Advisory Opinions - The $2 Billion Dollar Case

Episode Date: March 6, 2025

David Stras, appeals judge for the 8th Circuit, joins Sarah Isgur and David French at the University of Chicago Law School to discuss complexities of case selection in the Supreme Court, the quality and clarity of judicial opinions, and disagreements with Justice Clarence Thomas. The Agenda: —Recent SCOTUS cases —Supreme Court denies Trump request —SCOTUS kicks bias response teams —Judge Stras' background from Holocaust survivor grandparents —Decline in Supreme Court cases —Cert pool theory —Professionalization of justices has changed the landscape of the court —Post-Rahimi decision-making Learn more about your ad choices. Visit megaphone.fm/adchoices

TD Direct Investing offers live support. So whether you're a newbie or a seasoned pro, you can make your investing steps count. And if you're like me and think a TFSA stands for Total Fund Savings Adventure, maybe reach out to TD Direct Investing. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and we are live at the

University of Chicago Law School, home of a cafeteria that would otherwise be depressing except for all the Rothko art. What is Rothko art? Oh David. Mark Rothko is a very famous painter and has these sort of color-based pieces of art that cause one to reflect and meditate. In fact, in Houston, the number one place that I tell people to go is the Rothko Chapel. It is a very small, round room and the entire wall of which was painted by Mark Rothko. And it is a wonderful template of space in Houston, surrounded by all the not contemplative space

that is Houston and its lack of zoning. Nine seconds in, I've already learned something. This is a good plot. So I went to Northwestern undergrad, but my best friend from high school went to the University of Chicago. So I was on this campus quite a bit. And you tell the story about all the time

about how you grew up not knowing pronunciation of certain words like for sales. So there's a famous restaurant here that I love going to when I went all the time that I called the Medici. And what is it? I think it's correctly pronounced Medici. Medici, okay. Yeah, but that was- Lots of learning going on. Okay, thank you. The funny is that these University of Chicago kids kept correcting me and I kept being like, ah, pretty sure I'm right, thanks.

I go with Mark Lester and so obviously, yeah. Anyway, we are here today with Judge David Strauss of the Eighth Circuit, and we have so much to talk about with him, but David, we have gotten very behind in our podcasting. We've had so many special guests and so many fun events that we have opinions and oral arguments that we haven't discussed yet.

We will do so on the next podcast, but I just wanted to run through both to commit ourselves and embarrass ourselves of what all we have to do on the next podcast. So we had the San Francisco EPA end results, limitation on water pollution with Barrett's doing with the liberals in dissent. It's amazing opinion. Glossop. That's our death penalty guy who keeps coming up and keeps going back down on the poo violations. Barrett's concurrence, and now I'm just turning,

I'm like a real Barrett person this month. We had a 1988 prevailing parties case, whether that preliminary injunction means that they were the prevailing party, spoiler alert, no. A fun Kestrel-y two case, and Hungarian Jews who want their stuff back from Hungary, or at least the might also know. And then for arguments that were last week and this week, Smyndon Wesson, can Mexico

sue gun manufacturers here in the United States for their gun violence in their country? Spoiler alert on that one. I don't think so. Two, suing banks for supporting Hamas. Also, and I don't think so, Title VII discrimination against straight people. Do straight people have to prove more than gay people or any majority group when it comes to

Title VII employment discrimination? That was a hilariously short argument. And then there were three criminal cases that we'll just mention briefly. All right. So that's the next episode. That's a very long list, an embarrassingly long list for this podcast. But we still have Supreme Court stuff to do in this podcast because quick mention of a cert grant in a case called Barrett that is not about Justice Barrett or any of her family, as far as I know. This is on double jeopardy involving lesser included offenses.

Basically, the guy is convicted of both murder and a gun charge related to that murder, and they held no problem. You can still sentence him separately for both of those. This is the block burger test for you law students out there and what exactly is a lesser included offense because if it is purely a lesser included offense, you don't get to deal with those in sentencing separately. In this case, there aren't additional factors.

Anyone who knows the Blockburger test, right? We try to see if there's one factor in crime one that's not included in crime two and one factor in crime two that's not included in crime two and one factor in crime two that's not included in crime one. That's not the case here. All of the elements of the gun crime are part of the murder conviction. And yet the lower court nevertheless is like, yeah, but still dude, Batman stays in jail longer in this case.

So that's what the Supreme Court granted cert on. We'll look forward to that oral argument. There was also a cert denial dated. Yes, very interested in this. This is your baby. Yeah, yeah, so this is speech first cert petition. There's a circuit split on essentially the leality of bias response teams. So bias response teams are teams created by universities

to respond to reported incidents where somebody is often made to feel uncomfortable on the basis of race, gender, sexuality, et cetera. And the bias response team is different from the speech code that I litigated in my litigation days. The speech code was a direct punitive limitation on speech. So that if you said something that was subjectively offensive on the basis of, again, race, gender, sexuality, et cetera,

you could be penalized and punished in a concrete way, expelled, suspended, et cetera. What bias response teams do is they take the same speech covered framework of, is something offensive on the basis of A, B, or C characteristics, but then instead of punishing you, they educate you. So they're going to bring in a team and they're gonna talk to you

and they're gonna describe to you all of the ways in which what you said was maybe offensive to people, maybe you should rethink it, maybe it was wrong, et cetera. And on occasion, some of these bias response teams can then refer you for later punishment, although the details vary from bias response team

to bias response team. And so the question has been, well, is mandatory education punishment has been one of the key issues around the bias response team concept. And so this isn't there issues around bias response teams where there have been circuit splits. And I was hoping I was hoping that we would the Supreme Court would take this case did not take it. And I'm I'm I'm actually a little bit surprised by that, Sarah. I don't I don't

know what your thought is. I'm a little bit surprised by that, Sarah. I don't know what your thought is, but I'm a little bit surprised. I was definitely surprised because they had basically teed up that they were going to take a bias response team case. So the actual issue in this case is a little less on the bias response team itself, although I think we all thought they would get to that, or at least there'd be some dicta on it. And more about the standing issue of whether the bias response teams chill speech and therefore students who haven't actually been punched or even called before a bias response team can be the plaintiffs. In one of these cases, that's a real circuit split as well. What had happened was the Supreme Court had initially granted a Fourth Circuit version of this case,

and that it got mooted out. And so everyone was like, OK, no problem. They munching-weared it. For you non-lawyers listening, we've talked about munching-wearing and passing. That's really not worth getting into here. Justice Jackson, not a fan. And so it was like, OK, they're just waiting for the next one.

