Advisory Opinions - Should Judges Get Political?

Episode Date: May 16, 2024

Do judges have an important role to play in society beyond judging? Judge Lee Rudofsky takes the affirmative, while Orin Kerr disagrees in this special AO episode debating this topic. Sarah and David also discuss the latest SCOTUS cases. Show Notes: —Judges write letter saying they won't hire law clerks from Columbia —Kerr: Do Judges "Have an Important Role to Play in Our Society" Beyond Judging? —Code of Conduct for United States Judges —Staying Off the Sidelines: Judges as Agents for Justice System Reform —Appearances by Sitting U.S. Supreme Court Justices at Congressional Committee and Subcommittee Hearings (1960-2022) —Drops in Jewish enrollment in elite universities —CFPB v. Community Financial Services Association of America, Limited —Are tacos and burritos sandwiches? Learn more about your ad choices. Visit megaphone.fm/adchoices

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["I Was Born Ready"] Welcome to Advisory Opinions. David, it's the advisory opinions everyone's been waiting for. It's the... Wait, do we have a good name for this? We don't. I mean, I've been thinking so hard. I was like, you know, something to match Thrilla and Manila, the war on the shore, you know,

the great names of the boxing matches. And there was the legendary debate in September 2019 between me and Saurabh. That was the melee at CUA. That was a stretch. No way. That's that's like Ali Foreman. Right. Uh huh. And there's just nothing good that rhymes with pod. Right. We're going to have to go with rumble in the A.O. jungle until commenters give us better stuff.

So please do. We will talk about the CFPB decision coming out of the Supreme Court. 7-2, Justice Thomas coming in on his white horse to save the CFPB. I bet they didn't see that coming. Brings up my whole like, what is a big case of the term? Because that one should feel pretty big. of the term because that one should feel pretty big. And some various ensundries, but first, we're going to have a actually pretty formal debate between Judge Lee Radofsky and Professor Orrin Kerr. They are both friends of the pod. They've both been on before, so I'm not going to belabor the introduction.

Guys, we have agreed to the rules ahead of time here. We have a question presented. You are each going to give three-minute opening statements, and then we will open it up to the bench. There are only two judges on this bench. It's me and David. And then you'll have time for closing statements. So the question presented, do judges have an important role to play in our society beyond

judging? Judge Rodofsky, you took the affirmative. The first thing I want to do is say thank you to Sarah and David. This is so boring. You're wasting your three minutes. The clock is already going. The clock is going. I win. I win. I want to say thank you to Sarah and David and to Professor Kerr for doing this. Sarah and David, I think hosting this is actually a really big deal.

I think it's an important discussion. I think there are fair and reasonable arguments on both sides. And you all are giving us a very large forum with a very large audience of what I think are persuadable people either way to do this debate. So I appreciate that very much. To Professor Kerr, I wanted to also thank him for engaging in this debate with me. I thought his Vala Conspiracy post, which was entitled,

Do Judges Have an Important Role to Play in Society Beyond Judging? Sounds just like our question presented, was a really good and thought-provoking post. It was super reasonable, very respectful, and I think it requires further debate, and that will benefit everyone else. On the question, I wanted to say three quick things, or fairly quick if you know me, before I turn it over to Professor Kerr.

The first thing is a sort of disclaimer. I know that this question hasn't just sort of come out of a vacuum. It's arisen in the context of more than a dozen federal judges deciding to temporarily stop hiring Columbia University graduates as clerks, because in the words of those judges, Colombia has become an incubator of bigotry and thus disqualified itself from educating future leaders of our country. What I wanna make clear is I'm not here to debate the merits or demerits of that particular judicial boycott.

I think there are strong arguments on both sides. I haven't formally joined that boycott. I also haven't formally said that I'm not joining it. I really wanna talk about the more sort of meta question that I think I posed in my comment and Judge Kerr picked up on in his post, which is whether judges have any important role to play at all in society beyond judging.

And that leads me to, I guess, my second point, which is that the judicial canons certainly presuppose that judges have such a role to play. In fact, the judicial canons seem to, at least on my read of them, encourage judges to play such a role. Although certainly a judge has to be careful to avoid partisan or political activity, for example, under Canon 5, it's clear from Canon 4 that that does not mean judges can't engage and take a leadership role on speaking, writing, teaching,

testifying service on public commissions, serving on private boards, and doing other things for the betterment of society, including engaging on what I'll call social or societal issues. What I'd like to do is just highlight two parts of the commentary here from the canons, the official commentary. The first says, complete separation of a judge from extrajudicial activities is neither possible

nor wise. A judge should not become isolated from the society in which the judge lives. As a judicial officer and a person specially learned in the law, a judge is in a unique position to contribute to the law, the legal system, and the administration of justice. It says more than that, and we can talk about it as we get into this debate, but it essentially exhorts judges and counsels judges that they can take a part in a wide range of non-law related activities and law related activities, and that they should do so. The second commentary that I'd like to bring up perhaps is more relevant to, I guess, the

specific issue we're talking about, and that's the commentary to Canon 2C. Canon 2C talks about a judge not holding membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin, but I really want to hone in on the official commentary to that canon, which talks about in lieu of a judge race, sex, religion, or national origin, but I really want to hone in on the official commentary to that canon, which talks about in lieu of a judge resigning from such an organization,

