, but he was not able to show a case where someone had surrendered sitting up and the dogs attacked. So that's how specific this stuff has to get. And the other thing that has long bothered me about qualified immunity doctrine is it just flat out contradicts the statute. There's a relevant statute first passed in the 1870s that says that if your rights are violated under color of state law, that you shall,

that it commands, you will be compensated, you shall be compensated. And the Supreme Court modified that on its own to essentially mean shall not in most circumstances be compensated. David and I disagree on perhaps the broader philosophy of qualified immunity, but in practice, we actually agree quite a bit on the individual cases, which I think is very interesting. Right. And this brings us, I think is very interesting. Right. And this brings us, I think, to these two cases. So as we mentioned on Monday, the Supreme Court orders list came out.

And at the bottom of the orders list, if you scroll all the way down to page seven, you find two per curiam opinions, meaning unsigned opinions from the court. Although, interestingly, no dissents. No dissents. So now you don't have to dissent in a PC. You could still not be part of the five votes, but just not decide to write a separate dissent. So all we really know is that there are five votes. We don't know who they are, but there could be nine votes. They're both qualified immunity cases. And there's so much to unpack here. But David, why don't you explain the facts, maybe of just both? Because I think really they're the same case

in a lot of ways. And this is a messaging exercise from XOXO, the Supreme Court, down to the circuit courts. Yeah, and I think the way to describe it, to use advisory opinions, legalese, we were gnaw-dogged. Yes, there was a little bit of gnaw-dogging here. There was some gnaw-dogging going on, and it's going to be a through line, as you said, to some of the rest of what we're going to talk about. So we have two cases. We have one involving a police officer response to a 911 call

reporting that a woman and her two children were barricaded in a room for fear that the respondent, a man named Ramon Cortes Luna, was going to hurt them. So when the police responded, they found that they couldn't retrieve the woman and the two children from the house. They're going to have to seize Cortis Lunas. So to make a long story short, well, let me just get to the key part. It says that the police officer knocked on the door, stated loudly, police department, come to the front door. Union City Police, come to the front door. Union City Police, come to the front door. Another person yelled,

he's coming and he has a weapon. A different officer stated, use less lethal. Okay, this is referring to a beanbag shotgun. So I think this is an important fact. When Rivas Villegas ordered Cortes Luna to drop it, Cortes Luna dropped the weapon, later identified as a metal tool.

Which is not an identification, by the way. That's just a description. Identified is identified as a Phillips head screwdriver. And the call, the 911 call had been that it was a chainsaw and that they heard chainsawing in the background. Now a chainsaw is a metal

tool, so is a screwdriver, so is a ruler. And a can opener. So is a screwdriver. So is a ruler. So I'm confused. And a can opener. Yeah. So that's not an identification, but please continue. Yeah. So Rivas Villegas commanded, come out, put your hands up, walk towards me.

He puts his hands up. Villegas told him to keep coming. As he's walking out of the house toward the officers, he's commanded to stop, get on your knees. The plaintiff stopped 10 to 11 feet from the officers. Another officer then saw a knife sticking up from the front left pocket of Cortez Luna's pants and shouted, he has a knife in his left pocket, knife in his pocket, and directed Cortez Luna, don't put your hands down, hands up.

Cortez Luna turned his head toward the instructing officer, then lowered his head and hands in contravention of the officer's order. Another officer twice shot Cortes Luna with a beanbag round from a shotgun, once in the lower stomach and once in the left hip. After the second shot, Cortes Luna raised his hands over his head. The officer shouted for him to get down, which he did. Another officer stated, left pocket, he's got a knife. This is the key part. Rivas Villegas then straddled Cortes Luna. He placed his right foot on the ground next to Cortes Luna's right side with his right

leg bent at the knee. He placed his left knee on the left side of Cortes Luna's back near where Cortes Luna had a knife in his pocket. He raised both of Cortes Luna's arms behind his back. Rivas Villegas was in this position for no more than eight seconds for standing up while continuing to hold Cortez Luna's arms.

At that point, another officer who had just removed the knife from the Cortez Luna's pocket, tossed it away, came and handcuffed Cortez Luna's hands behind his back. Okay. I want to stop on this one

before we go to the next one. Okay. Okay. I want to stop on this one before we go to the next one. Okay. Okay. All right. Here is my question, Sarah. My question is, why are we dealing

with qualified immunity at all? Because I don't think that's a civil rights violation, period. That's going to be the same for both of these. Yeah. I'm closer on the other one, this one that's why i want to do

both okay let's i think we should do the facts of both and then go back okay all right so the next one the next one is a case that actually had a viral video attached to it i remember this from 2016 so this guy this involves a person named Dominic Rollis. His wife called the police. Oh, and Sarah, have you seen the video on this? I have not. Okay. Yeah, I wouldn't necessarily recommend it. I feel like I have watched

enough police-involved shooting videos from my time at the Department of Justice that I'm all packed in on those unless it is part of my required job duties. Right, right. So basically, police get a call. They're asked to come.

