Advisory Opinions - Class in Session: Jurisdiction Stripping

Episode Date: May 9, 2024

Eleventh Circuit Judge Kevin Newsom takes over the role as professor to teach Sarah and David the implications of jurisdiction stripping and the balance of power between the branches of government. We’ll sum the lesson up as … Congress, do your job. The Agenda: —Judges say they won’t hire from Columbia Law School —Explaining the exceptions clause —Constraints over jurisdiction stripping by Congress —Marbury powers —Congress taking a more active role in constitutional interpretations Show Notes: —David for the NYT: The Magic Constitutionalism of Donald Trump —Felker v. Turpin —Sheldon v. Sill —Judge Newsom's mention of Bruen in the AO episode from June 2022 —Judiciary Act of 1979 —Akhil Amar's two-tier theory of jurisdictions —Daniel Epps' article in Columbia Law Review —Monday’s AO podcast —Henry Hart’s dialogue with self in the Harvard Law Review Learn more about your ad choices. Visit megaphone.fm/adchoices

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["I'm On My Way To You"] Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And that's right. We're going back to law school today. It's jurisdiction stripping time. Jurisdiction stripping kids. Jurisdiction, not just stripping. With Judge Kevin Newsom of the 11th Circuit, Professor and Judge.

Thank you for being here. Yeah, thanks for having me. I appreciate it. Before we start, so I did my reading last night and I will tell you that I know less than when I started I think. Uh-oh. And at first I thought it was pretty pedantic of you to include the questions that we should be asking you. Then after doing the reading, I was like, thank God he included those questions. Before we get to that, there was a letter that's been making some news. Thirteen judges signed a letter to the president of Columbia Law School. I'll read a little piece of it.

Since the October 7th terrorist attack by Hamas, Columbia University has become ground zero for the explosion of student disruptions, anti-Semitism, and hatred for diverse viewpoints on campus across the nation. Disruptors have threatened violence, committed assaults, and destroyed property. As judges who hire law clerks every year to serve in the federal judiciary, we have lost confidence in Columbia as an institution of higher education. Columbia has instead become an incubator of bigotry. As a result, Columbia has disqualified itself from educating the future leaders of

the country. If Columbia were serious about reclaiming its once distinguished reputation, it would undertake the following steps at a minimum. Now they have explanations for each of these steps, but I'm just going to tell you the steps. One, serious consequences for students and faculty who have participated in campus disruptions and violated established rules concerning the use of university facilities and public spaces and threats against fellow members of the university community. Two, neutrality and non-discrimination and the protection of freedom of speech and the enforcement of rules on campus. Three, viewpoint diversity on the faculty and across the administration,

including the admissions office. Considering recent events and absent extraordinary change, we will not hire anyone who joins the Columbia University community, whether as undergraduates or law students, beginning with the entering class of 2024. Justice William Brennan refused to hire law clerks from Harvard Law School because he disliked criticisms of the Supreme Court by some of its faculty. The objective of our boycott is different. It is not to hamper academic freedom, but to restore it at Columbia University. Interestingly, of the signatories and judges, Branch, Ho, Sollumson, Albright, Counts, Hendricks, Kazmeric, Kernoodle, Selfstar, Tipton, Trainor, and Vaden, I noticed one friend of the pod missing, which was Judge Rudofsky. So I reached out to him and just said, you know, hey dude, anything I should know.

And here's what he said. And Judge Newsom, you'll appreciate, you know, Judge Rudofsky as a district judge. Look, there's shade being thrown at the circuit, I think, just implicitly in this answer. I had a criminal trial last week, have a criminal trial this week, and working in my, quote, spare hours to rule on an emergency request for preliminary injunctive relief in a civil case. I may well join the boycott once I have a little more time to consider, regardless of whether I join or not, however, I generally and mournfully agree that Columbia University has become an incubator of antisemitism and anti-Americanism.

And I do think that at some point, judges must step up to the plate as leaders of the bar to help stop the spread of virulent Jew hatred that is being normalized on college campuses and elsewhere across the country. Judges have an important role to play in our society beyond the work we do in the courtroom or in chambers. We have a special responsibility to stand up for the rule of law and to stand against mob violence, especially where such violence echoes an age-old evil that once

led to the murder of six million Jews and millions of other innocents. So David, I'm going to tell you, after marinating on this letter overnight, here's my beef. I have decided that I have no problem with a boycott of a thing, and like of a process or a failure. But if it's of that, it can't just pick out the sort of most politically salient example of that failure.

If your beef is, for instance, that Columbia had rules on the books and has not enforced those rules neutrally across different beliefs on campus, for instance, and I do think that's one of our beliefs, right David? Then you need to go do a pretty systemic look at all the schools that have had rules that they haven't enforced. And you need to boycott all those schools. Or if it's lack of diversity in faculty hiring, I guess you don't have law clerks anymore.

Or whatever the issue is, this is both an over and under inclusive boycott at this point. And it seems more based on headlines than it does on the actual thing that they're saying they want fixed or else. I mean, look, Northwestern and UCLA, as I've said before, I think are worse than Columbia. Columbia is getting more attention because it's in New York. Well, that should have nothing to do

with a judicial boycott of sorts. And I guess for me, you know, judges have life tenure so that they do not get caught up in the political fights and culture wars of the day. I think it's fine to not hire law students from schools that you do not believe are teaching well, but then you need to have a consistent manner in which you decide what those schools are. Yeah. I mean, I think if a school is not teaching well, if the graduates are deficient, that you have seen that the graduates are deficient,