These are at so many schools across the country. So when this one comes up, it looks really well teed up. It is a classic bias response team at Indiana. The meeting with the bias response team, however, is not mandatory, which is maybe interesting. But not really to me. It seemed to me very clear that if you might be invited to meet with the bias response team

that could refer you to discipline or short of discipline, right? Just put you on a list. They have a database that they keep on who's been referred to it and what exactly they were referred for. That itself would definitely chill me and mind you of course that anyone who reports someone else to be bias-responsive

does so anonymously. So it's a zero-cost way to mess with someone who you don't like or you don't like their speech, those two not being necessarily the same thing. But the Supreme Court denied cert we We have, interestingly, Justice Alito saying he would grant petition for cert, but not writing, and Justice Thomas writing, as in Alito didn't join Thomas. Nothing from Gorsuch, who I kind of expected to hear from.

I don't know how you don't count to four on this. Yeah, yeah, I'm surprised by it. You know, the non-mandatory element, it could be that this is just not the case, not quite the case to bring this, but I'm with you, the idea that if I say something, that somebody, again, a lot of these batch response teams, they're dealing with subjective feelings of hurt.

Can I repeat to you the examples that justice Thomas provided from this Indiana case? One complainant who was not Asian, objected to comments expressing dislike for China or Chinese things. Another reported a Facebook post featuring a picture, sorry, reported a Facebook post featuring a picture of a sticker reading, quote, diversity divides nations. That's it. So those two doesn't really work. That gets reported. That got reported. And again, so I think there's a sense that if you,

while it's not mandatory to go in, if you don't go in, then they're more likely probably to refer you for punishment. So first of all, it's incredibly stressful to go in, if you don't go in, then they're more likely, probably, to refer you for punishment. So first of all, it's incredibly stressful just to get an email if this has happened to you. Second, so it takes time that you could be studying or doing anything, then you're now going to have to go in to this meeting that they may or may not report you based on what you say in that meeting.

That is the definition of chilling. That is punishment. The process is the punishment. I don't understand. Where are the other two votes? Why don't you do the whole podcast sing song? All right. But we have something else to talk about from the Supreme

Court, and that is an emergency docket opinion. This is about the USAID funding. If you remember, the administration freezes basically all funding going out the door from USAID. You have a group of petitioners saying, we already did the work that you owe us the money for. Give us that money for any work that was completed before midnight on this date. And the government's like, make me. So they go to court and they get

a district judge to issue a temporary restraining order telling the government to send out two billion dollars to those groups, which you're never gonna see again to be clear, right? This is going to foreign entities, they're gonna owe that money to third parties, etc. Also, temporary restraining orders are not the same as preliminary injunctions. They are far less appealable. So basically it goes to the DC Circuit. The DC Circuit's like, TRO, not my problem. So they go to the Supreme Court.

The Chief Justice places an administrative stay before the deadline. That just means we need a second hold on. And now we have an opinion from the court. Five justices say, get that money, or rather, I guess in fairness, what the five justices say is the TRO stays in place. Any district judge will now need to come up with a reasonable timeline and specific requirements for the government to comply with this order. We have four dissenting justices from that.

Justice Alito, with whom? Justice Thomas, Justice Gorsuch, and Justice Kavanaugh dissenting. David, I found this to be an incredibly persuasive dissenting opinion in the emergency docket. I found it partially persuasive. OK. Yeah. I'll have to drop off the incredibly. So here, let me just begin with the opening

paragraph here. This is Justice Alito. Does a single district court judge who likely lacks jurisdiction have the unchecked power to compel the government of the United States to pay out and probably lose forever 2 billion taxpayer dollars? The answer to that question should be an emphatic no, but a majority of this court apparently thinks otherwise I am stunned. Okay. Frame it like that. Xoxo Justice Alito. Frame it like that. I'm with Justice Alito, but I objected the framing. Okay. So this is not in fact a district court exercising unchecked power to compel the government to pay out and lose two billion half-tares of dollars.

What we're dealing with is a situation where the government has agreed to pay money, the work for the money has been completed. And so is it the district court that's making this payment necessary or is it the fact the government agreed to pay the money that makes us necessary? And how is this unchecked when we're reading a Supreme Court opinion that was evaluating the district court? Oh David. I mean I think, you know, I think it's... It's personally... I knew we'd hear around that, you were driving my granddaughter kind of dip.

I knew he'd hear around that, like, you looked right where my granddaughter kind of did. Hi! Hi guys! Alright, so first of all, sovereign music, I don't want to spend a whole lot of time on this, but like, where these groups are even able to sue the government for that, as Justice Alito points out, is an iffy proposition that they even have the ability to go to the curb to compel this money. But set that aside, I think the unchecked power problem with the district court here comes from the fact that A, it's a temporary restraining order, restraining the government

from doing what? From not paying money? That's like a double negative. So A, that doesn't work. The TRO to sort of shield this from review by the DC Circuit is a definite no-no. Number two, I would actually have totally agreed with you on the partially persuasive if the district court's TRO had been limited to the plaintiffs in question. There were about $250 million, still a large sum of money, but the $2 billion is for a

whole bunch of groups that aren't even represented in this case. That's where I'm persuaded. That's wild. That's where I'm persuaded. So it's both the scope and the method that are insane to me. And again, that's even setting aside the sovereign immunity thing, which I think is more coin flip area. I'll write you that.

No, where I'm persuaded is if I am owed the money and I walk into the court and I'm seeking the order to get that money, I should be able to... Now, we're going to have to take the sovereign immunity stuff. I'm also very aware that we've got a circuit court judge right next to me. Yeah. We're talking about all of this. Yeah. So, but I would say let's cable this off for an immunity question and let's laser down

on the parties in the case question. Look, if I have a legal right to that money, I should be able to receive that money. Yes, somewhere or somehow. You don't get TRO for it. No, I'm saying yes, correct. But if I'm owed in, whether it's going through district court filing lawsuit, federal court claims, these are open and interesting questions.