There is an ex-wife named Joy. Joy calls and says, come quickly. It's going to get ugly real quick. The dispatcher asked whether Rollis lived at the residence. He was in the garage and he wasn't leaving. He was in the garage. He was intoxicated. He wasn't leaving. Joy said he did not live at the house, but he kept tools in the garage. So three officers respond. All three knew that Rollis, which Joy's ex-husband, was intoxicated and would not leave her home. Joy met the officers out front, so she's out front, away from, she's not in any perceived danger. The officers confront Rollis and begin speaking

with him in the doorway. Rollis expressed concerns that the officers intended to take him to jail. Officer Gertner told him they were simply trying to get him right. Expressed concerns, indeed. I love that. It's so funny. The same words stand out to us. Officers, might I express a concern? No. I don't think that's how that went down, but yeah.

That's not the dialogue. No. Rollis began fidgeting with something in his hands, and officers noticed he appeared nervous. Officer Gerdner asked if he could pat Rollis down for weapons. Rollis refused. Body camera video captured what happened next. And boy, how'd he did it.

As the conversation continued, Gerdner gestured with his hands, took one step back towards the doorway, causing Rollis to take one step back. Rollis, still conversing, turned around and walked towards the back of the garage where his tools were hanging over a workbench. Officer Gerdner followed the others close behind. No officer was in six feet of Rollis. The video is silent, but the officer stated that they ordered Rollis to stop.

Rollis kept walking. He grabbed a hammer from the back wall over the workbench, turned around to face the officers. Rollis grasped the handle of the hammer with both hands as if preparing to swing a baseball bat and pulled it up to shoulder level. The officers backed up, drawing their guns. At this point, the video is no longer silent.

They can be heard telling Rollis to drop the hammer. He did not. Instead, Rollis took a few steps to his right, coming out from behind a piece of furniture so that he had an unobstructed path to the officer. He then raised the hammer higher back behind his head, took a stance as if he was going to throw the hammer or charge at the officers.

In response, officers Gerdner and Vick fired their weapons, killing Rollis. Okay, so I've seen the video. It's a video that was viral in 2016, and that's a completely fair description. Some news reports had initially stated that he lunged towards the officers. That's not what happened.

He's holding, well, you can't see the zoom. He's holding the hammer above his head. He's well out of range to swing it and hit somebody, but he can certainly throw the hammer above his head. He's well out of range to swing it and hit somebody, but he can certainly throw the hammer. And he's in a motion where he could throw it, but not hard. He'd have to rear back if he was going to throw it. Before he rears back, he doesn't lunge. He doesn't rear back. He's shot and killed. Okay. But let me now explain the qualified immunity process here real quick. So in order to recover civil damages, two things have to be found. One, that there was, in the police-involved

excessive force cases, there was a violation of the Fourth Amendment, and that the officer is not entitled to qualified immunity, i.e. it had not been clearly established what that Fourth Amendment violation was before the events in question. Now, you would think that those two things would need to go in order, i.e. first we determine whether there was a constitutional violation, and then we determine whether that was clearly established at the time that it was a constitutional violation. But that's not what happens the time that it was a constitutional violation. But that's not what happens. And that leads to a couple problems that I just want to run through before we go back to the facts and apply this law to those facts. What happens in a lot of cases

is that they simply determine that it wasn't clearly established at the time whether that was a constitutional violation. Therefore, we're not going to determine whether it was a constitutional violation. What's the problem with that? No constitutional violations ever become clearly established because courts so rarely reach that question. And it's like this self-fulfilling little circle of qualified immunity fund.

And it's bizarre. So because the courts can always just say that something wasn't clearly established at the time without determining whether it was a violation in the first place, therefore nothing becomes clearly established. David, I totally take your point that when something is clearly established that is such a close neighbor to something else, it becomes even more farcical that you require it to be so precise because so few of these cases ever reach that question to begin with. it to these facts, because spoiler alert, the Supreme Court says both officers are entitled to qualified immunity, that both of these situations were not clearly established whether they were violations of the Fourth Amendment, whether the officers had used excessive force. And also, spoiler alert, the Supreme Court never says whether, in fact, these are violations of the Fourth Amendment. Therefore, this is not now precedent for the future of a clearly established constitutional

violation. So it is exactly perpetuating the problem in hand. Whoa. I have you and I both are going to have issues with this, though. I think perhaps we think the court could have or should have resolved it. You probably think maybe at least in one of them they shouldn't have gotten qualified immunity at all. I if they want to fix qualified immunity doctrine, the way to fix it is by fixing the process at minimum. And perhaps to your point, David, fixing the doctrine as a whole, but at minimum, we could start by trying to fix the process. And they could have easily done these PCs by saying, first, courts should look at whether

