Strict Scrutiny - Throwing Elbows

Episode Date: March 30, 2020

Leah and Jaime recap other arguments from the February sitting that was a lifetime ago!  They cover Sineneng-Smith v. United States, DHS v. Thuraissigiam, and of course a case argued by that guy Paul -- Seila Law v. CFPB. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome to Strict Scrutiny, a podcast about the Supreme Court and the legal culture that surrounds it. Hey, Leah. Hi, Jamie.

We are your co-hosts today. We miss Melissa and Kate, but I'm excited to be back in the saddle. How are you doing today on social isolation? Okay. We haven't recorded an episode together in a while. Yeah, it's been a bit. But maybe not even before the new year. It hasn't just been the two of us.

And since the new year was 17 years ago, it's been a really long while. Yeah, then it really feels like several lifetimes. So Jamie and I are once again in our fashioned homemade studios, which means you might hear the pleasant background noises of puppies, children, or partners at some point in this episode. And just to reiterate, Melody is not responsible for any of that. You also will probably not hear it, but Leah, you might be able to see over my shoulder Ruth Spider Ginsburg in the background. She's back there. I can at least see Ruth Spider Ginsburg's terranium and living arrangements, but I can't

actually see her. But I'm kind of hoping that Ruth Spider Ginsburg's living arrangements are similar to Ruth Bader Ginsburg's arrangements in that they are both enclosed in glass houses, in isolation, not breathing the same air as any other living creature. That is precisely correct. And I totally agree with you. Nobody should be around Ruth Bader Ginsburg or Ruth Spider Ginsburg. Yes. So thank you for modeling that behavior.

So we have an exciting show for you all today. We have a bunch of February arguments to recap. We've also first got some news. And then we're going to close with some court culture. I am going to start with some of our, it's not really breaking news, but it's some news that we have. And the first item I have is some sad news. The Ninth Circuit judge for whom I clerked, Raymond Fisher, passed away on February 29th at the age of 80 after a long battle with cancer and related complications. Judge Fisher had been on the court for 20 years. And before that, he was the associate attorney

general at the DOJ. As a judge, he was really invested in cases about the First Amendment, election law, and the constitutional rights of undocumented immigrants who are detained by the U.S. government. But I didn't want to talk too much about what is on Judge Fisher's bio. What I wanted to relate briefly, and I appreciate, Leah, you letting me abuse my platform here a little bit, to just share a couple stories about Judge Fisher as a person. And he was really a remarkable man. He loved his law clerks and their families so much. When I was clerking for him, I got pregnant with twins. And I remember standing outside of his office to tell him that I was pregnant with twins,

which meant that I would have to leave my clerkship early because of the twin part. And I had never been so nervous in my life. Like I can actually remember what it feels like to stand outside of his office, shaking, looking at all the pictures of all the clerks who made it through to the end of their clerkship. And so I went into his office and I started telling him and my hands were shaking and sweating. And as soon as I started to tell him the news, he just stood up, his eyes lit up,

he ran around his desk and he just gave me the biggest bear hug and told me how excited he was for me and Glenn. And then towards the end of my clerkship, I would come in in the morning and he would look at my massive belly, eight months pregnant with twins. And then he'd look up at my eyes and he'd say, hi, Jamie, how are those opinions coming along? And so I'd have to tell him like, judge, it's going to be fine. I'm going to finish all the opinions before I have these babies, I promise. And I did. And then years later, when I would go to visit him every time I was in LA, I remember this one time I was starting to tell him about how work was going. And he was like, yeah, yeah, yeah, yeah, yeah. You can talk

about that later with the clerks. I want to know how my grand clerks are. So he just had this real love for the family of all of his clerks. And when we launched this podcast, he sent me this message to tell me that it was making its rounds through the Ninth Circuit, and he was so excited for us. And every time he'd see something in the news that reminded him of me, or anytime he saw the work that I was doing with the judiciary on harassment issues, he would always drop me an email just to tell me how proud he was. And I think the hardest thing for me of all of this is knowing that I'm never going to show up to work in the morning and see an email with Judge Fisher just saying, you know, I saw this, Jamie, and I thought of you. So I just want to say I will miss you,

Judge Fisher. But rest in peace, knowing that your law clerks will carry on your well-deserved legacy of justice and public service. Yeah. And, you know, the anecdote you gave about, you know, how he treated you when you were expecting the twins is, I think, really remarkable because, you know, something that people might not appreciate is that the federal courts and federal judges aren't subject to like anti-discrimination statutes like the Pregnancy Discrimination Act or the statutes that, for example, require them to give their employees leave to take care of families or, you know, to have children. And, you know, you and I are going to be doing an episode later about clerkships in particular. And my guess is we will be discussing these topics more. But

it's nice to have an example like Judge Fisher to be able to say, you know, clerkships can be this positive experience. And, you know, perhaps, you know, if we could get other judges to model his behavior, you know, then that would be a better world. You know, something else that we had wanted to cover were some statements on the prior orders list that you had wanted to flag, I think. Yes. So one thing we've talked about a lot is the fact that stare decisis is for suckers. And we see that sometimes. Which, by the way, you can get on merchandise if you go to our website, strictscrutinypodcast.com.