a judge can, quote, make immediate and continuous efforts to have the organization discontinue its invidiously discriminatory practices. I just want to repeat that for a second. That canon contemplates judges making continuous efforts to oppose invidious discrimination by private organizations. I'll go on very quickly to my third point. I know that I'm running up against the time limit and my third point is that throughout the last 200 years, and certainly in the modern era of judging,

the last 60 to 70 years, there has been an enormous amount of times that judges and justices have taken positions on important hot-button issues in front of Congress. I think 170 times since 1960. Justices have testified, sitting justices have testified before Congress. Lower court judges have also taken positions

in congressional testimony on things like splitting the Ninth Circuit, on the need for more judges, which are clearly hot button issues. Judges serve on the United States Sentencing Commission. Supreme Court Justice Robert Jackson went and prosecuted the Nazis at Nuremberg without resigning from the United States Supreme Court,

certainly taking a side on a hot button issue. I don't wanna belabor the point because three minutes is only three minutes, but my point is that judges do this often. They are expected to do it often. It is not a bad thing and we should not shy away from it. Although certainly we should be careful that when we do it, it doesn't run into political or partisan activity. Impressive, Judge Rodofsky. Over to you, Professor Kerr.

All right, so my answer to the question, do judges have an important role to play in our society beyond judging, is no. And here's why. Judges should stick to judging. Judges are not overseers of our culture or monitors of our politics to borrow from learned at hand. They are not a bevy of platonic guardians or should not be a bevy of platonic guardians.

Judges play an important role in the law, certainly. Judges are nominated and confirmed to serve certain judicial posts and to have certain judicial power. But I think it's a mistake for judges to think, oh, well, now I have this important role in the law. That frees me to go out and look for injustices that I identify in society and address them and take them on. I think the challenge here is one that Judge Rudofsky flagged, which is it's very, very easy for that instinct to turn into politics.

I think the best example is the one that really started this whole discussion, which is what's the role of judges with respect to what's going on on campuses, universities across the country with respect to protests over the war in Israel and Palestine? You know, there are two different ways of looking at the university's roles in this situation. One is that the universities are, we're seeing a lot of anti-Semitism that the universities are not taking seriously enough. The other is that universities are playing a role in genocide of the Palestinian people. Those are two opposite views of what's going on in terms of the university's role and what

do you know they happen to map on pretty cleanly to the conservative perspective and the liberal perspective. And so for judges to look at what's going on on campus and to say, my view of this broader role in society leads me to take a side in this and to say, that's the real story of what's happening and I'm now going to take action using, in the context of the boycott, like my official role as a judge to take steps to try to change campus cultures or influence

campus cultures, it just too easily takes on a political role. And I don't think it's a coincidence that in the context of the boycott, every judge who has signed on to the boycott is a Trump appointee. You know, that is reflecting a certain background and a certain mindset and a certain view and a certain politics. And I think when judges become judges, they should say, listen, I'm not going to be in the political realm anymore.

I'm leaving that aside. And it's just too easy for judges with that broad sort of attitude about, you know, let me see what injustices in society I can change, for them to move into these sort of hot political areas, even if in their own mind, in absolute good faith. I can't stress more importantly, this is judges acting in good faith. They're trying to address injustices and that's great. The problem is that since we're all seeing the world from our own perspective, we'll identify injustices and that's great. The problem is that since we're all seeing the world from our own perspective,

we'll identify injustices differently and that just bleeds into politics too quickly. I did want to address Judge Rudofsky's point that, judges do have a role to play in law reform. There are certainly judicial canons on what judges should and should not talk about. I think if judges want to write law review articles or give speeches about law reform, certainly judicial canons on what judges should and should not talk about. And I think, you know, if judges want to write law review articles or give speeches about

law reform about, you know, I think Judge Rudofsky mentioned, you know, should the Ninth Circuit be split? By the way, the answer is yes, but that's beside the point of this. Should there be more judges? All those sorts of questions. Those, that's fine for judges to weigh in in their personal capacity, saying this is my personal judgment of that. These are areas specifically within judicial expertise and they're acting in their private capacity when judges weigh in on

that, that's fine. I think the challenge is to then say I have this official role as a judge, I have a government power to hire law clerks in the context of boycotts, or I see what's going on, I go on Twitter and I see these things that make me really upset, and therefore I identify those injustices. That I think is just too far removed from the judicial role for judges to take on without entering politics.

So that's, it's really just a classic law politics distinction, I think. So judges should stay in their lane and stick to judging and leave the campus politics and how universities are dealing with all those issues and all these other broader societal questions to those that are out there, to politicians, to the political world where these issues should be resolved. Let me start with a question for Judge Rudofsky. I'm very sympathetic to the notion that judges, for example, as part of their profession and

part of the work that they do, they're going to have certain kinds of insights about the judicial system more broadly, about the functioning of the judicial system that are, they're unique. They're going to be different insights than lawyers or judges. I mean, that even lawyers will have, judges will have insights that even lawyers they're unique. They're gonna be different insights than lawyers or judges. I mean, that even lawyers will have, judges will have insights that even lawyers won't have. I am curious as to how far that goes. What is the judicial insight, for example, that is unique surrounding recruiting from law schools,

