Advisory Opinions - Journey to the Center of the Supreme Court

Episode Date: July 16, 2020

After a momentous term at the Supreme Court, what are we to make of it all? Josh Blackman, associate professor of law at the South Texas College of Law Houston, joins David and Sarah to help us all understand:  Roberts' role at the center of the Court, Gorsuch and textualism, and Kagan's growing influence. David, Sarah, and Josh cover it all. Show Notes: -Make sure to read Sarah's piece on the Supreme Court term. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Offer ends June 3rd, 2024. Visit tdaeroplan.com for details. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger, and we have a special guest. A special guest who's going to help us talk through the Supreme Court term, a momentous term. And you've heard a lot about that term from us, and you're not done yet.

But we're adding a new voice who's going to sanity check us to see if our analysis has been right. And I think you're going to really like this podcast. We're not only going to talk through the term, we're also going to answer some reader mail about how the Supreme Court works. Some of it is like Supreme Court 101, but some of it is like Supreme Court 301, and perhaps even 401. So Sarah, do you want to introduce our guest? Absolutely. Professor Josh Blackman and I have known each other since law school, right? Been a while. Yeah. We used to meet up at Federalist Society National Conventions once a year,

the student conferences. And now you are such a big deal. And you are a law professor who actually teaches the next generation, inculcates them into the dark arts. You're at South Texas College of Law in Houston. You teach con law, intersection of law and technology. And you write so much about the Supreme Court and you're funny and smart about it. And so we had to have you on to do our term wrap up. Well, you are too kind, Sarah. It's good to be with you and good to be with you, David, as well. So I want to start with this. A colleague of yours, Chris Walker, who's at The Ohio State University, he described

this term as, quote, this has been such an unusual and important term at the Supreme Court and Chief Justice Roberts has been at the unusual and important term at the Supreme Court, and Chief Justice Roberts has been at the center of it. So there's three points there. It's unusual, but it was important, and that the chief has been at the center. Do you take issue with any of those three points? No, my good friend Chris is right. This is a term unlike any other. We had an impeachment. We had a COVID epidemic. And we had the chief justice rise to be the deciding factor. He was in the majority, I think, in almost 98% of the cases this term. Even Justice Kennedy, the swing vote, never quite hit that sort of peak.

So Roberts is stunning with his authority. It was also significant. We decided cases on immigration, on abortion, on LGBT rights, on the DACA recipients. Almost every hot fun issue came up this term. I can't think of another one that was quite like it in recent memory. David, it was really fun for us to cover. Oh, it was fantastic. For our inaugural advisory opinions year. Oh, it was really fun for us to cover. Oh, it was fantastic. So I had this inaugural advisory opinions year. Oh, it's absolutely fantastic. I fear that the listeners

are now going to be treated to a decade of less interesting Supreme Court terms after this one. So I had this great, fun idea that went nowhere that I shared with Sarah on Slack. Hey, why don't we start off by summarizing the Supreme Court term in two sentences each of us. And then I forgot. And Sarah forgot to tell Josh. So I lay awake last night thinking of my two sentences. Let's hear them. And nobody else. So here's my two sentences and love y'all's thoughts on them. So they're going to be reductive because it's only two sentences. But as I think through this term, it's a chief justice.

Roberts turns on Trump, ties himself to Kagan and tries to settle the culture war. That's one sentence. And number two, Gorsuch goes wild. That sounds very dirty. So those are my two sentences. The first one, the most important one, I mean, I think this is, as Sarah, you've written at length, this is the rise of Justice Roberts.

And the one thing that really struck me is, on the one hand, he's known as an institutionalist. Some have said stabilist. But on the other hand, he did some big things. He joined a majority on Bostock, which extends Title VII to LGBTQ Americans. He switched sides to an extent. I mean, we've been through the 401-4 on June Medical, but he upheld in a way while overturning maybe sort of whole women's health in the abortion context. And then he continued his long record with Justice Kagan by his side of defending religious liberty and that's a lot of big stuff right there along with just getting out he's just over the Trump administration as evidenced by the DACA decision Josh I feel like some people have said that the

chief for this term is a Rorschach test. Yeah. If you're a liberal, you think he's super conservative. If you're a conservative, you think he's squished out. How do you balance all of that in your mind? I think John Roberts is most happy when everyone's angry at him. I think that's... And he's a happy man this July. You know, when both the New York Times and the Wall Street Journal editorial pages are both criticizing. That's his ideal.

So, you know, he's being criticized for ruling for the abortion clinics, but saying a trap. He's being criticized for upholding DACA, but saying that can be canceled. The only solid victory was the religious liberty case, Espinoza, which David referenced. That was the only victory that was unequivocally for the right. There was no hedging there, but the rights of charter schools not to get state funding. That was an out-and-out victory. What about Guadalupe? So Guadalupe was this ministerial exception case.

And I think that was a pretty solid victory, but it still left some play in the joints, right? You mentioned that Kagan, yeah, you mentioned that Justice Kagan joined it. And I think that watered down the opinion slightly. So I don't know how much Guadalupe actually adds. It was a victory, no doubt. It wasn't a loss. But I don't know how much that adds from some of the other cases about ministers and different religious employees who can be exempted. I think it was mostly a continuation of prior decisions. Ian Millhiser at Vox said that even the losses for conservatives were wins in the long term, that these were just short-term losses, especially on abortion, immigration, even gun rights. How do you see sort of the next terms

in the future taking on some of these issues? Do you think that's true? Well, I get Ian's general point. Roberts seemed to be undermining the whole woman's health decision, which was a Justice Kennedy joint case from 2017. I'm always skeptical of making predictions for the future because who knows what will bring. Maybe we'll get another Supreme Court nomination, predictions for the future, because who knows what we'll bring. Maybe we'll get another Supreme Court nomination, right? The court's dynamics may change if Biden wins. Also keep in mind that these sort of tactics to nudge John Roberts to the center may nudge him again. Who knows? Maybe next term he'll decide, never mind, Holman's health is fine, we'll hold more abortion laws.