I think it's fine to give side eye to the school and to sort of give formalized side eye to the school. And I will fully confess, Sarah, this is another reason why it's good I'm not on Twitter, because when I first saw that letter, because the situation at Columbia, the double standards, the years long antisemitism issues. I mean, I remember walking in through metal detectors in 2004 to defend students who had

exposed antisemitism in the Columbia Middle East Studies faculty all the way back then. And it was toxic and terrible. Just terrible. So there's a long history with Columbia. But I share your objection and as I cooled thinking about it overnight rather than immediately posting something about, yeah, great letter. I had this sense of objection of objection, you know,

assuming facts not yet in evidence, because the students, by putting the boycott down on the students, the people who actually come out of Columbia, I think you're way over presuming what students know about a college or their calculus of going to a college or a law school, I'm sorry, and then to sort of bring down the hammer on them regardless of their individual qualifications, regardless of their individual story

because of their affiliation with the school, you know, that's where I've got the problem. And we talked about this a little bit with the Yale boycott that a lot of these students, their consciousness of how terrible the school is, even after a new cycle, don't assume too much. What is their calculus if you've gotten into two schools and you've got a sick parent next to one and not next to the other? I mean, these are all kinds of factors that have, that can come in that have nothing to do with the students saying, hey, you know,

all that hypocrisy and double standards at Columbia, that's the place for me. There's a lot more that goes into it. And I think dealing, punishing the students in that way, again, regardless of their story, regardless of what brought them to Columbia, that's, that is what I find to be troublesome. There was one more judge that wasn't on the list I noticed, and that was the

judge that's on this podcast. Well, so I guess a couple of things. One, I didn't even know about the letter until I saw it on Twitter. So, you know, for better or worse, I wasn't asked or solicited. Two, I want to be very, very, very careful about commenting on the underlying issues because I think, you know, litigation will arise out of these or may well arise out of these protests and there are universities and law schools within the 11th circuit who have tangled with these issues.

And so I'm not going to say boo about the underlying issues, the sort of the merits or demerits of First Amendment positions or whatever. With respect to the boycott, and I think we might have talked about this briefly with respect to Yale and Stanford. So I share David's concern that people choose universities and law schools for all kinds of reasons, for geographic reasons, for familial reasons, for financial reasons. And I just worry about punishing even prospectively students for

those sort of personal choices. And at the end of the day, I just always worry when I sense that I, we might be using people as means to some other end. I just don't love that. And so for the same reasons that I didn't join the Yale and Stanford boycots, I would be disinclined to join this one. I've got a Columbia clerk coming to me in a few years. I'm excited about him coming. And, you know, and the truth is, you know, I mean, we'll talk about this a little bit today. I teach at Stanford in the fall and at Yale in the spring. And last year, I'll tell you what, the sort of the campus climate that I found at both places was lovely. And lots of sort of cross jurisprudential, cross ideological companionship and good faith dialogue.

And you know, the kids in my classes ran the entire gamut and I detected frankly, just a lot of general, you know, sort of genuine intellectual curiosity and respect. And so, you know, I guess someone might say, oh, well, the boycott fixed that. My own sense is that the institutions have maybe tried to fix themselves. And I think you've had some success with respect to that. So in any event, you know, it's not my cup of tea to each his or her own. But yeah, I just worry about people being used as means to an end. Doesn't seem it's just not not my thing.

And with that, we will turn to Article Three, Section Two, Clause Two of the U.S. Constitution. Take it away, Professor. OK, so so so briefly, can I engage in a couple of preliminaries before we go there? Please. Okay. Number, number one, David, thank you. I listened to the pod this morning. And thank you for your, your reference to shout out in your piece over the weekend to originalism and what it is and isn't and sort of why it ought to be focused on text instead of history and the ether. I appreciate it very much. Two, I wanted just to congratulate you guys on sort of the pedagogical value of this podcast. My son is a junior at USC in Los Angeles, which has had its own

troubles with these encampments and protests. But he is a journalism major. He's an aspiring sports broadcaster, the coolest job in the entire world. But he's a legal studies minor and he's had the good fortune to take a number of classes from a former US Supreme Court clerk and Supreme Court and appellate advocate, a guy named Mark Haddad, who retired early from Sidley to teach kids at USC. And so MJ's got his, my son's name is MJ, he's got his final coming up in an individual rights class today. And so he called yesterday and he said, Hey, I feel like I've studied, you know, like as much as I can, I've committed all this stuff to memory. I've got my little, you know, one page cheat sheet

that we're entitled to ready to go. And you know, how else can I like really sort of like get deeper into these issues? And he said, like, for instance, you know, some of these cases are kind of easy to understand, but then you get to something like, rule it and whoa, it's real, like the water's really, really deep. And so I said, you know what, I'm going to send you a couple of podcast episodes to listen to. And so I went back to June of 2022, found the advisory opinions podcast episode on Bruin, sent it to him, went and found Jeff Rosen's We the People podcast episode on Bruin, sent it to him. went and found Jeff Rosen's We The People podcast episode on Bruins, sent it to him, and I said, here's, here's, if you want to think deeply and even-handedly about this case,

here's how to do it. So there you go. Thank you both for that. But to be clear, he hasn't actually taken the final yet, and so when he bombs it... That's right. It'll be your fault. You may have different feelings. That's right. Well, this is the time to accept the thanks, though, Sarah. That's true.

MJ, we're sorry. That's right. Exactly. Exactly. And then the last thing I'll say very briefly before I promise we'll get going is that David, you may know that on this Friday, I'm turning the tables on one Sarah Isger when she is visiting the 11th Circuit Judicial Conference and I get to interview her for a lunch presentation. And so I'll be asking

the questions and Sarah will be answering the questions. It'll be great. Very Socratic. That's right. Exactly. It'll all be in jurisdiction stripping awkwardly. So I better listen up now. That's right. It's going to be a quiz. Okay. So sorry, sorry for that, but I wanted, I wanted to get those things out of the way. Well, we appreciate it very much, Judge. And I appreciate, I have quoted that speech of yours a couple of times because I think it is so helpful to frame what originalism is. It's just a, and also what it should be, what a good definition of is, of what it is, which also is what it should be. So appreciate that very much.

And I'm excited about this conversation because I've always had questions about jurisdiction stripping. But sadly, never were they burning enough for me to go ahead and become an expert. So I'm very excited about this. Yeah, I'll confess, I sort of backed in to this issue. And I guess we're going to talk today maybe about what I guess you might

call a sort of a sub-issue within the larger issue of jurisdiction stripping, specifically about a clause in the constitution called the exceptions clause, which we'll read in a minute. But I kind of backed into it. When I was a rising third year at Harvard, I was on the law review and you get to write a little 10 page piece about a recent Supreme Court decision from the prior term. And I got or was assigned, I frankly don't remember which, this case called Felker versus Turpin, which oddly sort of came right up to the edge of really addressing this interesting exceptions clause question. And so that's how I became kind of weirdly fascinated, fixated, obsessed with this clause

of the Constitution. And I just get some, it's one of these sort of nascent, latent clauses that's just kind of like packed with kind of like tectonic structural implications that rarely gets talked about. And so I've been sort of just fascinated with it for now, you know, sort of 20 some odd years. So I'm happy to chat with you guys about it today. It'll be fun. I mean, look, so I'll just I'll read the constitutional provision. Yeah.

