Advisory Opinions - Is ‘Text, History, and Tradition’ Alive and Well?

Episode Date: July 9, 2024

Kannon Shanmugam and his summer associates return to Advisory Opinions to look back on the SCOTUS term and discuss the state of “text, history, and tradition.” The Agenda: —Big themes from this SCOTUS term —Was this the administrative law term? —Should we stop thinking about SCOTUS “terms”? —The health of the First Amendment —“The media now owns Amy Coney Barrett” —Justice Thomas’ dissent in Rahimi —Sarah’s summary of this term —Questions from summer associates Show Notes: —Loper Bright Enterprises v. Raimondo —Moody v. NetChoice —FDA v. Alliance for Hippocratic Medicine —National Rifle Association of America v. Vullo —SEC v. Jarkesy —Trump v. Anderson —Trump v. United States —United States v. Rahimi —New York State Rifle & Pistol Assn., Inc. v. Bruen —Justice Samuel Alito’s WSJ op-ed —Sarah’s 3-3-3 theory —Christian Laettner’s shot against Kentucky Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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we're making you the guest of honor. So join the celebration with special Aeroplan-iversary offers and 40 chances to win a million points at Aeroplan.com slash 40. Rules and conditions apply. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and that's right, it's our fourth annual Supreme Court

Roundup with the one and only Cannon Shanmugam from Paul Weiss. Cannon, thanks for joining. It's great to be here. And we're here with your summer associates once again in Paul Weiss's just luxurious, well conference room. What is this normally? It's our luxurious windowless conference room. That's right.

Yeah, lots of TVs though. Looks good for depositions. Cannon, we're very honored to have you with us for a fourth consecutive year, but you're also honored to be with us more than you know, because little did you know until today that you're on the number eight political podcast, I don't know why we're classified as political, in the whole United States of America for some brief and shining moments last week. Well that seems like bumper sticker material.

Yes. We're number eight. We're number eight. We're number eight. Of course we won't tell you what one through seven was or else it all kind of, the shine comes off pretty quickly. The shine comes off very quickly. I was wondering but I'll just go back and look at my office afterwards. Yeah, yeah. Don't do it.

All right, so rather than run through specific cases and revisit all that stuff, I thought we would just do some SCOTUS term themes. So first off, let's start with unanimity and how we think about big cases and that sort of stuff. Because the Supreme Court term once again saw about half the cases decided unanimously. And by and large, that meets with the last 20 years or so.

I think the exact number was something like 46% have been decided unanimously. Although that hides some of the years that have been outliers in either direction. What, OT 2020, I think, was a huge outlier in very few unanimously decided cases. But I've also seen that, you know, a lot of the Supreme Court stat packs, for instance, will subtract out the unanimous cases when saying, you know, who was in the majority or sort of what the big decisions were from the term. But this term had unanimous cases

that I think overlapped highly with what some of the, quote unquote, big decisions were. Um, the Mefa Preston abortion case, the NRA First Amendment case, the Texas and Florida social media case. So, how do you think about unanimous decisions? Should we take them out of the whole conversation? So I think we're all obsessed with crunching the numbers

when it comes to the Supreme Court. But I had two main takeaways this term. The first is that, as you say, Sarah, the number of unanimous opinions was roughly comparable to recent historic norms. But a lot of those cases were giant punts. I mean, there were a lot of cases this term where the court decided things exceedingly narrowly.

I think about cases like an otherwise obscure banking preemption case, Canterra versus Bank of America, where the Supreme Court basically said, look, we've written all these precedents in this area. Second Circuit, go back and look at those precedents again. And it seemed like there was more of that this term than usual. There was more of the court almost getting cases off its docket entirely. That's funny. Of my Texas and Florida social media case, the Miffl-Preston abortion drug case,

and the NRA First Amendment case, only one of those was on the merits. Yes, that's right. And a lot of these cases involved standing rulings on which the wings of the court were able to unite. But I will say that the flip side of that is that when you look at the six to three and five to four decisions, there were a significant number of decisions along so-called ideological lines, but also a significant number of decisions that were somewhat more scrambled. I think when you looked at the 22, 6 to 3 decisions, there were 11 with the Republican appointees

on one side and the Democrats on the other, and 11 that involved somewhat different lineups. And so I think it's hard to say that the court was more divided this term than usual. As we discussed, I think, at this time last year, of course, one response to that is that the court was divided along those lines in all of the quote unquote big cases.

But as you repeatedly say, big is in the eyes of the beholder. So one of the questions I have, if you're looking back, and I'm very interested in your thoughts on this, Cannon, looking back on this, you would say, in many ways, this was a presidential power kind of term. There was a lot to say about presidential power. And it's really mixed. It's really mixed. It's less power, more impunity. Would that be a way of describing it? How are you seeing presidential power?

I can't decide whether that was a slip of immunity to say impunity or no, you meant impunity. I thought you might. Yes. Yes. Less power, more impunity. Yes. I think you were probably thinking about the immunity cases. And I think it's really hard to draw a unified conclusion from the agency cases on the one hand, obviously Loper-Brite, Cornerpost and Jarkusy

and the two Trump cases, because I think that there were different cross currents at play. And to me, the biggest headline from this term was the agency cases and the fact that we have You know the six Republican appointees on the court. I think in this area having a very similar Relatively formalist view of the separation of powers though. I did think it was interesting that Loper-Brite was ultimately decided based on Compliance with the APA rather than broader separation of powers principles. But then in the immunity cases, as you've noted, David, those cases seem to be really driven by pragmatic considerations.

And by that I really mean the actual immunity case, but also the case involving Section 3. I think in both of those cases, the majority was really thinking very hard about what the implications of the rule would be for the future. And I think that that rendered the cases perhaps a little less intellectually satisfying. David, do you think this will go down as the admin law term? You know, in many ways, I think it will. If you take last term, this term, well, if you

take the the last three years of the court, the one thing you're taking away from this is if you think that you can accomplish massive policy goals without Congress anymore, think again. You have less ability to do that right now in 2024 than you did in 2018, 2019, both the combination of getting rid of Chevron, which already was kind of a zombie, but also if you add to it, so you've been getting rid of Chevron, but just the way that they are bulking up their review of these administrative decisions. I've compared it.

You guys in here are way too young. Arbitrary capricious rational basis review in the ad law now is like Barry Bonds year 2004, not Barry Bonds in 96. And Barry Bonds in 96 was lean, mean, base stealing machine. Barry Bonds 2004 had a neck the size of a redwood. And it's bulked up. You have really bulked up the scrutiny of these administrative decisions. So David, I'm not sure that any of our summer associates were born in 1996,

but I'm confident none of them were watching baseball in 2004. So... Well, should... I guess my question to you, Canon, then is... There wasn't a lot of major questions doctrine this term. Like there have been sort of the previous terms of the OMG, where did this come from? It was invented in 2018. No, it wasn't. It was Justice Breyer back in 1982. And we weren't really having that fight. But then they're having these other administrative law

tinkering issues. What's actually going to have a bigger effect moving forward? Well, it's an interesting question, because the court in Loper-Bright essentially codified what its recent practice has been as the court itself recognized it had not applied Chevron since 2016. Maybe corner post represents a bit more of a change in the law because a number of circuits had adopted the contrary rule on the statute of limitations. But I think in terms of what this means going forward, it isn't as if parties last year were holding back from bringing challenges to major regulations. Those challenges have been afoot for a number of years now.

What this really means, I think, is that perhaps lower courts will feel more emboldened to invalidate regulations in cases that feel like close calls. It'll be an interesting question going forward to what extent the Supreme Court really actively polices what lower courts are doing and I think that the Supreme Court frankly has not shown a great deal of appetite to take a significant number of cases involving challenges to agency actions. But of course, there are a lot of really practically significant challenges in the pipeline right now. And so I think we'll have to see what happens. And I think

that the looming issue is to what extent lower courts will find congressional delegations to agencies as effectively a practical substitute for Chevron deference. David, I have one, I have a large, large one for you. Okay. Well, for both of you, but let's start with David. Okay, so last term, 90% of the cases decided had at least one liberal in the majority. That dropped back to where actually the average had sort of been for a while. So it was just under 80% this term. So many more cases decided along ideological lines,

what used to be 5-4, what's now 6-3. Or I'm also including in that the 5-4 where there's no liberal justice in the majority would still, I would consider, be an ideological case. Okay, so from 90% to 80% this term. Last term, the two justices most likely to be in dissent, Clarence Thomas, Sam Alito. This term, it's the three liberals, and it wasn't particularly close. Both of those, I think, are related, obviously, and pretty big shifts in the, you know, courts lineups. But I know that last term, and again, I'm going to use big cases, the thing that I hate is sort of like when I cite polls after I like rail against polling, but whatever.