I'm sorry, we'll kill more abortion laws. So I'm very hesitant to make any predictions about John Roberts from term to term because he's so damn unpredictable. He's gone wild like Gorsuch has. So where do you, Josh, where do you fall in the argument about Gorsuch's Title VII opinion? When it first came out, I said it was textualism as Gorsuch saw it and I had a lot of people online jump on me and say no no no no this is an absolute perversion of textualism from Gorsuch this is

if not you know outright you know say positivism this is this was just really bad textualism and or so bad that you don't even want to call it that where do you stand on the Gorsuch-Bostock opinion? What's your analysis of it?

I wrote an op-ed with Randy Barnett in National Review, which I think you're familiar with. Heard of it. Yeah, you've heard of it. And we describe Gorsuch's textualism as halfway textualism. And let me explain what I mean. Title VII is almost 60 years old, and there's been a lot of precedent interpreting it. Gorsuch didn't start from first principles.

He assumed that a lot of decisions from the 80s and 90s correctly interpreted Title VII as a textualist matter and built his analysis on top of those precedents. Well, guess what? Those were opinions from Justice Brennan and some other justices we didn't care about text so i can't call it textualism because he considers all these precedents that ignored the text uh that's why i think it's halfway textualism and i think that halfway approach led him astray you want to think of in football terms he started in the 50 yard line right he didn't start in his own end zone he started in the halfway-yard line, right? He didn't start in his own end zone. He started in the halfway point, taking for granted a lot of liberal jurisprudence. That, I think, is probably wrong. So if Gorsuch had simply said he was following the precedent of the court, my criticism would

be muted. But he did not say he was simply following precedent. He insisted. He demanded. He lectured us, really. It was almost demagogic, right? He's telling you what the text is, but he didn't account for the role of precedent. So I think that's where Gorsuch went awry. He doesn't have

a theory for text and precedent. He just assumes precedent's correct or ignores it. He doesn't like it. He doesn't account for it. What was your biggest surprise this term? Oh, boy. You know, this is going to sound awful. I wasn't really surprised by the end of decisions. I was pretty sure that Roberts would rule against Trump on the DACA case. I was pretty sure Roberts would rule against Trump on tax returns. The abortion decision was a little bit surprising because I thought Roberts may do a little bit bit more but i didn't think he would be the fifth vote to uh uphold a law that was almost identical the one that was in texas a couple years ago um gorsuch didn't surprise me in bostock because he signaled that argument what about oklahoma

oh my god let me get to oklah to Oklahoma. That was such a bad case. I describe Gorsuch's textualism as halfway in the Title VII case. In the Oklahoma case, he literally cut the state in half. And he made the same error. I actually have a piece in The Atlantic that should be coming out in the next few days on this issue. Justice Gorsuch said, look, I'm a textualist. In 1833, Congress made a treaty with Indian tribes in Oklahoma that says you have this land forever. We know that a lot of these

treaties were ignored and violated over the years. But Gorsuch says, aha, there was never an express statute that says we are repealing this treaty. There's all these little nibbling around the edges. So because there's no express statement that we're killing this treaty the treaty remains so guess what tulsa you have a new government you're now an indian country which is which is a radical holding and i think here gorsuch made the same sort of mistake the court has never demanded any sort of precision you know magic words abracadabra to diminish or disestablish a reservation but gorsuch says now we're going to require it um which you know might be correct as an original matter but he failed to account for significant precedent about how you read indian law i think gorsuch is on this sort of jeremiah

to have this appearance of pure unadulterated 100 proof texas uh 100 100 textualism uh when in reality there's some precedent that's seeping into his opinion that he's just not confronting. And I think that undermines his approach. David? But yeah, that's interesting. I certainly, as you read the Bostick decision, it was obvious that he took into account the precedent.

It's obvious that he took into account the precedent. I still think that the original problem, that 90% of the issue with the Bostic opinion, and like you, I saw this coming a mile away after oral argument. Like after oral argument, I just was like, okay, Title VII's extended. You enact this incredibly sweeping statute with language that was arguably, there's evidence that the word sex was inserted as a poison pill.

And with language that it's inserted as a poison pill, and it's going to leave this statute that's so broad, that's so sweeping, and with this language that was really not intended originally when the statute was written. And it seems like to me, that's just a recipe for malleability. And at the end of the day, though, when I look at this, and people have asked me about this opinion many times, I've said, you know, I got a lot closer to being persuaded by Gorsuch than I thought I would be after I heard him in oral argument. And I guess one of the reasons why I got close to being persuaded by Gorsuch was as I walked through the scenarios, it was very hard for me to see a way out of the Gorsuch reasoning, which was if you're going to have a discrimination case brought by an LGBT person, there's going to be a sex aspect to it as well. It's just going to be

in there. Yes, there will be a specific sexual orientation aspect. Yes, there will be a gender identity aspect, but there will be a sex aspect to it. And the closest I thought that Alito came to rebutting that was when he said, well, what if you had a policy, a written policy that said nobody who's LGBT can work here? That would be done irrespective of gender. But again, how it played out in real life, there would always be a sex aspect to it. And I found myself saying, you know, isn't that right? Isn't that right, Professor Blackman? I think Gorsuch went awry because he focused on two words, because of. His entire opinion harped, turned on what it means to discriminate because of but he basically

shooed away the word discriminate right he said discriminate just means to treat differently but if you look in the 1960s the phrase discriminated against because of sex had a meaning it had an established understanding which meant bias or prejudice based on gender norms right it had a meaning if you remember you remember, Ginsburg had a movie, a biopic called On the Basis of Sex, or On Account of Sex, which is a takeoff of the word that was in the Equal Rights Amendment.