Although I believe that because of the coronavirus, there is some delay in processing shipments, but you can still order them now. Absolutely. Especially since while everyone is at their home, working at their homes, it's a great time to wear T-shirts and sweatshirts more often. And you might be short on high quality tri-blend apparel and the swag story gives you the opportunity to get it but one thing that's that was funny to me and that I've seen more frequently is you know we see opinions and during arguments some of the justices making clear that stare decisis is for suckers but one thing we've seen more of is justices actually like inviting parties to give them the opportunity to overturn prior cases and And so there were a couple times that happened recently. The first one is this case called Patterson versus Walgreens. And it has

to do with religious discrimination and a 1977 decision, Transworld Airlines versus Hardison, which basically recognized you can't discriminate against an employee on the basis of their religion. But employers also don't have to do a ton to accommodate religious practice. And so this Patterson case involved, I think, a Seventh Day Adventist who refused to work on Friday nights and Saturdays, which is when he observes the Sabbath, and his employer terminated him, and the decision was upheld because it would have worked an undue hardship to Walgreens to accommodate his kind of schedule with their own training sessions and such. And the court denied cert, but Justice Alito, joined by Justice Thomas and Justice Gorsuch,

said pretty clearly that Hardison should be overturned in an appropriate case. And what do you think the consequences of that? Because I mean, that doesn't seem for many people horribly objectionable to say like, wait, employers should have to do more to accommodate, you know, these important characteristics of your identity. But this raised alarm bells for some folks. Yeah. So I think of this case as kind of, or this issue as kind of of a piece with some topics we've discussed before, you know, First Amendment exemptions to generally applicable civil rights statutes like Masterpiece Cake Shop or conscious exemptions, like in the Affordable Care Act contraceptive mandate cases that the Supreme Court is going to be hearing, although it might be delayed in hearing them.

So part of the reason why I think people were concerned about this writing, if they were concerned about it, is, you know, you can apply that same principle to all of the kind of masterpiece cake shop and religious exemption cases as well. So, for example, like a pharmacist who is unwilling to prescribe plan B, like does an employer have to make an accommodation, you know, thereby allowing that individual to continue to serve as a pharmacist, even though, you know, they might not be willing to like dispense certain medications or, you know, healthcare to individuals. So it's going to lead to or at least implicate some of the same issues or other fact patterns that the Masterpiece Cake Shop and religious exemption cases would have as well. So I think that's one of the reasons why individuals were a little bit concerned about it is, you know, what if you are asking employers to continue to

employ individuals who are unwilling to perform like important parts of their jobs and are unwilling to offer services to certain groups of people? Are those accommodations that you're going to be asking employers to essentially have to give out. And, you know, you add their willingness or interest in overturning that case to the fact that those same justices together with Justice Kavanaugh had previously expressed interest in overturning Employment Division versus Smith, which had basically said, you know, generally applicable laws, even when they burden religion or constitutional, then, right, you are increasing the likelihood that you are going to be getting carve-outs from generally applicable statutes and undermining some civil rights protections

or all-comer obligations that groups have relied on to be able to access various benefits and whatnot. That makes sense. It's kind of laying the groundwork for making a super constitutional right based on religion that will trump the other really important rights as well that many people have. So that was certainly a notable dissent, or sorry, it was a concurrence or a statement respecting the denial of certiorari, something along those lines, I think. Yeah, exactly. The second case was a case called Baldwin versus United States. And that's about agency deference. And it has to do with a

case called National Cable Telecommunications Association versus Brand X Internet. And that was kind of, it's a kind of complicated case. The basic rule is, if you have an agency interpretation of a statute, then you have a court subsequently interpreting the same statute. And then you have an agency interpretation of a statute, then you have a court subsequently interpreting the same statute. And then you have an agency subsequently interpreting the same statute in a way that's at odds with what the court said. The Supreme Court held in Brand X that the court's interpretation is controlling only if it was actually dictated by the plain text of the statute. So if the court said this is a totally unambiguous statute, there's only one reasonable interpretation, then the court's decision controls. But otherwise, the agency can have a different decision, and that one is entitled to deference. And that decision was written by Justice Thomas. And Baldwin versus United States, Justice Thomas basically called for

the reversal of his own prior opinion. Yeah, so I think of that, you know, interest in overturning Brand X as kind of part of the trend of limiting the administrative state and limiting Chevron because overturning Brand X would, you know, limit Chevron in an important category of cases where courts have issued, you know, prior interpretations of a statute. And, you know, those, these trends in the case law are kind of I lump under the bucket of you know party like it's 1935 and all these kind of like pre-new deal you know strands of cases that the justices are expressing renewed interest in. Yeah and I see the agency deference issue as potentially facing the same fate as Roe and Casey which is maybe the court won't get rid of Chevron

all at once but what they'll do is they'll get rid of is maybe the court won't get rid of Chevron all at once. But what they'll do is they'll get rid of Brand X, and then they'll get rid of agency deference to its own interpretation of its own jurisdiction. And yeah, well, and yes, and that as well, the kind of deference to guidance that's interpreting regulations, interpreting statutes. So it'll kind of chip away little by little until really you've already laid the groundwork to get rid of Chevron itself. So I see that as perhaps the most likely result.

And that's what basically Justice Thomas is calling out for. So bring in those petitions, folks who like ad law. Yeah, it's interesting because I could see those cases kind of reaching one of two conclusions. One is the path you laid out, you know, the court chips away, chips away, chips away, and then ultimately pulls the trigger and says, you know, therefore the case is overturned because, you know, it's not, it's part of a doctrinal relic basically. And like, we've already laid the groundwork kind of like a Janus style progression.

But another possibility is they just essentially limited it. So the exceptions are basically controlling. And whenever the court doesn't want to apply Chevron, there's an exception that it can turn to. And I guess I don't really have an intuition about which path is more likely here. But as you noted, Justice Thomas was the author of Brand X and also the one calling it for due overturn. That's not necessarily atypical. So Justice Scalia was, of course, the author of Auer versus Robbins. But toward the end of his career, he also expressed some misgivings and, you know, concerns about whether that decision and line of cases was rightly decided. I feel like was Justice Stevens the author of Chevron

and later on was like, whoa, I didn't know that I was doing all this, guys. Wait a minute. I don't think he called for it to be overturned, but I thought he said, like, I did not realize this was going to be that big of a deal. I don't think, yeah, I don't think he called for it to be overturned, but I thought he said, like, I did not realize this was going to be that big of a deal. I don't think, yeah, I don't think he realized he was authoring, you know, a major foundational case of administrative law and the case that would launch a million different law review articles. Yes. And now a thousand different cert petitions. Yes. So should we go on to argument recaps? Let's do it. So the first case we're going to recap is United States versus Sinanang Smith. And this should sound familiar to those who listen to our live show in Boston. So this was the case about whether a statute that criminalized encouraging or inducing someone to enter or remain in the country illegally was unconstitutional under the First Amendment's