It says, in all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make. So, I mean, there's there's always just one big question when you're talking about jurisdiction stripping. If you're a textualist, that doesn't say with such exceptions and under such regulations as the Congress shall make, except for things that, like, are super important or might conflict with other constitutional rights

or accept things that we think really need judicial review. I mean, all of this is pre-Marbury versus Madison. It kind of seems to say that if Congress doesn't want judges saying something's unconstitutional, they can just say that. And if so, why doesn't Congress say that for everything? Can they? Yeah. I mean, I think from a textual perspective, and I'll just sort of put my cards on the table, I think from a textual perspective, the case for robust exceptions clause authority is very, very, very strong. And so like, you know, when I teach this to my Fed Court students, the question I often lead with or have in the last couple of years led with is to say, look, there was a period in

2001 when the Democrats controlled Congress, Joe Biden was the president, Dobbs was coming, everyone knew it. And so why didn't the Democratic Congress and Joe Biden put into place a law that stripped the Supreme Court jurisdiction to decide abortion case? And as a textual matter, I'm not really sure what the answer to that is. Now, there might be all kinds of practical reasons that the actors wouldn't have done that, but could they have? At least sort of on the face of the document, it seems to me they probably could have. Yeah. So that's weird. Yeah. It feels weird, right? Because...

It feels weird. Yeah. You know, the first answer that comes to your mind is, well, one, okay, well, that would be filibusterable. Okay, let's put aside that political question right there. And then the next instinct is, can that be right, judge? Yeah, exactly. That's the next question. Yeah, I think that the cognitive dissonance here is that we've been sort of marinating

in sort of Marbury world for so long, right? I mean, for 200- This kind of undermines Marbury world, like a lot. Yeah, I mean- And like maybe the most fundamental parts of Marbury, like were we actually supposed to have judicial review in the way that we have it? There's very good arguments, yes, based on Blackstone and just the history of common law running up to the Constitution. But this clause, I would, pretty fundamentally undermines it. Yeah, it's interesting. I mean, I think to some extent, you know, and we can sort of

unpack what sort of judicial review is what sort of what Marbury sanction, but certainly our modern conception of what I'll call like the Marbury power is this very robust sort of judicial authority to invalidate legislation sort of at all times and for all purposes. And then I think the question sort of becomes, you guys both went to Harvard, you both took Fed courts, I suspect you both took it out of Hart and Wexler. And yeah, there's this distinction that runs through the federal court's materials, particularly as presented in the Hart and Wexler text, what's the fundamental role of a federal court? Is it to resolve disputes or is it to declare law? And if the fundamental role of a federal court is to

resolve disputes, then I think the exceptions clause power, even as robustly understood, is not really in fundamental tension with what it is that federal courts are assigned to do because all they really are assigned to do is to sort of decide the cases that have been assigned to them to decide. And under the exceptions clause, you would say, well, there are some cases that haven't been assigned here to the Supreme Court to decide. If instead the judicial power, judicial review, the Marbury power is a bigger, bolder thing about declaring law and maintaining the supremacy and consistency of federal law, then I think Sarah and David both, you're onto something that this feels

inconsistent with that sort of bigger thing. And so I think to some extent, it's kind of like tease up questions about sort of the nature of the judicial power. And one thing we'll talk about, we talked a little bit about the text, we can continue to unpack that. You know, the early history of this clause, so far as we sort of think we know it, it seems that those in the framing generation had a pretty robust sense of Congress's power as well. You know, John Marshall said, you know, some pretty strident things about it when he was a delegate to Virginia ratifying convention. The Judiciary

Act of 1789 did not best the Supreme Court with the entirety of the appellate jurisdiction. And really, the Supreme Court didn't have what we would think of today as its full appellate jurisdictional authority until like the 20th century. And so it was like rolled out very slowly. So there was certainly a time in seven, say in 1787, 1788, 1789, pre-Marbury, when the Supreme Court just didn't have a sort of full appellate authority and Congress seemingly was exercising this authority to withhold jurisdiction that the constitution might otherwise authorize it to prescribe. It seems to me like we think of the three branches, we teach the three branches as rock, paper, scissors. Each one has a trump card on the other. And so they're all equal checks, balances, all of that.

But the exceptions clause definitely makes it seem more like primus inter paris, that Congress is meant to be the first among equals and that perhaps it's not rock, paper, scissors and they've got a little bit of a small but a trump card here. By the way, fun fact, Marshall wasn't our first Chief Justice. And for the six years before Marshall became Chief Justice, the Supreme Court decided four cases. Well, and we complain about them not doing enough now. It was John Jay, one of the authors of the Federalist Papers, who was the first Chief Justice, and he thought the job really sucked.

Didn't think it was a serious job for serious people, not befitting his position. He went to go become governor of New York. He, you know, I believe, toyed with running for president. And they asked him to come back as Chief Justice. And he was like, yeah, definitely not. And that's when they turned to Marshall. So to your point, like the Supreme Court wasn't even kind of the Supreme Court pre-Marshall. Yeah, I think we just have to be careful in thinking about something like the exceptions clause. We have to be sort of wary of anachronism. In 2024, the federal courts and the Supreme Court top the federal courts is this really big muscular institution that, you know, at times seems, you know, sort of destined to solve all of society's problems. And that may well just not have been the founders vision. And so, you know,

sort of the text and history, say, of the exceptions clause are interesting, but I think only because most fairly read, they favor a pretty robust congressional authority to withhold or to strip Supreme Court jurisdiction. So the interesting conversations have typically taken place on what I'd call like structural grounds. Sort of these are the objections that we're talking about now. Like, can that really be the Supreme Court is this really important institution in American society? And how could it be that Congress could sort of denude it of that authority? And that, Sarah, is where I think you get to all these really interesting,

I'd never thought about sort of the rock, paper, scissors thing, but that's a good way to think about it. That's where you get to these, you know, sort of separation of powers, checks and balances type considerations. And oftentimes opponents of a broad exceptions clause authority have relied largely on structural considerations. So that the famous line from a professor, Henry Hart, who is the heart of Hart-Wexler, in this, you know, famous dialogue in the Harvard Law Review.