It was the words in Title VII. And Gorsuch just assumed that Justice Brennan correctly interpreted discriminate. He didn't, which is why his approach was halfway. If you recognize that bias plays some role

in the word discriminate, then these sort of mind games about because of this ingredient, that it just, it's irrelevant, right? He wrote out the core element of title seven, which was bias and prejudice, which is always going to be present when you discriminate in the basis of gender, right? I'm going to fire a woman because I think pregnant women can't handle it. Well, that's of course, gender plays a role, but it's because you have an idea of what women should be like, how they should behave in the workplace. So Gorsuch's myopia, right, where he just focuses on this phrase because of, I think

he convinced himself with these Kagan logic games of the right answer, and he didn't account for what the rest of the damn stash means, other words, not just because of discriminated against. And that has a meaning that he just he brushed aside. He fell under Kagan's spell. What happens to the line of cases that ended with Obergefell that were about sexual orientation? This is now a whole different line of cases that is on sex discrimination. Is that a dead end now on the sexual orientation line of cases? Look, this decision has a lot of implications elsewhere.

We need to get to affirmative action also. Yeah, it could affect gender discrimination under the 14th Amendment. We have Title IX, which is athletics for high school and perhaps college students. We have Title VI, which is affirmative action. If we take this logic seriously, which I don't, but if we take this logic seriously, any time any protected factor plays any role in any decision, it's discrimination, which is not how it's been understood. So, Sarah, you bring up affirmative action. Historically, the court has held that when race is used in a positive factor, it's okay, right? It's not prohibited by it. But now if

you pick person A over person B and race is a factor, well, that's illegal. So, look, I get all the mind games. i think there's no chance there are five votes to extend this affirmative action i know i think it's it's and i don't think gorsuch even approaches it that way he's very much one case at a time he tells us one we're going to sign this case don't worry about anything else um but this sort of reasoning i think would distort huge swaths of our law and maybe don't gloss over this you don't think there are five votes on affirmative action. On the Harvard case, on the Asian students in Harvard that's coming up the pipeline. Here's what I think will happen in affirmative action.

I think Roberts will say, okay, so there are two major affirmative action cases in our generation. The first is for the Michigan case from Michigan Law School called Grutter, which said you can consider diversity. Michigan case from Michigan Law School called Grutter, which said you can consider diversity. And then there's a follow-up case called Fisher, which is from UT in Austin, which said, well, you can consider diversity and there's some deference. What I think Roberts will do is he'll say, well, Fisher was wrong, but Grutter was right. It's the same thing with abortion, right? We killed the more recent opinion, but you go back to, you know, Casey, the 1991 opinion. So I think all Roberts says is, well, we gave too much deference here. We'll go back to Grutter and this is okay. Right? Just use Grutter. So look, I don't think their

five votes overrule any affirmative action cases. Now, the Harvard case is not a federal constitutional case. It's based on a statute, Title VI, which regulates private actors. And I think the courts long held held that the equal protection clause is parallel to the Title VI, they're one and the same. So I don't think they'll start erecting different standards even though they're probably, even though I think the language in Title VI is far more stringent than the equal protection clause.

But yeah, I don't think there are five votes. Roberts doesn't like disrupting anything, and schools have built elaborate edifices on affirmative action. Wait, wait, wait. Roberts doesn't like disrupting anything other schools have built elaborate edifices on affirmative action. Wait, wait, wait. Roberts doesn't like disrupting anything other than employment law. I mean, he joined in the- Oh, I'm sorry.

Disrupting to the right. I'm sorry. I didn't finish my sentence. Okay. And really, Dave, if you think about it, by the time Bostock was decided, I think four or five circuits had already held the Title VII extensive gay rights, and there have been precedents up to a zoo. Once you get past a certain point, you can't undo it. This happened with the Burgerfell. By the time the court granted

certiorari in the gay marriage cases, I think, what, almost half the states already had gay marriage at that point. So, I mean, would you undo them, cancel those marriages? So, I think, I mean, this is the rub with Roberts. Once you get a critical mass of lower courts ruling one way, he's not going to stop it. That's not his MO. Yeah, I think a lot of people didn't realize that just putting aside federal, putting aside Title VII, about half the country was already living under state non-discrimination laws that prohibited discrimination on the basis of sexual orientation and gender identity i just went and did a quick survey through it including all of the major um urban centers of the u.s

basically were under have had that same legal scenario in addition to the circuits that had already ruled so the reality was on the ground, the on the ground change here, not that great. So let's go to Guadalupe, which I actually feel, if I'm putting on my religious liberty hat, I'm much happier about Guadalupe than I am about Espinosa.

