Advisory Opinions - Nuking the Independent Legislature Doctrine

Episode Date: June 28, 2023

As the term rushes to an end, the Supreme Court wades eagerly into a mooted case in order to close the door on the "independent legislature doctrine." But does it matter? David and Sarah disagree. Also: -Nobody expects the Marbury v Madison citations -What counts as threats online? (Or: Is recklessness subjective?) -NYT v Sullivan holds strong -Supreme Court bingo: The Countdown -Supreme (court) ignorance -"You only defend justices Thomas and Alito because they're conservative." Nope. Show Notes: -Marquette Law School Poll -Moore v. Harper -Counterman v. Colorado Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. There's frequent guest David French back again. David, it's going to be an all SCOTUS day today. And frankly, the rest of these episodes this week are going to be all SCOTUS all the time, but it's not just the cases that came out today. We're going to start with those. Morvey Harper got released as well as Counterman, my favorite sleeper case of the term. So we're certainly going to talk about those two, but I also want to talk about a little Supreme Court polling. We'll do some Supreme Court bingo with the cases remaining.

And finally, a little follow-up on our ethics disclosure conversation about the pro-public article around Justice Alito. It lit up the comment section and I got some great input from people who listened that I wanted to share as well. All right, so let's do this. Morphe Harper, this is the independent state legislature idea where on the one hand,

state courts get to review state laws to determine whether they fit with the state constitution, unless the elections clause in the US constitution is an exception to that. The opinion came out, written by the chief justice it's a six three or exactly along the three three three lines that we've talked about on this podcast before so it's roberts kavanaugh barrett as the three conservatives joining with sotomayor, Kagan, and Jackson to make that six in the majority. And then you had Thomas, Gorsuch, and Alito in dissent. Now, I've talked about the 3-3-3 court,

the idea of that ideological axis versus the institutional axis. This felt like it fit that thesis so precisely, which was interesting to me because frankly the rest of the term has not. Yeah. Yeah, that's exactly right, Sarah. We were actually just talking sort of offline the other day. Okay, what is the status of the 333 alignment? Does it exist?

Are we looking at sort of 3-2-1-2? What's going on? And this looks more like 3-3-3. And I would even, it's very interesting because we're going to dive into this. But first off, let's just state, here's what happened. The Supreme Court eliminated, gutted, destroyed, stomped on, nuked from orbit, the independent state legislature doctrine. It dead. It's dead. That's the core, core bottom line of this all. Like a Texas armadillo on an FM road.

It dead. It is dead. And what's interesting to me, Sarah, and we can really dive into this a bit, is it feels like to me the court just really, really wanted to kill it because it didn't have to reach the merits here. Oh, not only did it not have to, this case was moot. Look, you know, the dissent for their part really is taking on the mootness problem with this case.

Then Justice Thomas is going to say, look, frankly, the merits aren't that important to me, but if you're asking my opinion, I guess I also dissent on the merits. But the majority of the dissent is, what are we doing deciding this? Right. Yeah, it's an interesting, and so here's the basic argument that it's moot,

because what happened is the Republican-dominated legislature of North Carolina passes a redistricting map. It goes up to the Republican-dominated legislature of North Carolina passes a redistricting map. It goes up to the Democratic-dominated Supreme Court of North Carolina that strikes it down as a partisan gerrymander, an unlawful partisan gerrymander. And importantly, issues the mandate. Doesn't really matter what that means. But when a court issues the mandate, it means they're done. They've like

wiped their hands. That's my little hand wiping noise. Right. So case is done. Then you have midterm elections, midterm elections, hand control of the Republic of the North Carolina Supreme Court to a Republican majority. Republican majority goes ahead and rehears the case. Okay. On their own, sua sponte, the parties didn't ask for it, nor could they have. In fact, the time to ask for rehearing had passed. And so then the Supreme Court, the North Carolina Supreme Court says,

you know what? The Harper, the original Harper decision, we'll call it Harper 1, as the Supreme Court did, is gone, gutted over bad law, because we're going to hold that a partisan gerrymander is not justiciable. In other words, that there's not a legal recourse, a judicial recourse for challenging a gerrymander on the grounds that it's too partisan. This is actually bringing North Carolina constitutional law similar to or in line with federal constitutional law,

because the Supreme Court has said that partisan gerrymanders are not justiciable. This was under a completely different strand of reasoning under the North Carolina Constitution. But here's what's interesting, Sarah. It overturned, reversed Harper 1, but it did not reinstate the map. reversed Harper 1, but it did not reinstate the map. Well, it couldn't because just like the U.S. Supreme Court, they can overturn a precedent, but they couldn't vacate the precedent. As in they weren't reopening Harper 1,

they simply had a second case called Harper 2. So sort of like Dobbs overturned Roe v. Wade, it overturned the precedent. The precedent is no longer a good law. That's different than vacating the precedent, as in that precedent never happened. Right. And so in this case, Harper too said exactly what you said about partisan gerrymandering, but it couldn't actually do anything for the plaintiffs. And that's where the U.S. Supreme Court's like, aha, we can, because we're actually hearing Harper 1, because when you issued the mandate, we granted certiorari.

We talked about this previously on the pod. It's like when you're doing a group editing project, who has the pen? Only one person can have the pen at a time. The U.S. Supreme Court had the pen on Harper 1. The North Carolina Supreme Court could not take the pen back Court could not take the pen back and did not take the pen back.

That's the U.S. Supreme Court's argument for why they had jurisdiction. But there's actually, I mean, so you got to their relief, David. They're arguing that their relief is they can reinstate the maps. Mm-hmm. Okay.