He said- To be clear, it was a dialogue with himself. With himself. Dialogue is misleading. As all of the best dialogues are. But yes- Meagol, Gollum, Hart. Right, exactly.

So he says, the measure of Congress's exceptions clause authority is simply that the exceptions must not be such as will destroy the essential role of the Supreme Court in the constitutional plan. And so this is sort of the essential role or essential functions objection, which is whatever the exceptions clause means or seems to mean on its face, it can't be read so broadly as to deprive the Supreme Court of its essential role in the constitutional design. But then I just- Whatever that is.

Correct, correct, correct. I think the question is, okay, well, now we've got to figure out what the essential role is. And I think that Hart was really viewing the Supreme Court's essential role in, you know, he was writing in the mid 1950s. So he has a very sort of modern conception of the Supreme Court's essential role. And it may just be that the framers had a different vision of the Supreme Court's essential role.

Perhaps the Supreme Court's essential role should be understood in light of the exceptions clause instead of the exceptions clause being read in light of what we currently think the Supreme Court's essential role to be. So I think the risk of anachronism here is very real. It's natural because we live in this world in which it has become sort of de rigueur to think of the Supreme Court as a first among equals when it comes to the sort of articulation and rollout of constitutional meaning.

And that may or may not be the framers' vision of the three branches. Want visibly glowing skin in 14 days? vision of the three branches. and cherry crème for a rich, indulgent experience. Treat your senses with new ol' light, indulgent moisture body wash. Buy it today at major retailers. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation

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really necessary or whether you just read the exceptions clause. I feel like you think those are equal options. So, Judge, let me make this as concrete as possible for the listeners because, you know, this actually does fit in a lot with the themes of this podcast where we've said, you know, the whole phrase that's very popular, co-equal branches of government is probably not right. I mean, if you look at the actual text of the Congress, of the Constitution, Congress has powers that can trump any of the other branches. And so let's just make this concrete. Let's say Congress just flex its muscles. And in the next presidency, let's just presume that whoever wins wins, also has

Congress and they pass a law banning or banning or permitting abortion and then attaches to that law a jurisdiction stripping provision to say that the federal courts have net shall have no jurisdiction federal courts shall have no jurisdiction over abortion cases, cases involving abortion. Is that something that, you know, when we're talking about the text, is that something that the only real barrier to that has been sort of politics and tradition? Or is there actually a substantive barrier to that, that the text does not clearly communicate? Yeah, good question. So I guess I would say a couple of things. One, just to take a step back. So we're talking today, as I said, about this sort of like this one little corner of what might more largely be called jurisdiction stripping. Just the exceptions clause speaks

only to the Supreme Court's appellate jurisdiction, right? But there is, as your hypo points up, there is jurisdiction stripping kind of writ large where, you know, Congress might say the federal court generally have no jurisdiction over these sorts of cases. And the source of authority for the two different kinds of jurisdiction stripping are themselves a little bit different. So when you're talking about the Supreme Court, it's actually written into the Constitution, right? We just read the exceptions clause. it's actually written into the Constitution, right? We just read the exceptions clause.

It's clear on the face of the document, at least I think there's a good argument there. It's clear on the face of the document that Congress has this authority. With respect to lower courts, there isn't, let's say an exceptions clause for lower courts. With respect to lower courts, there is an implication in Article III

because the only federal court mandated by Article 3 is the Supreme Court. Article 3 says, you know, the judicial power shall be, I'm paraphrasing, but you know, shall be vested in one Supreme Court and in such inferior courts as the Congress shall ordain to establish or some such. So basically, Congress can create or not create lower federal courts at its pleasure. And the idea has been that the greater power to create includes the lesser power to create with less than full authority. And the Supreme Court has been pretty adamant. I like saying in a 19th century case called Sheldon versus Sill, the Supreme Court says,

look, that's called the Madisonian Compromise, this idea that Congress didn't have to create the lower federal courts. And because it didn't have to create them, once it created them, it could give them less than full authority. That's been sort of settled law for quite some time. And so I think with respect to lower federal courts, the answer under a case like Sheldon vs. Silver, the Supreme Court says, yeah, Congress has very broad authority to strip jurisdiction

from lower federal courts, would sort of sit in that bucket. And then on the Supreme Court side, you're looking at this express authority and the exceptions clause. Now, Akhil Amar, with whom I teach at Yale in the spring, he has a theory called the two tier theory of jurisdiction that says that, you know, if you read Article 3, Section 2 very carefully, the, you know, the catalog of the sorts of cases and controversies to which the judicial power extends, there are nine categories broken into sort of two groups. The first group is those are denominated cases and those are largely defined by subject matter. And the second group, the six, those are called controversies. And those are largely denominated by party status.

So emblematic of the first category would be cases arising under federal law. Emblematic of the second category would be controversies between citizens of different states, right? Your federal question and your diversity. Well, interestingly, he has pointed out that Article 3 says the judicial powers shall extend to all cases, cases, cases, cases, and to controversies. So the all attaches only to the first category and not to the second category. And so, his theory would be that some federal court, I hope I'm getting him right here, but some federal court has to have jurisdiction over the case categories so that Congress couldn't exercise broad-based jurisdiction stripping authority to take away jurisdiction over those in the

case categories, whereas it might be able to do so in the controversy category. Back to your hypo, that's probably in the case category. That's a federal question that you've posited. And so I think Professor Amar anyway would say no go on your hypo because it violates this two-tier theory of jurisdiction. And it all sort of rides on the presence or absence of the word all. Yeah, I got to say this feels like a little bit of an elephant in a mouse hole here. To write the exceptions clause and not put that or some version of that into the exceptions clause to make clear that you don't mean exceptions from everything.

And instead just hope that everyone sees the word all and notices it there, feels odd to me. Oh, go ahead, Sarah, I'm sorry. Article three is only 369 words long. It's not like they were getting, their hands were getting tired here. The Gettysburg Address is longer than that. All four versions of the Gettysburg Address are longer than 369 words long, I believe.