there was a constitutional violation in this case. And maybe even the two cases could have been very interesting because they could have shown in one, there was a Fourth Amendment violation, but it wasn't clearly established. And the other, there wasn't a Fourth Amendment violation. Therefore, we don't need to reach the qualified immunity question at all. That could have been very instructive to the lower courts. That's not what happens here. And I think that's where my super frustration is. Yeah. I mean, I think you hit the nail on the head on the process. In fact,

let me read exactly from the Rollis case. We need not and do not decide whether the officers violated the Fourth Amendment in the first place or whether recklessly creating a situation that requires deadly force can itself violate the Fourth Amendment. Which, by the way, separately would have been such an interesting opinion to have from the Supreme Court, whether officers in creating what when is the moment of excessive force? Is it the moment someone is now holding up a hammer? Or is it when you walked in the garage and kept getting closer? And certainly in our current law, it is absolutely in the moment that he holds up the hammer, that is when we

determine whether you used excessive force. There's not really a question as to that, despite what the circuit court in this case tried to kind of cutely say. But, and I'm not sure this is the best example of that. There have certainly been examples of excessive force cases where I have reviewed the record, perhaps mentioning some of those videos that I may have watched in a past job, where I think it is a much closer call that the officers created a dangerous situation where a weapon wasn't involved on the perpetrator. And then the moment that we only look at is in that exact second, could they have a reasonable fear for serious physical injury or death? Again, very interesting legal question. And they dodge it here. And I'm not sure it's a good vehicle for it.

They have so many things they could have done with these cases. This is why the lower courts want qualified immunity guidance. And separate from the process, David, there's, of course, the doctrine of qualified immunity, which is a textual, a historical and a hot mess to apply. And someone in this house, it's not me, it's not Nate, perhaps wrote a long law review article looking at the original understanding of that 1871 law at the time that it was passed and the common law leading up to it in which, no, this clearly established thing is bonkers town. And instead it should be something much more like good faith, bad faith. So you first determine whether there's a fourth amendment violation and then determine perhaps that despite there being a fourth amendment violation, the officer was acting in such good faith that there is some common law immunity due to that. Yeah. Which is quite different than clearly established, actually, because the clearly established problem, as we said, is therefore

you have to have a judicial finding on point on the fourth amendment with an excessive force, with very similar facts, when in fact, they never have to reach that question anymore, so we don't have clearly established. I mean, basically, the Fourth Amendment excessive force cases ended, I don't know, 15 years ago. So God forbid you might have an excessive force case that involves Bluetooth. You're not going to have a case on point. An excessive force. Now, that is a fact pattern. I would be fascinated. I just came up with one. He was going to tell Alexa to do something mean and like, yeah, you can't do anything about that.

I just came up with one. So here's a fact pattern, real life. I just came up with one. Okay. So here's a fact pattern, real life. Okay. A friend of mine is having a conversation with another friend about a woman. Okay. Pulls into the driveway of his house.

His family, including wife and daughter, are listening to a music on a Bluetooth speaker. Yep. Yep. Yep. Yep. Yep. Suddenly. Oh, no. Suddenly the Bluetooth speaker switches over to the conversation between these two guy friends about a woman.

Now, it turns out it was an innocent conversation, but that switched over at the very part where one of the friends was expressing opinions about the physical physical attractiveness yes so that could um that is a bluetooth example where she may use excessive force she might use excessive force and every guy listening just died a little bit inside and learned a valuable lesson i do think it's also so i want to get your opinion on these cases and and how you think they should have come out um i do think it is very relevant though before i hand it over to you and this is where we diverge sometimes the court also has not made the distinction for the

lower courts between split second decision making that involves officers and not split second decision making that involves, for instance, school administrators, something else that I think would be good guidance for the lower courts. And in this case, even more so, they don't mention this, but both of these cases are domestic violence calls that they're responding to, which if you look at the you can find websites that list the number of officers killed and in the line of duty. The mode is traffic stops and domestic violence. And so these guys are responding to the most dangerous calls that they respond to. Now, of course, as a percentage of domestic violence calls, the number of officers who are killed is, of course, quite small. But nevertheless, it says, the 12-year-old says there's a chainsaw, they can't get out of the house, and I hear chainsaw in the background, says the 911 operator. That's how they're walking in. Well, so let me go one at a time. And first, let me say,

you're 100 million percent correct that this process is screwed up and we'll save the real screw up on the SCOTUS part of the process to segue but um the process of saying we don't have to decide the fourth amendment question before we establish decide the qualified i mean the clearly established question is messed up. Now, situation number one. Now, situation number one, it appears in that circumstance what you have is a situation where the police basically did everything the way you would want them to do it, okay? So they try to make sure that the 12 year old girl and 15 year old sister and the mother are safe they realize that they can't exactly secure their safety immediately so they've got to get the guy out of the house the guy comes out of the house he's got a metal he's got a metal tool which could be anything apparently from a can opener to a chainsaw who the heck knows what it is come on court uh please describe the metal tool he's got a metal tool puts it down then they see