That's interesting. It still feels pretty moot. It's got a lot of mootness odor about it, but that's what tells me Supreme Court wanted to deal with this. Nip this in the bud before 2024. This is the bottom line. I put out a real quick tweet and I've got a piece coming in the Times about this. And my real quick tweet is the independent state legislature doctrine goes down. And here's what I think is interesting. Deals a blow to both the coup theory, the means that Trump chose to try to overturn the election and a conspiracy theory, the idea

there was something inherently wrong with the 2020 election because of state court intervention. theory, the idea there was something inherently wrong with the 2020 election because of state court intervention. And so somebody responded under this, as I read it, do I detect a hint of gnaw dog in Robert's opinion? And I responded, big heaping helpings of gnaw dog. So what Justice Roberts... All the gnaw dog you can eat. Oh, this is, you know, gnaw dogs coming in from orbit. I mean, and so basically what Roberts does is it goes back to colonial era, early republic, and just basically says, look, judicial review is just a fundamental part of the fabric of American law. And the Constitution did not exempt state legislatures from judicial review.

And that's that. And oh, by the way, we're gonna leave kind of a savings clause that says, well, we're not gonna allow the state Supreme Courts to have total free reign. If they go completely crazy, we might step in. Bottom line though, for all practical purposes, this state legislatures are not sort of lifted out by the federal constitution

out of their state constitutional context to become superpowered in the electoral context. They still fit completely within the state constitutional structures and provisions. And as Roberts memorably said, wait a minute, these state legislatures are creations of our system, guys. Period. End of discussion. That's it. Who had Marbury versus Madison on their OT22 bingo card? There's a lot of Marbury versus Madison. The idea that judicial review as contemplated at the federal level was contemplated for the states as well. What is also interesting about that so first of all and again i want to touch on this in the the institutional axis of

that 333 court model because this just is now the quintessential case i think for that theory which isn't perfect i don't want to argue that it is, but this case is certainly emblematic, that you have not only six Supreme Court justices clearly wanting to nuke this ahead of the 2024 election. also have them, I think, wanting to throw shade on some of these spinoff theories of common good constitutionalism, which I don't want to get into too deeply here, but it's sort of a break-off theory of conservative legal ideology that rejects process arguments in favor of outcome arguments. And one of those has been rejecting Marbury versus Madison or revisiting it at least and cabining it in terms of the role of judicial review. And yeah, if you're wondering what a world without Marbury versus Madison looks like, we're not going to do that today. But I think you had six institutionally minded justices, or at least three conservative ones, wanting to also wave their hands and say, just in case you were curious, and not surprisingly, we as Supreme Court justices think Marbury versus Madison is pretty great.

And not only great at the federal level, we think it works pretty well at the state level too. Thanks for asking us. Yeah, totally. Yeah. And the dissent, the three justices, Alito, Thomas, and Gorsuch, who I've described as ideologically conservative, sure.

Though not necessarily more conservative than, you know, Barrett or Kavanaugh, for instance. And I think Gorsuch has proven that several times over that the conservative part of their ideology can mix and mingle there. But the institutionalist side, not so much. They're basically like, we don't care. This case is moot.

I know you'd like to answer it before the 2024 elections and give everyone that sort of notice. You don't get to do that, though, if this case is moot. And then, as I said, you have Justice Thomas saying, to be clear, I don't actually care that much about the merits. But since we're doing that and you asked my opinion, I'll go ahead and give you my opinion, which is you're wrong on the merits as well. And it is, I'll just read what he wrote. I would gladly stop there, he says after his mootness analysis. The majority's views on the merits of petitioners' moot elections clause defense are of far less consequence than its mistaken belief that Article 3 authorizes

any merits conclusion in this case, and I do not wish to belabor a question that we have no jurisdiction to decide. Nonetheless, I do not find the majority's merits reasoning persuasive. merits reasoning. I do not find the majority's merits reasoning persuasive. So he's going to quote the constitutional text. The elections clause of the constitution provides that, quote, the times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof, but the Congress may at any time by law make or alter such regulations except as to the place of choosing senators.

And then he's gonna say there's three premises built into that section of the Constitution. The first premise is that the people of a single state lack any ability to limit powers given by the people of the United States as a whole. Okay,ise two, regulating the time, places, and manner of congressional elections is no original prerogative of state power, so that such power had to be delegated to rather than reserved by the states. The third premise is that the legislature thereof

does not mean the people of the state or the state as an undifferentiated body politic, but rather the lawmaking power as it exists under the state constitution. And he says, if these premises hold, then petitioner's conclusion follows. In prescribing the time, places, and manners of congressional elections,

the lawmaking body or power of the state as established by the state constitution performs a federal function derived from the federal constitution, which thus transcends any limitations sought to be imposed by the people of the state, i.e. through their constitution as interpreted by their state supreme court. He continues, the majority rejects petitioner's conclusion, but seemingly without rejecting any of the premises from which that conclusion follows. And that's a great statement of how low institutionalism would describe high institutionalism. And you're going to see the difference most often where the high

institutionalists are talking about history and precedent and the low institutionalists are talking about text and logical premises. And that's why this case to me is just so paradigmatic of that institutionalist access. And David, I find that my brain very much has both. I feel low institutionalist sympathies a lot. And then there's moments, you know, heading into the 2024 election and nobody knows whether states get to decide on their own what's constituted. I mean, I don't know. They are both pretty persuasive parts of that axis. Well, and here's what I find interesting. So if you go back to February of 2021, the Supreme Court refused a petition,

a Pennsylvania GOP petition to hear the independent state legislature challenge to Pennsylvania's rule changes running into the 2020 election. And guess who dissented from that decision not to hear the challenge? Thomas. Why did Thomas and also Alito and Gorsuch,