overbreath doctrine. And that's a doctrine that allows someone to seek to invalidate a federal or state statute by saying, even if it's not necessarily unconstitutional as applied to me, it is overly broad. It sweeps in too much behavior that can't be made illegal based on the First Amendment. And so you should strike it down because otherwise it will have a chilling effect on on a lot of people. So the government, it was interesting, I found the government's approach interesting. So they focused a lot in my view on the distinction between conduct and speech. So they said, this statute isn't aimed at speech, it's aimed at conduct. And

to the extent it could ever be construed to be aimed at speech, then you should just deal with that on a case by case basis. Did you find that a very compelling framing, Leah? I mean, on one hand, yes, right? Like it's a plausible way of kind of limiting the reach of overbreath doctrine in particular, and basically suggesting to the court that you don't count those cases, i.e. cases regulating speech in the overbreath analysis. On the other hand, like the distinction between this like conduct speech and like what is expressive conduct and what speech like is increasingly porous and amorphous as the court's cases say things like donating money to candidates or other forms of conduct, like our kind of core speech. And so the line between the two isn't clear in light of some of the court's recent cases. And so on the other hand, like

that distinction, I didn't know if that could do quite as much work as the government was trying to make it. Right. And so we have one clip with Justice Kavanaugh giving this example of donations. What about a charity? So a charity provides food to someone who's in the country unlawfully. So first of all, I think that would be conduct rather than speech. So I don't think it would factor into the overbreadth analysis. either donating or soliciting donations, have all held that it's expressive conduct protected by the First Amendment. So I feel like particularly in this donations context, it really doesn't hold water to kind of distinguish between speech and conduct, but perhaps the justices will feel differently. Yeah, and I think like a slightly related aspect of that argument was the government arguing that you couldn't violate this statute just by talking. That is, you had to engage in some kind of substantial participation in the

illegal activity. But it wasn't at all clear what substantial participation meant beyond words in at least some of the cases that the government seemed to imagine that the statute would reach. And so I don't know that that tactic really went anywhere either. Yeah, and it was interesting because Eric Fagan, who was arguing for the government, even at one point had to say, well, yeah, sometimes words can constitute substantial participation. So then I think Justice Alito and Justice Kagan both had these, okay, so where's the line?

Like saying, I encourage you to stay here, which is basically parrots, the language of the statute, would not fall within the statute, according, according to the government. But if you say, I really think you should stay here. And here is a memo, you know, under underscoring why you should do so. And that's what Justice Kagan kind of posited. Would that be enough? And I felt like the inability to kind of explain exactly what would be covered is the entire reason for the overbreadth doctrine. Part of it is about giving people fair notice about what they can do without doing something that's a crime and what you need to avoid. And so the fact that the government couldn't articulate that in this argument, I think,

really helped, in some ways, helped the defendant make her point. Yeah. And because this is an overbreath case, you know, part of the challenge and what the court was focused on was, well, what other cases would be subject to the statute? You know, who else could be prosecuted in it? And that generated a lot of hypotheticals in the argument that the government tried to argue, well, no, that person wouldn't be covered by the statute and couldn't be prosecuted. But some of the limits that they offered and suggestions for why those people couldn't be prosecuted didn't necessarily seem to match the statutory text. So let's play one clip from the Chief Justice offering one of the hypotheticals that I think came from the defendant's brief. Well, let's suppose, you know, a grandmother whose granddaughter is in the United States

illegally tells a granddaughter, you know, I hope you will stay because, you know, I will miss you. Things will not get better if you go back. So I encourage you to stay. That would be illegal under the statute, right? It would not be illegal under the statute. Yeah, I mean, I feel like you have an uphill mountain to climb when you're saying that the thing that is expressly stated in the statute would not count as falling within the statute. But I thought that Mark Fleming, who was arguing

for The Respondent, who did an awesome job at the argument, he kind of provided his own many, many examples of things that under the plain text of the statute would qualify that were very powerful. Falsity is not an element, nor is truth a defense. Even accurate advice encouraging someone to stay is banned. And as a result, this law makes a felon of a teacher who says to an undocumented student that she should stay and pursue her education. It makes a felon of a pastor who says to undocumented worshippers that they can stay and freely exercise their religion. It makes a felon of a doctor who encourages an undocumented patient to stay here for medical treatment.

And as the government has still never denied, it makes a felon of a lawyer who advises an undocumented client that her best route to lawful status is to remain physically present in the United States. Eric Fagan, I think, did make some headway in saying, listen, all this stuff you're talking about has never been prosecuted. And that's kind of the trust us kind of concept. But the problem with that is, A, the overbreath doctrine is about chilling speech. And then B, I think, you know, there were some examples even that he had to concede, well, you know, this example from Massachusetts, it really probably goes close

to what we think the line would be. And it's not the SG's office making calls about what prosecutions are happening. It's, you know, lying attorneys throughout the country in all different jurisdictions with different leadership. So it's hard to go with trust us in that situation, I feel like. Yeah. And, you know, Justice Kagan basically asked this question of, you know, should we be considering only those cases that have been brought? Like, that doesn't seem like it can quite be right, given that you can make an overbreath challenge, you know, to a statute that hasn't yet been enforced in a lot of cases, like if the statute clearly sweeps super broadly and covers a bunch of protected speech. And so the, you know, denominator in these cases can't just be the actual prosecutions that have

been brought, particularly in a case like this one, when federal criminal law, particularly in this area is so broad, you know, an individual's conduct can potentially violate a bunch of different federal statutes, you know, and that was the case here. And so a lot of the federal prosecutions just end up being resolved with pleas under other federal statutes. But that's not because, you know, that conduct couldn't be prosecuted under this one. That's really a really good point I hadn't even thought of. The fact that a lot of these things plea out anyway, which means that even without a history of prosecution, these types of statutes with a potential 10-year sentence could be used as leverage to scare people into pleading guilty to things that will affect them for the rest of

their lives. So there was, you know, sometimes amicus briefs get attention in arguments, and this was one of those cases. So Eugene Volokh wrote a brief that basically would, he would say, would fix all of the problems with the statute by just placing a requirement that the person had to be encouraging a violation of criminal law rather than just a violation of law. And Justice Breyer seemed very enamored with this idea of a way to just fix everything. So I'm curious about your thoughts on this, actually, because, you know, sometimes you use constitutional avoidance to tweak statutes, but you're not supposed to use them to rewrite statutes. That's something we'll talk about, I think, later on in the CFPB case. So what's the line? How much can you do to change things?