that he's got a knife okay um well wait he's got a metal tool comes out they use non-lethal munition that's very important so again this seems by the freaking book here. Rather than he's got a metal tool, ha ha, it's a free fire zone, it is non-lethal munitions. That leads to the surrender process, but they see the knife and they seize him and seize the knife. And for less than 10 seconds,

he has the knee on his back for less than 10 seconds. So to me, right here, you say that's not a civil rights violation. When you're carrying a knife, it is not an unreasonable seizure for there to be a knee on your back for a few seconds while someone is securing a knife. I just find that difficult to conceive of the idea of how that's a civil rights violation. Okay, go ahead, go ahead. Well, I was just going to note that I think what they don't mention is what injury

he may have had from that, because despite how short it may have been, he may have been seriously injured from having a knee in his back for eight seconds. But then you get into, in the law, actually, that's not what matters to the excessive force claim. It is actually only does a knee in the back, regardless of we don't know the outcome of the injury, is that excessive force. We don't care whether, in fact, that eight seconds broke a vertebrate in his back. That does not determine whether it's excessive force, except to the extent it tells you how hard the knee was

pressed in his back, perhaps. But the injury after the fact is irrelevant, interestingly. Right, right. And so this is the kind of thing where this is where, let me put on my police officer hat, and I say, have you ever tried to physically secure a grown man with a knife? Okay. That's not easy. It's not easy to physically secure, say, even a young teen necessarily, considering how big they may be. I would just like to report, and when it comes to diaper changes, it is remarkably difficult to secure a 16-month-old. True statement. I mean, I have used a full forearm on his chest to try to get that kid down when I'm solo parenting. And the other thing I noticed is when you're in physical contact with a person who has a knife, that's dangerous. Okay. So here you have something where,

absent something missing from a body cam that they're not talking about that would be a relevant and material fact, this is, there's no civil rights violation, end of case. Okay. The second one, the interesting question to me is the one you raised, Sarah, which is, were the actions of the officers which led up to the shooting creating the crisis that they

then resolved by killing the suspect? That's the interesting question for me. Now, this is not the best test case for that. There are parts of this that make this more questionable to me than the first case. Number one, there was nobody in immediate danger. No civilian was in immediate danger. Number two, he was cornered in the garage. There was no danger to them retreating from the garage. This is a question where it would have been very interesting to receive expert testimony about the proper procedure in a circumstance like this, where there is no civilian in any sort of danger,

and some expert testimony about when you watch the actual video, I feel as if the court exaggerates perhaps sort of the danger to the officers in that circumstance. So to me, it's a closer question there. I will also add in when someone is seriously inebriated as they knew that he was, their ability perhaps to respond correctly and quickly to commands is also lessened. Now, if there's a civilian in danger, I don't care. If you're somewhat unable to quickly respond to commands, you're the one who put yourself in that inebriated state. On the other hand, to your point, when there's not,

it does change it a little. Now, again, I happen to think this isn't a great test case compared to some others where, for instance, an officer has someone on the ground, is in the process of putting their hands behind their back. The person's hands are squirming. They're having trouble getting the hands. And he says, reaching for the pocket or something else. Oh, yes. And then they shoot them. You know, that's to me those better cases where, on the one hand, it's more split second. You know, anyway. Yeah, go ahead.

I could list for you several cases that are better test cases on that. Yeah. But even so, they never get to this being a Fourth Amendment violation. And I'm not convinced that it is at all. And therefore, like, it's certainly not clearly established moving forward. And the tone of the court's opinions in both of these is a little bit, I don't know if pedantic is the right word, but condescending to the lower courts. How could you not find qualified immunity here? You dum-dums.

This is so obviously not clearly established. The officers here were doing exactly what we expect them to do. I can't believe you're wasting our time with this nonsense. Summary reversal is what it's called. And just that phrase alone should mean to you that they're running out of patience with the lower courts. And oftentimes, the summary reversals, they're running out of patience with the lower courts. And oftentimes the summary reversals, they're running out of patience for a good reason. It is usually the ninth or fifth circuit for very different reasons. But in this case, if I'm the lower court, I'm like, no, no, you're the one who failed to give instruction. This is like a teacher. I was teaching my undergrads and they altered in papers that were quite bad. And I told them, all of your papers were bad, which is terrible news for me, because it means I failed to teach you the thing. So if all the lower courts are turning in bad qualified immunity papers,

don't blame them. Blame yourselves, Supreme Court. Yeah, yeah. And more context. So more context context and then we'll roll into our next topic because this is such a perfect roll into the next topic so the more context is actually this is coming after a these two per curiam cases are coming after a really comprehensive bipartisan cross-partisan i mean mean, we're talking conservative, progressive, libertarian, tsunami of amicus briefs in previous terms, trying to get the Supreme Court to take a closer look at qualified immunity, where they held qualified immunity cases till the very end of the term,

after rolling them over through conference after conference after conference before summarily denying all of them and then and then issued some opinions in recent months that indicated well we might be modifying this a little bit specifically by basically saying you know this whole clearly established thing, you don't necessarily have to come forward to the really precise case if the violation is obviously bad enough. So if it's obviously bad enough, if it's really off, you know, if it's really off the chain, off the scale, then we don't have to do the clearly established things. So it began to open the door to, wait, are we rethinking qualified immunity?