The big cases last term, we're on things like affirmative action, religious liberty, these more culture war-y cases. And we saw fewer ideological decisions. We saw Clarence Thomas and Alito more in dissent. This time, it is more ad law cases. It's Jarkissy and Cornerpost and Chevron. And then you're going to see the three liberals in dissent more and more ideological cases. Should we stop thinking of the Supreme Court in terms of terms? That's not even enough time to actually think about the ideological rundown because it's actually the types of cases that's driving whether it's ideological?

That's a great question. And I think the short answer to that is yes. I think you all, in reality, you have to look at eras more than individual terms because the individual terms are so defined by the cases in front of them. But I would call this term now having just said, yeah, let's talk about eras instead of terms. Let's talk about this term.

So I would almost call this a paradox term in an interesting way because I talked about one paradox, which is on the one hand, a lot when you look at Jarkissie and you look at Loper-Brite, you've seen the raw power of the presidency being scaled back, at least as it manifests itself in the administrative realm. Then you've seen the immunity ruling that seems to give the president a zone of autonomy that maybe the president shouldn't have. So there's a paradox there.

Here's another one on that very point, Sarah. What's fascinating to me is how many of the hot button, truly culture war type cases ended up with an 8-0, or a not so Mipha Presto, 9-0, or I said 8-0, 8-1, Rahimi, 8-1, Imtala was 6-3, but a truly is Gurion 3-3-3, 6-3, but truly is Gurion 3-3-3 6-3, right? And so some of the paradox here was that the culture war stuff, the classic culture war stuff was more, Murthy, you know, Murthy was a version of a unanimous NRA. That was the Biden social media coercion case.

Yes, social media coercion case. Murthy was roughly a version of unanimous. NRA, this was the NRA, like the ultimate culture war boogeyman, nine zero. But where did you see a lot of the splits was in this ad law. In one of the arena, and one of the things that I've tried to argue is I think that the Supreme Court in a lot of ways, the conservative wing of

the court is the last remaining bastion of the pre-Trump conservative world. So to understand the court, understand pre-Trump conservative thinking. I think also to understand the left, the progressive three, you got to think of a way that's more like an older school kind of democratic party progressive of some approach. And that's why, in my view, a lot of these ad law cases actually break out pretty ideologically, because in the old world, there was a very different view of the administrative state and centralized power and authority, where if you were on the left, supporting government agency discretion

was just part of the deal. And if you were on the right, opposing government agency discretion or limiting the reach of these agencies was just part of the deal. And in the political world, that's all scrambled now. It's all scrambled. Yeah, so I largely agree with that, David. And I think I would add a couple of points. First, I've always thought that it's a bit weird to use a single year as a sample size when analyzing the court.

It leads to people really latching on to these weird, relatively insignificant statistical anomalies. I think it's much better to think about all of this in terms of eras. And since I'm'm a Swiftie I feel like maybe we're in the tortured cabinet department era right now rather than the tortured poets department era but but I do think that the most... Someone's got a teenage daughter. I do not for the record I have three boys with varying degrees of love for Taylor Swift. But in all seriousness I think that the agency

issues are the most interesting because they are the issues that I think most clearly put the disagreements in constitutional approach on display between the six Republican appointees and the three Democratic appointees. This is an area in which the conservative appointees take this very formalist approach to the separation of powers, very similar to the approach taken by Justice Scalia. And even Justice Barrett, who has shown a somewhat independent streak in this area, I think, takes a very solidly traditional approach to these issues.

And I do think that this year it seemed as if the court was very focused on these issues. You know, when you look at Loper-Bright, there was a lot of speculation about the possibility that the court might adopt some middle ground standard. It might Kaiserize the Chevron standard. And of course, in the end, the court wasn't willing to do that. By contrast, I do think that the court has a little bit of a post-Dobbs aversion to getting back into the culture wars. And I think that that explains a lot of these rulings this year, where the court sort of avoided those questions. And I think the two abortion cases are perhaps the best example of that. But what I think is interesting, having said that I won't look

at the statistics for a single year, I I won't look at the statistics for a single year, I'm going to look at the statistics for a single year just in a couple of respects. To me, the two most interesting statistics from the past year were first that when you look at the justices who were in the majority the most often, the three who were in the majority 90% or more of the time were the Isger middle. So the Chief Justice, Justice Kavanaugh, and Justice Barrett. As they have been since Justice Barrett joined the court. Yep.

That has not changed. That's right. And when you look at the three justices who voted together the most often, it was the three Democratic appointees. They voted together 81% of the time. And so the really interesting dynamic on the court is of course, you know You start from the presumption in these controversial cases That you're gonna have the six Republican appointees on one side the three Democratic appointees on the other I think the threshold question now is are they all gonna get together and find a way to dispose of the case?

And if they don't then the question becomes are the justices in the isger middle? And if they don't, then the question becomes, are the justices in the Isger Middle going to break off? Some are all of them. And if so, why? And I think it is because ultimately those three justices have the strongest pragmatic streak on the court. Interesting. So we almost have like a canon two-step Chevron test, if you will. I'm sure we'll add step zero here at some point, but step one, can they get rid of the case? Step two, if not, then look to the three swing votes. Yeah, and I think you see- Step zero, does cert get granted? Who's your fourth vote for that? Yes, but then you see in a lot of these cases, the court looking for almost impossibly narrow

ways of disposing of these cases. And you often see this explored at oral argument. And interestingly, often it's someone like Justice Barrett who's really kicking the tires on questions like, you know, this is a facial challenge. Are we correctly applying the facial challenge standard? To me, one of the most interesting things about the net choice cases where, of course, the court ultimately relied primarily on the facial challenge standard and how it was applied below is that that had really not been an issue in the briefing. And then all of a sudden it dominated the oral argument.

And to me that suggests that this impulse to try to decide cases narrowly is one that really kind of comes to the fore when the court is thinking, all right, how are we going to vote about this? And whether you've been an Aeroplan member for one year or 40, we're making you the guest of honor. So join the celebration with special Aeroplan-iversary offers and 40 chances to win a million points at Aeroplan.com slash 40. Rules and conditions apply. At AeroMiles, we help you collect more moments. So instead of scrolling through photos of friends on social media,

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Collect more moments with more ways to earn. Airmile. Can I ask a question of the Sarah Cannon brain trust? Mm. Okay, so, had two cases about jawboning. We had the NRA case, where the New York State officials engaged in very direct kind of nice little business you got there. Shame with

something bad would happen to it if you do anything with the NRA, where the court unanimously says, wait a minute, if you can prove these claims, you get a chance to prove these claims. If you can prove these claims, you've got a case. And then you have the Murthy social media, where And then you have the Murthy social media where the case was kicked on standing. And a lot of smart people said this was a blow for the First Amendment. And I'm very curious after NRA and after Murthy, where do you guys stand on the health of the First Amendment

and the face of government jawboning? Cannon. So I'm going to weasel my way out of that by saying that I haven't really drilled down on the facts of Murthy. Cannon's like, those don't sound like paying clients. So yeah, no, haven't read those. I mean, I would actually, I would bracket those cases together though with the Net Choice

case in that I think that the court is really wrestling with the question of under what circumstances do we permit individuals to kind of vindicate these First Amendment claims? What sort of showing is required at the threshold in order to be able to vindicate these claims? And remember that in the NRA case, there was a vigorous debate about what the allegations actually were in the case.