We could memorize the whole thing. It's sort of weird that we don't. But to me, it seems what Hart suggests is that when it, to David's point, I guess, there's a political backstop here. It's not just that suddenly Congress has all the power. They become the dictators and the tyrants and we all have to go like, well, that's what's backstop here. It's not just that suddenly Congress has all the power. They become the dictators and the tyrants, and we all have to go like, well, that's what's in the Constitution.

Look at that exceptions clause. No, the idea is that Congress is the most politically accountable branch. If they do something crazy, like strip the Supreme Court of jurisdiction over abortion, it will become the issue in the next election, and it will basically be a referendum on whether that was a smart thing for Congress to do.

That's at least, again, that's the conceptual side of a strong exceptions clause, right? Yes, so I think you're exactly right. I think there are political, there are practical constraints that I guess exist in sort of on two planes. One is just raw retail politics, what you're describing here, right?

Would the country stand for, you know, that sort of raw exercise of political power over, you know, sort of the third branch? Two, and this is pointed out in an article that Dan Epps of Divided Argument Fame has out recently in the Columbia Law Review with a co-author whose name I'm sorry I've forgotten. But Dan's article talks about sort of the practicalities of jurisdiction stripping,

like would it work? You know, sort of would it, would it? And that in large measure depends on whether if the Supreme Court is stripped of jurisdiction over some category of cases, whether the lower courts would continue to the Supreme Court is stripped of jurisdiction over some category of cases Whether the lower courts would continue to follow Supreme Court precedent. So like for instance, let's say And let you know sort of like a in a calculated political move the Supreme Court decides

You know decides daub's and in a fit of peak Congress says like we're going to punish the Supreme Court by taking away their jurisdiction to decide abortion cases. Well, on the one hand, you think, well, that sort of defeats the purpose because now you've just cemented in place the precedent at the Supreme Court level that you don't like. On the other hand, if by doing that, you sort of make this real politique assessment that lower courts will no longer feel bound by dobs. And they're sort of like free, like the parent has left the room.

And now, sort of they're free to do what they want to with abortion cases. So I think Dan's point is that there's, setting retail politics aside, there are pragmatic reasons that these jurisdiction strips might not work quite the way that the proponents of them would hope. So yeah, I think there are real limitations. What about the meta problem? So they strip the Supreme Court of jurisdiction and who decides whether that's constitutional? Yes.

So true. So true. Yeah, it's like turtles all the way down. I have no idea what the answer to that question is. So like in confirming their own lack of jurisdiction, they would be in fact confirming their jurisdiction over their lack of jurisdiction. Yeah, yeah, exactly, exactly. You know, it strikes me in having this conversation, there's a lot that actually is resonant with court packing, the court packing conversation. So nobody disputes that Congress can pack the court. It absolutely can add more members to the court packing conversation. So nobody disputes that Congress can pack the court.

It absolutely can add more members to the court. But even after Dobbs, it was amazing how quickly that fizzled. There was a little burst of energy around court packing, and then it just fizzled. And all the energy now is pouring into the democratic process rather than into jurisdiction stripping or court packing. And it just strikes me, Judge, that what we have is a sort of a set of norms that have solidified to such an extent that activists on Twitter can talk about such measures. But if you actually try to bring it into the public square, sort of an idea that says, we're so mad with how the court reacted that we're going to fundamentally change what you think it is or what you think it can do, especially if it comes to jurisdiction stripping.

It strikes me that closing the courthouse door in the faces of Americans who very much like to be in the courthouse strikes me as a bridge too far for both parties at this point, and not just a bridge too far, but a bridge way too far, because it would be a major shift in our thinking. Yeah. Yeah. So I don't disagree with sort of all of the practicalities that we're discussing. What I've always found fascinating about this and what makes the exceptions clause unique, say vis-a-vis court packing or even

vis-a-vis jurisdiction stripping in the lower courts, is that for some reason, the framers saw fit to write this power into the document itself. And that sort of distinguishes it from other sort of pushback mechanisms, if you will. And the thing that sort of fascinated me 20 some odd years ago when I wrote this little piece as a third year law student is basically the debate about the exceptions clause authority has kind of like bogged down into this sort of this rut where proponents of broad exceptions clause authority say text and history and precedent. We haven't really talked much about the precedent such as it is, but the Supreme Court has been

pretty full-throated about Congress's authority. And so the proponents say, you know, sort of text and history and precedent. The opponents say structure. And what has always sort of fascinated me is the question whether there might be good structural arguments setting aside the practical and political objections, but there might be decent structural arguments for why we want Congress to have a relatively robust exceptions clause authority. And it goes some, I mean, my sort of pet theory goes something like this. Judicial review, even if assumed, is at the very least atextual.

It's not necessarily countertextual, but it's atextual. And it's also, you know, I think we all recognize at some level, anti-democratic. And so might it be that Congress's exceptions clause authority does sort of two important things. One, despite the fact that we live in this Marbury world where we recognize, we take for granted that the federal courts and the Supreme Court have sort of final say over what the Constitution means, close quote. But we also recognize that Congress and the president are constitutional actors, right?

They swear an oath, they have constitutional obligations, and sort of how is it that they flex their muscles? One, of course, nomination, advice and consent. Two might be, we control the parameters of the Supreme Court's appellate jurisdiction. And so the Supreme Court gets to decide finally, gets to decide finally what federal law means, but only insofar as we authorize the court to decide those cases. That sort of is one other way that the political branches can flex constitutional muscle with respect specifically to constitutional meaning. And then two, if Congress and the president don't exercise that authority, is the act of sitting on their hands some implicit, if not endorsement, concession to

what the Supreme Court is doing in this or that area? The unexercised authority, it's like if you're going to complain about it, then do something about it. And if you're not going to do something about it, then stop complaining about it. So I think that there are kind of like interesting structural arguments to suggest that we sort of want Congress to feel like it's empowered to exercise this authority so that when it doesn't, it actually means something. Yeah.

I mean, certainly I hope part of the takeaway from this episode falls under our Congress do your job heading. I thought about the same thing. For exactly this reason, which is, we've talked about Congress doing their job in individual statutory cases, et cetera, but there's also these structural Congress do your job things. Congress, if you're so mad at the judiciary

and you think they're so badly messing up your statutes or what the will of the people what, you know, the will of the people is like you have this power to go flex and you're not even discussing it, let alone seeing how many votes there are for it. Can we can you like go down a little cul-de-sac and sing us a few bars of why Marbury might be wrong? Oh my. Oh boy. Okay.