I'm not sure that the court has established any real consistent line. You know, there's that famous last word that Miguel Estrada left the court with in an argument. I can't remember whether it was last term or two terms ago where he said, look, you could save this statute without having to do something like rewriting a penalty as a tax, you know, like the court did in NFIB. Or, you know, reading this term in the statute implementing the Chemical Weapons Act to basically not apply to those things at all. So, you know, sometimes the court rather aggressively rewrites the statute. And other times it says, no, we're not allowed to do that. We're only allowed to choose between competing plausible interpretations. And I'm not sure that there is a clear line that divides, you know, what's permissible constitutional avoidance from what's not. Here, part of the problem is that the limitations that the government is proposing and that some of the amicus briefs are arguing for are limitations that are really not plausible because they map onto other provisions in the statute.

That is, they would make this provision duplicative with others. So that was one problem with them. But another one is that the particular limitation that Volokh was proposing was that a real solicitation statute only applies when the underlying conduct that's being solicited or encouraged is criminal in nature. And in the context of immigration, that's pretty complicated because sometimes being present without legal authorization is a crime, sometimes it's not. And here, it's not at all clear that the conduct that was encouraged was criminal. So that came out in what I think was a pretty funny exchange between Mark Fleming and Justice Breyer.

That's it. That's the question, because that's what's floating around in my mind. I think, Your Honor, if you write that opinion, you'd have to add one more sentence, which is the judgment below is affirmed. But if you add that sentence, we would be fine with it. Right. And so, and I think it was interesting also, this came right after, you know, the government was really pushing back on this Volokic theory, and I was not quite sure why. And then I found out later it's because, you know, Mark Fleming made a pretty convincing argument that that's because none of what his client did was encouraging illegal conduct. And so I think that's what he was getting at here with, if you want to adopt all these

other rules that lets my client win, that's fine, as long as you say affirmed. And then I would be very happy. Yeah. And then, you know, as we were also suggesting, the government's proposed modifications to the statute, as well as the amicus briefs proposed modifications would make a pretty aggressive changes to the statute. And the Chief Justice made a crack about that, that I think is pretty good. So let's play that clip. We have to get that passed by the Senate and House and then signed by the president before we could put that many changes to the statute. The chief makes a funny.

I know, and he got some laughs too. So good for you, chiefie. I would say, I think overall, this went probably about how we thought it would go at our live show, though I was pleasantly surprised that it seems like the justices had similar concerns with the trust us position as they did in other cases involving kind of white collar criminals. So that was encouraging. But let's see. Yes, let's see. I'm cautiously optimistic. And I would echo your

assessment that Mark did a really wonderful job. And I know we also really like the briefs. And so I'm hoping that this goes in an angst-miss way. Yes. So another case that we wanted to discuss is something that we didn't preview in any of our prior episodes. And that's Department of Homeland Security versus the Rice-A-Guyam. I might not be pronouncing respondent's name correctly. And I apologize if I am not.

But I've heard other people associated with the case say it that way, so that's what I have gone with. I would say go with it. Sounds right to me. Thanks. Thanks, Jamie. So part of the reason why I'm excited about this case is it's a habeas case in some ways, but it's also incredibly significant because it is in some ways a follow-on to the court's major opinion in Boumediene v. Bush that held that the suspension clause guarantees a minimum right of habeas corpus even outside the territorial bounds of the United States in some instances. And this case involves the constitutionality of the expedited removal system,

so this is also an immigration case. Typically, the way removal proceedings work is when you are detained to be removed, you challenge your detention and potential removability before an immigration judge and then the Board of Immigration Appeals. And then when you finish that process, you can file a petition for review in the Court of Appeals. And the Court of Appeals will review legal determinations and some factual ones. And so that's how that process works.

Now, expedited removal is more expedited and abbreviated. And under that system, individuals who have been apprehended within two weeks of entering the United States within 100 miles of the border are subject to expedited removal. That is, they cannot file a habeas claim or seek any judicial review of their removability determinations, even if they claim they have a good claim for asylum or withholding or cancellation of removal or a claim under the Convention Against Torture. And so the question is whether eliminating any possibility of judicial review for those legal claims or mixed legal factual claims or factual claims violates the suspension clause. And Liam, in those situations, it's first they go before an asylum officer, right, for what's called a credible fear interview. And that has seemed to me to kind of be like an asylum officer kicking the tires of what someone is saying to see if it kind of holds water facially. I think

that's what it's supposed to be. And then if so, they would send it on for more analysis by an immigration judge. And if not, then there's a very limited review and then virtually no review by the court or no review really by the court. Yeah, no, right. Like that's the end of the line. The process you get is the asylum office or interview or, you know, the immigration office interview. And then that person's determination is final. And like, you don't get any review of that in court under the expedited removal system. And, you know, suspension clause, at least traditionally was understood as kind of a guarantee against executive detentions, like without the kind of full-blown process that you get in criminal trials,

even though today a lot of habeas is post-conviction review. That is review of convictions that came with full-blown, you know, procedural protections that are accompanied by a trial. But this, you know, is the kind of classic kind of detentions that were thought to implicate the suspension clause. And we talk about the habeas statute a lot, which is very complicated. But habeas as a concept is enshrined in the Constitution. And we know that since there's a habeas statute that places a bunch of limitations on people's ability to access habeas relief, we know that Congress has some