Now, the thing I do object to is if I sue, why does everyone else who's not suing get to benefit from my judgment? And because those might be very different contracts, they might need different grants. What's your tattoo say, Sarah? Different cases presenting different facts may lead to different conclusions. Exactly.

So that's where I'm, that's the persuaded part. The partially part is the breadth and framing of the dissent. Justice Alito, I am stunned. I am stunned. But of course, one of the biggest things that you're gonna hear about this emergency docket order is that it is a stand-in for a lot of court pundits for how this court is going to be treating

some of the unitary executiveness of the Trump administration. So do note who was in the majority here on top of Kagan Sotomayor and Jackson and the chief. You also have Justice Barrett joining in the majority. And that's going to be an incredibly important vote for the future of the Trump administration. Justice Kavanaugh, generally the swing vote,

generally the justice most likely in the majority, that could switch next term as some of these cases actually get to the court on the merit socket. Right. Especially as I think we do have some differences between Barry and Cat on executive authority. So and but that speculation we'll know for sure in the next several months. Warning. I've got this condition where I don't feel pain.

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For a limited time listeners can get $20 off their best selling Carver Mat Frame with code advisory. That's A-U-R-A frames.com promo code advisory. Support the show by mentioning us at checkout. Terms and conditions apply. Oh, hey, hey Judge Strauss. Sarah, or Judge Strauss, he's listening to us just pontificate.

We did say he could jump in and trash his bosses at any point you want. I mean, that was an open invitation you have for anything we've got so far. That's fair. That's fair. Uh, Judge Stross, you had a very interesting, what used to be a much more traditional route to the circuit bench in a lot of ways. You were an academic at the University of Minnesota. You were then on the Minnesota Supreme Court. Is that elected or appointed?

It was initially appointed, then I ran for election. Did you ever have opposition? I did have opposition. I ran in a contested election with two other people and had to go through a primary and then a full election. Did you destroy them with relentless negative campaigning? No. With the limited money I had, no.

But I did do my best to put out a good face for the Minnesotans. There's too many things that we want to talk about with you. So David and I are going to kind of bounce around here. First of all, I do want to give you the opportunity, you had this beautiful piece in the New York University Journal of Law and Liberty about your grandparents' role in shaping you as a judge and also just your first amendment jurisprudence and your view of the first amendment. Do you want to just say a few bars of that for us? Sure. So that is something that goes pretty deep into my background. When I grew up, when

I was growing up, I spent my summers with my grandmother and my grandfather was in a nursing home at the time. They were both Holocaust survivors. My grandfather was in Auschwitz. My grandmother was in a number of concentration camps. It was, you could see the pain on their faces. My grandfather would talk about his experiences in the concentration camps. My grandmother would not. She just could not face what she had gone through and therefore sort of turned inward. And I only heard very brief mentions of what happened. For example, she ended up being whipped with a spike belt, which tore her part of her eyelid and caused, you know, sight damage throughout her life.

She was deeply depressed, as one might be going through that throughout her life. But all of that said, my grandfather in particular, both of them really influenced me in profound ways. My grandfather in particular, he had multiple sclerosis, probably induced by the concentration camps, but he went out and he spoke to groups of survivors, groups of new Americans.

He made a point of telling his story. And when you're talking about the First Amendment, speaking out when speaking out is a tough thing to do is what he did. He talked very openly about his experiences and how he hoped it never happened again. And that sort of formative experience in talking about, in him being an example and him talking about what he was doing profoundly affected me and profoundly affected, frankly, profoundly affected me and profoundly affected, frankly, how I view the freedom of speech and how very precious it is. And I think you see some of that in my opinions.

And so I didn't realize at the time, it's not like I was sitting there going, you're profoundly influencing me. That's not what happened. It's when I became later in life, when I started thinking about what they told me and I could understand what they told me and put it in perspective with a little bit of wisdom. It's at that point that I started thinking, wow, it really did sort of shaped me.

And my grandparents actually on both sides of my family, but particularly my grandparents, who shared this themselves with me despite having gone through one of the most horrific things they possibly could have gone through. It's been an interesting scientific world about epigenetics, which often uses Holocaust survivors' grandchildren to determine whether epigenetics can be passed on because it is the most profound experience that we assume that if that wasn't passed on, nothing would be passed on. So, you know, as far as-

Epigenetics. So, right, your DNA comes from your parents. Epigenetics is more things that get switched on and off during someone's life because of their experience and whether that itself could be passed on through children and then to grandchildren, which we had generally thought no. And we started to think maybe so that the Holocaust wouldn't have just affected those survivors,

but in fact would affect at your deepest level, at your most unconscious level, in fact, your experience in life because of what your grandparents went through. I've read a lot of that research because it's interesting to me. And I think my parents were, or my father was affected by it. I think there was, I think,

so the theory is the trauma is passed down through genetics, particularly when you have an experience like that. I can't say whether that's true or not, but I do think that my father had a different childhood because he was raised by two Holocaust survivors. I do think my kid is in the room and he's the great grandchild. And I wonder whether or not he's affected to the same extent. But it would not surprise me if some of that

is passed down genetically. Same. David, I think you have one paragraph in particular in this Law Review article that you were interested in. Yeah. I mean, this is a big change of tone and topic, but in the same essay. So it's in bounds.

You're talking about the value of speech and the value of discourse and discussion. And you had this part that was really interesting where you talk about how you had an argument with Justice Thomas when you were his clerk over a case. And that raised so many questions among them, which case? Can I add a little footnote moment here? Because you're not going to tell us which case. You don't say which case here. And yet I will note that you clerked in the 2002 to 2003 term when Virginia v. Black was

decided, a case about cross-burning. And Justice Thomas has a very unusual and somewhat unjust Thomas-like dissent as the sole dissenter in that case, saying that cross-bording deserves zero First Amendment protection, which stands against some of what you describe in your First Amendment jurisprudence. You mentioned, for instance, even in this Law Review article about the Nazis marching through Skokie. So while you can't confirm or deny, that sure feels like a case that you would argue with Justice Palma's ballot.