And then here they come in with these per curiam decisions, which are basically, they basically read like district court summary. I'm sick of this case. Get it off my docket. Short, you know, duh, this is all obvious kinds of cases. And here's the segue, Sarah, on this incredibly important issue. Cases that were not on the emergency docket, on the regular docket, they just tossed them summarily.

There's no full briefing here. There's no full briefing here. There's no oral argument here. Boom, out, gone, gnaw-dogged. Gnaw-dogged. Gnaw-dogged. Good segue, because from the Supreme Court Commission that met last Friday, on Monday, of course, we talked about their overall history

and how they are viewing how we got here for the Supreme Court, and, of course, we talked about their overall history and how they are viewing how we got here for the Supreme Court. And, of course, the court packing section. But there were three more sections that I think deserve conversation. And they're much easier to introduce because everyone can kind of grasp the deal. And while I thought the readings were interesting, we don't need to go into a lot of detail. One, term limits. So a couple things on that. They looked at 18-year and 15-year term limits and mandatory retirement age. Judge Wilkinson, interestingly, put an op-ed in the Washington Post strongly against term limits,

even though there was some polling that came out today, which showed a large bipartisan majority of people favor term limits. And I can't tell you that how much this will be my think about Supreme Court justice term limits when they haven't thought through any of the possible byproducts of such a thing. And in fact, of the 34 members of the commission, at least five, maybe six came to the mic to say, I went into this moderately or quite in favor of term limits. And after reading the materials and thinking about it and hearing the discussion today, I am staunchly and strongly opposed. And that included Adam White, probably the furthest right on the commission, and Lawrence Tribe, certainly one of the furthest left on the commission. One of the big reasons that I found persuasive, David, was this idea of strategic holdover. So if you know that the swing vote, for instance, is about to move off the court in, let's say, four years, you just don't take important cases for four years, which I thought was an interesting point that someone made, or as one of the commissioners mentioned,

if every president is now sure that they will get two appointments, then when they, you know, say who their vice presidential nominee is, why not announce who their two Supreme court picks are going to be? And now the yard signs have four names on them. And perhaps at some point, those Supreme court nominees choose to campaign

with the presidential candidate. We're not that far off from that. One last historical note. Worth mentioning how random this has been. I talked about how there's sort of these chunks of Supreme Court justices. That's true now that they will probably leave the court in chunks, but it was also true forever. So our current Supreme Court, or the last few, because I'm including Ginsburg in this, H.W. Bush, one pick. And I'm using each presidential term as a separate president. Clinton, two picks. Clinton, zero picks. Bush, zero picks. So that's eight years, two presidential terms where there were no picks to the Supreme Court. Bush, two picks. Obama, two picks. Obama, zero picks. Trump, three picks.

Wait, H.W. is two. Oh, I'm sorry. I was only counting the current court plus Ginsburg, but yeah. Oh, okay. Okay. Yeah. But yeah, I should have counted Kennedy. So yes, two. Souter. Souter and Thomas. Souter and Thomas. Sorry. Yeah. That's why I didn't count it because I was going to count Kennedy, but he was Reagan, actually. So anyway, my point being that actually it's been chunky and random and it's going to be that still. And there's a benefit to that. OK, so now there's also the jurisdictional question that they looked at, which was whether to limit what the court can review. You don't like the court's abortion jurisprudence. You can pass a statute that says the Supreme

Court can no longer rule on abortion cases. Now, of course, that I think has some obvious problems with it. But you could limit them to not being able to overrule any to invalidate any statute passed by Congress. You could say they can can't find anything unconstitutional. You could limit that to the Supreme Court. You could limit it to all federal courts. And another thing they looked at was supermajorities. So if you are invalidating a constitutional provision, I mean, a statutory provision for constitutional reasons, it can't be a close call.