ability to limit it. But they can't, that the suspension clause basically says you can't suspend it entirely, except in like war, I can't remember what the two conditions I think were. But they have some ability, but not to completely curtail it. Right. And they don't have to provide habeas if they provide what's called an adequate substitute. So basically, like something that meets the like constitutional floor of what the suspension clause guarantees you. But the government isn't really arguing here. The primary focus of this brief is that the suspension clause just doesn't apply at all. It is not really arguing that the system is an adequate substitute. And I think that that would be a pretty steep hill to climb

just because there is so very little minimal process and basically no judicial review whatsoever. And even though this system is pretty limited in that it just applies to individuals who were apprehended within two weeks of entering the United States within 100 miles of the border, the Trump administration has since expanded the system and some of the Trump administration has since expanded the system, and some of the Trump administration's arguments would apply to many other kinds of immigration proceedings as well. That is, their arguments for why judicial review isn't warranted here might mean that Congress could eliminate judicial review over other kinds of immigration-related cases as well. So the Trump administration has expanded the expedited removal system. So now that any individual can be put into expedited removal, so long as they can't prove they've been in the United States for more than two years. Now, technically, like the Supreme Court is just going to resolve the constitutionality of the prior expedited removal system. But what it says

about whether that expedited removal system that's more limited is constitutional might tell us whether the expanded system of expedited removals as well. And so, for example, Justice Kavanaugh asked the government a question about, you know, what is the limiting principle to their theory? Like, what kinds of people could they subject to expedited removal without raising suspension clause issues? So let's play that clip. Does your constitutional principle change at some point based on how long the non-citizen has been in the country, even though unlawfully? Well, we think Congress is

entitled to make a judgment about how long that period should be. And Congress has established a two-year limitation. And we think that that judgment is entitled to great respect. Yeah, it seems like the thrust of the government's entire argument was Congress is entitled to deference, Congress is entitled to deference. What they say, you know, you can't really question it that much. So that naturally raises the question of like, well, at what point did the deference run out, if ever?

Like, what could they do using other deference? And then the government had kind of two theories in play for why the suspension clause just isn't implicated at all. And as I was saying, like those theories could suggest that not only the expanded expedited removal system is constitutional, but also that Congress could eliminate judicial review over other kinds of cases as well. So the first theory is that the suspension clause and constitutional guarantees of habeas does not apply to deportations, exclusions, or removals. And the reason why, the government says, is that habeas is really only about detentions. So the Constitution only guarantees you the ability to challenge your detention. It doesn't guarantee you the ability to challenge

the government, you know, deporting you, sending you off to some other country, because in that case, you're not necessarily seeking release from detention, you're seeking something else. So the concept being that, you know, habeas is saying you are wrongfully imprisoning me without any legal authority to do so. And so I should be set free. And so the point that the government makes is here the petitioners don't want to, or here the respondent doesn't want to be set free.

They just don't want to be deported. And that's not what habeas is about at all. The problem, as I understand it, is that there are a whole bunch of Supreme Court cases that apply habeas in the immigration context. So that seems like an uphill battle, though they obviously had ways that they distinguished some of those cases. Yeah. Also, you know, stare decisis being for suckers, who the F cares about, you know, the centuries of cases that hold habeas applies in those immigration cases. But I mean, this argument, I think, was really striking and unsettling to

federal court scholars and immigration law scholars, just because it's been understood for so long that habeas does apply to these cases. And in fact, that these are the kind of core cases that habeas is about. And in fact, like basically right after Congress began regulating immigration in 1875, like the government was pressing the same theory and the court, you know, kind of rejected it as silly. And then I think it was the Akio case in like 1892 and Xinyao and Junalong. But all of these cases that said like like, of course we can review deportations because not only are you detaining someone incidental to those deportations,

but if they succeed in arguing that their detentions are unlawful, like the reasons why their detentions are unlawful is because you can't deport them anyways. And so the claims are just so inextricably linked. And also like the deportation is like a serious restraint on your liberty and itself like a kind of detention because this is the government telling you like you can't be here, that this would be the kind of case that the suspension clause applies to. Right. So the second theory was that even if the suspension clause applies to certain kinds of immigration

cases like deportations or exclusions, the due process clause does not guarantee an individual seeking admission to the United States any constitutional rights regarding that admission. So this theory is a little bit different because it would just mean that persons arriving to the United States aren't entitled to judicial review, not that people who are being deported from the United States lack the ability to obtain judicial review. And Justice Kavanaugh talked about this particular point with counsel for respondents. Let's play that clip. On the question of history, you make a point. But on the question of precedent in Landon v. Placencia, and I just want to get your

reaction to this. You know what sentence it is. Justice O'Connor, writing for eight justices, says the court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application. So that's a statement of law for eight justices. Why is that statement wrong? Or if it's not wrong, why doesn't it control here? The one thing that I was a little confused about is, you know, because this is about the suspension clause. And so the kind of interaction between habeas and the due process clause, it was unclear to me whether would the respondent have to win on

both to win or no, I don't think so. Right? Yeah. So I think that the relationship between the suspension clause and due process is to put it lightly, like complicated and not at all clear. The relationship status on Facebook is it's complicated. Complicated, exactly. But in Boumediene kind of blurred the distinction between the two because there the court said that just because the government might have complied with the requirements of due process, basically what the court had suggested, due process required in Hamdi, does not necessarily mean that the government had complied with the suspension clause. So there is daylight between the two claims, which is what Respondents Council was really pressing here. And it's also true that

a lot of people who want to challenge their detentions and are arguing that the suspension clause entitles them to challenge their detentions will also be raising a due process claim, namely that they are being deprived of liberty without due process and that the government has made an erroneous application of the statute to them. But the claims are different because you can also just have a statutory claim that isn't necessarily coextensive with or bottled up in a due process claim, like an error of statutory interpretation or a fact-based claim. And so there is some daylight between the two, but they're also related in various conceptual ways

that seem to cause some complications throughout the argument and some of the justices being unclear when the government or respondent were referring to either one of the government's theories. Yeah. And Justice Breyer brought up Boumediene a whole bunch of times. And I was trying to remember, did he write Boumediene? I don't think he did. I think that was Justice Kennedy. Wasn't it Justice Kennedy? Yes. Yes, it was Justice Kennedy. But he was really like trying to dig into how, you know, how is this all interacting, which made me want to go back and read Boumediene again. Jamie, I love the inner FedCourts nerd in you coming out. Just want to go back and read Boumediene. Don't we all? Don't we all?