No comment. So my question is, you pointed out in there, you were 28 years old. Or do your son know? He's here. You're 28 years old, you're arguing with the justice of the Supreme Court about a case. And my question was, okay, was the under what circumstances and what is the culture of the Supreme Court

in your experience around that very phenomenon? How often do clerks give pushback? Do justices ever solicit pushback or critique from their clerks? Under what circumstances is it appropriate and do people press those boundaries? So the answer is yes. I think most of the justices, at least the ones that I'm familiar with when I clerked, really invited it. Maybe the best example was Justice Scalia would usually hire what he called a counter clerk to press them and that would happen on a regular basis. We actually had a counter clerk myk my year. But you know stepping back a second, let me say that it is very unusual for me to disagree, you could probably see from my jurisprudence, to disagree with Justice Thomas about much. There was just this

one particular case and we had clerk conferences and we discussed it. I remember profoundly, for those of you who haven't read it, I remember profoundly him coming back and go, you know, I just don't know that I agree with you. And I said to him, I said, well, you know, could I have a chance to try to persuade you? Oh, sure, sure. So he invited, he wanted me to talk to him about the case.

And I spent 30 to 45 minutes with him, really hammering home the best points for my bench memo and from the oral argument. And I thought, he's smiling, he's nodding, he's definitely paying attention. Either that or he was a really good actor. And at the end he said, this has been really helpful. And I was like, oh, that's fantastic. He goes, you have convinced me that I am right. That I knew. I mean, and, but that also stuck with me too, because he allowed me to make my case.

But at the same time, I saw that he was truly an independent judge, that he cared deeply about the right answer. He was willing to listen and engage with you. But at the same time, he had to make the decision. And that stuck with me. I've had cases where all four of my clerks have disagreed with me. I mean, just profoundly disagree with me. I've had cases where all four of my clerks have disagreed with me. I mean,

just profoundly disagree with me. I give them a chance to talk to me about it, to try to convince me. At some point you have to make a decision and I make the decision. And it's not usually the case, but once in a blue moon, I end up sort of standing alone even within my own chambers. Wow. Okay, shifting gears entirely, I have spent a lot of time reading a lot of Law Review articles and just people's opinions on why the number of cases the Supreme Court has been taking has steadily declined for decades and decades now. I mean, like, if we were all bad at math,

we would be like, oh, in 40 years, they will no longer hear cases. Like we're just heading to zero. I realized my favorite law review article, I knew it wasn't written by you. It's written by Ryan Owens and David Simmons on this topic. But then there was something about it and I was like, I wonder, I think they might have cited you or something. So I went back and looked.

In fact, no, it's just that the first footnote is basically dedicated to you and how much help you gave them and your data and that while you're not a co-author, they say, your help was instrumental. And I was like, oh, because I came in here really hot to trot to disagree with you on one of your earlier pieces about how the clerks and the cert fool drove a lot of the decline in the number of merits cases heard at the Supreme Court. But I'm going to lose this fight,

because you actually provided the data for the argument that I'm going to make back at you, which is the thing. So why don't you give us your version of what's going on when it comes to the merits socket at the Supreme Court, and why David and I can have a podcast where we basically talk about every merit's decision because there are so few. Yeah, so I've been studying this,

literally studying this for the better part of 20 years. It started back in 2005 and 2006, and I studied it as an academic to begin with, and I wrote a couple of articles on it. And then I've continued to study it now in a different job because what they do affects what I do on a daily basis. So I'm watching to see the cases they've taken and why. I think, and this actually goes a little bit back

to speech first. I knew we were gonna talk about the cert pool. So I thought, and cert petitions generally. So I thought this would be a good time to talk about it. One of the things that has changed is the court is looking for the perfect case. Valuable. It's a vehicle. But not even cases, they're vehicles.

That's what they say, it's got a vehicle problem. That's what it'll say in a cert memo or whatever. The threshold has become higher. And the reason why I think the cert pool plays a role is because you don't want to be that clerk that actually recommended a grant when those docket slots are extremely precious, right? When I was working, there were 75 of them. Now they're in the mid to high 50s. Those are very, very precious docket slots.

The court used to take 150. So dismissing five as improprietarily granted was a big deal. But if you are the clerk that doesn't notice that vehicle problem and recommends a grant, that's something that sticks with you sort of the entire year. I don't think there's anything formal. It's not like you're going to be working in a broom closet

or something. But it sticks with you. And so you become very, the justices lead the way. And you become very hesitant about recommending a grant. Because vehicle problems are so important, the Solicitor General, which is a repeat litigant before the Supreme Court, also takes fewer cases and seeks their surety.

They like to have a 40 or 50% grant rate for the cases they bring. And if they were to bring as many as they did in the 1980s, that success rate would be going low down 10 to 20%, and they would lose credibility before the court. So everything that happens sort of filters down from the justices and the agenda that they set. But you see these systemic things,

it's kind of like once you set the ball rolling, things tend to get worse and worse. And so I think we've seen that steady decline because everything structurally is following their lead. So let me ask this question. Do you think on balance we might be better off with the fewer cases decided in better vehicles with more cases decided in jalopies? Because here's what I'm thinking. I'm looking back at previous dockets. Let's just take a case that came up years ago that became prominent again recently,

this case called Pico about library books and parents trying to ban library books. It's a case that should be like really relevant to today, but it's not. There's a plurality opinion, there's no majority, the reasoning is pretty cursory. It doesn't give very much guidance for lower courts. So you have a case, but what did it do exactly? We're still kind of arguing about that.

Whereas in Mottiger's prudence, it feels as if that opinions are more explanatory. They show their work a lot more. And they have much more obvious connotation spreading from that particular case. So is it a situation where maybe fewer vehicles is better than more vehicles that are in worse condition? So I think that's an interesting question But I think ultimately their job is and I want to be careful because I'm middle management

So I don't want it these are bosses who can who can reverse me and make my life not as pleasant as it already is They're worth voting. You were just upheld 9-0 at the court just a couple weeks ago. Yes, and I would like to keep that at the court just a couple of weeks ago. Yeah, so I would like to keep that on the thread of life. So first of all, I think that a lot of circuit splits get pergolate for a lot longer than they need to and can have a profound effect on the law. And as for the, you are absolutely right. I've actually studied this.