Okay. And I'll tell you why. Espinosa, I think, is in theory a potentially important case, but it's only in theory because what you have to do is you have to have some pretty considerable state action undertaken at the legislative level before you're going to take advantage set up a tuition assistance program. You're going to have to set up a voucher program, etc., etc., which is often controversial, irrespective of the funding of religious schools angle to it. by making religious function the core inquiry for the ministerial exemption, you're answering a question that religious schools have been asking ever since Hosanna Tabor, which is, what about my teachers? What about my coaches? And I think in a very real way with proper employee handbook drafting, you just took maybe 100,000 or more people completely out of the employment non-discrimination. You just removed them entirely

from employment non-discrimination regime. I think that's pretty momentous. Oh, I agree. I agree entirely. If you have proper handbooks, right, where you draft a person's function and title in specific fashions, I think you can hug the corners of the Alito opinion. with alito in hosanna tabor nearly a decade ago and uh she came back and she she didn't squish and look you had ginsburg and sotomayor and dissent basically calling out kagan saying look at this is this two-person concurrence has become the majority which tells me that kennedy was actually one watering down hosanna tabor it wasn't it wasn't kagan it wasn't briar i think i think kagan and

briar firmly believe that religious institutions in their own realm can do as they wish, so long as there are no collateral effects. I think they believe that, you know, the sort of monastic approach to religion, in your own building, do whatever you want, just don't deny us birth control, right? But Kagan, I'm sorry, Sotomayor and Ginsburg see no role. In fact, they actually see establishment clause violation. This is an old school that if you have any benefits to religion, you're crossing the establishment clause. So it's a huge case. I worry that the lower courts will try and water it down and they'll take this sort of functional test and say, well, you know, this person, you know, only leads one Hail Mary, not two Hail Marys a week. That's not

enough. You know, I'm Jewish. What the hell do I know? Right. But I do worry because the lower courts basically resisted Hosanna Tabor, which is why this case arose. They made all these like, no, she didn't have the right degree and the right training, all these stupid, you know, ticky tack things. So hopefully the lower courts get the message, but I think this will have, um, lots of, lots of litigation, uh, with, with employee rights. So let's talk about what the wall street journal called the new chief justice of the court, Elena Kagan. Yeah. Uh, what's your read on, on what all's going on with Elena Kagan and, and why don't you explain why the wall street journal is referring to her as the next chief justice? Yeah, I describe this term as, give me one sentence,

the rise of the Kagan court. She is a very influential person. She might be one of the most influential associate justices in a generation. We've had smart justices like Scalia was brilliant beyond any comparator, but he wasn't influential because he pissed people off, right? He would throw bombs and he would, you know, attack people. Kagan is diplomatic. She worked in the White House. She was the dean of a law school that Sarah will attest is a pit of vipers. Is that fair?

Fair, fair. I mean, the Harvard Law School faculty was people at their throats and Kagan tried to keep them calm and serene. So Kagan knows how to massage things. I don't think she has any strong enough convictions in most cases to fight. She'll eventually dissent bitterly, but usually she goes along. And I think the conventional wisdom is she cuts deals. And let me give you one of my own speculations.

This year, the court had on its docket 10 cases involving the Second Amendment. 10. About the right to carry, the right to have different types of rifles. You know, every conceivable case, they could have taken one. And they were relisted over and over

and over and over again. And then finally, in the middle of June, what I call Blue June, because it was a very blue month, in the middle of Blue June, the court denies all of them. Only Thomas and Kavanaugh would have granted. What happened? Well, we also had a bunch of petitions for certiorari on what's called qualified immunity, this doctrine that shields government actors from damage suits, that they behave in accordance with precedent. A lot of people don't like qualified immunity because they think it's as bad for law enforcement discipline. On the same

day the court denies all the Second Amendment cases, the court denies all these qualified immunity cases. I wouldn't be surprised if it was a deal, right? We don't take guns. We don't take police reform. We just throw it off the docket. and i think this is the sort of deal that kagan could cut and she will throw her majority opinion wherever it needs to be and so roberts has instead of five four he has seven two which is why again hosanna tabor isn't a perfect example i'm not sorry the uh the guadalupe case is not a perfect example but i do think that there's some language in there that lower courts can grasp onto to sort of narrow it. And that's the benefit of being the, not the swing vote, but the caboose, if you will, sort of just coming up on the behind, but you want it to be 7-2, not 5-4. And that's what matters to Roberts. The bottom line is what counts. The reasoning

is not very important to him. I'd like to thank our first sponsor today, ExpressVPN. And ExpressVPN makes me want to talk about your internet freedom. Social media companies get to decide what content is suitable for the sensitive among us and censor whatever they don't like. Shouldn't you be the one to decide what you want to read or watch, not them? Well, here's one thing you can control, your access to your data. And that is why you should use ExpressVPN. See, the problem with big tech companies is that not only do they sensor what you read, but they track what you do online. They track what you're searching for, the videos

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three months of ExpressVPN service for free. And who doesn't like to save money, right? Again, that's expressvpn.com slash opinions. Expressvpn.com slash opinions. Protect your data today. So I'm going to share with you my unified Kagan pluralism theory. Okay. So I'm HLS, the generation, not full generation, but half generation when GQ wrote Beirut on the Charles about the law school. Pit of Vipers was a great description of that time. And the Vipers were fully activated. And then Elena Kagan comes in and the atmosphere of the school changes. I've said this and forgive me, listeners, but I'm not going to presume. I'm only going to presume that Professor Blackman has listened to 90% of advisory opinions episodes and not 100%. And I've said many times that she came

in, she changed the tone of the law school pretty dramatically. She brought in some new faculty. She said, I love the Federalist Society. Sarah, you had a T-shirt of that? Yep. Yep. Didn't mean that Harvard wasn't progressive in any way, shape, or form. Of course, it was still a progressive institution.