for example, because one of my concerns is that you would be imposing a penalty on people who are coming into law schools with a variety of different preferences and reasons. Maybe they need to be home close to a sick parent, and that Columbia, for example, is the best school that they could get into that's close to them. Or maybe they're just not on Twitter. There's some people who are not and they don't

follow all of this. And so how far does this go, Judge? How far beyond sort of the core competency of the judiciary does your principle extend and how does it as a practical matter extend to these students' choices? I think it's a really, really good question, David. It actually dovetails with something that Professor Kerr said in his opening. It really strikes me that this is a question between having a black and white rule and the advantages and disadvantages of having a black and white rule versus having a bunch of gray area, which lets judges have some freedom to be involved

in societal issues and social issues and community issues, but then says, judges, we sort of respect your ability or we have confidence in your ability not to go too far. And of course, the devil is in the details. We all may well disagree about what too far is. I guess my response to Professor Carr, and then I'm going to answer your question more directly, David, my response to Professor Carr on that is what we lose by having a sort of window around our ethics canons or a fence around our ethics canons and saying, you know, black line here and no further is probably worth more in my view than what we would risk by having a sort of gray area,

right? So I think the black line rule actually cuts out a whole lot of things you want judges to do. And the gray area rule does not pose as great a risk as Professor Kerr does. But specifically to your question, David, again, I'm not here to defend the particular boycott, but what I will say is I do think that if, for example, a law school was refusing to hire black students, sorry, refusing to admit black students, or refusing to admit Jews, or refusing to admit

Palestinians, I do think that a judge would be able to say, in an attempt to put pressure on that school, fine, if that's what you're going to do, I'm not going to hire any law clerks from your school until you change your practices. Now, of course, there are other ways that the law would perhaps get them to change their practices or consequences for them not changing their practices. But that doesn't mean that it would be wrong for judges

to take that stand. And so the question you're asking, I think, is a degree question, which is, well, is it right to punish the law school and not the actual clerks? And I guess my point is that's not what I'm here to defend. I'm here to defend the idea that judges should do the former, whether or not they should do, should do what I was talking about in the sense of stopping a school from not admitting black students or Jews, whether or not this particular boycott sort of has used the

right tactics or not used the right tactics. So that's really where I'm coming from. Okay. Professor Kerr, I want some clarifying questions for you before we jump into it. One, you're not arguing that, for instance, this Columbia boycott has run astray of any judicial ethics rules. You know, Judge Rudofsky was talking about the canons.

You're not arguing a law point, you're arguing a prudential point. Correct. Two, you're also not arguing that judges can't decide what schools to hire their clerks from based on what those schools teach. For instance, if a school, Koff Koff Harvard, stopped teaching constitutional law as a mandatory course and a judge is like, you know what, I'm not hiring clerks from a school that doesn't mandate con law. You don't have a problem with that per se, correct?

Also correct. So the issue is almost more the sort of public statement aspect of this, because in my con law example, if a judge didn't hire from Harvard for five years and the clerkship coordinator, whatever that person's title is, calls Judge

Rudofsky and is like, hey, Judge, we noticed you haven't hired any of our amazing law students for five years. And Judge Rudofsky says, yeah, no, and I'm not going to because you don't teach, you don't mandate con law. And I'm just not going to hire students from a school that doesn't mandate con law. You also don't have a problem with that, right? No problem at all. and date, con law. You also don't have a problem with that, right? No problem at all. Okay. So I just want to get to like sort of the nut of this.

Your issue is putting out sort of a letter for public consumption for the purpose of being part of this larger conversation, which you're deeming to be more on the political side. Is that a good summary-ish? Yeah, so I took us to be really focusing on the instinct that's driving the boycott, which is this idea of like, judges have a role in trying to influence university culture. They're consuming whatever media they're consuming and they're getting a sense of, you know,

something is wrong at these universities. I should do something. I should use the power I have to try to improve the universities. And it's that instinct that I think is problematic. I mean, I get it. I appreciate the instinct in terms of like, always trying to prove the world is always a good instinct. But the means of achieving the goal, I think of trying to use the government power and use the power that judges have by virtue of their judicial authority to hire in this context, to try to change that is just that should be out of bounds. Okay. So to be clear, the headline of this should be Oren Kerr says that people should

not try to make the world better. And then in fact, it's morally wrong to do so. I just want like, we make sure that that's the world better. And then in fact, it's morally wrong to do so. I just want like we make sure that that's the state ends. It's like when Justice Scalia would say the Constitution is dead. I'm not sure that's steel manning, Sarah. Sarah, can I jump in on that question? Yes. So I think here's where maybe the rubber meets the road. And I actually am not sure where Professor Kerr would come down on this because at one point I heard him say that it's okay for judges in their individual capacity to go talk to students.