I was, when I was appointed to the bench in Minnesota, I was working on a co-authored book. It just started called Business of the Supreme Court. It was an update of a Felix Frankfurter book. And one of the things we noticed was that the work length of opinions has gone is skyrocketed since the 1980s. Logger is not necessarily better.

In fact, in many cases, it's worse. I'll give you a great example. That opinion where I was a firm 9-0, there was a footnote in a case called Rockwell. And it said something along the lines that I'm going to mess up the quote. Generally speaking, when the case is removed, there are different form manipulation concerns at stake. And so what they were saying, this is a case about removal and what happens when it reaches federal court. I had no clue what that footnote said. I knew the footnote was there

and we had a debate in chambers about how we deal with that footnote. And ultimately what I concluded was everything above the line really mattered. And at best maybe this particular situation I had fell outside of that footnote. The four manipulation concerns were not a concern. My whole point is, is when you start

to run footnotes in there and you start throwing, oh, this is a really interesting tidbit. Maybe I should have a three pages site on that. Then it confuses lower courts because we don't know what to do with that. Because a lot of it's just sort of personal musings. So I actually look at the 1920s and 1930s, not thinking it's the current court,

but those were really easy opinions to read. They were not fancy, they'd say, so and so argues this, we reject that, here are two or three reasons we're gonna move on with our life. It acts as a really, really useful thing for lower court judges. And so the logger is not necessarily better, and leaving circuit splits open is not necessarily better.

Well, you know, you raise a great point about brevity. I mean, West Virginia v. Barnett, one of the... I mean, if I'm going to have a tattoo, it might be the entire majority opinion of West Virginia v. Barnett. And it could fit on my back. And it has some of the most memorable language that's ever been pinned by the Supreme Court. So yeah, it is absolutely the case

that longer is not always better. But on the vehicle issue, that's the sharpness of the issue before the court, the extent to which by deciding this issue it has a sort of a blast radius effect in a positive sense, in the sense that it can deal with a lot more cases than the one specific case in front of it. That's what I'm interested about. But I'm tracking you completely on the let us have a law treatise here. But on the vehicle, do you think the vehicle approach itself

has merit? Or does the court just need to be deciding more? So mootness, standing, the normal things, a lack of federal jurisdiction, all of those things are relevant. The court should take that into account. You don't want to take a case to give us the umpteenth articulation of standing, right? That is not a good good reason. But let's suppose that that that we're serious, right? About

the point on speech first, we'll just take that as a given that because it wasn't mandatory that presented a vehicle problem. I don't know if that's a good reason not to take the case. It seems to me that you could still say something and then down the line, you could take another case if making it mandatory makes a difference. Yes, it's more work. Yes, there's more disagreement. Yes, it's additional oral arguments. But I do think that's what courts of appeal do. And we deal with all of these imperfect cases and we have to make the judgment call. Now, I understand that they want to focus on the things that are important. And I will say this in their defense, that this is a big thing. Having served on two types of multi-member courts, one that has seven and one that has three,

and I guess three or 11 if we're on board, courts don't function as well in large groups. They just don't. It takes a lot longer to get an opinion out. Everyone, you know, you get comments from other people that say, hey, you know, remove this period. And then the next one say, no, you did a period right there. And then you get to somehow, you know, you get you get comments from other people that say, hey, you know, remove this period. And then the next one, say, no, you did a period right there. And then you get

to somehow, you know, reconcile what two people are asking to completely conflict with each other. So from that perspective, maybe getting the perfect vehicle makes more sense from a from a nine member court versus a three member court. But I do think that the sweet spot, if I were to give a sweet spot, having looked historically at the dockets, it's really the revolution. I think the sweet spot is 9,200. And they puncture well back. See, you mentioned like G20, which is, we talked a lot about the proliferation of concurrences. So in 1920, we weren't even dealing with concurrences. Only five percent of cases even

had a dissent, a written dissent. That number is obviously nearing 100 percent at this point, whenever it's a non-unanimous opinion. It would be very unusual at this point to see a case where there's a noted dissent, but no written dissent. I can't think of any. But they had mandatory jurisdiction over all sorts of nonsense, and they were mad about that. I mean, the 1920 revolution was judge-led. What was judiciary act in 1925 that they were pushing by that point?

It was. Yeah. Yeah. So right. The judges go to Congress and they're like, we hate this. This job sucks. Uh, sort of the first big push since they asked to stop writing circuit in a lot of ways. Okay. So here's my theory. Okay. I want, I've been looking forward to this moment for so long. Okay. So the circle theory. So circle starts in 1976 or so. You expect to see an immediate, sorry, you'd expect to not see an immediate decline as the clerks realize the problem and get embarrassed and then see the previous colleagues embarrassed.

So you'd expect to see a sort of maybe gentle decline, maybe a little bit steeper. But at some point, you would expect the cert pool effect to level off. But that's not what we see in the trajectory now. Number two, then you have the 1988 drop of the change in jurisdiction where they don't have to take these state Supreme Court cases,

that only dealt with civil cases. And yet the number of state Supreme Court criminal cases declined precipitously after 1988 as well. So that accounts for some, but not all. The number of cert petitions, the data that you provided for race kind of disproves that that itself answers the question of why the petitions go down. So let me try this on you. As we have seen the move from our economy from you know agrarian to industrial to a digital economy we have also therefore seen a move from generalist to specialist in nearly every part of our economy and who becomes a Supreme Court justice, I would argue, has become a much more specialized field as opposed to what it was in 1920 or 1980 for that matter. It used to be very likely that you were an elected official at some point, for instance. Definitely not anymore.

My argument to you will be that the continued decline in the number of merits cases on the docket is due to the professionalization of Supreme Court justices as a bowl in and of itself, so that they sort of grow up in this world of vehicles and what a Supreme Court justice is supposed to look like and sound like it be and all of those things that that is what's driving it. And that explains why no other single explanation seems to explain why it keeps dropping. I think that's possible. I will say this, which is it's more about the personalities.