And you had the state official in question really disputing the NRA's account of what took place. And so that's really a long way of saying that I'm not sure that the court is taking a less muscular view of the underlying First Amendment rights. And when you look at the remainder of Justice Kagan's opinion in the Net Choice case, I think she was taking a pretty strong view of the rights, at least of social media companies operating social media platforms in her discussion of 2008 and the other cases that she relied on.

I just think that the court has, you know, increasing disquiet with pre-enforcement challenges where it doesn't feel like it has a good handle on the facts, and that that was really what was driving what was going on there. I would compare it to last term, where you had the three race cases. You had Section 2 of the Voting Rights Act upheld.

You had the Indian child welfare racial or tribal preferences when placing children upheld. And then, of course, you had the Indian child welfare, racial or tribal preferences when placing children upheld. And then of course you had the affirmative action in higher education struck down. And I mean, you've made this point David that there actually are through lines in those cases, but all anyone ever talked about was the affirmative action case

because that's the one that in a sense changed the status quo. So all the focus was on that. You miss what the Supreme Court is doing if you only focus on the one case that changes the status quo instead of the cases that then build up the status quo around it. So as you described those cases,

and I think it's simply correct, when you are considering race for a remedial purpose, the court is interested in upholding it. If you are considering race for a quote unquote diversity purpose, that looks a lot like race discrimination under a no-no, we're the good guys garb. So put that into this context. You've got the NetChoice case about forcing social media

companies to carry content based on viewpoint. The Murthy case on whether and how the administration, a government actor, can flag what it thinks is disinformation or malign foreign actors to social media companies. And then of course, the Vullo case on government actors telling third parties, though not social media companies, these are the bad guys and we don't like them and if you do stuff with them, we'll do bad things to you. So again, nobody pays a lot of attention to the NRA case,

even though it was the NRA and even though it was unanimous because in some ways that felt pretty status quo-y. There wasn't any precedent being overturned or really new law being made. It was more just like, yep, it's still the law that you can't accomplish through a third party what you couldn't do yourself. And then, of course, on the NetChoice case, because it ended up in the weird posture that it's ending up, I don't think that Kagan's run through of the precedents and more the precedents that cut against it, the mall case in particular, and the fair case about the law school military recruiters, her summary of those cases actually did make law in a sense.

It will change things in being quite protective of First Amendment rights. And so yeah, you have to look at Murthy in the context of what they're saying isn't allowed before you can say what Murthy does allow. And I really think that that case, by and large, should be seen through a lens of spaghetti against the wall and to your point, Cannon, they don't want spaghetti anymore. You know, in the past, whether it was a facial challenge or these sort of, I don't know,

I mean, the, the Murthy case was just a bunch of plaintiffs and groups of like, someone's got to have standing and look at these bad things. Generally speaking that happened. They're looking for more rifle shots and they're saying everything is going to be considered a la facial challenge in a sense of before we would say, we don't like this, but we're definitely going to let you do it and rule for you if you show bad things and bad vibes.

And now they're like, we said we didn't like this. We're done playing games. Don't do it anymore. Now you go into timeout. So I think I would say two things about that, Sarah, first that I think that there is no doubt that while a majority of the court is not where Justice Thomas is in saying, hmm, not sure there's any associational standing,

I'm not really sure that it's even constitutional to have facial challenges, I think there's no doubt that a majority of the court is generally moving in that direction towards a tighter view of some of these standing doctrines like associational standing, perhaps a greater degree of skepticism toward facial pre-enforcement challenges. And that's motivating a lot of what's going on, particularly in the area of the First Amendment where facial challenges over breath tend to be more common than in other constitutional

contexts. But the other thing I would say is that, Sarah, I think you're absolutely right, that people tend to ignore or to play down the Supreme Court decisions that simply reinforce the status quo, even when they alter the law in subtle ways. A case that we haven't talked about is the Linkey case and O'Connor Garnier, the two cases involving officials who engaged in blocking on social media.

And I think there the court's opinions, again, sort of restated the existing precedent. But whenever the court does that, it alters the law sometimes in very nuanced ways. It's sort of like memory. Our memories aren't photographs. Every time you recall a memory, you are slightly changing that memory.

That's what the court does every time it restates a precedent. It's slightly changing that precedent simply by recalling it and having to summarize it. I did not know about that, but that must be why when I remember Christian Leitner's shot that beat the University of Kentucky in 1991 in the mid-east, was it the mid-east regional finals? See, you can't even remember. In Philly? All I remember about that is Christian Leitner actually had horns and a tail when he did that.

So I don't guess in reality he had one. You're building new neural pathways every time you reach out to get that memory. You're like... He just gets more twisted and evil every time I think about it. Okay. So I'm pretty sure I was actually at Austin Powers during that game. I was at a movie during that game and as a huge college basketball fan I missed like

the greatest college basketball game of all time. Yeah I was a second year law student at home, full grown, full grown adult and after that shot when I walked went to my front porch and wept out loud hot bitter tears yeah as full-grown adults do after sporting contests that they are not part of in any way not part of in any way yes yeah good well we digress the other thing though that i would add is that with the supreme court deciding 59 cases a year something that those of us who are members of the union of private supreme court practitioners always complain about I think it's also important to keep an eye on the cases that the court Doesn't take and Sarah what you said earlier reminded me of what I think was probably the biggest inaction by the Supreme Court this year Which was the court's failure to take the Thomas Jefferson case?

The presented potentially the issue of whether the use of a race neutral means to achieve a diversity related purpose violated the equal protection clause. I have to admit I was a little bit surprised by the court's failure to do that. In retrospect, I think it may have been because the court was reluctant to get back into what the court would have viewed as a culture war issue. It's like that's the Miffah Preston case after Dobbs. And so that's, they're not, they're just arms-lengthing it. Well, don't worry, plenty of schools are doing it.

So the cases just keep teeing up. We now have, I believe, surposition pending from a school in Cambridge, Massachusetts. Cambridge Ringe in Latin, I believe, yeah, has that case pending. Okay, let's move to some of the justices. And obviously, we have to start with Justice Barrett. So I will read you what Mark Levin tweeted today, right wing radio host for those who are not familiar with him. Justice Barrett is, quote, the latest in a long line of formerly conservative justice nominees who is smitten with media attention. Liberal law professor Steve Vladeck

writing in the New York Times also that Barrett, quote, has established her principled independence in the middle of the court while the other five Republican appointees move only further to the right. They're in sort of hot agreement here in a lot of ways. But I at least don't quite see the stark world that either one is painting. So for instance, to go into Professor Vladeck's argument a little bit,

he says that as willing as Justice Barrett is to follow her principles, even when they lead her away from Republican political preferences, the same can't always be said of the other two justices in the court's middle, Chief Justice Roberts and Justice Brett Kavanaugh. For evidence of this, he notes that the Chief Justice authored the opinion overturning Chevron deference and then doesn't mention that Justice Barrett joined it in full. Right? I mean, that's a little bit odd. And I think there's no distinction in these arguments from either Levin or Vladek between ad law cases and culture war cases or between random cases that maybe just simply didn't fall along any particular ideological grounds.

And to me, this reminds me a bit of the aftermath of the Trump immunity case, where the people reading the case, the opinion is having the most immunity for Donald Trump, were the far right and the far left. You know, because the far right was like, yeah, Donald Trump can shoot people, finally. And the far left was like, see, we told you Donald Trump can shoot people. The Supreme Court said so. Brett Kavanaugh's loading the bullets into the chamber.

So therefore, vote for Democrats, I guess. I'm not quite sure how the argument really follows through, but I think the Justice Barrett has broken away thing can be easily overplayed. But nevertheless, we are learning who Justice Barrett is. So, Canon, who is Justice Amy Coney Barrett? Well, I'm not gonna attempt to psychoanalyze her. Hopefully not to your disappointment. But I do have a couple of thoughts about Justice Barrett. So, you know, the first is that I think it's very easy to overstate the degree of

divergence here. And again, as we were discussing a few minutes ago, Justice Barrett was in the majority 90-plus percent of the time. So, you know... For the last four years running, right? Like, every... Since she's been on the court, she's been above 90% every time. Statistically, she hasn't changed. That's right. And she's voting with the other Republican appointees more often than she's voting with the three Democratic appointees.