It just moved it ever so slightly towards a little bit more pleasant and a little bit more plural, a little more pluralism and a little more pleasantry. I feel like Elena Kagan is a progressive pluralist by disposition. Like she wants to see room for different communities in this country. And if you look at from Masterpiece Cake Shop to Guadalupe, she seems to say about religious Americans, even when they're going to be in sort of extremely non-politically correct causes, I don't want you to target them. And I want their institutions to be reasonably autonomous. And this seems to me consistent

to me with kind of this progressive pluralist posture that in disposition that she's had for a long time that was evident even going all the way back to HLS. So that's my unified Kagan progressive pluralist theory. I like it. I like it. And I like her. And by the way, she's a fantastic writer. Her opinions are so overwritten. Anytime there's a fantastic writer her opinions are so well written anytime there's a Kagan opinion read it first because you'll get to the punch line very quickly there's no beating around the bush um right now Roberts is probably the best writer I put Kagan in a close second and the third is distant third I loved the line about she's where she says hard to believe this is a dissent isn't it yeah yeah how could this be a dissent

I actually this is awful I read her opinions it yeah yeah how could this be a dissent i actually this is awful i read her opinions in a woody allen voice it makes it more entertaining and it just it's it's just it's delightful um yeah so did you have any speaking of writing a best line or footnote uh that you want to call out oh rober Roberts had a good line in the Oklahoma case where he was talking about Gorsuch's opinion. And he said that Gorsuch's opinion was a school of red herrings. It's such a subtle line, but it's so good.

What about all the Hamilton references? It's like Hamilton the musical gets released on Disney+, and all of a sudden, I mean, Hamilton, Burr, Philip Schuyler, like they're all showing up in the opinions. It's crazy. I know.

You noticed the Schuyler one. Good job. That was Barry, but I did notice that one. You know, For no reason. The Schuyler line did not need to be in there at all.

The only reason it's there is because somebody stayed up. Yeah. You know, I'm on the fence about pop culture references and Supreme Court opinions. If you think about it in 50 years, we'll only know what Veep is, right? I've actually never even watched the show. I'm aware of it.

Put, I never watch it. Putting pop culture references is risky because people just may not know. I mean, go watch a 20 year old episode of Seinfeld. A lot of the jokes just fall flat because the references don't go. But Kagan doesn't mind. I think the Hamilton references are probably good because people know it. And they were, I think, very important to cases involving presidential subpoenas. But the Hamilton ones, I think, worked. But I'm cautious about the references in general. My husband, Scott, who you know, is very against such things in Supreme Court opinions. He thinks that they've gotten too colloquial, too cute in general. But I was

talking to him about the Hamilton part and I was like, well, look, but Hamilton's been part of our pop culture for a while. I mean, don't forget the Got Milk ads. He had never seen the Hamilton Berg Got Milk ad. So yeah, I brought it up on YouTube and he was like, I don't really get it. And I was like, let's watch it again. So I made him watch it multiple times. All this talk about Hamilton is burying the lead. You've never seen Veep. I'm actually envious of you. I'm envious because you have so much good television ahead of you. The interesting thing is though, ahead of you. The interesting thing is, though, if you started watching Veep from the beginning, it was like an absurdist parody. And then by the end of it, you think,

maybe one day the administration can be this good. So, Josh, there's a whole other strain that we haven't talked about where the Supreme Court, are they applying the law regardless of where it leads? Or is this an institutionalist majoritarian Supreme Court these days? And FiveThirtyEight cited, so did the New York Times, cited this study out of Stanford, Harvard, and UT. That would be the University of Texas, David. No. study out of Stanford, Harvard, and UT, that would be the University of Texas, David, that said the justices' rulings were in line with public opinion in eight out of the 10 major cases this term, which kind of falls in line with what a lot of people think John Roberts is really doing,

which is, especially in an election year, trying to keep the court out of basically being the punching bag for both sides of the political spectrum to keep the, you know, as I said in my piece, neither force nor will, just judgment. And if the public no longer believes in the Supreme Court, you end up with the President Jackson, let them enforce it problem. And so Roberts is trying to hold on to the court's popularity, integrity, whatever you want to say. And according to Gallup, the Supreme Court's approval rating is the highest it's been in more than a decade. What do you make of the institutionalist argument and how real is it when it conflicts with where perhaps the law should be? argument. I mean, when I hear the phrase legitimacy, I think that's what the New York Times editorial page wants. This is not a real construct, but Roberts is convinced it is. In every single case, legitimacy means deferring to the left. It never goes to the right. This is

a one-way ratchet. And it also requires some distorting the law to get there. These tenuous readings of the Affordable Care Act, of DACA, of the Administrative Procedure Act. He has to adopt these bizarre readings of statutes that have effects in real-world cases outside of this context, right? And when you keep adopting opinions that everyone knows are not the best reading, that, in my mind, weakens the court's legitimacy because it's no longer a court. It's a political court, but a political minimalist court. It's not trying to reach a conservative outcome. It's trying to sort of walk a political minimalist court. It's not trying to reach a conservative outcome. It's trying to sort of walk this tightrope down the middle. And that's not something courts do.

They can't anticipate the consequences, the fallout of their decisions. Every action is equal, an opposite reaction. You can't anticipate where things go. And from term to term, you're just always recalibrating, put a little bit more weight on this side, a little bit more weight on that side. And this sort of long game lasts forever. The cheap is often described as playing a three-dimensional game of chess. Fine. Eventually, you have a checkmate, right?

Or you're just playing against yourself, right? There's no end game. It's just this ongoing process of balancing back and forth. And I don't know how you can describe that as the judicial role. It's something else that's going on. Well, and the Obamacare case is going to be so interesting because as you said, in 2012, he writes the 5-4 opinion upholding the ACA's individual mandate as a tax. And speaking of not anticipating things, come to 2017, Congress zeros out the tax.

So now it's no longer a tax chief and the case is back up and he is pinned into a corner what happens you read my mind i was actually thinking of the obamacare case in my last comment and i believe mr keller who you know quite well was instrumental in bringing this case i've known scott for for many moons um right so the aca case is back on the docket now due to a scheduling glitch it will be argued after the election, which is probably for the benefit of everyone. I can't imagine the ads on the campaign ads in November about the Obamacare case. Justice Sub-Major will have a, you know, this ad was paid for by Joe Biden for president. You know, this is going to be bad. But Roberts is in a bit of a tough spot, but not

really he'll back out of it. I actually did an amicus brief, a friend of the court brief for the Cato Institute. And we argued that after the tax cut act, the ACA's mandate can no longer be saved, but all the money's on the remedy. And Roberts will simply just say, well, we'll just kill the mandate and go home.