It can't be 5-4. It has to be seven votes to find something unconstitutional. Of course, that leaves all sorts of problems on what is finding something unconstitutional? Is it as applied? Is it in all cases it has to be unconstitutional? And the last thing they looked at in that last chapter was the shadow docket, which many people did not want to call the shadow docket anymore, which was very funny because Will Bode was on

the commission and Will Bode takes the mic to say he is quite fine with not calling it the shadow docket. Death penalty cases, their certiorari process of how they take cases, who's advocating in front of the Supreme Court, ethics, whether the Supreme Court should be bound by ethics and transparency. Although on that section, interestingly, thankfully, it appeared the entire commission was happy to sign on to the idea that there should not be TVs in the Supreme Court, something that I feel strongly about. Okay, So David, those are the last three chapters. I have one overarching. This is all wrong, but I'm curious before we get to the overarching, just are you in favor of any of this? Okay. So I have an overarching. Well,

you said before we get to the overarching. Yeah. Let me say this. I am term limit curious. Yes, I think everyone on the commission, I think all of us are term limit curious, but I have been radicalized after listening to the 90 minutes or so and reading the whole thing. I'm radicalized. So, but I think you should explain why you're term limit curious. Yeah, so I'm term limit curious. One of the reasons why I'm term limit curious is for precisely the reason that you just described about the chunkiness and the randomness

of the Supreme Court. So if you take chunkiness and randomness and life tenure, what that means is that you have presidential races with unpredictably large or perhaps unpredictably small stakes, depending on the happenstance. So Donald Trump had three court nominations. That's unusually large stakes between 2016 and 2020. I think it's worth noting two were due to death and one was due to what you could consider a strategic retirement, because I think strategic retirements are also an important part of the term limits conversation. Our justices making themselves more partisan by choosing to retire under a certain political party. But death obviously is not partisan.

Partisan, right. Nope. Nobody's choosing to die to open up a place on the court. Yeah. So what you have here is a, so you have the randomness and you also, I'm glad you brought up the strategic retirement, a bit of gamesmanship. Yeah. So I might be hanging on by my fingernails when i really should be enjoying my cabin in colorado which i would love to have one day but i enjoying my cabin in colorado uh should be there i should be maybe i've lost a few miles an hour on my fastball maybe my court clerks are doing way too much work but by golly i don't want this president nominating my replacement so I'm just going to hang on as long as possible. That's a kind of gamesmanship attached to the court.

And I don't like it. The thing I'd like about term limits is predictability. Most of the proposals that you will see have two justices per president, one decided in the first year, one decided in the third year. So you have two justices. It's set, you know, barring a death, which is very unpredictable. It's set. The second thing I like about the term limits under the proposals, you're still protected from the political pressure, largely protected. The protection of from political, the primary protection from political pressure largely protected. The primary protection from political pressure for a judge is the life tenure. It's that life term. And that life term is what allows you to sort of say, I don't care what the president or his party thinks about my jurisprudence.

I don't have to care anymore. I'm going to do my thing. I'm going to do what's right. When that's done properly and appropriately, that kind of judicial independence is vital. Sometimes it results in the sort of feeling of betrayal amongst voters. Say you said, hey, look, I campaigned for president because they're going to nominate a certain kind of judge. They nominated a judge and he didn't turn out to be a certain kind of judge. But the life tenure protects from that blatant political pressure. A specified term would largely protect from that pressure as well. And I do think some of the negative things that you talk about, such as naming a Supreme Court

candidate or naming a potential judge, and then maybe them campaigning with the president or vice president, which sounds gross. And let me add another one for you, David. 18 year terms. You could put Josh Hawley on the court right now. And in 18 years, Josh Hawley runs for president. And the whole 18 years he's setting up his presidential run as, see, look what I did on the Supreme Court. Now I can do it for the country. I think that would be wildly bad for the court.

Right. No, I agree with all of that. The question I have is how much can we, by statute and constitutional amendment, control for those problems? So the commission looks at that, obviously. And in all three cases, the term limits, the jurisdictional stripping this question, and to some extent that merits dockety stuff. And while they come up with very creative ways that you might be able to do it by statute, basically in the end, everyone agrees all of this would have to be by amendment. to basically in the end, everyone agrees all of this would have to be by amendment. Right.

So if you had a constitutional amendment that said 18 year term selected first and third year of the president's term, the justices, potential justices may not be named prior to the beginning of the president's term. And that at the expiration of the 18 year term, such judge is ineligible for any elective office, you're going to control for a lot of that nonsense. So I'm still term limit curious. I'm still term limit. They haven't persuaded me against term limit curiosity, but I'm not all the way there.

I'm just, I'm term limit curious and leaning in that direction. All right. What about jurisdiction stripping? That perhaps I, so I'm super majority curious. You're super majority. Okay. Well, tell me about.

We shouldn't be invalidating statutes from Congress with just a, when you think it's a close call, whether it's unconstitutional. Perhaps it should have to be obviously unconstitutional. Now, whether that's obvious based on the number of people or you simply change the standard instead of constitutional or unconstitutional, you change it to clearly unconstitutional or, to coin a term, clearly established as unconstitutional. So for instance, SB8, the Texas bill, if it were a federal bill, for instance, would be clearly established as unconstitutional. Whereas, I don't know, I'm trying to come up with another closer call bill that has recently been

found as unconstitutional, but you get my point. I'm curious about that possibility. I'm less convinced by that. The whole jurisdiction stripping argument is dangerous to me. I agree that simply saying the Supreme Court does not get to review certain statutes or God forbid executive actions, that is bad news. Also, as they point out, so what, you're going to leave it to the circuit courts? How does that do you any good?