Yes. Those were good times. Let's relive that summer of 2008. Let's just reread the whole thing again. I was actually in the court the day that the court announced Boumediene. Really? Yeah. That was, I feel like that had to have been a surprising loss for the government.

Because the government was used to a lot of deference, especially when talking about wartimey stuff. And, you know, I mean, that's true. But like it was also that, you know, all of that lead up and all the prior detainee cases where the court had basically expressed and signal like super strong skepticism of the government's, you know, Guantanamo detentions. And some of the justices had, you know, penned separate writings basically indicating their views about the constitutional question. It's like they warned the government a whole bunch of times, like, you sure you want to press this? You sure you want to press this? Like, are you really going to make us do this? All right, let's go for it. Right. And they did it. So there you go. One of the more interesting points I think came out in response to a question about the

implications of the rule that Respondent was seeking and the rule that has been in existence since the Ninth Circuit invalidated the expedited removal system because one common trope that comes up in these cases where individuals are arguing for, I have the ability to challenge my detention or something else in court is, well, would this flood the court system? And here we actually have some interesting data on that wouldn't really happen. The number- They came with receipts. Oh, yeah. They came with receipts. They came with receipts, yeah. The number of people who have filed these claims when the Ninth Circuit said they could, is actually shockingly small,

given the number of people who fail their credible fear interview. So let's play that clip. And so what I would give the court a couple of statistics about that. Since the Ninth Circuit issued its ruling, and that's basically a year ago now, there have been, as far count, 9,500 people who failed their CFI and who could have filed a habeas under our rule. Only 30 have. One-third of 1 percent, three out of every 1,000. The reasons are practical. People are removed so quickly.

They're at the border. They can't find lawyers. Even in regular immigration proceedings, pro se from an immigration judge to the Board of Immigration Appeals is only 3 percent. It's much harder at the border. The other thing that will happen is the district courts will lay down some standards. Whatever nonprofits are filing habeas will know. We can't challenge historical facts. We can't challenge credibility.

Your claim is frivolous. We're not going to file it. And you get no mileage out of filing because there's no automatic stay of removal. So just by filing doesn't mean you'll get to stay. And I think this was in response to one thing that Ed Needler said in the closing to his first part of his argument, which was, listen, if you affirm the decision below, then it's going to lead to all of these things. It's going to clog up the courts. And then he went on to say, and not just that, but it's going to encourage people to come across the border.

And every time I hear that argument made about undocumented immigrants, I just want to fucking scream because in large part. I just want to point out that Jamie made the episode explicit, not me. OK, please proceed, girl. I am loving this. So, I mean, when we're talking about undocumented asylum seekers, we're talking about people who often have a third grade education.

They're not reading the Federal Register. They're not reading the Supreme Court Reporter. They have no idea what the Supreme Court has said about the availability of judicial review, of credible fear determinations. And it's just infuriating to kind of stoke these fires. It reminds me of the like, uh-oh, here come the caravans,

and okay, I'm done. Yeah, like they're fucking fleeing, you know, mass violence and domestic violence, state-sponsored terrorism or state-permitted violence. Like the idea- And I'm just imagining like they're, well, should I go? Well,permitted violence. Like, the idea... And I'm just imagining, like, they're, well, should I go? Well, I don't know.

Well, guess what? I can get judicial review of my credible fear interview determination, so I guess we're going to pack up our bags and go now. No, but you know what it might do in a ferment? It might maybe have a tempering effect on what credible fear or what asylum officers do and how they make their decisions. And that would be a very favorable

thing. Yes. So I picked up a little bit in this argument that like Justice Kagan was not feeling the government's arguments. And she was pretty annoyed in some ways as well by the government's argument that, well, you know, we're just arguing for here that you're not entitled to judicial review of fact-based claims. She was like, you're not just arguing that, like you're arguing to preclude legal claims or like mixed questions of law and fact. And so I'm not, you know, I think that just based on the prior writings of all the justices and the argument and whatnot, I think it's likely that

the government is going to win. But I will be watching very carefully to see how they win, just because the theories that the government advanced were so sweeping and far reaching that how they win could prove to be very important. So the last case we're going to discuss today, the last argument, is CELA law versus CFPB. We also previewed that at our Boston Live show. So if you remember, this case is about the constitutionality of the structure of the Consumer Financial Protection Bureau. And it's specifically about whether a provision making the director of the CFPB removable only for inefficiency, neglect of duty, or malfeasance while in office violates the separation of powers. So the main questions in the case were A, is for cause removal of a single director unconstitutional? B, if so,

is that provision severable or does the entire Dodd-Frank Act have to fall with it? And C, whether that decision of the CFPB's director in this particular case was ratified later by a removable officer. And I will tell you, I was at the argument and just a tiny little bit of tea is that present at the argument was Mick Mulvaney, who used to be, maybe he still is, no, used to be the director of the CFPB. Justice Scalia's wife was also there, along with one of her sons. But there were a lot of people in the audience, and there were a lot of people in the justices' boxes, which sometimes are not so full. It was a jam-packed room. So this case, it was interesting because during the, Kanan Shamigan was representing Selah Law, and he only got to talk about the merits for, I think, like maybe a minute.