they filed a separate opinion. Why did Thomas dissent? Well, one of the things he said is we need to set clear rules. So I'm a little confused. So he's going to dissent from the refusal to hear a cert petition on an election that's already been decided with the president sworn in. But he's going to say moot on a case where the congressional map that was struck down was not reinstated. It's a very interesting sort of dichotomy there. But I want to focus on something a little bit different here

for just a second. And that is, I want to talk a bit about the backward looking implications of this case, not just the forward-looking implications. So the forward-looking implication we've already gone through, which is, look, the future changes to state election rules are going to have to run through judicial review. State Supreme Courts are going to have a say

under state constitutions on legislatively approved election rules and congressional elections and presidential elections. That's all the forward-looking stuff. That's the forward-looking, don't even try the independent state legislature doctrine argument going forward. Here's the backward-looking thing, Sarah,

that I think is really interesting and important. There's sort of a range of election steal theories. So you've got the wackiest theories, which are like Italian military satellites somehow messed with the count or the Dominion machines were manipulated. That's the wacky stuff. And that's where you had the Fox and the Dominion

and Smartmatic cases and all of this. But then there's a whole other line of election, a whole other line of argument around the election. And that is, it was just improperly done. It's not that there was manipulation of the voting machines. The whole election or in many key states was just flat out improper. And why was it improper? Because state courts, state electoral officials

did things that the legislatures had not sanctioned. And so by doing that, they violated this independent state legislature argument. And so therefore the election itself was just not lawfully conducted. And so this is sort of what I would call like the soft rigging theory, that in essence, it's not that there was an official, that there was manipulation of voting machines,

but there was manipulation of rules in an unlawful manner. And what this essentially does is go, if this independent state legislature theory doesn't work, isn't viable, then in many ways, what it says is that whole strand of argument that 2020 was just unlawful is very much undermined by this decision. And I think that's quite important to point out. That's a very interesting point. It's by far the most common thing I hear from Republicans across the board. I don't know any people who believe like the bamboo ballot stuff,

but I know a lot of people. Fair enough. I know a lot of people though, who think that the rule changes rigged the election and that that's what they mean when they say the election was stolen. They, yeah, if you change the rules at the last minute to benefit your own team, yeah. Now, of course, there's other non-legal complaints I have with that.

Like, okay, well, when the rules changed to expand mail-in voting, was it smart or not smart to then tell your people not to use mail-in voting? But that's sort of beside the point. All right, more V Harper. I was surprised that they didn't moot it out. I find the case interesting in terms of what it says about this court and each justice

from that institutional access perspective. It's nice to have that theory settled before the 2024 election. Overall, David, I would put it in my bottom half of cases for the term of, you know, interest in things that I will remember. Really interesting. See, I think it's easily top tip of the, it's not the very tip of the spear for me, but sort of in its implications for our democracy going forward and its implications for our democracy on looking back, I put this up there. I'm like, I think this is significant.

And it's not because I think the question presented in the case was particularly close. I think the mootness question, that one really, that's really interesting to me. But this feels like some special pleading on mootness. I don't think this sets up mootness doctrine for the future. No, this is like the Bush v. Gore of mootness.

And Bush v. Gore, by the way, mentioned throughout the majority's opinion and the dissent, they're like, Bush v. Gore, I don't think this case says what you think it says. But I think on the underlying merits, yeah, it's pretty darn important, at least, you know, depending on, let me put it this way. If you take the combination of Congress and the Supreme Court here, between Congress and electoral count act reform that has passed, and the Supreme Court here, between Congress and electoral count act reform that has passed in the Supreme Court on chopping off the independent state legislature theory,

you've just had it, that sound you heard is a double door slam. It's door slam on Eastman memo and it's a door slam on independent state legislature doctrine. And it just sort of collectively secures the election now and in the future, the election now and in the future, our elections now and in the future

in a way that we didn't know really we needed, but it turns out that we did. I think this is a nice divide between you and I because you are a high-minded democracy person and you believe this case will affect every American's life because it's going to affect our elections. And that's really nice and I respect you for it. I don't feel like it's going to affect my life

or anyone I know in any meaningful sense. Like the world continues to revolve. Nobody's going to be bringing this up at their bar. But you know what case is my number one for this term so far is the case we're about to talk about next because it's the reverse. This is the case that I think affects more people's lives than maybe any other this term. It's counterman.

Threats. True threats. threats true threats so as we see a proliferation of people spending more time online especially this up-and-coming generation whether it's facebook or snapchat or tiktok or whatever else they get lots of vitriol maybe it's from someone you know more likely it's from someone you don't know and when those turn nasty, what's the line? And so this, if you remember, was the true threats case where a country singer-songwriter is getting hundreds and hundreds of messages over years from a person she does not know.

She blocks him several times. He creates new accounts to get around it. The messages range from sort of run of the mill creepy, like, hey, going to the store, can I get you anything? Which if you don't find that creepy, I don't know what to tell you. And by the way, Chief Justice Roberts got a lot of shade after the oral argument because he was like, what? That seems perfectly innocent. shade after the oral argument because he was like what that seems perfectly innocent really it does really okay uh and then it ranged to you know um i forget exactly the wording but something to the effect of like if you don't answer you should die it wasn't phrased exactly

like that okay but the legal question was that in colorado you can convict someone for true threats, unprotected speech based on an objective observer's belief. Would a reasonable person think that that was threatening? Not the victim, just a reasonable person. That's what the jury's for. Counterman was convicted under that objective standard. He argued that this infringed on his First Amendment rights. It gets all the way to the Supreme Court. He's arguing that it should be a subjective standard. Did counterman mean it to be threatening? He says he didn't, which is a little hard to believe, but okay. 7-2 decision. Kagan writing. Kagan, who, by the way, when we talk about where those fractures are on the ideological spectrum, I mean, obviously Native American stuff has been highlighted a lot where