So the real question, I think, is, what explains the cases where she's voting somewhat differently? And to me, I think that there are a couple of features of Justice Barrett that have been clear from the outset. The first is that she is an extraordinarily proficient technical judge. Now, what do I mean about that?

She's a judge who really cares about the facts and the procedural history. And so when you look, for instance, at her dissenting opinion in Ohio versus EPA, the case that came off the emergency docket this year, you know, she really, I think, took the majority to task for, you know, not really digging into the facts and the underlying record in a case that admittedly came up in a very expedited posture. And so I think of her as very much a judge's judge in that regard.

She's somebody who really sort of takes all of that very seriously. The other thing is that I think she's somebody who has a great deal of common sense. And so while I would describe her as pragmatic, it's not really pragmatic in an institutionalist way. She's not concerned about how the court is perceived. She's much more concerned about what are the consequences of a ruling in a particular direction for

future cases. I think she's probably the member of the court who is most likely to ask that sort of question nowadays. And so, look, she's also a committed originalist and textualist. Obviously there have been a lot of debates on the court about the role of history and how exactly to approach the originalist task of constitutional interpretation. But she also takes the text very seriously and perhaps the best example of that was her dissent in the Fisher case, the case on the interpretation of the obstruction of justice statute that was invoked in some of the January the 6th prosecutions where, you know, again, she really disagreed,

I think on quite principled textualist grounds with the majority. I have a, I'll call it the unified theory of the Amy Coney, of media perception of Amy Coney Barrett. Okay. As opposed to Amy Coney Barrett jurisprudence. Okay. And the wire people, so surprised that she's independent and she's got her, she has her

own mind about things and she has her own sort of jurisprudence? Why are they so surprised with her? And they're not as surprised with, say, Neil Gorsuch, who's got his own independent strength. I mean, if you're a criminal defendant or if you're, you know or if you're advancing Native American rights, Neil Gorsuch is your guy and that's not something that everyone would have thought about going in. But why does she get so much more attention for her independence? And I think it's related to the perception of her by the media at large was so opposite of the reality of her the media writ large was so opposite of the reality of her that just the they're they're actually encountering the reality of her and the perception of her was driven by this sort of

frenzied this is the Handmaid's Tale Catholic super you know Catholic super jurist who's going to bring the long red nobody expects the Spanish Inquisition sort of mindset. And she's not that, she was never that. If you paid close attention to her jurisprudence, to her writing, you knew she was never that. But this got so implanted in the public debate about her that she was some kind of radicalized religious zealot that when they encounter the actual living, breathing person who has her own independent thoughts and she has her own independent jurisprudence, it's a bigger shock than you would ordinarily have. And so I feel like she's got all the rights to

say, as many Jerry Springer guests said over many years, you can't judge me, you don't even know me. And they didn't know her. I have a simpler, dumber explanation. This is not going to be high-minded legal analysis whatsoever. In the last three days of the term, EPA came down. She was in dissent. Fisher came down. She was in dissent. Trump immunity came down, she was in a concurrence that seemed less full-throated than the majority.

That's what the media saw last. Bright shiny object, three cases they all cared about, and that was enough. I don't know. Okay, let's talk about some of the other justices. Justice Thomas is the only one in dissent on Rahimi. So Justice Thomas, you know, we talked about this some David, he ruled for Rahimi that these, that 922, this part of Section G did violate the Second Amendment, i.e. Mr. Rahimi, like Yosemite Sam, shooting off his guns every time someone looks at him. Like, yes, definitely

that guy constitutionally mandated to get his guns back. Again, I question whether that would have... Yosemite Sam is the best case description of Rahimi. Yeah, yeah. You know, I mean, it's like evil Yosemite Sam, but Yosemite Sam, I'm not sure why we think he's like a great guy. He's just like shooting off guns in the air all the time. He doesn't know who's around him and he's mad as everything.

His face turns red at the drop of a hat. I mean, I don't recall him shooting up any drive-thrus, but anybody I met for that. That's why he's evil, Yosemite Sam. It's Darth Yosemite Sam. Maybe his credit card had never been declined at a Water Burger. Do you know how mad I'd be if I couldn't get my water burger?

Oh. All right. So here's Justice Thomas in the Bruin case, really developing originalism 3.0, text history and tradition, the next frontier now that Justice Scalia is gone. And then the first chance the other five conservatives get. They're like, no, no, no, we'll take it from here. We've got it, Texas Street Tradition's a totally different thing,

and it definitely doesn't mean this guy gets his guns back anyway. Is Texas Street Tradition alive and well, Cannon? Is it, I don't know, is it moving down some weird stream? What happened here since Bruin? Oh, I think it's alive and well, but I think the devil is in the details. I don't recall what we said about Bruin

when we did the roundup in the Bruin year, but it was always a very dramatic change in the underlying mode of constitutional interpretation. And it was really obvious from the outset that there were gonna be these questions about the level of generality in determining the relevant analog and so forth. And, you know, we really saw those divisions on show in Rahimi. And in the end, Justice Thomas was the only one willing to take this very strict view of what the relevant analog is. And I wouldn't say

that that was terribly surprising, particularly given the facts of the Rahimi case. And it's not at all unusual to have situations where, you know, you have a majority opinion come out and then you have members of that majority subsequently take somewhat different views about what it meant. It's just a little bit unusual to have that happen so quickly and to have essentially all of the members of that majority except the author take a different view. But I want to push you on this because if you had been a circuit judge on the Fifth Circuit or otherwise and got one of these 922 G-ish cases post-Bruin, who do you think was more faithfully applying the text history and tradition tests that we learned about in Bruin versus what sort of the new, I don't know, I feel like there's

five different iterations in Rahimi. So I don't even know which one to follow at this point, which is a different question of what the courts are supposed to do now, the lower courts. But you know, this idea that in Bruin, there were analogs at the time and they said that wasn't enough. They were sort of too sporadic. But here in Rahimi, the analogues were surety laws, which aren't that analogous. But that was held to be good enough.

I don't. Do you think that the court properly applied the Bruin text history and tradition test to Rahini. I think it's really hard to say from Bruin itself what the court was directing in terms of how to go about identifying the right analogy. And of course, keep in mind that this case implicated another complexity that we've been talking about, which is how to think about facial versus as applied challenges.

And it was clear from the oral argument, and I think that this is borne out in the opinion as well, that when the court thinks about Second Amendment rights in as applied terms, the principal driver is really this issue of dangerousness. Is this an individual who has been adjudicated to be dangerous? And I think we're going to see all of this play out

in relatively short order Because of all of these cases involving challenges to for instance the felon in possession Statute, I think it was really interesting that the court declined the Solicitor General's request To kind of go big and to take all of those cases right away and instead sent them back to the lower courts But I you know, I think that this will reach. And declined to take up the Illinois assault weapon ban. Like, they're also not taking more of them, as best we can tell, for next term. Yeah. Well, I think that we're going to reach a status quo on all of this.

But I don't think that the court is really in any hurry to get there. And I think part of the reason why that may be true is that it was obvious from the explosion of concurring opinions that, you know, I'm not sure that there are five of them who really agree on the precise details of how this should work. And so maybe the court just took the view that it's better to let this play out in the lower courts and maybe the court will get some insights from what the lower courts do in these cases.

This episode is brought to you by PC Optimum. insights from what the lower courts do in these cases. and it'll show you similar items at a lower cost. Add coffee to your list, then swap it for one that's cheaper. Craving chips? The app will suggest some on sale. To get started, just open the app. It's as easy as that. See the PC Optimum app for details. David. I have a lukewarm take on this. I have a different question for you.

Oh, okay. So, huh? No, it's not different. You can include your lukewarm take, but was this inevitable for originalism? Like as in, you know how when we think of evolution and species for instance, it's not inevitable that humans come out of all of this. Like our little weasel ancestors had to make it through the asteroid and then they had to not be stepped on by, you know, the large fauna and all of that and yada yada yada.