Most of that discussion was about severability and ratification and all of these procedural issues. But I think there was a really interesting exchange with Justice Ginsburg about liberty, which she doesn't always go to the grand majesty of the liberty of the law, and she went there at this time. So a central piece of Kanan's argument is that for-cause removal protects individual liberty, because otherwise a politically unaccountable bureaucrat would be able to exercise executive authority, and we don't want that because that would infringe on our liberty. So here's Justice Ginsburg with her own ideas about liberty. You talked about liberty. Whose liberty are we speaking of? What about the consumers? Congress passed this law so that the consumers would be better protected against financial fraud. And you're talking about, I suppose, the liberty of your client. But what about the people that Congress was concerned about, that is the consumers, who

were not well protected by the array of agencies that were handling these problems? So, I mean, I think that goes to a point we'll talk about in a little bit, which is about, you know, Congress's judgment and when to respect it. Because, you know, I think she makes the right point that there's a lot of people who aren't being protected by agencies. And so allowing some level of independence makes sense, too. And that's what Congress decided and the president at the time decided was appropriate. And I think that that's like a particularly topical observation now when, you know, in the midst of this coronavirus crisis, you know, we understand liberty to be not just like the absence from government regulation, but like liberty is partially secured by like government action and government regulation. So, you know, some people think that, you know, the government might be

doing things better if it took more active steps to, you know, require or, you know, get companies to make more PPE equipment or, you know, to rely on the Defense Production Act and whatnot. And so, yes, the CELA law is relying on liberty and here basically, you know, using as a shield from government regulation or government activity, but that's not the only kind of liberty interest that is implicated in these kind of administrative law cases. I think this actually is the perfect time to play a clip when Paul Clement, in a somewhat prescient statement, started talking about the coronavirus crisis. So just as an initial point. So first, he was giving some examples of why we might want insulation of agency heads and why that's totally reasonable.

And so first, he said, you know, how about the Fed? We don't want the president to juice up interest rates right before an election. So we're going to give that to somebody who's insulated. That seems reasonable. And then he said this. In the current situation, you see people are trying to make a political football out of dealing with a pandemic disease. So maybe Congress decides, you know, it makes sense. Let's have the head of CDC be protected by for cause removal because that'll make sure people get good advice and it doesn't become political. That is the kind of sensible decision that Congress has been making for over 100 years. And so obviously we don't we're not talking about a CDC head. But, you know, when you watch these news conferences and everyone thinks to themselves, like, just please let Dr. Fauci talk and nobody else.

It makes sense that that sometimes Congress's judgment might be the right one. And that's something that Justice Kagan talked a lot about as well. So she said that the Constitution says nothing about removal at all, or about the structure of government, the organization of government, and it instead allows Congress and the president to decide what type of governance works best for different types of situations in the public interest. So here is her clip talking about leaving it to Congress. So what strikes me about a lot of these arguments in the brief and here, and you're saying, you know, this is the better way to promote liberty, to protect liberty. I mean, traditionally, there's been a long history of saying that it's actually the political

branch's decision as to which is the best way to promote liberty. This is a Constitution that does not say anything about removal. It does not say anything about for cause or at will or anything else. Indeed, it doesn't say anything very much about the structure or organization of the government in general. It essentially allows it to Congress with the president, the president has to sign these laws, to decide which institutions of governance and which modes of governance are best to promote liberty and to serve the public interest. And I don't know how to make these decisions.

They're contested, they're contestable as to what independence and what form of accountability and what form of presidential control is appropriate. Why don't we just leave it to the political branches who actually know about these things? Yeah. So Justice Kagan was really in full on beast mode in this argument. You know, I appreciated that observation. And, you know, we kind of began the segment with your observation that Cannon made liberty a kind of central feature of his argument. And I think part of the reason why that became a central feature of the argument is that the claims for why the CFPB structure were unconstitutional had kind of evolved over the course of this litigation. So it kind of began as a, well, the structure of this agency is new and different and it

like uniquely infringes on executive power. But that claim got debunked pretty quickly for a reason that we'll get into when we get into some more Justice Kagan observations. But then it became, well, this removal structure is bad because it's a unique affront to liberty because a single director agency can act more quickly than a multi-member commission can um and that is to my mind just like a really odd place for this case and these arguments to have arrived at because of course what salo law and the government are asking for is for this agency to be subject to

more presidential control and usually we think about the executive branch and like the president as the institution that is capable of acting more quickly like with energy and dispatch and secrecy in alexander hamilton's words so the idea that you are arguing for greater presidential control as a solution to an agency that has like too much power and can like act too quickly is just like a really odd place again for these claims to have arrived at. But part of the reason why they have arrived here is because this distinction between this case and the court's prior cases, Humphrey's executor in particular, is so kind of thin. So Humphrey's executor is the case that upheld the four cause removal restrictions on the heads of multi-member commissions. The CFPB is a single director agency, so it's led by one person instead of many. And so here's Justice Kagan making a few observations about why that distinction can't possibly mean that the CFPB is unconstitutional and multi-member commissions are constitutional. Your argument rests mostly on this distinction between multi-member and single-member agencies. And I think most people who have been in these agencies or have studied these

agencies, have observed these agencies, might say to that distinction is that it's kind of simplistic, that it all depends, that there are so many contingencies involved as to which kind of agency a president might have more effective influence over, that one simply can't make a general statement of that kind. You know, there are voting rules. There are rules about whether there's a weak chair or a strong chair. There are rules about holdover commissioners. There are a thousand things that go into whether a president has influence over any particular agency, of which the question, is it one or multiple members, is not so important. So I found Justice Kagan's analysis very compelling. I will say that after,

you know, I've read the briefs, I've listened to the argument a bunch of times, I was there as well. And after all of that, I think I've kind of changed my view on what I think Petitioner was trying to argue about single and multi-member agencies. So I don't think, and maybe this is different for the government because they seem to really latch onto this more so, but I think CELA Law's argument wasn't as much that there are actually massive and significant differences between single and multi-member agencies. Here's what I think they're trying to say. For cause removal of principal officers is unconstitutional. Full stop. Yes.

But Humphrey's executor said it was OK for the FCC. And the only intellectually honest way to make Humphrey's executor consistent with all of the precedent that rejected four cause removal is to is to interpret it to establish a special rule for multi-member agency heads. And if you don't agree with that, that's fine. But what that means is that then, court, you have to overturn Humphrey's executor because it's inconsistent with the cases that came before it, and the court has backtracked ever since. And so I interpreted Selah Law's argument to basically create an escape hatch for the justices who don't want to totally displace the administrative state.