But then obviously also it's not okay, in Professor Kerr's view, to sort of use the, I guess what I'll call the official sort of clerkship hiring authority of a judge to to sort of push social change I guess where what I'm coming down or what I'm having trouble understanding is Let's say that when I go to schools and do clerkship speeches, which I do I often go to different law students speeches, which I do. I often go to different law students' organizations and talk to them about what I look for in a clerk and what judges generally look for in a clerk. I guess if I thought there were a significant, and I'm not saying I don't, I'm just saying if I thought there were a significant sexual assault problem on campus, if I would take

that time to say, look, if you have committed or threatened to commit sexual assault, I'm not hiring you. And if I thought there was a violence-threatening problem on campus and I said, look, if you've threatened a fellow student, I'm not hiring you. And if I did that loudly and I did that repeatedly all of the times that I went to various student groups and my point was specifically to try to get students not to engage in that conduct, I think all of that would be perfectly fine. And to be fair, if that's wrong, I don't really want to be right. This is the Simpsons meme.

I accept your booze because I've seen what makes you cheer. Yeah, sort of. But between doing that and doing this boycott, I think is really just a difference in tactics. And maybe Orin thinks, and I don't know, Professor Carr, sorry, maybe Professor Carr thinks one of those is prudentially too far, one of those is prudentially not. My only point is, I think that's something valid for judges to do, whether or not one might think it's good tactics.

So there are a couple things going on there. One is, it seems clear that a judge can say, I will not hire a law clerk who commits crimes. I will not hire a law clerk who has committed any of these crimes or any crime at all. So that clearly is okay. And I think it's fine for a judge to say, listen, here are the kinds of people that I like to hire. And that could include politics as a part of that. A judge could say, like, I want to hire originalists,

or I don't want to hire originalists. This is what I'm looking for, I think is fine. Because that I take to be really an effort to try to just inform people as to here's what your standards are and what you are looking for. What I think is problematic here is more that sort of like, let, you know, I read the news and I think what Columbia is doing is good or is what Columbia is doing is bad. Let me see if I can change that. And here's maybe the scenario that we might consider.

Imagine a bunch of Biden appointees decided that they were not going to hire from a particular university because they thought that university was being too punitive to protesters. Let's say they called in the police and arrested people and that set of judges says I will not hire from a university that crushes dissent, that is so hostile to the Palestinian cause that they will not allow people to protest against genocide. Now, I think that's sort of, I think, the flip side of this. And you can imagine maybe we'll just have a world where, you know, the Trump appointees are over here and the Biden appointees are over there.

And it just, it seems to me that that's really, we're in the realm of like a judgment call as to what's the right way to balance all of these complicated factors. We're not in the realm of law, like you did something illegal, we're in the realm of like, here's what the best university policy is going forward. So, I think there is a line there between these,

and yes, there are scenarios that get close to where it's like, well, to what extent should a little bit of pressure be OK? Judges meeting with the dean of the law school saying, here are my concerns with your law school. I kind of think you're doing this one way and doing it. I think that is maybe the scenario where, to my mind, it gets really close to the line.

That's a private conversation. So it's not for public purposes. It doesn't create this concern of, you know, judges playing politics publicly, but it is also an effort to try to influence law school culture. And I think as long as it's really connected to the judge's actual hiring needs,

that legitimate interest in the judge doing the judge's job as best as the judge can, I think it's fine. It's when it veers into cultural change that I get uncomfortable. So let me ask you this, Professor, because I thought, you know, Judge Rudofsky made an interesting point about an extreme situation. So you have an extreme that we're not facing to my knowledge anywhere, but an extreme situation that did exist in the past, such as a law school not having not admitting black students, or a law school that maybe there's some evidence emerging that they are deliberately diminishing the number of Jewish students that they admit. We have seen some diminishing Jewish enrollment, for example, in some elite universities. Not some, like extreme drops.

Yes. So, we have seen drops in Jewish enrollment in universities. Does your principle extend to that level of extreme? Or is there a line in which it's so bad, so sort of universally bad that your hard rule kind of starts to crack a little bit? So I would deal with the hard cases, the extreme cases, by saying if it's really that extreme, someone else has been dealing with this problem and judges don't need to. And a really interesting example is the one, David, that you mentioned, the law schools that did not admit black students. That was a huge issue among the legal academy in the 1950s and the 1960s. The Association of American Law Schools had this debate over whether to ban

schools that did not allow black students, and they ended up having like a policy, like a goal, and they would try to put pressure on individual schools and this is obviously before it was, you know, legal as a matter of federal law to exclude black students. And so this was something that institutions were all grappling with to try to pressure the hold only, those leftover schools to do the right thing. You know, where were judges at the time? We didn't hear from them, as far as I can tell. They were not involved in these questions. And I think that reflects the reality that judges are not going to be leaders on these sorts of issues. They're going to be, reality that judges are not going to be leaders on these sorts of issues. This isn't their core area of expertise. This is something where they can follow along and have strong

views. But I think they can leave that to other institutions that are going to grapple with those questions. The fact that everyone else is going to be worried about the same thing that the judges are worried about means that those extreme issues are not likely to be something that judges have to do Okay, i'd like to play justice kagan now and give you each hypotheticals Uh john jordovsky would it have been inappropriate if it hadn't been a question of policies on campus? but rather The boycott was we will not hire clerks from Columbia unless and until the board fires the dean of the university. Would that have changed this for

you? As in, how many steps removed from the law students does it need to be? Because the policies of the school are not, of course, the law students. It's not even my example of them not taking con law. But this is even now one more step removed. Now they want the university president fired. Same reason, but it's actually more concrete. They're saying, we'll start hiring clerks again the second you fire this person. I guess it partially requires me to explain or to answer what I think of that goal.