I didn't know weasels were in the line. Oh yeah, yeah. Wow. Weasley. Man, explains a lot about politics. But the point being there's all these accidents along the way and then you end up with, you know, these big brained apes walking around shooting off nuclear weapons. And I wonder in originalism, it can feel very inevitable that we end up in text history

and tradition. But I know I've said this before, but text history and tradition, as they are describing it, as we've now seen in both Bruin and Brahimi, can't exist without the internet, for instance. Can't exist without all of these statutes and historical documents being digitized from the founding era. You couldn't possibly expect all these lower court judges to send their clerks off to the far-flung reaches of the 13 colonies to go through every small town's, you know, dusty papers.

Um, and I guess this goes to like this really fundamental circular originalism problem, which is what if the original intent of how to read the constitution wasn't originalism? Which is a great question. You know, if I'm going to talk about sort of evolutionary theory in the law, I'm thinking of originalism as going to move back to tiers of scrutiny. And the reason why I say that is because when you look at the Rahimi decision, what it looked to me like was the originalist version of intermediate scrutiny. So instead, and Thomas's was like the originalist version or the text history and version of strict scrutiny. You've got to have the exact match, right? You've got to show,

because he says, like, look, you know, in the colonial era, they had the solution for pre-crime, so to speak, and it is the surety law. So that's your solution right there. And if it's, you can't depart much from that, that seems very strict, very strict. Whereas the majority seem to much more take an intermediate view.

Well, there were examples of laws restricting access to dangerous people. So we're just gonna kind of defer to this idea that there are laws that can be aimed at restricting access by dangerous people. And so you're backing into tiers of scrutiny here with Thomas at strict scrutiny and the majority here in Rahimi

and some sort of intermediate. And I think that's where you're gonna end up with a lot of these gun cases going forward. Now that you have this strong majority that says, no, no, no, you don't have to have exact match. What you can show is the concern existed that they took steps to address. So now let's move forward.

Do we have the concern that exists and what kind of steps can be taken to address it? And so I feel like you're kind of moving, even though they're not saying it, you're moving to a version of tears of scrutiny. Now, and I think gun control, I mean, gun rights advocates will regret ultimately that text history and tradition was the framework

because it's now being watered down so much. I think, you know, if I'd been arguing on the path of, you know, Second Amendment rights, I would have maybe just for the argument, changed my name to strict scrutiny, one word, so that the court would have to address me as strict scrutiny, just so that they would get it in there without question, that that's what I would look for as the most protective of the right. But I think where text history and tradition is moving, the way they described it is like a historical version of intermediate scrutiny.

That feels pretty hot-takey to me. That's not even lukewarm. I'd say the temperature is above 90 degrees. Uh-oh. It's hot tub. Well, let's see, canning, if you're going to moderate. I think that's a very interesting take, and I had a couple of reactions as you were saying that.

One is that, you know, look, originalism has been around in its modern form for now at least 40 years. And I think for most of that time, I don't think that anybody really thought that originalism and the tiers of scrutiny were at war with each other. It was really only, you know, in the lead up to Bruin and then obviously with the court's decision in Bruin, that there was the sense of this tension. And you know, now we have Justice Kavanaugh's concurring opinion in Rahimi that really sort of squarely addresses this and really kind of disparages

the traditional tears of scrutiny approach. Look, there were obviously gun rights advocates who were arguing for strict scrutiny in the days before Bruin. And I think you may very well be practically right. If the text,in, and I think you may very well be practically right. If the text history and tradition approach ends up taking a very expansive view of the relevant analogy, it will feel a lot like intermediate scrutiny. That just really remains to be seen. To me, the really interesting question is, here we are 40 years after, you know, the birth of modern originalism,

and we're still having pretty fundamental debates about what the relevant historical evidence is that bears on the original understanding of the relevant terms. Justice Barrett, I think every term, writes the opinion about, well, is it, you know, 1789? Is it some other time? And I do think that it's kind of interesting

that there has not been more ferment about these issues sooner. But I think part of the reason why that's probably true And I do think that it's kind of interesting that there has not been more ferment about these issues sooner. But I think part of the reason why that's probably true is that it's taken a while for originalism to become the predominant strain of constitutional interpretation. And the only other thing I- Do you also think some of it is that, I don't want this to be taken too literally, but Justice Scalia was to legal conservatives what Donald

Trump is to current Republicans. Like, Justice Scalia is doing originalism. He is the person we follow. If he says that we're good and we don't need any questions, like I don't have any questions. And then when he died, it was like, Oh, I do have some questions now that I come to think about it. It can't be a coincidence that I think we end up in the originalism 2.0 era as Justice Scalia joins the court, moving on from the sort of Borkian, Meese sort of original thoughts of originalism. Like 2.0 is Justice Scalia joining the court

and then all of a sudden text history and tradition comes less than two years after his death. Well, I think that there are more people doing originalism now, both on the Supreme Court and on the lower courts. And so I think that's why you're simply seeing more writing about this. And even the Democratic appointees on the Supreme Court

are using the originalist methodology in a lot of constitutional cases. And I was talking to one of the summer associates about this at breakfast this morning. You know, I think one of the things that's really interesting is that we have not really seen the emergence of an explicitly labeled alternative mode of constitutional interpretation to originalism.

You know, you would really struggle if you read the dissenting opinions of the three democratic appointees this year to say, oh, they're not applying originalism. You know, you would really struggle if you read the dissenting opinions of the three Democratic appointees this year to say, oh, they're not applying originalism, they're applying George or some other denominated method of constitutional interpretation. That's just not happening. You know, and also I think originalism has already accomplished the easy thing, which was, okay, we're offering an alternative to positivism or to, you know, some of the other two critical theory, critical theory informed jurisprudence. So it did sort of the easy thing, which is to say, here,

we're going to take an approach that's rooted in the history and the original public meaning. And you've sort of slain in some ways one dragon, but now when it's like, okay, now decide all the cases under this rubric, then you start to get, it gets very, very interesting. And the other thing that I think is interesting is, I wonder how much, if you put like your median originalist scholar on truth serum, and you said, okay, now once you got to text history and tradition,

did you know the history was so messy? And I think a lot of people would say, uh, under truth serum, no, I thought it was a lot cleaner than it is. And that when the in the Bruin case was really stood out to me was how messy the history is. Because if you look at a country of this size and of this complexity, with this many levels of governance, it's going to be chaotic chaotic and it's hard to draw that through life. And I also think, and I think this is about textualism

when it comes to statutory interpretation as well, that there are just hard cases. The fact that you have a methodology, even a relatively clear methodology, and as we've discussed, there are these ambiguities around the edges of originalism that have yet to be fully adjudicated, I think whenever you have one of these methodologies, there are going to be cases where certain

pieces of evidence point one way, other pieces of evidence point the other, and you have to try as best you can to work that out. And so I think it's not a criticism necessarily of originalism or textualism that it's not always going to be determinate. I do think it's a fair point that a lot of these questions seem to go to pretty core questions of how the methodology should work going forward. Okay. Here's my summary of this term. You'll notice I'm paraphrasing someone else. Other terms presenting different cases and different statistics may lead to different conclusions. Does that feel fair?

Very fair, yes. So final thoughts on what you're looking for next term or coming out of the long conference in September, unresolved threads, justice who is looking to make their mark, et cetera? I wonder whether we're actually going to have a low-key Supreme Court term because I look at the cases that have been granted so far. There are not a lot of hot button cases. I look at the pipeline and I don't see a lot of hot button cases. I look at the pipeline and I don't see a lot of hot button cases. And so I wonder whether we may actually see, you know, a return to the type of Supreme Court

term that we saw 10 or 15 years ago, where, you know, sure there would be three or four big cases, but the rest would be more of the kind of traditional meat and potatoes variety. Now, I think that there's potentially one very good explanation for that, which is that the court is probably sitting there thinking, goodness only knows what might come out of this election and out of the next few months. And so therefore, we need to kind of leave some room, whether room on the docket or just psychic room in order to accommodate for that possibility. But right now I don't really see a lot of cases that are

going to generate front-page news that Sarah would disparage as big cases. You know, I wonder the same thing. I almost feel like Roberts has a, it's like he has a whiteboard with a list of major culture war issues and he's trying to just cross them all off. So abortion, that's going to the states in the democratic process. Don't bother us with the myth of Prestone stuff. That's a democratic process. Okay.