Gorsuch is like, it don't matter what the topic is. Gorsuch is separate when it comes to Native American issues. He is less dramatic, but equally interesting when it comes to criminal law and lenity issues, sort of the tie goes to the criminal defendant, you know, to the runner type idea. Well, the same thing can be said of Kagan on free speech issues often. So when I saw that Kagan wrote this, my heart dropped a little. And, but you know what, David, it was better than it could have been. So it's 7-2 with Kagan writing. you know what, David? It was better than it could have been. So it's 7-2 with Kagan writing. And what they said was, look, there does need to be some subjective element, some knowledge and mental state that the state has to prove to convict someone. It cannot be a purely objective

standard. However, that subjective standard is not going to be what counterman wants, which is that he personally knew that he was threatening this person. Instead, it's going to be what counterman wants, which is that he personally knew that he was, you know, threatening this person. Right. Instead, it's going to be recklessness. Now here's, what's weird about reckless as a standard. It has an objective component to it.

So recklessness basically is, uh, did you have some knowledge that what you were saying could be interpreted by a reasonable person to be perceived as a threat? I think for a lot of people, that's gonna be a distinction without a difference. Frankly, I hope it will be.

Because, and I said this before, when we've talked about this case, I feel pretty strongly about it. These cases are going to affect women a lot more than men. Women are the victims of stalking far former more often, even online. That is the case in terms of true threats and vitriol and that sort of stuff. So not surprisingly, The Descent was written by Justice Amy Coney Barrett and joined by Justice Thomas. Now, it's not that Barrett and Thomas are never together in concurrences and dissents, but they're not often just alone where it's just the two of them.

And I did find something interesting about that, David, where you have Barrett and Thomas, I think, it certainly read to me like understanding the perspective of the victims in these cases more so than perhaps the other justices. Yeah, that's an interesting point. A very, very interesting point. And, you know, when the decision was first handed down, I shot you a message and I said, we lost. Because remember, we had had this really, you know, in-depth conversation about this case before after the oral arguments where we were saying, you know, all of our friends are disagreeing with us on this,

that all of our free speech friends were saying, you need the subjective test. And we were saying, you know, and look, we're all there. We're all in agreement on the main thing. The main thing is that true, we're trying to discern what true threats are. True threats are not protected. So we're agreeing on sort of this main doctrine. But then the question is, how do you define what a true threat is? What is the test for a true threat? And that's where you're diverging. And the more I read the case, Sarah, the more I think the recklessness standard is actually us kind of winning in this view. And then the other thing that's very interesting, and I wanted to

float this by you. Again, if you look at this alignment, this alignment is extremely interesting. This alignment is extremely interesting. It is not that, you know, it is not the standard, you know, sort of 6-3 that everyone's told to expect, right? Did this majority just not so subtly reaffirm New York Times v. Sullivan? Yes, that's like a huge problem or not problem depending on your perspective, but it's this sleeper cell in this case that I did not see coming whatsoever. And Justice Barrett and Thomas are definitely waving a flag on that. been raised in recent cases is, is New York Times v. Sullivan, which is this standard that says if you're a public figure, that for you to prove defamation, you've got to prove actual malice, intentional or reckless defamatory untruths. So do you have to prove actual malice? And so there's been this question,

as New York Times v. Sullivan, where does that fit in an originalist court? How consistent is New York Times v. Sullivan with original public meaning? And so if folks might remember, there was some consideration that Florida might pass a, and I don't believe it actually passed, but Florida was considering a state law to change the defamation standard to specifically challenge New York Times v. Sullivan.

So it was fascinating to me to see these justices. So this is Kagan, Roberts, Alito, Kavanaugh, Jackson, Sotomayor concurring in judgment, and all together saying, yeah, they're on board with this New York Times v. Sullivan analysis. So my sense, Sarah, is sayonara to the argument for the time being that New York Times v. Sullivan is no longer good law. Yeah, and this is where Justice Barrett's dissent's really interesting because

she's going to walk through all of the other types of unprotected speech. And as, you know, this section starts in her dissent, the court's first error is awarding true threats, quote, pride of place among unprotected speech. We have held that nearly every category of unprotected speech may be regulated using an objective test and concluding otherwise the court neglects certain cases and misreads others. So for instance, fighting words. Fighting words are an objective test. False, deceptive, or misleading commercial speech. We don't ask whether the company sort of knew that their statements were false and misleading, but then it does get interesting. Obscenity. Speech qualifies as obscene if the average person applying contemporary community

standards would conclude that the work taken as a whole appeals to the prurient interest. That's the know it when you see it test. Yeah. But of course, the speaker does have to know something. The speaker's belief as to the obscenity or non-obscenity of the material is irrelevant, but they have to have knowledge of the contents of the material to be regulated. Okay.

Then of course you have defamation law, David, but that's where there is a knowledge test. In fact, an actual malice test, an intent test. And then you have incitement. She's sort of going up this ladder from really objective tests to mostly objective tests to defamation being a not all that objective and then you get to inciting violence the brandenburg test and she says i will give the court this much speakers must specifically intend to incite violence before they lose first amendment protection um okay so it's frankly david what I left after reading the majority and the dissent is that unprotected free speech is a mess. And that I don't understand how, if you're a real textualist slash originalist, we have all of these different tests for all these different types of unprotected speech. like Judge Newsom, if he were here from the 11th Circuit, would say, yeah, what's going on with this? Shouldn't it just be one test? Either the speech is protected or it's not protected.

An unprotected speech is either an objective test or a subjective test, not like which type of unprotected speech it is. This is a hot mess. Yeah, yeah. No, it absolutely is. There's no question about it. But at the end of the day, Sarah, let me ask you this. Where do we stand? What does recklessness really mean at the end of the day?