Now it's getting good. What if I just say no? Outside the scope of the direct examination. So to set this up for everyone, our non-lawyer listeners and frankly even our lawyer listeners who haven't read this since 1L year, like first day of 1L year, and otherwise just use the one quote in their briefs from time to time. This is the case where Jefferson's taking over from Adams. So the presidential administration is switching. Adams has, you know, gotten all of these judges on the bench. They're going to be super antagonistic to the Jefferson administration. And he, Adams, has these midnight appointments to the court.

And by the way, who was responsible when Adams, you know, got someone confirmed to a federal court? Who was responsible for delivering the commissions to that judge? Delivering the... Why are you quizzing me on the facts of this case? Because nobody knows the answer to this. No, me, me, me, me, me, me, me. All right, gutter over there. The Secretary of State whose name was John Marshall. That's correct. So John Marshall...

Okay, I should have known that. I should have known that. John Marshall was at once the Secretary of State and the Chief Justice for a few weeks. He had been confirmed as Chief Justice, but in fact agreed to stay on to help deliver these commissions. Okay, one of the commissions doesn't get delivered because, you know, Marshall's busy being Chief Justice. This is all gonna get pretty bad here.

And our dear Mr. Marbury is like, WTF, where's my commission? He sues Madison, then the now Secretary of State under Jefferson to give him his commission. And Madison nod dogs that saying like, if you didn't get it, you didn't get it. It's void now. Bye bye. So thus enters Marbury versus Madison, where

Marshall is going to say a few things. One, the commission is not void. It was a valid commission. And yes, Madison was required to deliver it to Marbury. But the Supreme Court has no authority to make him do it, so there's no remedy. Therefore, oh well. It's like this politically brilliant judiciu move where everyone's happy, everyone's unhappy, and thus confirmeth Marbury versus Madison,

where the Supreme Court now gets to say what the law is. But as we see just in that very short retelling, there's some real problems here. Not the least of which is a recusal issue. Yeah, right. There was no 28 USC 455A at the time, I suppose. Appearance of impropriety. But there was certainly in the constitution something,

the line that says that you can't hold positions in two different branches. Yeah, well, you know, the line that says that you can't hold positions in two different branches. Yeah. Well, so that means what? Marbury's bad law now? Yeah. So this is why I want Judge Newsom. But setting aside all of that nonsense, there's a real argument that there wasn't necessarily a judicial supremacy when it comes to interpreting the Constitution, a judicial review in the Constitution. As you say, it's atextual. Yeah. I mean, I think one of the interesting things is judicial review and judicial supremacy are just not necessarily the same thing. So even if you grant that Marbury gives the power

of judicial review, I think 200 years hence, we are largely living in an era of judicial supremacy with respect to constitutional meaning. And that's where I find these structural arguments from the exceptions clause pretty interesting because that you don't necessarily have to negate judicial review in order to push back on judicial supremacy. All you really need to do is say, okay, courts, you could do the job that you've been assigned to do by us. And within that lane, you are final.

We're not going to sort of like try to second guess your decisions in individual cases. But we build the lanes, you know, we build the roads. And I don't know, like, I just don't think it's crazy to think that based on this provision of the Constitution, which again, I think is pretty clear that this is a way that the framers envisioned that Congress would, as I said earlier, sort of flex its constitutional muscle or its muscle with respect to constitutional meaning and the development of doctrine without having to upset sort of the core of Marbury, which is just judicial review, not so much judicial supremacy.

You know, it really strikes me the more I think through this. And as we talk about this, it's just becoming clear to me why there's just not been jurisdiction stripping because the real beef with the court that people have is it doesn't rule for me, not that it rules. And so, the anger that people have is not that the Supreme Court has the power, it just exercised it in the way that they don't want it exercised. And then you get into the practicalities, right, Judge, that you talked about earlier. What if the final word before you're doing the jurisdiction stripping is what made you angry in the first place is the court ruling against you,

then you strip jurisdiction. That's not the same thing as overruling the Supreme Court. Right, right. And so there's just, if you're thinking about checks on the court, it strikes me that in a real way, the court packing is the one that would be in some ways more tempting

because that would be more clearly outcome Determinative at least in the short run after you pack to court presumably with political and legal allies This by the is is a sledgehammer When some people might be wanting say a scalpel to excise just particular decisions Yeah, I think you're right and it's also less I think you're exactly right David that's also less, I think you're exactly right, David, that it's less predictable from a political perspective. And I think in some ways, that's why

I find the court packing totally uninteresting, and this totally fascinating. Because I love the idea, sort of veil of ignorance, like just sort of like, what's the right structural answer to this like, naughty constitutional question, like sort of driving results through legislation to pack the courts. I just find sort of gross and uninteresting. This, I think precisely because it's sort of outcome and content neutral is like deeply fascinating. Yeah.

So first of all, you said it was a naughty constitutional question, but I just want to say that I heard naughty. Naughty. Both, both and. So there's an alternative reading, which is that each branch gets to decide for itself, gets to review things for itself, what is constitutional.

And in fact, it not only has that ability, but that duty. And so when you see, for instance, and I'm thinking back to the Bipartisan Campaign Reform Act, a signing statement by President Bush, where he says, I think parts of this law are unconstitutional. Signed George W. Bush. Right? That itself only exists in a world of judicial supremacy, basically, when it comes to constitutional interpretation. I think even under a judicial supremacy world, that's an abrogation of your responsibilities. You at least shouldn't sign something into

law that you believe is unconstitutional, but perhaps you even had a duty if you believed it was unconstitutional to veto it or simply declare it unconstitutional. I don't quite know how that alternative reality works, but somewhere in the multiverse, that's how the American Constitution spun out after Marshall had been hit by a carriage when he was 30 and never became Chief Justice. It's interesting. I totally agree with you. And I don't even think you have to unwind Marbury to live in that world. Part of the problem here, and this is a variant of the Congress, do your freaking job, sort of theme, is that the political branches, I fear, have ceased thinking the big questions

about the Constitution. And they just sort of fob everything off on the courts, you know, sort of assuming the courts will sort of sort it out. And now- Might be elite it. What's that? Yeah, right. Exactly. And now we're, we're now caught, I think, in this kind of like vicious loop or vicious cycle where because the political branches have fobbed off their responsibility to think the big thoughts about the constitution, the courts have taken on more and more and more responsibility to sort

of like manage society and make it work. And because the courts have sort of taken on this role of managing society, therefore, the political branches have less incentive to engage the big issues anymore. And now we're just in this spiral. But I think you're right, Sarah, that, you know, like, for instance, you know, sort of vetoing a piece of legislation that the president thinks is unconstitutional really doesn't trench on Marbury authority, it just exercises his own. And, you know, for Congress to, you know, when it's enacting a piece of legislation to think, wow, do we really have Commerce Clause authority to enact this statute? And if we don't, then let's not do it.