What I discovered in later articles, so I wrote an article for constitutional commentary like three years later, and what I did was I focused on particular members of the court and changes in the court. This is going to be a little bit about the death of the courtesy fourth, this idea that if there were three votes that someone would throw in their vote and say like even though I would vote no, if there are three votes then change my vote to yes, and that that was a personnel driven issue in the 80s where there were a lot in 70s, 80s where there were a lot more justices who would be a courtesy for it. And that was part of it. But the other thing was is Justice White. Justice White granted about 200 to 250

cases a year or would have granted, voted to grant. Justice Ginsburg, her first couple of years on the court, 70 to 80. So it may be because we've perfectualized the court, and right around the early 90s is when we started getting these circuit judges versus the state court of appeals judges,

or the politicians like Hugo Black and Sherman Minton. That could be part of it. But there was a profound change when you had somebody like Justice Gwight, who literally was writing a dissent from the denial of certiorari in every case in which there was a split, every one that the court didn't grant. Maybe there were a couple I don't know about, but it seemed like every case. And somebody like Justice Ginsburg was much more reserved if Justice Breyer

had a similar voting pattern. So there was nobody to call them on the docket. And so if you look at the steep decline, the steepest decline happened in the early 90s. And part of it could be that. I think it's sort of the perfect storm of about eight or nine different variables, many of which are interrelated to each other. And it's hard to measure them when they sort of all feed storm of about eight or nine different variables, many of which are interrelated to each other.

And it's hard to measure that when they sort of all feed off of each other. But I think that's interesting. We do have a professionalization of the Supreme Court, and to a lesser extent, the federal judiciary generally. All right, David, let's do a little text history and tradition. Yes, and then questions.

OK, so I cannot have a conversation with a judge who has decided a second amendment case post or you dissented in a on-vac re-hearing denial in a major second amendment case post-Bruhimi, post-Bruin and fascinating case. So this is a case involving a challenge to felon in possession prohibitions. So if you have been convicted of a felony, you're barred from purchasing a firearm regardless of the nature of the felony. It could be armed robbery, string of armed robberies across nine Western states, or when you're 18, you go to bad check for too large of an amount, and that would be a felony. And so one of the interesting questions in that case,

along with all cases, post-Bruin and Rahimi, is really this text history and tradition test. And I'm fascinated by the question of how close the history has to be under this test. And are we just substituting one kind of juris of scrutiny for another in this very question? In other words, if you're looking for an exact match, that's like strict scrutiny.

If you are looking for something that's more like, they regulated in this area broadly before, so we can regulate it in this area broadly, feels a lot more like intermediate scrutiny. Where are you seeing the level of match, the level of precision in this text, history, and tradition test? So you have identified literally the million dollar question.

This is the million dollar question for this entire area of law. What does history and tradition mean and how close must the match be? And the answer really is, unfortunately, this is gonna be a very unsatisfying answer. It's judgment. It's what we do on a daily basis. We have to make a judgment. I'm gonna give you an example.

So, felony possession, the only way to figure out is to look at the analogies at the time of the founding, the loyalists and time of the founding, the loyalists and some of the Catholics or all the others who were dispossessed at the time of the founding was to look and say those people were dangerous or at least society viewed them as dangerous, which is sort of similar to what Justice Barrett had done in her dissent in Cantor versus Barr. I reached sort of the same conclusion with a few minor modifications. But a better example is actually what I did recently

on the drug user and possession statute, which is G3. There, because of what Rahimi had said. So let me back up. Bruin, pretty tight match. That's what I think Justice Thomas was saying. Not a dead ringer, he says it expressly, but a pretty tight match. Rahimi says, not so tight.

Maybe in your example, maybe that's more like intermediate scrutiny. So on the basis of Rahimi, I looked at the drug user and possession statute and found three analogies, actually. I was gonna say two, but three. One was intoxication for drug users. That's pretty obvious.

Problem there is they never ever took guns away from people who were intoxicated. Believe it or not, alcohol and drugs were a problem at the founding too. And they just didn't take guns away. So then you have a couple of others. Mental illness. If somebody's on PCP, PCP did not exist at the time of the founding. It's a drug that is manmade and you're gonna be in a different boat.

And so PCP, it looks a lot like mental illness. I don't have personal experience with that, but we did review medical journals. And then there's the terror of the people, which Chief Justice Roberts relied on in Rahimi And if you're out waving a gun and you're on PCP, that's kind of scary So maybe that's another one as well And so what we did was we said those the Titus match is intoxication which everyone would get guns

But maybe those two others are close enough that maybe not everybody should get guns, but maybe those two others are close enough that maybe not everybody should get guns, just people who are safe, who are not dangerous. And that's sort of where we came out. But it is a really tough question and judges disagree on it. And people coming in with priors who don't want people to have guns are probably going to require a very tight match. And people who are more willing to have people have guns are probably gonna require a tighter match.

So it's just, it's really, it's gonna develop. I don't know how the Supreme Court's actually gonna tell us what the right answer is. It needs to be really, really close, but not too close. I mean, I don't know what you say in an opinion to make that work other than giving us examples. So my prediction is the Supreme Court's gonna take a whole lot more Second Amendment cases

over the next five years. Maybe not immediately. Okay, so here's the question then that comes from David's, which I think is if you replaced the tiers of scrutiny with text history and tradition because you wanted to restrain judges in a more originalist fashion, but then all we're going to do is figure out

how text history and tradition maps onto the former tiers of scrutiny and then say, and where it's close, you're gonna use judgment. This is starting to sound a lot like Justice Breyer. Justice Breyer's whole thing is pragmatic judging. That's where judgment comes in. Like, didn't you just spend, I don't mean you here, didn't conservatives and originalists just spend 40 years

to become Justice Breyer? But there's a difference in terms of the sources, the inputs you're using. If you are just kind of putting your finger to the wind and trying to figure out is this a good idea or not, which the years of scrutiny kind of do. I mean, there are guardrails, right? There's the compelling state interest in strict scrutiny and the narrow tailoring. But some of it is really

putting your finger in the wind, especially when you're an intermediate scrutiny. With this, the inputs are entirely different, right? The inputs are what happened at the time of the founding. You are limited to those that, you know, that type of stuff. And I was on a panel recently where I sort of said tradition works, but it needs to be relatively contemporaneous with the time that the Constitution was ratified. Not something like, I wouldn't call something that happened in the 1960s a long tradition of the United States, right?