And then if you're going to leave it, like take it from federal courts entirely, you want to leave it to the state courts? I'm not even sure that would be under constitutional amendment, obviously. It would be constitutional then, but. Obviously, it would be constitutional then, but certainly, statutorily, post-Reconstruction, where we sort of rebalance the states versus the federal government, I don't see under the supremacy clause how you could leave such decisions to the

state under the current Constitution. I am very interested in statutorily stripping away the little thing that we like to call the nationwide injunction. Although that leaves its own problems. So then every single person has to come in with their own specific fact pattern when in fact this could have been handled. Okay, tell me more. District-wide? Circuit-wide? Oh, okay. Yeah, yeah. Yeah, so the Supreme Court could issue a nationwide injunction. Absolutely. Because they are the court of the nation,

but then everyone else is only within their jurisdiction. Yeah, that to me is actually what the law is right now. It's just not being followed. Right, right. You don't want to have it where everyone knows you can go to crazy old Judge Bubba in wherever that district of wherever and join executive policy nationwide. No, no, no, no. So the nationwide injunction at the district court or circuit court level, I'm very interested in reforming that. I'm very interested in reforming that. But let me ask you about emergency docket,

unusual procedures, Sarah. Is there anything there that caught your eye? Because that goes to our two qualified immunity cases where really that was a momentous thing the court just did. That was a momentous thing the court just did on a pretty summery procedure. Yes, it was. I have become pretty emergency docket friendly through the course of our conversations this summer to now. The commission, I mean, this was the one that got a little bit chippy, I would say. But chippy for academics, of course, is I so appreciate the comments that have been made so far and would like to associate myself

with the comment from Commissioner so-and-so. It feels like you're in parliament or something, but not the part of parliament where they yell at each other, the other part of parliament, where they don't shake hands because that would be, in fact, insulting to shake hands with a member of parliament

because you're already obviously friends. There's no need to check for weapons, which is where shaking hands comes from. So they don't shake hands on the floor of parliament, actually, David. Fascinating. Yeah. A little fun fact for you there. So the conversation turned to death is different. That is a line that several Supreme Court justices have said, both in writing and in their speeches. Death is different. That is a line that several Supreme Court justices have said both in writing and in their speeches. Death is different. That is obviously part of the emergency docket.

And the theory is, of course, death is different because you can't review it later. Once someone has been put to death, it is truly mooted out. And as some members of the commission pointed out, yes, death is different, but all things are different from all things. And some people would say that abortion involves life and death as well. And you could hear the collective gasp with all of the muted microphones.

It was it was a moment. Now, of course, again, it was phrased as some people view abortion as a life and death decision as well. And it kind of, again, I won't say devolved because it stayed incredibly polite. But if you speak academia, chippy, it was chippy. Now, I think that the emergency docket, I think that all the people complaining about the emergency docket are complaining about the merits. They don't like the outcome of the cases. The Supreme Court has actually done so much more to explain their reasoning in these cases. So for instance, in the commission's write-up, they spend a lot of time on the Whole Women's Health v. Jackson,

the SBA Texas abortion emergency docket case. What are you, I mean, maybe you wanted more explanation, but that would have taken more time, clearly. So did you want them to take longer, or did you want the explanation that you got, which was actually, you know, wasn't lengthy, but it explained it. They didn't think that they had sued the right people, that they had a defendant to enjoin. That was their reason. I know you don't like that reason, but there's not a whole lot more that a longer opinion was going to give you. The original complaint about the shadow docket and why it was called the shadow docket was because they used to just issue an order with no explanation. That was the complaint. Your

complaint can't be that it's not enough explanation or you don't like the explanation when in fact they told you. So I think the emergency docket stuff is getting super overblown now that it's an actual merits complaint and that they wouldn't like it if all of a sudden these cases were simply not on the emergency docket anymore and move to the merit stage unless we can all agree that it'll be status quo no matter what. And in this case, based on the Fifth Circuit, the status quo would have been that the law would have gone into effect. So it would have been exactly the same as it is now. So if you simply want the emergency docket gone, you want it to be the status quo as it comes to the court, that's going to be a coin flip based on which circuit it came out of.