I guess my point is, if that goal crossed the line to be too political or too partisan, then it's certainly something judges shouldn't be doing. If it didn't cross the line, which I don't think it crossed the line of partisan, I don't think that would cross a partisan or political line, which I don't think it crossed the line of partisan. I don't think that would cross a partisan or political line. The next question is, is that a good goal or bad goal? And I guess that's my point, which is I'm not defending the boycott letter in the sense

of do I think it was good or bad what they were trying to do and how they tried to do it. I'm defending the point that judges can take views on these things if they think they're the right views. And quite frankly, there has to be obviously some objective, reasonable check that they're the right views. But beyond that, I don't think it's a canon problem and I don't think it's something that judges automatically shouldn't do. I think it's a question of whether it's the right or wrong way to go about it. So Professor Kerr, on the flip side of that, would it have been, would it be more interesting

to you if it were a simple policy based? So it's not even saying which schools were boycotting. But we believe after the Supreme Court's decision in X, Y, and Z, let's say, that speech codes on universities that require compelled speech or deny someone's right of speech has been found by the Supreme Court to violate the First Amendment. Just assume that this case has just come down, right? Therefore, we will not hire clerks from schools that are still enforcing those speech codes, those things that the Supreme Court just said were unlawful. What about that? So this is, just to clarify, this is universities that are not following the law and have shown that they don't want to follow the law just as a matter of university policy.

The Supreme Court decision just came down this morning in my hypothetical, so they haven't thumbed their nose at anything. But the judges are hot out the gate and they just come out with this letter as a way to sort of provide some oomph behind the Supreme Court's decision. Just in case the nine didn't get their attention, maybe Judge Rudolfsky will. Yeah, I think I have the same instinct to this that I brought to the big picture, which is judges should not do that. Universities, I mean, universities obviously

have a legal obligation to comply with the law, and there are legal means of ensuring their compliance. And obviously, if a case comes before a judge, they should decide that case under the law. The question here is whether judges should be sort of like picking universities and watching them and firing off letters and like, aha, let me sort of monitor what's going on on this campus or that campus. And I don't think they should be trying to do that. I think judges, one

aspect, although I think this is all coming out of the sort of, I appreciate the instincts behind this, it's all the right sort of the heart is in the right place. You know, judges are not going to be very good at this. They're not going to be able to tell what a university is doing. And so I just think judges should just, they've got their docket and they should decide their cases and it's an incredibly important public service. It's an extraordinary power and they should stick to that and leave university compliance with recent Supreme Court decisions

to general counsel's offices and enforcement mechanisms in the law. – So it's interesting, this discussion reminds me of the debates that universities have about institutional neutrality. So you have, for example, on the Chicago side of things and the Vanderbilt side of things, we have they adhere to these Calvin principles or the Calvin statement that is essentially, we're just neutral. We're neutral on these matters that are occurring. There are individuals within our organization who are going to be able to be,

who are going to invest in the issues, but as an institution, we're gonna be neutral. And then you have what most universities do, which is they get off the sidelines sometimes. But then when they do, it often creates an expectation that you're always going to need to be off the sidelines. And one of the examples is, after the Ukraine invasion by Russia, Harvard puts up the Ukrainian flag. And so then the question is, well, after 10-7, are you going to put

up the Israeli flag? Or maybe some others later on would say, you've got to put up a Palestinian flag if the dynamics of the conflict shift, etc. So the question that I have for you, Judge, is the classic slippery slope question. How do you control for that? Do you have a, in your formulation, is there a rebuttable presumption of non-interference? In other words, the default is sort of, we're out, but there are certain sets of facts that rise to a certain sort of level of importance.

But what's the limiting principle? Because it strikes me that the next thing that happens is every major law school controversy will then be accompanied by the call for the judicial letter. I think the limiting principle really is canon five, which is don't get involved in political activity, don't get involved in partisan activity. I think that is the line and where the line is drawn. I think if you are doing things that are below that line,

meaning not partisan or political activity, you are fulfilling your role as a community leader. And do you have to take on every particular issue? No, you don't have to take on every particular issue. None of us really do. But I guess what I want to stress, and what I think maybe has been missing a little bit, and perhaps it's my fault from the debate, is when judges talk about splitting the Ninth Circuit, when judges talk about criminal justice reform, or when judges

are on the sentencing commission making policy or suggesting policy, or when judges go out and speak about speaking to law students and lawyers about the merits or demerits of originalism and textualism versus purposivm or versus common good constitutionalism. We're not doing that just to listen to ourselves speak when we talk about the importance of civility, when we talk about the importance of civics education. We're not just sort of dispassionately talking about those subjects. We're actively trying to convince people of those things.

And you can talk about those in one sense as, oh, well, they're related to law, but one person's sort of related to law is the other person's politics. I mean, I think if you had people who knew what they were talking about and put them in a room and asked them if splitting the Ninth Circuit is a political question, you'd get 10 out of 10 people saying, of course it is. And so my point is those lines already have to be drawn. And I understand Professor Kerr's point that, well, at least it's sort of somewhat law-related and somewhat law-reform-related.