I know that sounds like so much pie in the sky, but ideally, that's the sort of debate that you would have at the very beginning of like, you know, sort of discourse about a piece of legislation before you get to the blocking and tackling of how you're going to implement this thing. Do we have the foundational authority to do it? But I just don't think that's happening. I assume they love their own authority a lot, but the president has an administrative agency that's doing X, Y or Z without authority. It would be up to Congress to then say, pass a bill actually, a piece of legislation that says the executive branch agency here has

exercised authority not given to it under the constitution or through legislation, and we hereby deem that unlawful exercise of authority not granted. And it would just be some boilerplate language and they'd pass it every time they saw some agency doing something unlawful. Well, they don't do that. It's funny. We are having a bit of a constitutional argument over the Stop Antisemitism Act, which Sarah and I talked about earlier. Is the IHRA definition of antisemitism, is that something that would interfere with constitutional rights? Sadly, because much of that debate is being played out on Twitter, it is also the dumbest

thing I've ever read in my entire life. I get all my legal takes from Twitter. That's weird. But here's the interesting thing about this. As we're thinking through it in the structural issues, I think it is just going to be, even though the Supreme Court is pushing in the direction of Congress do your job, with Chevron potentially going down,

even if Chevron doesn't formally gone down, Chevron has been really, even if Chevron doesn't formally gone down, Chevron has been really zombified in many ways. And there's been sort of the potential revival of non-delegation and all kinds of things pushing things towards Congress. At this point, there is also just a lot of popular expectation that courts are responsive to me. And in many ways, we've created a world in which the courts are the most

responsive branch of government because I can go to the executive branch. I can go to Congress. Certainly, I could go to Congress and they don't have to do anything in response to me at all that my member of Congress can totally ignore me. Now, in the executive branch, yeah, if I go and I want a new social security card, the government will respond to that, you know, these purely administrative functions. But there's no guarantee a president will respond to me on a policy issue.

But if I file a complaint in a U.S. federal district court, there's going to be a process that kicks off. I'm going to get an answer from the government, it's going to be adjudicated, and it strikes me that what we've done is just as a practical matter flipped everything upside down to the point where the judiciary is now the closest branch of government to the people and the most responsive branch of government to the people. And that would have been gobsmacking, I think, to the founders. Yeah, I totally agree with you, David. And that would have been gobsmacking, I think, to the founders. Yeah, I totally agree with you, David. And it's, you know, the perversity,

in a way, is sort of hardwired or baked in because federal judges, anyway, don't have to stand for reelection. You know, we are, we have a, you know, sort of a legal and a moral obligation to, you know, sort of assess disputes, you to assess disputes, to evaluate and decide disputes that are put before us. And the political actors who do have to stand for reelection are more than happy for the courts to decide the hard questions and take the criticism. And so I think, again, we're in this weird spiral and you know, sort of whatever like, you know, your conversation on today's the podcast that aired today about

sort of the merits and demerits of originalism, like sort of whatever you think about originalism or textualism or whatever ism. You know, if courts don't, if judges don't subscribe to some ism that binds them to the mast, so to speak, and they think their duty is simply to massage, to round off the rough edges and make society work, which is tempting. I get it. It's tempting because right now it seems like no one else is prepared to do that. But that, I fear, just further incentivizes the political branches to go to sleep or to stay asleep. And frankly, even

worse, I think it causes ordinary citizens to go to sleep. I think by and large today Yeah Citizens don't think the big questions about the Constitution either they just think well Eventually the the courts will sort this out and everyone will get in line It just seems like we would be infinitely better as a society and a democracy if the courts were doing less sort of innovation and massaging and rounding. And instead, we're just deciding cases according to sort of neutral methodology, whatever you think that neutral methodology is. I'm not asking people to subscribe to any particular one, but pursue it to neutral methodology and then letting the chips fall where they may, and then having the political

actors pick up the pieces if necessary and forge ahead. That would, I think, get ordinary people, sort of we the people, involved in government. It would sort of like re-involve people in the government of their own lives in a way that I worry now we're not doing or incentivizing very well. And it also infantilizes us in a way, because what ends up happening is you can pass performative legislation and sort of think without consequence, you know, as long as you've set aside some money to pay the plaintiff's lawyers in the resulting section 1983 legislation, or litigation, sorry, that, you know, I can pass stuff as a, not just a, we have

this term messaging bill in Congress where the bill doesn't really have any chance of going anywhere, but I'm sort of staking out my ground. Now we have messaging legislation that will be immediately challenged in court, immediately enjoined. But hey, that wasn't me. I tried to fix the problem. The courts just stopped me. And then it infantilizes us because what it's saying is I get a free temper tantrum with my legislation. And again, that's not the legislative branch of government safeguarding the Constitution.

It's dumping all of that on the judiciary. Justice Breyer has this critique of textualism that you have to acknowledge is a real problem. It's sort of this meta point that you can make about originalism, too. The meta point in originalism is always like, yeah, but what if they didn't intend to have originalism as the methodology? And similar with textualism, when you're thinking about Congress, we're applying all these canons of interpretation to statutory language that the drafters of that language have no concept of those canons.

Now, the canons are just sort of like rules of how English speakers generally write things. But isn't it strange that we don't send over, I don't know, sort of emissaries from the judiciary to teach Congress and staff how they're going to interpret laws? I don't mean any specific law. I mean, here's how we will interpret laws from you. And I'm going to walk you through these 10 canons with annoying Latin names. Yeah. So it's a, I think it's an interesting point.