I think counterman, so he's already served four years, as I understand it. He will get a new trial because of this. I hope that the state of Colorado retries him. I think they will based on this test. And I think he will be convicted based on this test. Right. I just don't know that you should have to be counterman to lose. This actually, to me, was a more extreme example

of using online forums to keep creating new identities after you've been blocked in order to stalk and harass someone. Now, the only asterisk that I will put on this, and this was the Chief Justice's point, is that stalking and harassment are one type of crime, but they're not true threats. First and foremost, there has to actually be a threat.

I think Kouderman made those threats, but that is sort of a separate fact-based question here. In terms of however his, whether he was reckless in thinking that someone, an objective person would find his speech threatening, I don't think that's a close call. But again, you and I came into this, I think, different than a lot of our free speech protective friends. Yeah. And we asked for comments from people saying, please explain to us why we're wrong. And we got a lot of very good, thoughtful comments from our free speech protecting friends. each protecting friends. And it is another point here, Sarah.

Once again, I am now in the grips of de-escalating certainty about the remaining cases. Because the lineups have been wild. They have been wild lineups. And so, and the one, I have sort of two feelings at once. One is, here's my main feeling, which is good, which is, look guys, if you're in this position that everything is preordained at the Supreme Court by ideology, et cetera, et cetera, et cetera, and you're, I've got good news for you. You, if you were worried about your case because you had this preordained idea

about how all this is going to work out, you have new lease on life to say that I can walk into the Supreme Court and make an argument and just might win. Even if I feel like my argument cuts against one partisan side or the other, it strikes me the Supreme Court is much more up for grabs

than people might have thought six, eight, nine months ago. And then the second thing, which is subordinate to the first thing, is now I just feel a lot less confident in my prognostication ability. And Sarah, I should be still riding a high because I correctly predicted the Alabama redistricting case. I should still be riding that high. But now I'm in turmoil. I don't know how to predict these cases. And so we'll see. Well, let's do a little Supreme Court bingo then.

And a reminder, here's how bingo works. As it works out, because the Supreme Court hears so few cases, generally speaking, they hear the exact number of cases in an argument sitting, that two weeks a month, that correspond roughly to the justices. And so justices write about one opinion per argument sitting. As you get towards the end of the term, you're running out of opinions, but you're also running out of justices that haven't written for that sitting. So let's go through which opinions we have left and which justices haven't written. First up, November, only two cases left, which are really one case.

It's Harvard and North Carolina. And looky, looky there, Chief Justice. Kavanaugh is also available. However, everyone thought the Chief Justice would write this opinion for good reason. This is sort of a pet issue of his through the years. It's the biggest case of the term. And don't forget when they go to conference and take that initial vote of where justices are going to align on a case, the most senior justice in the majority gets to assign the opinion. So if the chief justice is in the majority, he can choose to assign it to himself, which he often does when it's a fun case to write or an important case. So that would go in seniority rank. Then if the chief justice is in the minority, Thomas is next up if Thomas is in the majority to get to the side. So that's what Harvard and North

Carolina are looking like. It doesn't actually tell us a whole lot about how the case will turn out potentially, except the likelihood that it's broad and sweeping gets pretty low when you have the Chief Justice writing. He's not a broad and sweeping guy. I agree with you completely. I would be, if the Chief justice is almost certainly writing, I'm not looking for broad and sweeping, but I am also looking for consistency and harmony with the opinions already rendered. The best way to stop discrimination on the basis of race is to stop discriminating on the basis of race quote one chief justice roberts right so i'm still predicting harvard and unc lose i'm not predicting a decision that will

sweep away race-based classifications because in toto because that would be inconsistent with alabama um that would be inconsistent with inconsistent Child Welfare Act. So we're going to have to have some sort of distinction here as to how race consciousness is good and fine constitutionally in Alabama and fine in Indian Child Welfare Act, but not fine in Harvard and UNC.

So that's going to be very interesting, Sarah. I'm eager to see. You know, another question I'm looking forward to, I mean, this will be sort of, we'll talk about the initial opinion, I'm sure in great detail when it first comes out. But in terms of the looking forward, yeah, there's, can you ask the question about whether you're a descendant of American slaves, for instance, even though that's clearly going to have a race proxy element to it, sort of a rectangle square race proxy element to it, but nevertheless. But what about the Rooney rule? What about the rule that law firms are using that basically is a full-on quota system when it comes to pitch meetings and new client matters and things like that that are insane that we haven't actually talked about much on this podcast?

Will the court's opinion be hinting at what it will do with some of the other employment racial affirmative action-y stuff? All right, but that's Harvard. Yeah. Well, let me, can I make a prediction with light confidence, with low confidence? So here's my prediction with low confidence. My prediction is that the through line is gonna be invidious discrimination, evidence of invidious discrimination is past invidious discrimination by an institution

is going to mean that that institution is going to be, that race conscious means of dealing with past invidious discrimination are going to be constitutional within certain limits. In the absence of invidious discrimination from an institution, in the way that there was evidence of invidious discrimination against Native Americans or against Black voters in Alabama. In the absence of that invidious discrimination, this sort of general diversity, equity, rationalization for racial discrimination is going out. It's going to be gone. We haven't actually talked about the Mansfield rule. So, the Rooney rule we talked about in the football context, this is the idea that for any head coach position, you interview at least one person of color for the

position. That's the Rooney rule at its like sort of most original form. But the Mansfield rule, which is now, there's now, I think it's Mansfield 6.0 at most of the AMLAW top 100 law firms, it has expanded to everything. It started as 30% of law firm candidates be women, lawyers of color, lawyers from other historically underrepresented groups when leadership roles are being filled. But again, it's turned into pitch meetings, all sorts of new client business. Now clients are requiring Mansfield certification. business. Now clients are requiring Mansfield certification. It's straight quotas. And if you think that's not discriminating against someone because of their race, if you fall outside of that, I mean, it's a huge mess, I think, for law firms. And I know they'll be watching this case closely. Okay, more bingo. 303 Creative was argued in December. It is also the only opinion left in December.