So I don't think he's in much of a corner. He paints his own corners. He rounds them all the time. We've sung a lot of severability songs here in this podcast, so our listeners are very into severability. Cut it out. And one thing I noted was several

of the cases this term probably presage what's going to happen in that case, which is yeah, fine, no problem. It's just it goes away and everything else stands. CFPB was like this. The robocall case was like this. That was a big case, yeah. Yeah. I mean, the robocall case, which no one particularly should care about for any other reason except that it tells you what's going to happen in Obamacare.

Yeah, no, that was a huge case. Well, and you know, another thing that I think we're going to see, let's just suppose for the sake of argument that Joe Biden wins. And Let's just suppose for the sake of argument that Joe Biden wins. And let's also suppose for the sake of argument that he either doesn't have the Senate or doesn't have a filibuster. He doesn't have enough senators to get rid of the legislative filibuster.

So he's kind of in the position a lot of presidents have been in for a long time, which is their main freedom of action is through the regulatory regime. I think one of the knock-on effects of, for example, the DACA decision is, you know, this kind of arbitrary and capricious review is now on steroids. Like, it doesn't mean really arbitrary and capricious anymore. It means you got to convince me you're right.

And in the lower courts, you're going to see the exact same thing that the Trump administration has been frustrated by, the Biden administration will be frustrated by, because armies of litigators are going to run in and challenge every repeal of a Trump era regulation. They're going to challenge the new Biden regulations. You're going to get nationwide injunctions. And we're going to be, you know, it will be what, you're going to get nationwide injunctions. And we're going to be, you know, it will be what, you know, if it's Biden administration, it'll be mid 2024 before he knows whether some of his regulations are going to go into effect. And I feel like this is going to be an effect of this Roberts, I'm over the Trump administration. Therefore, I'm applying this incredibly heightened review to everything that

it's doing. I agree. And just so your listeners know, when the agencies review, I'm sorry, when the court reviews some sort of agency action, they use a standard known as arbitrary and capricious, which I thought meant it's just absolutely insane. It's just unreasonable. But Robert says, no, you have to persuade me that you considered every conceivable option. And here, you didn't consider X, Y, and Z, and you didn't do it this way, and you didn't jump through these hoops. I mean, if I can use an analogy to what's called strict scrutiny, it's saying you didn't use the most least restrictive means.

You didn't use the most narrow way of getting there because you'd fail to consider it. Now, even you have to consider X, Y, and Z. You can always make up a reason after the fact. Well, you didn't consider A, B, and C. Why didn't you do that? So, I mean, look, if Roberts is consistent, which I don't expect, then Biden can't do anything of any significance. And look, you have courts that will gladly apply the DACA standard to everything Biden does. So speaking of future Biden administration, let's assume another fact that Biden gets so much pressure from the left to pack the court that there's some movement to do that. How do you think the justices on the court would react

to something like that? Or would they react or would they just accept the will of the political branches? Well, I mean, David mentioned the legislative filibuster. I think it's gone. I mean, I think they'll... And here's how I think it will go. It won't be with some sort of legislation like the Green New Deal. There'll be a mass shooting, and then some sort of gun control package fails. And as we need to do this, then Joe Manchin can swallow his pride and go along with it and nuke the filibuster. And then once they get that, they can add courts. I think they would actually pack the lower courts first because it's not as high consequential.

People don't really know what the circuit courts are. You know, double the size of the Fifth Circuit, double the size of the Ninth Circuit, let Biden appoint 100 new federal judges. You know, whatever Trump's record is just appoint them all at once, just, you know, have this assembly line. And then whatever gains Trump made will be wiped out, you know, overnight, which case won't matter. And then at that point, Roberts will just have to

reverse everything if that's his goal. You know, the other thing that they could do is turn the bankruptcy judges and magistrate judges into Article III judges. And that would not even come with the same political problem because then it's like, well, look, this has been sort of a weird thing that's existed. And then Biden gets an enormous number of judgeships. And, you know, there's a lot that bankruptcy and magistrate judges do that could further progressive policies. What do you know about bankruptcy judges? It's a family affair. Yeah. I always tell my dad he's unconstitutional so i think he is i'm sorry he's a nice guy but i think it's not i don't know what his position look the dems can do

lots of funny things with lower court judges um at that point the supreme court might grant 300 cases a year to reverse everything um i think they're gonna be hard pressed to pack the court with roberts's little song and dance now i think it's going to be a lot harder to justify. People will know that this is garbage. But the lower courts, I think, will have, you'd have to stagger them in over the course of a decade, not in this one fell swoop. Biden gets 100 appointees and puts the entire Yale Law School faculty in the Second Circuit. See what happens. I'm going to have to dispute the notion that federal judges are overworked. I've known a lot of federal judges, and overworked is not the word that I would use to describe them. I mean, state trial court judges, state trial court judges. Yeah. Yeah. But you walk into a

federal district court. It is like walking into church on Saturday, not on Sunday. We're going to have some angry federal judges writing us, David. We have several district judges, a couple appellate judges who are going to send emails. I just know it. I won't call them out by name, but we're going to get emails. I'd like to take a moment and thank our next sponsor, the Bradley Foundation. Making sense of current events during this extraordinary time can be trying. Conceived in Liberty, the Bradley Speaker Series is a new video series that offers meaningful perspectives

through engaging 15-minute interviews. Our guests focus on the big picture and distill what the latest developments mean to our deeply held commitment to restore, strengthen, and protect the principles and institutions of American exceptionalism. Visit brFDN.org backslash liberty. That's BradleyFDN.org backslash liberty to watch our most recent episode featuring Wall Street Journal columnist, Kimberly Strassel. That's Bradley with an L-E-Y at the end,