The conflict between LGBT rights and religious liberty, we fix that. If it's in the commercial world and in the commercial space, the Title VII analysis with gender identity and sexual orientation, wins the day. If you're in a religious organization, hands off government. The religious organization is going to be able to do what it wants to do. Guns, it feels to me like that is heading towards, as long as you're not actually depriving someone of the right to keep and bear arms, there's going to be, because the historical record is showing an awful lot of ways you can restrict access to firearms, that most existing or all existing gun control measures

will probably be upheld, as long as it's not going much further. The one exception where there isn't that clarity yet is on the transgender health care issue, especially with minors. And so I feel like he's got that in bold on his whiteboard. He's like, we're going to fix that one. We're going to cross that one off. And it's just that it feels like the Supreme Court is trying to settle a lot of these cultural war issues. And by settle, I mean, not necessarily the Supreme Court's fixed it saying, also, we're going to punt some of this back to the democratic process and what y'all decide. I think the only caveat I would add to

that, David, is I just don't know how much control the Chief Justice has over the court's docket. I think one thing that we have seen, and this term bears this out, is the Chief Justice exercising pretty tight control over the majority opinions in big cases. And I think that that is not by accident. But I think when it comes to the docket, I frankly am very hard pressed to come up with an explanation for why the court is taking what it is

taking when it's taking it. Because we do see this general shrinkage of the court's docket. And we see some of these high profile cases getting dodged and other ones perhaps being granted, but then being dodged on the merits. And so I wish I could say I have some sort of harmonizing theory about when the Supreme Court will grant review that I could then sell to my clients, but I really don't.

Well, when you look at the Idaho case, which was one of the dodges, the Imtala abortion case, they're also all pointing fingers at each other for taking the case in the first place. So you're not even like, they're mad about something, but we don't even know who, because the theory in sort of a most rational world, you have nine justices, six of which are Republican appointees, and you only need four to take a case. So they should be taking all sorts

of like the Ninth Circuit cases and flipping them to the conservative side of life. Not what happened this term, of course. The Fifth Circuit has the most cases, granted cert. They're reversed a huge number of times. Footnote to that is worth mentioning. I have gone back and looked at reversal rates for circuit courts, and it tells you nothing. It is not uncommon for a circuit

to get reversed 100% of the time. It varies widely term to term. It also matters when you go dig into those cases. Were they bound by circuit precedent? Were they misapplying a Supreme Court precedent? Did they basically ask the Supreme Court to take the case to clarify its own precedent versus I think there's this sense that the Fifth Circuit was doing something a little bit different this time around and why it was getting all these cases granted. But that's all to say. The Fifth Circuit is not an outlier

in terms of its reversal rate by any means this term. Okay, so that's what you would expect. It's not what's happening. And so then of course, you could like move down to the 333 version of how a cert would get granted. So each set of three justices is looking to find, you know, a fourth in their like game of spades or whatever.

And they're caring very much what the outcome will be. So they also they're looking for their fourth to grant cert, but they're also making sure there's a fifth vote out there to come out the way that they want. That doesn't actually explain which cases are getting granted either. I mean, this was my working theory for a couple of years now. And I think this term kind of blows my theory up. Yeah, I completely agree with that.

I think you would be hard pressed to reverse engineer the cert votes based on the outcomes in many of these high profile cases. And I do think that there's a lot to be said, Sarah, for the notion that looking at circuit reversal rates is a little bit misleading, really for two reasons. First, the overall reversal rate is typically somewhere between two-thirds and three-quarters. And second, when you have a lower court declaring a federal statute or practice unconstitutional, that's pretty much the one automatic grant of review. And a number of these Fifth Circuit cases obviously fit into that paradigm. All right. We'll take a few questions from the Summer Associates and then we'll circle back to Cannon's favorite topic and on which he is probably more of an expert than on the Supreme Court,

Kansas City barbecue. In the court's big cases, think Trump v. Anderson on the 14th Amendment all the way over to Fisher in that obstruction case is consequentialism, the new purposivism. David? David Hickman To an extent. I mean, I think it's very interesting to me that consequentialism, I take Trump v. Anderson and Trump v. United States and I almost put them in a different category from everything else. Trump distortion. It's the Trump distortion effect.

The same as we've talked about drug distortion and everything else. There's no question that there's been Trump distortion, even if you look at the not Trump specific cases. Look at DACA, look at the census case, even travel ban. I think you can see Trump distortion regardless of how it turns out. Yeah. So to me, it genuinely seemed when I read Trump v. Anderson, when I read Trump v. United States, there was just a lot of pol—

there was a lot—you can call it consequentialism, you can call it policy, sort of thinking through policy questions. You can call it pragmatism. But it was very clear that the court was doing something other than really sort of like a close textual approach here. It was doing something other than that. And why would I say it's doing something other than that?

Because the ultimate consequence of the rulings, in my view, ended up contradicting the text. And so, but I don't apply that more broadly. I do think there is some disagreement amongst the conservative six, where some of them, and Alito wrote this in the Wall Street Journal, some consider sort of the original public meaning more with less of an eye on the consequences, and some are much more have an eye on the consequences so long as it's consistent with originalism. So sort of what's the least disruptive originalist decision here might be some of the judges and the others would be, justices I'm sorry, would be what's the originalist decision here?

Yolo, you know? And so I do think that there are some differences there, but I think Trump v. Anderson and Trump v. United States were just a different thing. I also think they were different, even set aside the Trump distortion effect, which I think is real. These are simply not going to happen very often. Like, how often is this 14th Amendment disqualification clause going to come into the courts? How often is the presidential criminal immunity question going to come into the courts? How often is the presidential criminal immunity question going to come into the court? So I think it's very hard to have a veil of ignorance, originalism opinion on something like that when it's been 248 years and they've not had to do it before. Yeah, I have a somewhat different take from David's on this. I think when you look at

Trump versus United States in particular, it's funny when I was reading that opinion, which was of course written by the Chief Justice, and not to psychoanalyze justices but now I'm going to psychoanalyze a little bit, I was just thinking to myself in the section of the opinion that discussed the potential consequences of a narrower immunity rule, I was thinking to myself, this is the guy who worked as a practicing lawyer on Bush versus Gore. Because you will recall that there were very similar criticisms of the court's reasoning in Bush versus Gore, in particular on its reliance on the Equal Protection Clause. And yet, what I thought was driving the more pragmatic members of the court at the time,

the Chief Justice, Chief Justice Rehnquist, Justice O'Connor, was a sense that if we don't step in, the consequence is going to be chaos, dueling electors, and the like. And I think that the Chief Justice was looking at this situation and thinking, if we have a narrow immunity rule, it is going to be prone to abuse. And recognizing the reality that in these febrile times, there will always be somebody

who has an incentive to try to prosecute a former president. How can we craft a rule that prevents our country from going down that road? Now, is that illegitimate? I think that it is perfectly legitimate if you think that this is a context where the originalist answer is not obvious. And that's obviously open to debate. But I think on the separation of powers issues,

I don't think that it's not fair game, I think that it is fair game, to take the consequences into account. You can just debate the extent to which they really were driving the reasoning and, and how you balance that in the analysis. I just think something that hasn't come up in 240 years. I think we end up in the same place, Canon. If it hasn't come up in 248 years, is there ever going to be an originalist

answer to something like that? Like. Well, I think we would all agree that on something like Trump versus United States, it's not like there's a clear textual answer. It's not like there's an immunity clause of the Constitution. And the evidence around the time of the founding is not exactly dispositive. And vexed. And the reason I'm vexed is I'm with you until the court opinion contradicts the text.

So if you take the impeachment judgment clause, when it talks about, and now again, this is not the Trump situation because impeachment judgment revolves around impeachment and conviction, not just impeachment. But impeachment judgment clause says after conviction, you shall be subject. I mean, this is, you shall be subject to prosecution.