Looking like Justice Gorsuch is gonna be writing that one, David. I think that's very interesting because he can be a bit of a wild card on this stuff. And don't forget, 303 Creative is not being decided in a vacuum. You've got two cases pending, basically, before the court, the Florida social media bill case and the Texas social media bill case. Yeah, they got CVSG. It's a little bit of a hot mess.

Don't worry about that. Just for our purposes, pending. They're in the back of the justice's mind. They know that they're there in both of those states. And disclosure, my husband represents NetChoice in the Texas case. That is the social media companies that he represents against Texas in that social media bill case. But Texas and Florida basically pass state laws that say that a large social media company doing business in those states cannot take down content that they don't like because of political viewpoint or, you know, some other things. But the point is, it's your website and you have to host content that you don't want to host. Sounds like 303 Creative. Gorsuch is going to be writing this opinion. I think he cares a lot more about the tech cases that he does about the religious wedding website designer in Colorado.

Interesting. I'm not sure that I'm going to agree that that's going to be Gorsuch's view position on this, but I'm intrigued. And I do also agree that I think that they're going to view the relative importance of this case as far less in the real world than the social media cases. The social media cases are mega cases in the real world. But let me float a theory by you, Sarah, and you tell me if I've lost my mind. my mind. Here's another thought that Gorsuch, who's long been a friend of free speech and religious freedom, will write an opinion that's strongly supportive of 303 Creative. And then they'll just send back the social media cases in light of 303 Creative.

I don't think they will, but certainly they bought time for a reason. Right. Yeah, they did buy time for a reason. So I'm very curious as to the reason. Yeah. I mean, the Texas case, for instance, definitely could have been heard this term. It was sort of falling at the very end of the cert grants. And instead they asked for the views of the Solicitor General, which pushed it into next term. They didn't have to do that either. They could have just pushed it into next term. But nevertheless, yeah.

They are very aware of these pending cases. Yes. So, so much intrigue. Okay, next up. The student loan case. We know absolutely nothing because February had so few arguments. Basically none of the justices have written in February.

So that's a real grab bag. But David, I've got good news for Mr. Groff. This is the postal employee who doesn't want to work on Sundays as a religious accommodation. Justice Alito appears most likely to be writing that one. That's Groff's best day. But remember Alito in the Pennsylvania adoption, Catholic adoption case. Right. Well, he had written what looked like it might've been the original majority opinion

that would have overturned Employment Division v. Smith, and then it turns into a strong concurrence, a spicy concurrence. So, yeah, if you're looking, if you are, from a religious liberty standpoint, Justice Alito is your friend. And so, yeah, if Alito's writing would shock me if Goff loses. Groff, Goff, whatever.

Groff. Groff, not Goff. Jonathan Goff is the guy who sings the King's part in Hamilton. No, he's Groff too, isn't he? I don't know. Yeah, he's Groff also. So hot. They're all Groff.

Okay. yeah he's groff also so hot okay they're all groff okay so that's the bingo game so far we don't know when the next hand down day will be we're expecting thursday and friday so more to come on that uh we got some interesting polling about the supreme court david from marquette Law School. Charles Franklin, friend of the pod, runs their polling operation there. They always have such good stuff and it's so consistent and they go in the field a lot. And I just, first of all, thank you, Marquette Law School polling. You're the best. What would we do without you? Some interesting things to come out of it, David. First, the approve-disapprove of the Supreme Court. Marquette goes into the field more often than Gallup does on this question. And so you can actually see, especially this past year, where you have Dobbs, the Supreme Court takes a hit

and they're approve-disapprove, but it starts to rebound around January. Then you have the ethics stories and the disclosure stories hit. It takes another hit down. That would be, I think, more surprising if people had an overall intuition about the court. It shouldn't really be going up and down. If you think that it's an illegitimate institution, it should just be going down and then down further. Why is it rebounding? legitimate institution, it should just be going down and then down further. Why is it rebounding? So broken out by party ID, I don't think it will surprise anyone that the biggest hits are being taken among Democratic identifying voters. Independents, definitely though, moving downward

overall, and even Republicans moving downward a little bit. Though in general, what we see is during Democratic administrations, Republicans approve of the court less, and during Republican administrations. So as in the court sort of isn't seen again as its own independent entity with people having independent thoughts about it. Okay, here's where this got really fun for me though. When you ask voters, not voters, Americans, who was a majority of the court appointed by presidents of what party? 30% say definitely Democrats.

Definitely or probably a Democratic majority on the court. That's not just people not knowing about the 6-3 majority, David. Do you know when the last time there was a Democratic appointed majority on the Supreme Court? When? 1969. So slight, are you saying that's a slight swing and miss? I mean, it's, and again, this is not to throw shade on those people. This is more to tell us how little Supreme Court knowledge that there is out there. So that of course,

the approved disapprove numbers are able to move pretty wildly all things considered. If you know nothing about the Supreme Court to begin with, all you're doing is seeing an occasional headline. It's your whole opinion of the Supreme Court. When you ask about individual justices, I don't think this will surprise anyone, but like the amount of it will surprise people perhaps. So three and four people haven't heard enough to have an opinion one way or another on Alito, Gorsuch, Kagan, even the most well-known justices, Kavanaugh and Thomas, the haven't heard enough is hovering just below 50%. Yeah. Thinking about politics and assessments of individuals based on public opinion polling is often such a waste. It's such a waste. So few people follow this with any kind of specificity. I'm reminded of a poll