But to be fair, hiring clerks is law related. How law schools should teach clerks, what law schools should teach clerks, how the next generation of lawyers should be taught and what principles should be imbued in them, that's related to law and law reform. So I think all of these questions already exist and I don't think this letter or the impetus behind this letter

or the meta question that it's brought up really changes what has gone on for decades. And with that, let's move to closing statements. What's her time limit here, Sarah? What's her time limit? I think we said like 90 seconds. Like, we're just going to, you know, wrap it up. Put a bow on it.

I'm going to hold up a red Coke can is the red light. This is all very serious everyone. Judge Rudofsky, we begin with you. We're going to end with you as well. I am hopefully not going to take 90 seconds because I know I took more than the three minutes at the beginning. What I'm gonna do here is quote from then Michigan Supreme Court Justice Justice Bridget McCormack.

She was from Michigan Supreme Court. And she said in an essay in the Yale Law Journal in 2021 that I found particularly striking the following. When most people picture judges, they see us wearing robes and making decisions in a courtroom. Of course, administering the law is our primary role, but it is not our only one. As firsthand observers of the flaws in our legal system, judges are uniquely positioned to help fix them.

The ethical rules governing judges do not preclude such advocacy. To the contrary, ethical rules and their accompanying moral concerns require it. Judges do themselves and their communities a disservice by invoking judicial ethics rules and norms to avoid engagement in law reform where their insights and experiences are critical." I hope you all think hard about that statement from the then Chief Justice of the Michigan Supreme Court, who I don't know but I suspect does not come from the same judicial ideology as me.

And I hope you think about it hard in the following context. The commentary to Canon 2 already takes a position on invidious discrimination and sets judges clearly against it. And so I certainly don't think there is a problem with judges taking on a role in society that has them pushing back on invidious discrimination. Of course, what you see as invidious discrimination versus not may change and some people will see it where others don't. But as a general matter, I think judges engaging on important issues like this one in society, especially where we're talking about rank discrimination, is worthwhile and important. Professor Kerr. I want to go back to something, David, you drew a fantastic comparison between universities

and the Calvin Report and institutional neutrality and the debate we're having here. And I think you're exactly right. It is the same debate. It is about narrow institutional roles and not veering off into the realm of politics, even when it feels like it's just saying the right thing about a matter of justice. Really, we're talking about institutional roles and the importance of institutional roles. And I suspect your views

on these sorts of issues do largely stand and fall on your sense of how important institutions are. It seems to me the institution of the judiciary is so central and so important, and that our trust in the judiciary is so central and so important, that we really need to be incredibly careful about safeguarding that trust by making sure judges don't take positions which could be perceived as politics. So this is something where just as a matter of prudential wisdom, being as careful as possible and making sure judges don't risk that reputation is really important. I wanna just conclude by thanking Judge Rudofsky.

It's been a delightful exchange. Thank you so much, Sarah and David for hosting us and back to you. I feel like I have a lot to chew on, David. I do too. I do too. All right. Thank you both so much for joining us and really for taking this seriously. And I think there's a reason that this is not a blowout one way or the other.

I think both. Is it possible for both of you to be right? Now Sarah, this is you cannot leave the judicial role behind here. This is not the way, I've never been in front of a judge where they say, both of these summary judgment motions are just so well done, granted. Sarah, Sarah, let me help you out here.

You can definitely hold motions in abeyance if you'd like to. Don't you just take the matter under advisement and call it a day? There you go. Take it under advisement. Can I just also say thank you to, again, Sarah and David, but most importantly, thank you to Professor Kerr. I really appreciated this debate and I appreciated him accepting my invitation to do it. I do think it's an important issue and I think it's an important issue to be able to talk

about civilly and reasonably. And I really liked having Professor Kerr as a debating partner. Likewise to you. I think your students and your law clerks are both very fortunate to have you both. Absolutely. So with that, go away. Well, David, that was a really fun conversation. I truly agree with both of them.

So I don't know what to do about that. So I, okay, I agree with, even though I'm the one who brought the Calvin report up and Judge Kerr, Professor Kerr, enthusiastically jumped on it. I think I'm with Judge Rudofsky overall, but I have a high bar you have to pass before you're gonna get off the sidelines. Like, I was- Yeah, I mean, that's how I think they're both right, right? I mean, I guess that makes Professor Kerr wrong,

but only in the most extreme situations, the most obvious, like, and his point about, for instance, all the judges on the letter being appointed by the same president, sharing the same sort of judicial, ideological bend, et cetera, like that's not lost either. You know, but I'm so glad it wasn't, our debate wasn't about that letter in particular, because I think it made it a much richer conversation than just like pinging back and forth on fricking Columbia Law School.

Yeah. Okay. Yeah. With that, let's move to this CFPB case. Before we do, I just want to remind people how decisions are going to come out from the Supreme Court. So, first of all, the Supreme Court does not tell us what decisions are coming out, but it does give us advanced warning of when they're coming out.