It would be things in the 1800s. And so if it first arises as a problem in the 1960s, it wasn't a problem before then. Now all of a sudden we have people dying from whatever X is that arises in the 1960s and then they start legislating it. Then I think you look for analogies to the best you can at the time of the founding.

I'm serious. And one of the problems, I mean, the danger of all of this Sarah is we've had cases where judges have said something started, like the felon in possession statute literally came about in the 1960s. And they say there's a long history since the 1960s. Yeah, that is a long history since the 1960s,

but there happens to be a history before that as well. And they'll say, that's good enough. That's long enough, that's enough of a tradition. We're gonna draw an analogy based on almost bootstrapping the actual provision we're reviewing by Islam history. And I just don't think that's what the court had in mind in Bruin and Rahimi. Well, to this day, my favorite part

of the Bruin-Rahimi combo is, Bruin, as you're saying, tighter match. Rahimi comes along and it's not so tight a match. And the majority's writing, y'all totally misunderstood what we're saying in Bruin. And then the author of the Bruin opinion is in dissent, Justice Thomas going, no, it's exactly what I said and exactly what they joined.

That was a fascinating divergence there. And the Supreme Court, though, it seemed to me coming out of Rahimi, and we can wind this down and go to questions next, but it seems to me coming out of Rahimi, it really is, it seems as if the history element not so tight of match and I still don't know what tradition is

as distinct from history. And I struggle with that as well. I think history and tradition overlap to some extent. And I think to the extent tradition is different, there are aspects of it I don't like, which is one of your professors, Will Bode has an influential article on liquidation and that becomes an important part, I think,

of understanding tradition. I think that's where tradition eventually goes. So you're selling liquidation, Robert. So liquidation is where sort of the executive branches and just generally the government has sort of taken on or assumed a particular reading of something or a particular understanding of something. And so you would say that that particular meaning or provision has been liquidated and

as a common understanding. That's pretty. That's sort of turned in from the text of the constitution, let's say, into the actual practice. Exactly. So a text we're saying is a solid, and the practice is a liquid. So we liquidated it. I don't know.

That's how I try to remember it. Because otherwise, liquidation makes it less than it's supposed to be. Yeah, and it's a little foreign to me as well. Conservative judges disagree, though, on liquidation, tradition. I mean, we all disagree on it. I think tradition has its use.

It just needs to be, again, tradition that's relatively contemporaneous with what you're actually trying to figure out. I don't necessarily think that somebody in 1960, to go back to my prior example, is going to have any idea what the founders thought, or is even trying to understand what the founders thought when they passed the felony in possession.

All right, we're moving to questions. Dear Chicago Law students, let's see what you got. So we just had our last class on free speech for the quarter and Professor Stout kind of what the question to us on like, are we satisfied with the current state of free speech? And kind of like an additional question to you. Hopefully you could answer that, like what your thoughts are on that. And then additionally, do you think that the founders, you know, would have understood or be satisfied with our current state of free speech as well? So the question is that this student

would like us to do his final paper for him. Free speech class. His professor asked, is he satisfied with the state of free speech? He'd like us to answer that for him. And then also, you know, is this sort of where the founders envisioned it? So you're lucky because I just went to a symposium at the Hoover Institute on free speech. And I posed that exact question, which is how far have we strayed on the First Amendment from the time of the founding?

And there were really smart people in the room, Robert Post, Ramiel and Eugene Volek, who's now at Hoover. And we talked a lot about about where we are. I think the general view is we have straight pretty far. Intermediate scrutiny, strict scrutiny. The founders had never heard of that. Right. That is not I challenge you to go look up

somewhere where somebody mentions strict scrutiny. It's just not there. That's a 20th century invention. Then the question is what did it look like? And that's where all the participants, now we're, I can't say who said what. We're under strict guidelines on that. But there's a big divergence in terms of what people thought. Some people thought that if you look at the founding, that the first amendment protected almost nothing. Others thought that if you look at the founding, that the First Amendment protected almost nothing. Others thought that if you look at the founding, anonymous speech, all the different types of speech that we saw in order to have a revolution meant that the protection had to be broad.

And I think we can safely say that it's not original. It's the one area of the law where it's completely not original. Even less original is the free exercise and establishment, although that's not particularly originalist either. But as for what should look like, the experts disagree. You know, I would, one thing, just piggybacking on that for a minute, I would say, think one thing that the founders would be puzzled by is that we have actually

a lot of regulatory restrictions on political speech and it's really hard to regulate porn online, reaching kids. Okay, so that would be one where I think the founders would be stumped because the core, if you go back to the English Bill of Rights, the English Bill of Rights has a provision regarding free speech and it's talking about it in that political context.

And so when you're talking about where should speech protection be the most robust, it is political speech. I would say that there's a solid originalist argument for that. When it comes to other forms of speech, the originalist argument around free speech is really, the record is not hugely extensive here. It is not hugely extensive. And so part of this is you're just not gonna be able to go dig for gold in that historical record and find out what is the true limit,

the truly intended limit or truly, you know, the originalist limit on free speech with such a thin record. Hey, just apropos of nothing, do you remember that case that the Supreme Court decided about 20 years ago called Virginia v. Black? Crossbury, did you agree or disagree with how the court came out on that?

I'm aware of that case. It was a very interesting case. Need I say more? I'll keep trying. All right, yes. Thank you. And thank you, Judge. Thank you both.