And that's not what these people actually who are complaining about the shadow docket want. They say they want transparency in the reasoning and they say they want more leaning on the status quo instead of simply likelihood of success on the merits. But I don't think that's actually what they want. So I agree with you completely on emergency shadow docket with one caveat. Yes. When possible, the court should hear oral argument. Yes. You and I actually totally agree on that. I just don't think it's going to happen. Yeah. No, I don't think it'll happen either. But when possible, the court should hear oral

argument. And when it comes to what we just saw, this per curiam decision, I do wonder if there is a way in which we can have some unwritten rules become written rules. And one of these that I'm talking about is Justice Breyer gave an interview a CNN where he said there's an unwritten six-vote requirement. It says a summary reversal of a lower court decision without hearing the oral argument requires six votes according to the rules of procedure. Nope. Unwritten rule. Okay. So the fewer unwritten rules, the better, in my view. Because you know what an unwritten rule is? Not a rule.

Okay. And in fact, remember, I think a long time ago, like last winter, last January, we had just started this podcast. I pulled out the $1,000 textbook on Supreme Court practice that Scott has in his office to go through and try to find the rule about basically digging something and how that would work, where you could actually end up with four people granting cert and four people digging it.

And it would kind of just be this like mess. And it wasn't in there. Like if it's not in the thousand dollar book and Justice Alito, it turns out sort of accidentally spilled the beans on the sixth vote. And then Justice Breyer confirms it all within a week in 2021. I'm with you that it shouldn't only be Supreme Court clerks who know how that works, that that's the sort of transparency that might be more helpful. Now, on the other hand, people do know about the courtesy fifth. That's something you can find out pretty readily, which is the idea that, for instance, in death cases, whereas you need four votes to take a case, that would be on the merits docket,

which could take now six months. If the execution is scheduled before that, it doesn't do you any good to get four votes for cert. You need a fifth vote for the stay of execution. And so what you're looking for in that case is called a courtesy fifth. And I think that some of the justices have been complaining a bit recently that those courtesy fifths are getting harder to find, which I also think is not appropriate. If you have four votes for cert on a death penalty case, I think that maybe that should actually be enough for this day. So, yeah, which raises, this raises one of my favorite moments from this interview of Breyer reported on CNN. So here was the paragraphs.

When asked about the reasoning behind the six vote requirement Breyer said only it's a custom when asked if there was some reason to keep the requirement confidential he said there is no reason you gotta love Breyer man okay so David before we end I have a solution to all of this and it's not my idea it's not my idea.

It's Justice Scalia's idea. Justice Scalia said this publicly quite a few times, but he said it publicly to me one time, and I would like to share it with our listeners. Share away. When asked what... And actually, I think we should have a whole podcast, by the way, on constitutional amendments that you and I actually, I think we should have a whole podcast, by the way, on constitutional amendments that you and I would support.

But there is one constitutional amendment that Justice Scalia said he would support over all others. And I have been totally convinced of it. I wasn't at the time, I'm pretty Burkean, meaning I'm for slow change, small change and slow change, because you don't know the unintended consequences. But Justice Scalia said our Constitution is far too hard to amend. We need to amend the amendment provision, the fifth, Article 5. If you amended the amendment provision, you wouldn't need term limits because if your complaint is about really the ideological bend, then you simply could have Congress through this slightly easier amendment process, fix it. You don't like Shelby County. You don't like Citizens United.

Pass an amendment, ratify an amendment overturning a Supreme Court case. And that, of course, would fix all of the jurisdiction stripping problems. If the court found something unconstitutional, fix the Constitution. Don't handcuff the Supreme Court. We have this concept of judicial supremacy that the Supreme Court has kind of created for itself, by the way. It's not obvious from the text of the Constitution that the Supreme Court is the last word on what is constitutional. That's certainly not the case in Canada. That's not how they work. But I think it's good. I think judicial supremacy is a good way to do it because you don't want the Congress just saying like,

we heard you, Supreme Court. However, we disagree. That's how you end up with bad things and hyper-majoritarian things, which I'm also against. But if there were some heightened standard by which Congress could, quote unquote, overrule a Supreme Court opinion on constitutional grounds by amending the Constitution. Yes, it is far too hard to amend it, which is why the Supreme Court, I think, is taking so many of these cases, being forced to take so many of them. Why there's these complaints right now about who's on the court? Why are these complaints about the merits decisions? Because it is nearly impossible to go back and revisit the merits of

any of these, even if the Supreme Court is out of touch because they're old or because they're conservative. That deals with the jurisdiction stripping and the term limits, right? One of the arguments is that they're from a different generation. Fine. We need to fix Article 5. What say you? I will say in the minute that we have left that you've made me easier amendment curious. Then I think we should pick up on that perhaps at another time where we talk about other floated amendments to the Constitution, what a amendment to Article 5 would look like potentially, and whether there's any hope for it. Deal. I think that's a great podcast idea. So consider it to be done. So we've got to sign off to record another podcast, Sarah. Um, so we've got to sign off to record another podcast, Sarah.

So, uh, please check us out at the dispatch.com. Please rate us at Apple podcasts. Please subscribe at Apple podcasts and be watching your email. If you're a dispatch member for a scheduled, ask me anything. And I'm very curious as to who will want to do that. So if you find that interesting, please join me next week. Until then, we'll be 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.

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