I mean, I think in this respect, I've had conversations with other people about this, that if we're going to divide, like I know on this morning's podcast, sort of the rough and ready to divide between originalism and textualism is that somehow originalism applies to the constitution and textualism applies to statutes. For reasons that David sort of spun out this morning and that Sarah, I think you don't disagree with, I think that's kind of wrong. I think that to me, originalism and textualism are both fundamentally doing the same thing. They're both text oriented. They're both aiming at the original meaning of the language at the time it was adopted of whatever kind of provision we're talking about. But in any event, if we're talking about statutory interpretation, then I think that some version, I think there's a very

good argument that some version of textualism, whatever that entails, is required by the language of the constitution, right? The Constitution prescribes a procedure by which a bill becomes a law in the schoolhouse rock kind of way from, you know, sort of presentment or, you know, sort of bicameralism through to houses of Congress and then presentment to the president with his or her signature. And the only thing that ever runs that gauntlet is the language, sort of the words on the page, that's it. And so, whereas I think you can have interesting conversations about whether originalism

is something that emanates from the language of the written constitution itself, I think there are decent arguments that it does. On the statutory textualism side, I think there's a very strong argument that some version of textualism is actually prescribed by the Constitution, setting aside its sort of practical benefits of sort of like clear notice and sort of holding Congress's feet to the fire, things like that.

I think it might actually be prescribed by the document. And then, Sarah, I think you get into the question of like sort of how ordinary people understand language. And yeah, I think you're right. You know, having suffered through, not suffered because I adore it, but suffered through, you know, seven, nearly seven years of interpreting congressional enactments, Congress hasn't always mastered, you know, sort of the finer points of how people think and talk. So maybe a seminar would be a good idea. But yeah, so I mean, I think as to the larger point, I think that it's not enough to say that textualism is bunk sort of because it doesn't adequately

capture the purpose or whatever, because the only thing that is law in the constitutional sense is the language of the enactment, the words on the page. That's the only thing that has sort of the imprimatur of that bicameralism and present the process. So I haven't solved your problem about Congress's knowledge or lack thereof of sort of ordinary speak. But I do think that textualism at some level is the answer in statutory cases. And then it's just a matter of sort of figuring out sort of the margins. Far afield from jurisdiction stripping, I'm sorry.

I know. This has been organically, organically this conversation has grown in interesting ways. I think we solved jurisdiction stripping. Yeah, there's been this 70 year on debate started by the dialogue of one of heart. And I think it was all for not because I think we just solved it in under an hour with the three of us. So, they're all so dumb. Yeah, that's right. So easy.

Yeah, we'll write our own fed courts textbook and, you know, displace Hart and Wexler in a moment. That's right. Just the transcript of this podcast. That's right. All the students need. This is a real dialogue, by the way, not a fake dialogue, a real dialogue.

That's true. Yeah. That's true. Where I flunked my quiz, I had no idea I was going to be quizzed on the facts of Marbury. I could have brushed up. I could have just glanced at it. But no, no. An ambush.

I actually had no idea. I had never learned that fact. Although it's worth pointing out that I was wrong about the constitution in Article 1 says that you can't hold any other officer of the United States position and be an elected member of the Senator of the House. It actually doesn't say anything about being a member of the executive and the judicial branch. And because actually Article 1 says that you can't be a senator or

member of the House and hold any other office, but it doesn't say anything about not being able to be a judge and holding a position of officer of the United States, based on our canons of construction, one might actually say that it's implicitly allowed to be Secretary of State and Chief Justice at the same time. You know, I'll say briefly before we close, one of the coolest things implicitly allowed to be Secretary of State and Chief Justice at the same time. You know, I'll say briefly before we close, one of the coolest things about Marbury when I teach Marbury is that, you know, sort of one piece of Marshall's analysis is that the physical delivery of the commission was just a ministerial act, right?

That's not like the authority giving act. The authority giving act is the appointment and the affixing of the seal. I had never given that any real thought until I myself was nominated. That's still true. That is in fact true because for instance, so I don't remember the precise calendar,

but I guess I think I was nominated in May of 2017, had a hearing in June of 2017, was confirmed by the Senate in late July. And then what happens is, you know, somebody at the White House calls and says, basically, we'll let you know when the president has signed the commission and the seal has been affixed. And then they do. And the very next day, you get to start being a judge. That's amazing. I didn't get my commission until October, until we have this formal investiture and

then somebody brings it down and it's beautiful and it's framed. But I did not have hands on a commission for two and a half months after I had begun judging. So, one of the central premises of Marbury that the operative act is signature and seal is not only was it true in 1803, it's still true. That's still how a judge gets his or her authority to begin doing the job. Poor Mr. Marbury never got to be a judge. That's right. But, actually, to bring this full circle, you talked about ministerial acts. And, of doing the job. Poor Mr. Marbury never got to be a judge.

But you know, it's actually to bring this full circle, you talked about ministerial acts. And of course, this gets us to different types of immunity. So generally speaking, a ministerial act, something you are required to do, you have no immunity from performing, you must do that. And if you don't, you have violated the law. End of story. It is those discretionary acts, the signing of the commission, the affixing of the seal, that in fact, you enjoy some type of immunity for because they are discretionary and not ministerial. And to me, at least learning that was sort of the opposite, sort of like defamation when the argument about like, if it's true, it's worse. To me, it's like, wait, but like a ministerial act, something you're required to do should be the thing that you have immunity for because like,

I don't know, you didn't even have a choice. Yeah, your hands were kind of tied. Right. So that's weird. Not my fault. Yeah. Versus like when you have a choice and you choose to do something unlawful, like maybe that's when we should be tossing people in the clink. I'm ready to just say that. But no, it's the opposite. Judge Newsom, thank you so much. I look forward to our conversation at the 11th Circuit Judicial Conference.

It's going to be pretty exciting stuff. I of course was like, hey, you know what the title of our talk should be? I mean, something totally outrageous and not appropriate. And you were like, what if it's media and the law? Just trying to keep you on message, keep you between the lanes. No, it's going to be great fun. I can't wait to turn the tables. Yeah, this is going to be weird.

I don't like it already. Is it going to be recorded? Am I going to be able to see this dynamic? That's a good question. I don't know. We'll have to see if we can make some special arrangement for Sarah's talk. Yeah. Hey, I'd love to see this. A simulcast. Well, listen, thanks so much for having me on. So much fun as always. You guys are the best. Thank you, Judge. Thanks, Judge.