One thing I've realized the last three years law school is that a lot of people have what I call Supreme Court cynicism, which it's basically the proposition that the Supreme Court currently, the conservative majority, is not really putting in a good faith effort and using their methodologies. start really putting in a good faith effort and using their methodologies. How would you deal, if you were a lawsuiter today, how would you deal with that criticism and how to fight back against it? How would you deal with Supreme Court cynicism that pervades law schools and law student conversation, particularly this idea of the realist theory, right? That Supreme Court justices are simply doing politics

and dressing it up in judicial philosophy, be it originalism or anything else. I would say, and I've seen that, I know that. I've interacted with them. I've worked with at least one of them directly. That is just not true. I mean, it just is not true. I have never seen anybody say to me

in all the time I was clerking, what would the political branches do? That just doesn't happen. That's what is the right answer. And you discuss the merits of the issue. Now, do judges come out in certain ways as a group on the Supreme Court? Like the conservatives tend to stay together.

Yes, the liberals tend to stay together, yes. But that's because they view the law in the same way. It's not because they're doing something political. It's that there's overlap in their interpretive methodology. So I could tell you, I've sat through, I've been a judge for 15 years. I've sat through thousands of conferences and I don't think I've ever heard a single judge talk about what the political branches would do, how they're going to respond to it, that sort of thing. OK, but I mean, I think I'm the least cynical Supreme Court

person. I literally have a whole podcast dedicated to not being cynical about the Supreme Court. But I'm a steel man in the opposition here. Of course, without saying that, consider it to be more that they are a product of their time, a product of the way that they became a Supreme Court justice. These people weren't randomly plucked for their excellent legal opinions. They were chosen by the political branches. And so throughout

history, we've seen the Supreme Court reflect the politics in which it has come from, whether that be Buck v. Bell, the three generations of imbeciles are enough, that decision wasn't just accepted at the time, it was heralded by Freightford, who wasn't yet on the court, as one of the premier examples of Justice Holmes' wisdom, for instance. A case that we now all think goes up there with Dred Scott,

because they were the product of their time where everyone was sort of like, yeah, eugenics, of course. Of course they should be breeding people to make better people. So maybe the cynicism that like they're about publicans or Democrats or wanna help this candidate or that candidate, yeah, maybe that's too cynical. Maybe that's not what we're talking about.

But the idea that these justices are, you know, platonic guardians on some hill over there who have no clue what's happening in our elections. What's that famous quote about after the insular cases? The constitution may not follow the flag, but the Supreme Court justices sure follow the election returns. So I don't want to suggest they'll come in without priors. I mean, I am quite positive that you gave the example of the USAID case earlier. I'm quite sure that that Justice Kavanaugh's time in the executive branch had an influence

of what he did. My grandparents had an influence over what I am. All of those are priors that come in, but I'm not thinking, you know, most of us are not thinking, I don't think, I can't speak for everybody. Most of us are thinking about what is the constitutionally right answer? What is the statutorily right answer? What is the case law right answer? I don't think we're thinking about politics, but we're also not completely, I mean, we don't live in a bubble, although sometimes it feels that way as a judge, but we don't live in a bubble. So we're perfectly aware.

We watch the news sometimes, not usually, but sometimes, and we're aware of what goes on. You can't live in a bubble, but I would say that we do the best we can to steer clear of a lot of that. Can I suggest that we also, that we do the best we can to steer clear of a lot of that. Can I suggest that we also, that we the people have adjusted how we evaluate institutions a bit? Several years ago, I was in a conversation

with the late Tim Keller pastor in Manhattan. And he said, I'm noticing a change in younger people in my church. And the change is, it used to be five, 10 years ago that they could disagree with each other and remain friends. Now, any point of disagreement fractures friendships. And so what I'm seeing, so I've seen this and this was 15, 20 years ago, he told me that,

now you would just see it everywhere. It's hard to maintain friendships when people have disagreement. And then also, I think that's moving in institutions. It's hard for people to respect institutions when they encounter a point of disagreement. And so you, I have said many times, I respect the integrity of the Supreme Court.

They say, well, you disagreed with the immunity decision. Well, yeah, I disagreed with a decision. That doesn't mean I disrespect the Supreme Court. I'm not arrogant enough to think that my conclusions about the court are so correct that everyone else who disagrees, including the court has a mental defect or character defect if they don't agree with me. But this is how we approach institutions now.

I respect that institution until it differs from my strongly held convictions. And now that institution is garbage. And I think that's just the wrong way to approach it. All right. Let's take one more question. Hi. So I understand a lot of the originalist arguments for more originalist views of rights protecting constitutional provisions, right? The idea being that at the founding you had

these laws, so founders must not have thought that these rights provisions stopped those laws from, states from passing those laws, the federal government from passing those laws. But what about structural questions in the constitution? Because a lot of those situations, you have profound disagreements in the founding era about whether a provision of the constitution should be read in one way or another. And you don't really have the same basis to look at for what kind of laws existed at the time

the provision was passed. You can look at practice, but there seems to be more ambiguity in that. So how, as an originalist, would you approach those kinds of questions? Okay, so fine, your text history and tradition may work for rights-based questions, but what about structural-based questions

when it comes to the Constitution, which arguably is far more fundamental to the Constitution? It is, at its core, a structural guide. Yep, structure protects rights. Have you heard that one before? I mean, it's totally true. Structure, everything begins with structure. The thing we have, though, and it's not perfect necessarily,

is the Constitution, when it comes to structure, lays out a lot more detail than it does with respect to rights. So we have more language that we can go on. For example, senators serving six years, it's pretty obvious. There's not a lot of ways to interpret that. Commerce clause, on the other hand, has gone, the doctrine has undulated over time, to say the least.

And so that's harder. But I think we do actually have, we usually do have better founding year evidence than you think it does. It usually takes the form of the federalists and anti-federalists agreeing on the same assumptions. In other words, they're battling about something else. They agree on the basics. And when they agree on the basics,

you can be pretty confident that that's what the constitution means. You also have early cases, you know, which can be very helpful. You have, in addition to the debates, you have state constitutions, which can sometimes have a similar structure and some of the federal constitutional models

are based on some of the colonists' attempts at constitutions as well. So you do have evidence. It's not always perfect, but you can usually find something. Thank you, University of Chicago, for welcoming us to your school. We had the best time. And thank you, Judge Straus for coming. Thank you, Judge, very something. Thank you, University of Chicago, for welcoming us to your school. We had the best time, and thank you, Judge Straus. Thank you, Judge, very much.

Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you.

Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you.

Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you.

Thank you. Thank you.