And the actual result of this opinion is generally shall not be, presumptively not, and sometimes absolutely not. That seems to me to be contradicting. And then evidence of absences, still evidence when there's evidence of presence in other situations, like if you have a speech and debate clause, it's not as if the founders were unfamiliar

with the need for immunity in certain circumstances. And so when you end up with an outcome that in some iterations actually contradicts the text, it starts to feel—and I'm with you, I think there were outcomes here that would be consistent with originalism or pragmatism comes in, but my understanding of originalism is the one thing it cannot do and still be originalism is contradict the text. All right, we're not debating Trump immunity anymore. Terrible question. I just got started. We have not talked about the CFPB case, which was unanimously upholding the CFPB's funding mechanism

and unanimously overturning the Fifth Circuit. How does this factor into the various things we discussed, whether it's the Fifth Circuit, Justice Barrett, unanimity, statutory interpretation, ad law, et cetera? I think that that was just the hardest case for the challengers of all of the administrative law cases that were before the court this year. And I just think that that's for the simple reason that the appropriations caused by its

terms did not seem to contain any obvious limitations. So it was really an argument from historical practice. And I think that the historical practice was sufficiently indeterminate that that was what made it a difficult case. I'm glad you brought that up because it's another part of this paradox of this term, where there were some very sharp ideological divisions without question. But there was also some court consensus on rejecting what you might call MAGA reach goals. So once you got six justices who were conservative, there's a whole bunch of people around the country who did a version of the Mr. Burns from the Simpsons.

Excellent. And they had certain plans for what we're going to do Voting Rights Act, what we're going to do to a CFPB, what we're going to do to gun control laws. Like, so there was all of these sort of, hey, now we have Blue Ocean, there's things we can do. And the Supreme Court has actually kind of smacked back a lot of that. And one of the reasons to go back to something I said earlier is you're actually dealing with pre-Trump conservatism here.

And so as a result to this sort of more government powered centered right wing thought is not on the courts, that's not this court. And I raised this with some of my friends on the left and they just don't believe me. They're like, no way. If you really go through case by case by case, what you're seeing is rarely, if you're a pre-Trump sort of conservative legal thinker, rarely are you surprised by this court. If you are more of a post-Trump right wing legal thinker,

this court's gonna frustrate you a lot and has. This is one of the reasons why the, I'm glad you read Marc Levin instead of somebody who said Amy Cami Barrett That's actually what people began calling her, you know in parts of the right. So look at the net choice It's unanimous, but it's also six three and you have of course a Chilito and Thomas Representing what I would say is the post Trump. Yeah, right on The power of social media companies,

common carrier type arguments, and revisiting Section 230. We saw a dissent from denial on that. So it's existing. It's just not winning. It's not winning, yeah. How do we see the media coverage of the administrative law cases, like overturning Chevron as compared to the affirmative action case or Dobbs or others. I mean, you know, on the very highest level,

that's easy for me because I get really mad when any of the headlines say, Supreme Court struck down gun regulation, like with the bump stocks case. Instead of, Supreme Court said only Congress can ban bump stocks or Supreme Court says Trump bamboozled you all by doing something that the president doesn't have the power to do, C.E.G. all of our cases about Joe Biden. So I get really mad about that type of coverage.

I think that having the job to explain to the American public what Chevron deference is, is a tough job. And no, I don't think they did an amazing job by and large, especially headline-wise explaining that. Because one could very much leave the media explanations of Chevron being overturned as now agencies have no power whatsoever, which is bonkers. Right? I mean, first of all, Chevron had already been

dead for quite a while. Agencies still get to interpret all of these laws. They just may not win in court when and if it's challenged on those interpretations. But, you know, I don't take it as actually that it's going to change very much because I think a lot of the lower courts that were still applying Chevron were doing it as shorthand for where they were going to end up anyway. It was a quicker way to say, Chevron deference, there we go, instead of going through sort of the difficulty of saying, actually, I think this is also the best interpretation. Deference is a quicker way to do that. So I actually don't think this is going to change much at all. You didn't see that particularly reflected in those cases. Obviously, I'm pretty frustrated with

jarkasy for totally contradictory reasons. I'm frustrated that jarkasy didn't get more coverage. Jarkasy matters more than Chevron getting overturned. It goes to a fundamental right issue about jury trials. So I'm frustrated it didn't get covered more. And I'm frustrated that it didn't get covered better. Because I thought, you know, it's probably the only case where, I mean, in like many, many terms, I think David, can you think of another example where I was like actually offended by the dissent? Oftentimes I read the dissent, I'm like, ooh, closer case than I thought it was. Actually, they make some excellent points. And in this case, reading the dissent made me angry. This idea that somehow taking away people's right to

a jury trial was like the real democracy at work. And I was like, what planet is this coming from? So, jarkesy to me was the most important case of the term. And it didn't get covered that way because I think reporters were more comfortable with Chevron. I mean, to be fair to the press, not a sentence that I would necessarily ever utter, I just think that boy it's really hard to think about how to explain something like dracacy to ordinary Americans because there you have the double complexity of the fact that the underlying facts are complicated. I suspect that very few Americans know what an SEC enforcement proceeding actually is. And number two, the law is complicated, right? Good luck trying

to explain the distinction between public rights and private rights. All you need to know is when the SEC tries you in front of the SEC, they win 90% of the time. And when the SEC is forced to go into an Article 3 court, they win less than 70% of the time. we're done. Well, that's all true, but you've got to explain the Seventh Amendment as well. No. No, she does not have to.

It's her podcast. The matter speaks for itself, according to Sarah. But I do think it's a, we've probably touched on this before, I think it's just a constant challenge to figure out how to explain what the Supreme Court is doing to ordinary citizens. And I think in many ways, you know, we have more information about the Supreme Court now than we certainly did when I started practicing law 25 years ago.

But the flip side of that is that there is inevitably a reductionist quality to, you know, social media posts and the like about Supreme Court decisions. And I just think that it's a constant challenge. But there's also this underlying, like this push and pull that didn't exist before, where you have an entire cottage industry, not in the mainstream press, I would argue, but nevertheless, trying to put pressure on the mainstream press to undermine all of the Supreme Court decisions so that even when the Supreme Court upholds Section 2 of the Voting Rights Act, this somehow proves that they're doing it just so they can strike down

affirmative action in a few weeks. Everything has to fulfill this narrative of the Supreme Court being evil, right-wing, and not an institution that has credibility. And that is a new pressure. I would also say an enormous number of media mistakes are caused by who's in the Rolodex. When in the virtual Rolodex, when something happens that a reporter doesn't know everything about and is trying to interpret. And so what is happening is a lot of folks have, their go-to calls are competing activists.

So you're getting an activist on the left and you have an activist on the right. Well, in this unhinged political moment, some of the least hinged people are the activists. And sometimes the activists agree, like for instance, on Amy Coney Barrett. If all you're doing is calling activists, they're both gonna tell you that Amy Coney Barrett

is now David Souter. Yeah, exactly. So both, you've got these activists, they're some of the least hinged people. They're currently now trapped in a political environment where the only way they get attention is through hyperbole. And so you're ending up with things like, do you remember the net neutrality change during the Trump years?

The bodies are going to be stacked like cordwood when we change net neutrality. Everything is ultimate. And so what ends up happening is the media is hearing these activists. That's the people that they're getting this messaging from, and they're dutifully reporting what the activists are saying, but the activists are on tilt. And so a lot of this is, you know, you get some of this on the Chevron stuff.

Chevron has been a zombie precedent for a while. I'm not saying there's no consequence to Loper Brite. I'm just saying the level of consequences so far below what sort of the activist class says that it's definitely obscuring more than it reveals. Same thing when we talk about laws of war around Gaza. A lot of times you're going to these activists and especially in the laws of war, that's a real problem

because the activist view of the law of war is not actually the practitioner view of the law of war. And the activist view of the law of war is not rooted in any feasible enforcement mechanism at all and the practitioner's view is actually applying the enforcement mechanisms that exist. So my free advice to members of the media who are, they're not lawyers and they're diving into covering the Supreme Court is really resist the temptation to go to competing activists to describe this. I mean, I do think, I think that the best

Supreme Court reporters do a very good job of reaching out to serious lawyers and people who don't necessarily have a stake in the outcome of particular cases. I just think that the problem is that there is so much noise around any even remotely significant Supreme Court case and You know, it's funny I see on you know, social media I see, you know top law schools, you know

Affirmatively offering their professors up to comment on cases and the like and I often think to myself if I were a reporter What I'd really be trying to do is to find the people who aren't offering themselves Yeah, that's right. They'll give me the most honest scoop on what's actually that's a great point reporter, what I'd really be trying to do is to find the people who aren't offering themselves up. Yeah, that's right. Because they'll give me the most honest scoop on what's actually going on. That's a great point. When it comes to cert petitions, are the institutionalists institutionalizing? So I think it's a really great question.