from several years ago. Remember when American Idol was really popular? More people knew that Randy Jackson was a judge on American Idol than knew Justice Roberts was Chief Justice of the United States Supreme Court. I mean, and it wasn't even close. That sounds right. So Patrick Graffini over at Echelon Insights, he was talking about a totally different poll. And he was talking about basically the trend in Latino voters away from Democrats. But his overall point was really

interesting, which is that people see, for instance, folks who had a strong opinion about the Dobbs decision then turned out to vote in higher numbers. And everyone thought the causal direction was Dobbs led to higher turnout. And he was like, no, no, it's the other way. That if you're a low information voter and you're asked what issues you care about, you're more likely to pick a perennial everyday part of your life issue like the economy, gas prices, inflation. news, watching MSNBC, they're more likely to name things that are then niche issues getting over covered by those outlets like democracy in danger, extremist MAGA Republicans, or DOBS. So the causal connection actually goes the other way. High information, high propensity turnout voters are more likely to say that the issue they care about is Dobbs. Same thing with the Supreme Court. It's a little bit of tail wagging the dog when you ask people

and Supreme Court voters, which is also all to say everyone listening to this podcast is in a wild minority of Americans. This podcast could get enormous. Not to say that it isn't already enormous, but it could get to enormous and still not even be a rounding error in the wider public's understanding of the Supreme Court. Okay. Last topic I wanted to cover today, we talked about the ProPublica piece around Justice Alito, and there were two parts to that. The first was that Justice Alito did not disclose that he had accepted a private plane flight from a guy named Paul Singer.

They went on some sort of Alaskan fishing trip together. And the second is that he didn't recuse himself from a case that sort of tangentially involved Paul Singer, although Paul Singer was not listed as a party to the case or in any of the conflicts things. And David, we got a lot of feedback on this and I just want to revisit it for a second because I'm going to put the feedback in a few buckets here. Okay. The first bucket is you guys are bending yourselves in pretzels to defend Alito because he's conservative. You would never do this for Kagan and Sotomayor. Do you know how I know that's false? Because we've literally done it for Kagan and Sotomayor. So if you're new to the podcast, and by new, I mean,

like you've only listened to one episode, I will revisit the Kagan and Sotomayor issues. So, uh, Kagan and Sotomayor issues. So Justice Sotomayor was paid $3 million since 2010 by Penguin Random House. They then had multiple cases in front of the Supreme Court where she did not recuse herself. I highly disfavor recusals. You can play a lot of games with it. And when you're talking about only nine people,

those games can really then mess with the court. Now, why did I not think she should recuse herself when she's getting $3 million? Oh my God. Well, because that was contractually owed to her. The outcome of the case did not affect her financial interest. That's why I didn't think she

should have to recuse herself. Justice Kagan, for instance, taught at Harvard. They paid her money for that. She did not recuse herself from the Harvard affirmative action case. Same exact thing, nor should she have. That was money owed to her under a contractual obligation. The outcome of the Harvard case makes no difference to whether she has paid that money. She doesn't have a fiduciary interest in the out, uh, financial interest in the outcome of the case. So the idea that I wouldn't defend liberal justices doing this, um, yep. You're falling on deaf ears with me there, David, any thoughts on that? So, yeah, so this is sort of generally, okay, once you get into objectively,

did Alito violate court ethics? And if the answer is he did not, then you're in subjective land, which is how icky is this? How, what are, you know, sort of how do you feel about it? And this is where I have some disagreements with some of the allies of Alito and Thomas, et cetera, and disagreements

with some of their most severe critics. Look on their most severe critics, if they're not violating the rules of ethics, then your real beef is with the rules of ethics here. Which have been changed. Which have been changed. Now, where I am departing from the most zealous defenders of Alito and Thomas is, I still don't like a lot of the underlying practices, which guess what? It's one of the reasons why the rules were changed. In fact, maybe I could say I'm so right

that the previous rules were wrong that the proof is in the pudding that these rules were changed, that it created a problem. It was inherently a problem that required a solution and we have this solution. So it is not unfair to say, hey, I saw that as a problem.

And guess who agreed with me? The court, because it changed the rules. Yeah, I'll put this in bucket number two, which we've called the ick factor. David Latt has sort of sided with us on this in his newsletter, original jurisdiction. I want to put a little more beef behind the ick factor though, which is this.

One of Justice Alito's defenses is that he didn't even know who Paul Singer was. This, you know, like dude he barely knows offers him a seat on his private jet out to this fishing trip. Okay, why is someone you don't know offering you a seat on their private jet because you're a supreme court justice maybe like that's you know that's very different than the harlan crowe thing where they're long time friends i don't know that that's the defense he thinks it is now david to your point about disagreeing with the most strident critics this idea that he was trying to hide it from disclosures. Nope. He talked about it in interviews before. There were other judges on the trip who did disclose it because lower court judges have different ethical rules.

So like the trip was well known. That's how ProPublica found out about it. If he was trying to hide it, he didn't do a very good job talking about it publicly in interviews with David Lapp, for instance. Okay. So I got this idea, though, from a very smart lawyer. And I wanted to run this by you, David. He's got a few solutions here. One, he agrees these guys didn't do anything impeachable. And therefore, there's nothing to particularly do here.

The beef is with the code of ethics. He says, clearly the judicial code of ethics needs teeth. It needs enforceability. How about prohibit gifts beyond a certain yearly amount, a hundred dollars, no exceptions except from close relatives. That's number one. Two, what about a disciplinary board like there are for all other jurists, state and federal judges, perhaps a heightened majority needed to sanction to ensure no ideology plays a role, but some enforceability aspect to it. So increase the rules, increase the enforceability. And then this is the one, though, David, like I'm pretty sure whatever.