So, between now and the end of term, which is usually the last week of June, but it can extend if there's still decisions that need to come out. The Supreme Court has already told us that they will be dropping decisions Thursdays at 10 a.m. with the exception of June 18th, which is a Wednesday because June 19th, the Thursday, is a federal holiday. As we get sort of further down the line, they will start adding decision hand-down days and then it's just a chaos grab ball emergency podcast situation. But now that we're in the Thursday hand down world, we are going to change our podcast taping schedule

to try to grab as many of those Thursday hand down days as possible. So I know many of you are creatures of habit. So I'm just telling you now that podcasts are going to come out on Fridays instead of Thursdays a lot of the time probably for the next six weeks or so. Now we know the opinions come out you know Thursday at 10 a.m. let's say but we don't know what opinions and it's worth mentioning that opinions do not come out in reverse order of importance or anything like that. The reason that it feels like the quote-unquote big cases come out in the end is because opinions come

out when they're ready, when the justices are done writing them. And the quote unquote big cases take a really long time both to write but also that pinging back and forth as they respond to one another and the drafts and like, Whoa, the dissent said that I want to address that in my majority opinion. Actually, now I want to write a concurrence because we're taking this out of the majority opinion. All of those things take a lot of time. And it's like this soupy thing that ingredients keep getting added to

until frankly, the chief justice just calls time and the thing goes out the door that last day of the term or so. It does take a day or two to format the whole thing. So by the time we get it, the justices did have to put their pencils down a little bit before that. But overall, that's how it's going to go. Generally speaking, we're going to start getting pretty big cases on Thursdays. So this week, the funding mechanism for the Consumer Financial Protection Board doesn't violate the appropriations clause because Congress said that the CFPB would

be funded by the Federal Reserve and they could just, you know, take money from the Federal Reserve up to 12% of the Federal Reserve's budget for as long as they want forever and ever. Amen. Instead of here's 50 bucks, don't spend it all in one place kid, which is how appropriations, how we think of appropriations as generally working. It was decided seven, two, Justice Thomas wrote the majority opinion,

which I think surprises a lot of people, including me. Certainly surprises me that he's in the majority, definitely surprises me that he wrote the majority majority so much so that when I first saw it, I assumed that he might have joined the majority in order to narrow the decision, if that makes sense. Because if your side's going to lose, we have seen some hints in like past justices' notes that like if you're not the deciding vote you hop on to the majority to then help contain what the decision is going

to be chief justices have done this in the past for instance so I thought maybe it was that but as I read it I became wholly convinced that it's not he takes on the descent quite pointedly the descent is Justice Gorsuch and Justice Alito. David, I want to get to all of that, but the part of this decision that I think will have the most long-lasting impact on the law is the concurrence by Justices Kagan, Sotomayor, Kavanaugh, and Barrett. Are we seeing the emergence of a new block here blowing up my 333 court? Is this foursome trying to tell us something? And I'll read just a few sentences. Remember, this is Justice Kagan writing, as the court details that conclusion, the CFPB is correctly

complies with the appropriations clause, that conclusion emerges from the clauses, quote, text, the history against which that text was enacted, and congressional practice immediately following ratification. I write separately to note that the same would have been true at any other time in our nation's history. Long settled and established practice may have great weight in interpreting

constitutional provisions about the operations of government. And here, just such a tradition supports everything the Court says about the appropriation clause's meaning, the founding era practice. For over 200 years now, Congress has exercised broad discretion in crafting appropriations. Sometimes it has authorized the expenditure of a sum certain for an itemized purpose on an annual basis, and sometimes it has departed from that model in one or more ways. All the flexibility and diversity evident in the founding period has thus continued unabated, making it ever more obvious that the CFPB's funding accords with the Constitution. I would therefore add one more point to the Court's opinion. As the Court describes, the appropriation clause's text and

founding era history support the constitutionality of the CFPB's funding. And so too does a continuing tradition. Throughout our history, Congress has created a variety of mechanisms to pay for government operations. Some schemes specified amounts, blah, blah, blah. The way our government has actually worked over our entire experience thus provides another reason to uphold Congress's decision about how to fund the CFPB. David, I want to be clear, at this point, I don't care one bit about the funding for the CFPB or the appropriations clause.

That's not why that's interesting. Yes. Yes, it's fascinating, Sarah. So it's fascinating. First, let's deal with this a very quick thing. A lot of people say, Oh, originalism never creates outcomes that are at odds with the policy preferences of the judges.

I would seriously doubt given Clarence Thomas's overall ideology that he's in love with the CFPB as a concept. So this is an interesting example where I think actual originalism does lead to case conclusions that are not always in line with the judge's policy preferences. So that's a quick little point. I'm so fascinated by the way this court

talks about text history and yada, yada, yada. Because it's not exactly text history and tradition. So here you had Thomas saying, based on the Constitution's text, the history against which the text was enacted, and congressional practice immediately following ratification. That's not text history and tradition. That's a subtle change from those three words that were so prominent in Bruin. And then here comes Kagan in saying,

wait, it's text history and just this long established practice, which again seems like tradition, but it's subtly different from tradition. But it really does start to sort of seem like, wait a minute, is there a long history of congressional practice that can become almost like precedent? So you know, one way of thinking about text history and tradition is where you would say tradition read precedent, but not judicial precedent, like legislative precedent, long

standing legislative practice, practice would be the term for tradition. And I'm honestly not sure after reading this, if you're gonna talk about original miss text, history and dot, dot, dot, where the court is truly on the dot, dot, dot. And that's why I found this so fascinating, Sarah. It just, I think you could have decided this case

on text history, boom, done. But there's a lot of discussion of something else, long standing practice, whatever you wanna call it. And it's apparent to me that the court is still wrestling with this. And we'll see that wrestling more in Rahimi. But this was an opinion that seemed to be saying, we have not really settled

what text history and tradition really means, and we haven't even settled on the terminology yet. That, say, it's fascinating to me. And remember, Justice Barrett had previously defined tradition To sort of refer to court precedent that the tradition of the courts was X Y or Z Here she's joining Kagan's concurrence saying the tradition is How Congress applied this language over the course of the country's history?