And I would have thought that if you're an institutionalist, what you would want to do is to really take as many of those nine to nothing cases as possible to reinforce the notion that the court really is acting as a unified court in the mind run of cases. But that's not really what we're seeing the court do. And in any given year, I could probably identify 10, 15, maybe 20 cases that the court could have taken that were within the zone of reason for the court to take, where if the court granted review there is a good chance that they would have reached agreement. And yet the court isn't taking those cases. And that suggests to me that even if there are individual members of the court who might have that desire, that they're not

really controlling the cert process. What is Amy Coney Barrett's role on the court, if not what we're told by the media? David? I think she is an independent-minded member of the middle three. I mean, the sort of controlling, moderate conservative folks who are on the left listening to this podcast would not call those three guys moderate necessarily, but those three folks moderate. I think she's an independent minded originalist and who's also got a strong pragmatic streak. And just as you have with Gorsuch,

who's another independent minded originalist, they're not always gonna to be super predictable, especially early on until you learn more. Because I remember when I read the first few Gorsuch opinions, I thought, huh, this is not exactly what I necessarily thought. And then over time, you began to see the trends. But I think she's an independent, pragmatic originalist.

That's how I'd describe it. Can I give you my prediction? Is that, you know, last term and the last several terms, Justice Kavanaugh was the top swing justice, this time overtaken slightly by the chief justice who edged him out. Justice Barrett has been in third place, as I said, since she joined the court over 90% of the time

in the majority. My prediction is that next term, there won't be this like ending run of Justice Barrett dissents breaking from the conservatives all at once when the reporters are all paying attention. And that there will be some line of stories about how Justice Barrett cowed by the right media army, you know, came back into the fold because she was intimidated. And like, this is the problem with looking at term by term and especially those end of term cases instead of people who actually read all

the opinions for many terms and look at an overall narrative about what a justice is doing, whether it's Gorsuch or Barrett. Because I think if Gorsuch had had many of his cases at the end of a term in the last three days, we would have seen the same thing about Justice Gorsuch. So I actually think this is normal for a justice to have their own opinions on how their judicial philosophy works. And any particular attention being paid to her is overblown in the sense that you're trying to come up with some grand narrative of her breaking or joining or doing something else.

The attention is very warranted if you'd like to know how justices tend to vote on cases moving forward. Yeah, so I think what I would say about this is that I do think that the ISGR 3, the Chief Justice, Justice Kavanaugh, and Justice Barrett are the center of the court. And as David says, you can debate whether it's the center of a very conservative court or a somewhat conservative court. That is inevitably in the eye of the beholder.

But ultimately, I think that where Justice Barrett differs from the Chief Justice and Justice Kavanaugh is that I think that the Chief and Justice Kavanaugh are in the middle because they are driven by these sorts of concerns about the institution. And I really don't think that that's what's driving Justice Barrett at all. I think she's very cautious.

She's very cautious about overruling precedent in particular. She wants to move incrementally. I think it's probably no accident that she's also the youngest member of the court, probably looking at it with the longest runway and wanting to make sure that the law moves appropriately incrementally rather than in a dramatic way. I think that that's just consistent with her character.

But that doesn't necessarily mean that she has a wildly different jurisprudence from other members of the court. And so I think that that's what really makes her interesting to watch because I think that when you look at, you know, not just the direction of the court, but how quickly the court is moving, I think she may prove to be the most influential of the nine members of the current court. And with that, Cannon, any great new barbecue spots you need to recommend? So I went down to Birmingham, Alabama for an 11th Circuit argument last month, and I'd never been to Saw's barbecue, and so we went to Saw's. I should have worn my hat. It was great. Yeah. It was terrific. You got the white sauce?

And of course I got the white sauce. Did we talk about white sauce on a prior episode? I believe we did. Okay, okay. So, you know, Alabama is generally viewed as the home of white sauce. And the white sauce there did not disappoint. For those Texans listening, by the way, it's not like chicken fried steak gravy.

It's a whole different thing. It's white barbecue sauce. So I have to admit, I did a little bit of preparation for this episode by Googling barbecue sauce. So I have to admit, I did a little bit of preparation for this episode by googling white sauce. And I have to say the ingredient list is still a little bit mysterious to me. It seems to consist of like mayonnaise, mustard, vinegar, horseradish, pretty much salt and pepper, pretty much everything you could conceive of. And I assume that the reason why it is typically refrigerated and therefore you have to ask for it is because of the mayonnaise

But it was objectively good. It is I mean, I think everything with mayonnaise is pretty good Yes, and we also exposed at least one of our summer associates to fried green tomatoes. Oh for the first time So I view that as a major accomplishment Win or lose in the case, you know that was Significant so you notice that cannon always get these humble brags in about the summer program accomplishment, win or lose in the case. You know, that was significant. So, and it was... You notice that Cannon always gets these humble brags in about the summer program. I was talking to a summer associate over breakfast this morning and, well, the summer associate got to go, you know, to this 11 circuit argument.

You always get those in, Cannon. Well, we've been fortunate. We've had a lot of arguments in far-flung places during the summer program. So we've had Birmingham, Alabama, and Denver, and we've got New Orleans and Atlanta coming up. We've got New Orleans tomorrow, so we'll be flying down there, and then Atlanta in a couple of weeks.

And I can't imagine anywhere I would rather be in July than New Orleans and Atlanta. Look, if it's about food, there is literally nowhere in the world I would rather be than New Orleans. I have a long list that I'm gonna give your summer associate of places to recommend. I mean, yes, there's the Galatoires and Commanders as like the institutionalist places, if you will, but don't leave out Herb Saint, Irene's.

Oh my gosh. If you aren't ill after dinner in New Orleans, you've done it wrong. Just totally wrong. You should be sick all the way. That's the only way to do New Orleans. So given that tomorrow night is the night before an argument, hopefully no one will be sick. I mean, I do agree. So I have a hard and fast rule.

I have a couple of preferences when it comes to places to eat before circuit arguments. And my rule with New Orleans is that if any member of the team has not been there, we will go to Commander's Palace the night before the argument. So we are going to Commander's tomorrow. So here's my question. Night before argument meal for me always was not that great because I had some tension around the argument after the argument. That was the one you could really enjoy.

Or is it, do you front load it? Do you- Yeah, are you doing Herb, Saint, or Luke after? Those are the two kind of closest to the courthouse, which are both excellent. They are both excellent, but I think unfortunately I have to fly out. And I have to leave that.

But I really don't have the kind of pre-argument jitters. And that actually extends to like even breakfast on the morning of the argument. So I had an argument last year in the Kentucky Supreme Court in Frankfurt And we were staying in Louisville and then driving to Frankfurt and one of our associates Said at dinner the night before I've never been to a waffle house, and I thought to myself we have to fix this So on the morning of the argument we went to waffle house And I got my usual order which is of course a waffle with lots of butter and syrup on top.

And I will say that I'm not sure that that's really the optimal pre-argument breakfast, but I think it was fine in the end. Maybe I was a little bit hyped up, but I think it was okay. But yeas will definitely be the good bet for before an argument though. Yeas. Yeah, great call.

There is always the phenomena, if you grew up in Waffle House country, as I did, you are very familiar with the phenomenon called Waffle House stomach, which is the consequence one out of every five to seven times of eating at Waffle House. So you've got to be careful about that before the argument. Well, I'm glad I avoided it on that occasion. You're rolling the dice. With that very visual sense that we have now.

You're never gonna get a Woffly House sponsorship now for the podcast. I'm just keeping it real. I'm just keeping it real. Thank you, Cannon, for joining. Thank you, Paul Weiss, for hosting us in Summer Associate Class. Good luck on all your future endeavors.

Great to be with you as always.