F-D-N.org slash liberty to watch the video. New episodes will debut weekly, so come back often and subscribe to our YouTube channel to be notified whenever a new video is posted. Let's move on to SCOTUS 101, some listener questions that we've gotten. How is it decided who writes the opinions? Well, after a case is argued,

the justices hold what's called a conference where they all meet and they all announce how they're going to vote. They start at the chief and they work their way down to the junior justice. Who's in that room? Only the justices. No clerks, no staff, no one's allowed,

and it's completely private. After they tally up the votes, the most senior judge in the majority, which is usually the chief justice, says, OK, you get to write the majority opinion. And then the most junior judge in the dissent says, you get to write the dissent. That process is not always final. Often Justice A might write a majority opinion that has some holes. And then Justice B says, you know what? I like the dissent better. That's how things flip. So often the votes can change after the conference. This happened in the Obamacare case. This happened in the abortion

case 30 years ago. Casey, I think it probably happened in Bostock. I don't think the chief originally voted with majority. I think Gorsuch's opinion flipped the majority. I think Gorsuch could not go along with the chief's opinion. So these things are fluid. And how do they share them in advance? Is it, you know, they email them around and have little post-it notes on them or what? You know, I think it actually varies. Some of the justices probably do use tablets and electronic devices. I think some of the older justices would use paper. Although now that Kennedy's gone, I don't think anyone's still old school. Thomas is actually pretty digital.

He doesn't use the paper stuff. I hope they have some sort of very secure VPN as their really secure way of exchanging opinions. I mean, there are leaks for sure. I think Bostock was a leak. But there surprised me a few leaks. I think no one's been able to hack the court, something I do worry about because the justices and their clerks, they do go on public websites, they do click on links, and they do

get the same sort of spoofing emails we all get. So I'm grateful they haven't had any sort of leaks yet. Well, and when things shifted online this year, I remember the website went down early on in coronavirus and everyone was concerned. And then Twitter, of course, yesterday being hacked. This is not a crazy notion. David, do you have 101 questions as well? No, I think we can move on to some of the 301s. Here's a listener email um i know that four grants are required to grant certiorari but what if standing severability etc was not raised in the lower courts

and therefore wasn't raised in the petitioner's qp and a justice believes that to be either a threshold issue or an issue he or she would like to be briefed or argued. How does a QP get added after the fact, and how many votes does that take? Right. There's no clear answer how many questions to add a question presented at QP. My suspicion is one will do it, and others will have a courtesy. And I'll use an example. In 2010, the court heard McDonnell v. Chicago. This was a Second Amendment case from Chicago of whether the right to bear arms is incorporated um only one justice was interested in the question of the privileges or immunities clause which is justice thomas and accused added on privileged communities and i can't imagine annals cared so i think if one asked for a qp they'll usually go along with

that that's my that's my read okay and here's my senior level one because david and i've talked about it scott and i spent um guys we have very exciting nights here in our legal household we like pulled out the big textbooks on this one so we'll see what josh thinks about it uh so if it takes four justices to take a case to grant cert how many justices does it take to dig a case? And does it need to be one of the justices who had originally voted to grant cert? Well, the dig is what's known as dismisses and providently granted. And let me just give some, some, some backstory. The clerks on the court have a pool where they share memos and they all write, you know, this case should be denied. This case should be granted. Occasionally the court will grant a case where there's an error. There's some

sort of factual problem. There's some sort of reason why it's not a good vehicle, as they say in the lingo. And they'll dig the case, they'll dismiss it. From what I know, that the clerk who recommends a grant that's digged is like scorned. It's like he's, you know, he's, he's exiled because he wasted everyone's time in, I mean, money. I mean, just so much effort was wasted. Um, I think you need five to dig the case. Um, and I'll give an example, but can it just be, can it just be like, basically then the five who didn't vote to grant cert could dig any case they wanted in theory, which would kind of present a whole nother institutional problem, at least. Yeah, I mean, that's true. But I think that I think that would piss people off and probably wouldn't be very popular.

Let me give an example. Last year, the court decided the New York pistol and rifle case. This is a case from New York about the Second Amendment. New York took bold steps to dig the case. They tried to moot it out. They said, oh, this law has been repealed. I actually thought the court would dig it and just get rid of it,

but they just actually spent months deciding a case in the merits about mootness, which they didn't have to do. I don't know that there was a majority to dig the case. There was, they would have gotten rid of it. So instead, they had this sort of per curiam opinion on mootness that sort of said, oh, just go away. so that's a case where i expected a dig in there

wasn't which means maybe the votes to dig are more significant than we're aware i think they just don't like doing that in a high profile case so can i can i ask a question that is not one of our reader mail, 101, 301, 401. All right. Wither the Second Amendment. Sad. It's hard for me to see because they denied cert on what I would call some of the easier cases where we're not even talking

the assault weapons ban. Of course, they denied cert on the assault weapons ban. The harder cases, in my view, on the Second Amendment are your magazine capacity, your assault weapons cases. Those are the ones that are harder cases, I would think, in the Supreme Court. But some of these, which just dealt with your basic ability to bear a weapon outside the home, they were dismissed as well. And the question is the if you're going to grant cert so far the

only cert grant post mcdonald heller is this weirdo new york city uh ordinance that basically prohibited you from ever carrying it ever outside the home under any conditions other than to these few gun ranges do we have a prospect for a Second Amendment jurisprudence anywhere in the near future? No, look, I was in law school when Heller was decided back in 2008, and I was thrilled. It's like, oh my God,

we have this new thing. It's awesome. And now basically 12 years later, we're in the same position. We've gone nowhere. I think it's dead. I would almost rather the court grant certain say

that this right only means a gun to home and nothing else and just stop wasting our time. That way I don't have to write about it. I don't have to think about it. Just let it go. Don't keep my hopes alive when there's nothing there. Yeah, it is, you know, we've talked about, well, Well, have they been waiting for the law to mature? No, no. I mean, this is, at this point, if I'm talking to someone and they're wanting to protect gun rights, my advice to them is state legislatures. That's it. And if you're in a blue, blue state, it's just like. You got to move. Yeah.