Distinct from the history of the appropriations clause. So you sort of have textualism, history, originalism, and this is what I find fascinating. Tradition now looks something much more like an almost Justice Breyer-esque purposivism. Sorry, Nate just walked in the shot. Now we're distracted. Hi, Nate. Hold on.

It looks much more like a Justice Breyer purpose test or a practicality test, something like that, that generally conservatives have been against. It's not legislative history, but it kind of feels like a conservative form of legislative history in a way. Like a compromise. And it doesn't seem like, yeah, it's very interesting,

but it also seems like this case may have some difficulty, this reasoning may have some difficulty, this reasoning may have some difficulty translating into other cases. Because with this, I found the majority opinion pretty convincing and the concurrence pretty convincing that this idea that appropriation sort of has to mean the annual appropriations process and can't mean really any other kind of form of appropriation to be really convincing that if you go, the word appropriations does not by its natural meaning

imply an annual specific process. The definition of appropriations at the time didn't mean a certain specific kind of process. And then all of the long tradition and practice at Congress was not a specific kind of appropriations process. So it strikes me that this was kind of a unicorn type case where that text, that history, and that long standing practice all merged together, but that didn't apply.

It's much harder to apply that to say text history and long-standing practice when you're looking at the practices of the 50 states, for example, or all of the municipalities out there, which is what we began to see with the Bruin analysis. You were having, well, you know, in Wisconsin they did this and Wyoming they did this and Kentucky they did this and it really was kind of grab bag tradition. This feels more unicornish in that all of those things kind of came together

at once. So that's why I wonder about how well it's able to translate beyond this case. I'll say something else about this concurrence, which I think that one could read this concurrence as having nothing to do with the CFPB, very little to do with the text history and tradition test, and instead a for justice cut it the hell out to the Fifth Circuit and to any circuits, any judges out there at the appellate level or district level who are sort of entertaining novel theories of new challenges that have not really been happening at any point before. I think of this as my reverse low-hanging fruit

or the high-hanging fruit, if you will. Remember I said that I think conservatives were about to be disappointed with this 6-3 court that they'd already gotten their low-hanging fruit. That was Bruin, that was Dobbs, and now they were going to try for all this high-hanging fruit and the court was going to gnawdog them. This CFPB, maybe we can get rid of this agency we hate with an appropriations clause argument that's never been tried before.

I think this is a for-justice, hard gnaw dog to that strategy. And all the more interesting that you had the two liberal and two conservative justices joining it. So I I'm keeping an eye on that part. Oh, Sarah, this is the al hive mind because my next point was going to be this was the net the latest case that was gnawed dogging all of these conservative attempts to really hit reach goals. Overturning Roe was a reach goal politically, legally,

as I've said a million billion times, Roe was always vulnerable on its just raw reasoning and Casey were always so vulnerable. And then at a most basic level, Bruin isn't that much of a reach because it's keep and bear arms. And at its core, Bruin is the heller case except extend and not dealing with the keep part. It's the bear part.

And then it left a lot of things, a lot of things undecided, except this text history and tradition formulation that we've spent almost every podcast since Bruin talking about to some degree or another. But think about the other reach cases. There was a reach case against the Voting Rights Act, gone. There was the reach argument

about the independent state legislature doctrine, gone. There's this reach argument about the independent state legislature doctrine, gone. And there's this reach argument about CFPB, fails. And so it feels like exactly what you were saying, Sarah, that the court has now said again and again and again, if you're looking to us to be sort of the, you know, we're going to be the genie and the conservative Aladdin's lamp and I'm going to grant you some legal wishes. That is not what this court is. And I think it's very counterintuitive to a lot of people. And it's not a message, you know, post-Dobbs and post-Bruin that maybe a lot of folks on the left are prepared to be able to absorb yet.

But I think it's fundamentally true that this court is not in the wish-granting business and is making that pretty clear decision by decision. And I also think we'll see that with the Rahimi case as well. There will be a construction of the Rahimi case that is going to send a message to a lot of the Second Amendment world that, no, we're not going to be in the wish-granting business as much as you think on the Second Amendment either. So it is very interesting, Sarah. I found this case so fascinating.

And with that, we'll leave it there for next episode. I think we've got some cool stuff lined up. David, I want to convince you that Dobbs and Heller are the same case that came out opposite ways. And I want to convince you that a sort of consistent legal philosophy might need to treat them the same. And I want to clarify some stuff about the Trump charges. And who knows what else will come up between now and then. For instance, we're going to have to settle the age-old debate about is a burrito a sandwich? Legally, we now have conflicts between Massachusetts and Indiana judges. One holding that burritos are not a sandwich, the other holding that burritos are.

We will solve it here on the next episode of Advisory of Nations. Hey! Ooh, ooh, ooh! Hey! Ooh, ooh, ooh!