I guess I don't care that much about that part of it. I think by and large, the court is actually okay on this. Here's the one that I really like. I disfavor recusals because you have only nine people. You can play games with it. You can add on potential plaintiffs. You can add on potential lawyers, all just to get a judge that you don't want recused off a case. That should be disfavored. His idea. That if a justice is recused from a case, first of all, yep, more recusals.

And when a justice is recused from a case, there is a random drawing of a chief judge from one of the circuits to sit by designation for that case. Love that idea. Interesting. Because it also means that, you know, part of it, I think the complaint is you think these people aren't recusing because it means they'll lose one vote for their team. I don't think that. I think it's because overall recusals are disfavored, like I've said, because the people bringing the case can play games, not the people hearing the case. But regardless, this does fix that problem.

Now, it's not going to fix it for everyone because the circuit courts aren't created equal, the chief judges aren't created equal, but chief judges at the circuit court level are picked from the most senior judge on that circuit. So it won't be that, well, the Fifth Circuit's really crazy conservative, so that's always going to be a conservative. Nope, it's going to be whoever's basically been on that court the longest. And it'll be randomly drawn from all of the chief judges. So there's sort of a double randomness aspect to that. I don't know. I really like that solution. Yeah, I'd like, that's very intriguing. I like that solution. That's some

good creative thinking there. I appreciate that. I still disagree with people who think, you know, we got a lot of, of course, Alito knew Paul Singer was involved in this case. It's like saying you don't know that Mark Zuckerberg is involved in Facebook. A, I disagree, but B, it's not just the justice. The justice isn't going to see this case until the very end of the train tracks. You're talking about court personnel who actually put together, like match up the interest list with the recusal list. Then you're talking about clerks. So a bunch of 26 yearyear-olds to 28-year-olds, maybe 30-year-olds who are going to need to know it. Then it finally gets to the end of the line

and a justice sees it and like, okay, so you think the Mark Zuckerberg or Elon Musk examples are easy. What about all of the other people out there in the world who have some hedge fund or interest and you've seen them at a thing or whatever, this idea that you're going to know the name of every organization they're involved in

that's not listed on the financial interest list that is matched up with the conflicts and the recusal list, sorry, then make that conflicts list more inclusive. Your problem is with the rules, not with everyone should already know this, which is just not a standard I think is even, like it doesn't pass the laugh test for me.

Yeah, yeah. Sarah, can we do one more Supreme Court thing real fast? Absolutely. Super fast. So we have followed and talked about charter schools and our charter schools, public schools. And just this week, the Supreme Court refused to hear an appeal from a Fourth Circuit en banc decision, which is the leading decision

currently saying that, yes, charter schools are state actors. And this was a case we talked about where there were dress codes that required women because of what? Their delicate status? Was that the word, Sarah? Their delicate status? Fragile. Fragile vessels. Fragile vessels. Because women are fragile vessels, they had to be in skirts. And so, there was a challenge to the dress code. Skirts are skorts, I believe. And there was a challenge to the dress code. And the Fourth Circuit said these charter schools have to be analyzed under a First Amendment framework because they are state actors.

And this is directly relevant to this Oklahoma charter school situation we've talked about where they have, Oklahoma's recognized a Catholic charter school. And the question is, can you have a public Catholic school? And the question is, can you have a public Catholic school? And the defense is, well, no, charter schools are not public schools. So the Supreme Court in refusing to hear the en banc appeal is not definitively in any way saying that charter schools are state actors.

It's simply leaving in place the Fourth Circuit's on-bottom determination that they are. So in the Fourth Circuit, they're state actors. As of right now, we don't have a national clarification nor one coming anytime soon as to whether charter schools are state actors.

But Oklahoma has very clearly stated that charter schools are public schools. So if it's a public school, how is it not a state actor, Sarah? So that's where we are. Yep. And this will get to the Supreme Court in a term to come. But, and this is another, I think, very reasonable beef with the Supreme Court,

which is on, they believe they are not a court of error correction. Which, of the people who even follow the Supreme Court, I think most of those people would believe that the Supreme Court takes cases that they believe were wrongly decided below. Nope, they in fact say quite specifically that is not what they do. Issues of big public importance

or circuit splits are really the only cases that they say that they take to resolve circuit splits. But David, they're not resolving most circuit splits. Most circuit splits sit out there for a long, long time, like we saw with gun issues, for instance, after Heller and McDonald. So look, on the one hand, I am zero surprised that the Supreme Court didn't take this case. It's bad facts. And they don't like bad fact cases. The fragile vessels nonsense. They're not taking that mess. was asked at his confirmation hearing whether he believed that the court should do more to resolve

circuit splits. And the chief justice said that he personally would like to resolve more splits, but didn't want to come onto the court with the justices angry at them for committing the court to some, you know, angle. And in fact, the court has been taking fewer and fewer cases. Look, I think the court should be taking more and more cases. We don't need 137 page opinions for every single case with five concurrences and 12 dissents and all these different machinations that are, you know, somewhere closer to advisory opinions, perhaps on the spectrum. spectrum, take more cases. Actually do some error correction, but at minimum, take all the circuit splits. I get why you want it to percolate at the

circuit level, let the smartest judges work this all out, see what all the different machinations of the facts could be before you take it. I get all that. But at the end of the day, so few cases, damn it. Painfully few cases. As bad cases So few cases, damn it. Painfully few cases. Yeah. As like bad, you know,

cases that are wrongly decided sit there and linger for a decade sometimes as circuit splits percolate. Take more circuit splits, maybe do a little error correction. More cases. Agree. More cases, please.

Add clerks. You know, put more manpower into it, but more cases, more cases please add clerks you know put put more manpower into it but more cases more cases totally agree with that all right well we've got a few more good ones to come we do indeed see you soon Oh, oh, oh Oh, oh, oh