Texas is always open. Well, look, Congress is, it may go the other way soon. And look, if the filibuster goes, I think we will get federal gun control legislation. I think that's one of the first agenda items because it's so easy. They won't ban anything.

They say, you know, you just can't buy new weapons. They'll just be attrition. Right. I think that's a given with the Biden Congress. I think you may have read the galleys of my book when you say that the filibuster will be abolished in a time of crisis or emergency.

I think that's when it happens. If it's going to happen, I think that's when it happens. And then that will be also exactly the worst time for going to happen, I think that's when it happens. And then that will be also exactly the worst time for it to happen in some ways, because it will then be seen as exploitation of tragedy or exploitation of a crisis and will further destabilize our constitutional republic. But anyway. on that uplifting note, uh, Josh, thank you so much for being here for people who, uh, do not know all of your work. You are the hardest working man in the law scholarship business. So now that you know, Josh, you're going to see his name

everywhere quoted and everything writing at every, you know, you know, outlet that you ever watch, writing at every outlet that you ever watch, Josh will be there. So we need to end on perhaps with what limited free time I can imagine that you have. It makes sense to me that you haven't watched Veep because I'm sure you were writing op-eds and law review articles while the rest of us were watching Veep. But we need to end on this. What is your favorite law movie? Oh, My Cousin Vinny. I mean, that feels like almost such a cop out. You know what? We're taking My Cousin Vinny off the table

because that's everyone's favorite law movie. Oh, boy. What is your favorite law movie that is not My Cousin Vinny? All right. The Amistad was pretty good. That was sort of an old school movie. Yeah. Matthew McConaughey,

one of his first roles, I believe. Yeah. David, what do you think? My cousin Vinny. No. Yes.

Cop out. Cop out. It's not a cop out. It is a classic. It's everyone's favorite. I should have taken it off the table in the first place. Yeah. It's just, I mean, okay.

I mean, well, then if we're going to do My Cousin Vinny, we've got to, if we're going to remove that, you've also got to remove a few good men. Gil Mockenberg. No. Gil Mockenberg, 12 angry men. No. Okay, fine.

Well, I have two then. Mine are Legally Blonde, which I think is actually pretty accurate about harvard law school not the harvard i went to i will just say that um it felt very accurate to my experience in terms of like you're like talking to someone and you're like oh this person seems nice and normal and like you know you're like what'd you do last summer they're like i was deworming orphans in somalia and you're like oh of course you were. Okay. Yes. Everyone here is special and interesting. But maybe even more so Adam's rib.

I'm a big Spencer and Tracy fan. Okay. I'm getting, I'm getting looks of total, like never heard of this. I've never even heard of that movie. Oh my God. Catherine Hepburn,

Spencer, Tracy. They're both lawyers listeners please back me up on adam's red being this wonderful very popular very famous so popular so famous i'm the old one can i i'll have a fallback from my cousin vinnie and this is this is an old one um the paper chase okay that's your era good. That's your era. Yeah. My era. I was four years old

when it came out. No, you were not. Really? Yeah. No. Gen X. Just to be precise. Gen X.

All right. 69. Born in 69 is Gen X. No, paper chase, which is the story of a first year at Harvard Law School of the Harvard Law School of years past, is really well done.

And I remember watching that because when I got admitted to law school, law school was like a late addition to my life plan. I didn't know what law school was going to be like. So I eagerly got 1L by Scott Turow. I was going to say, 1L is like you're, you know, like, sorry, if Paper Chase is the 70s, 1L is Scott Turow. I was going to say, 1L is like your, you know, like, sorry, if Paper Chase is the 70s, 1L is the 80s. We need a 90s one

and then Legally Blonde. That's Legally Blonde. Yeah. Legally Blonde. Yeah. But some of those professors who were, you know,

who inspired both the Paper Chase and 1L were still, were still there. And... I mean, in fairness, they never die. They're still there now.

Yeah, they're still there. Striking fear. And it reminds, in fairness, they never die. They're still there now. Yeah. Striking fear. And it reminds me of the great line that the, the line of the, um, of the year, my one L year from one of these old school Socratic professors. Uh, and it was printed on a t-shirt. I guess every generation has to have something printed on a t-shirt. For sure. Yours was, I love the Federalist Society. Yeah. Mine was,

I believe, and I believe I'm getting the name right. Mr. Zittrain says, yes. Does anyone have a shorter and possibly more accurate answer? That's good. Well,

Josh, thank you so much for joining us for our Supreme Court wrap-up. This is the best. Thank you. Always happy to join. David, parting thoughts? I have no real parting thoughts. This has been a real treat.

Just reading between the lines, I'm just taking away from here. There's a subtle disapproval you've expressed of the Justice Roberts jurisprudence. Just a bit. Just a little bit. Very subtle. I'm perceptive. This is the kind of perception you're going to get in the Advisory Opinions podcast. But we thank you so much. Thank you so much. Thank you so much, Sarah and David. Pleasure to be here. And that's it for us. This has been the Advisory Opinions podcast. Thank you.