No, I think that that's absolutely what they're doing. But I think that the problem with that argument is something that Justice Kagan also seized on. I'm not sure, General, that you responded to the part of Justice Ginsburg's question, which, again, focused on this principal argument that you're making, which is the multi-member versus the single member. And I think she was saying that even if you could make a generalization, which I think that there are problems with, but even if you can make a generalization, it cuts the other way, that a multi-member commission, just because it diffuses power, is much more difficult to influence.

You know, if a president can get one person on the phone, that's a lot easier than if he has to worry about seven people who are all doing their own thing. And so just the basic understandings of one person, easy to influence, more accountable, even if you can't influence him, you can point at him. Why isn't a single member agency better? If that's really what the government is doing, you know, they're arguing that like Humphrey's executor was wrong and has to be like limited because it's inconsistent with like all

of these other cases and the correct baseline constitutional rule, then you can identify a bunch of other distinctions between the agencies in Humphrey's Executor and other agencies today. And the only way for those distinctions to be, as you were saying, like intellectually honest, is those distinctions have to make a difference with respect to the relevant constitutional question. Here, presidential control. And it's just not clear that having five people insulated from presidential control is any

better than having one person insulated from presidential control. In fact, you'd think it would be the opposite, which is what her kind of other point was. And so I agree that's like what Saylor Law and the government are arguing, but that just invites all of these other distinctions with Humphrey's executor as well, given that the distinction that they have identified, like while true, it is a distinction between these two agencies, it's not a distinction that should make a difference, like, with respect to the relevant constitutional rule, the extent of presidential control, which is what the constitutional claim is about. And then, you know, then there's a separate question of, well, are they right that, like, Humphrey's

executor is wrong and, like, inconsistent with, you know, prior cases and, like, past practice, and, like, the only case that they have for that it's inconsistent with is like meyers right so it's just like one case and then you have all these congressional statutes that have been enacted after meyers and so like those are kind of relevant historical practice too and you know i i don't know i i i like wrote a lara viebee article that is kind of relevant here about the seizing on new distinctions between one agency and another or new distinctions with these prior cases. And that just can't be the way that we are deciding cases

because that just utterly rejects the common law model of reasoning, which is a major constraint on judicial decision-making. You have to be identifying distinctions that make a difference and the distinctions that are relevant, not like, well, that case was decided on a Wednesday and therefore, right, it's not binding for like agencies that were created on Tuesday or like it's not binding on me because the justice that offered that, like his name was William Howard and like my name is John Roberts. And you know, like those are distinctions too, but like nobody thinks they matter.

That's only how we decide qualified immunity. So I totally agree with you. And I think the most interesting, and I know we've talked about Justice Kagan a lot on this particular case, but she was really getting at this point when she was saying like, you guys, you're making this whole big, you're acting like removal is the most important thing in the world. And let me tell you, it is such a tiny piece of the executive power discussion. And so here are a couple thing that, if you wanted to pick one thing, you would pick appointments as reflective of whether a president will have control or not control over a particular person. So, you know, it's appointments, it's length of term. There are so many things that go into the question of presidential control. Removal has historically been very difficult for presidents to exercise as a way of controlling people because the people you want to remove the most, there are all kinds of political constraints about why you shouldn't remove them.

So removal is like a nuclear bomb. There are all kinds of things that actually figure in how much control a president has over an individual that have nothing to do with removal? Why is it that we've picked this one thing as the sine qua non of Article 2? So my, and I've listened to her, you know, a bunch of times, and I've read back into it, because I'm trying to get, figure out what exactly was she getting at? And I'm curious what you think. My thought is that she, Justice Kagan, is an expert on administrative law, on executive power. Even after she became dean of Harvard, she still kept teaching this class because she loves it. And I think she realizes that the court has never really had the big nature of executive power discussion that puts everything on the table and looks at what is executive power, what's important to it, what infringes on it. Instead, it keeps tinkering around with these little limitations and acts like each of these limitations matters. And I think that Justice Kagan would actually be cool with overturning Humphrey's executor. But if so, she wants everything on the table, not just this one

thing. I don't think Justice Kagan would be cool with overturning Humphrey's executor. I think that what she's getting at is the kind of two steps that are part of the unitary executive theory that Selah Law and the government are kind of pressing. Like the first step being that the president possesses all executive power. And the second step being that in order to ensure that the president possesses all executive power, the way to ensure that all of the officers are exercising the president's will is to give the president at will removal. And she's kind of targeting the second step, which is even if I grant you the first step, that the Constitution requires a president to exercise all executive power, we can ensure that the president has control over officers

in a bunch of different ways besides the removal authority. And we should look at the full picture of all of that in looking at whether a particular agency structure is constitutional or not. I kind of also wondered whether in appointing Paul Clement to argue this, she was hoping that he would get bigger into this grand discussion and he stayed a little bit more granular. And maybe that was spurred on some of her bigger picture questions, but we may never know. Yeah, I'm not sure. I think, you know, as we also talked about in the preview, and as you were alluding to, a lot of Cannon's argument was focused on this question of severability. That is, given that it is, I think, almost certain that the court is going to declare the structure of

the CFPB unconstitutional, the question is, like, what happens then? Do they just invalidate the four-cause removal restriction? Or do they go bigger? And do they say, well, no, the entire CFPB has to go? Does all of Dodd-Frank have to go? Like, what are the implications of that decision? Right. And it was interesting that the government was very aggressive on this in the argument. So Noel Francisco got up and said, you know, frankly, this is a very easy question. You don't have to do a bunch of navel gazing about what Congress would have wanted because it included a severability clause. And there was this exchange between with several of the justices about how much the severability clause matters. Is it just indicative of Congress's intent? Is it kind of answer the question? And one thing that Cannon said in a clip that I found very interesting is he invoked Elizabeth Warren, my former law professor, and he quoted her in pointing out how central the independence of the CFPB was. As Elizabeth Warren, who was really the progenitor of the CFPB, said at the time,

if Congress did not create an agency with functional independence, quote, my second choice is no agency at all and plenty of blood and teeth left on the floor. And so if this court is considering what the hypothetical Congress, what Congress would have hypothetically wanted at the time of the Dodd-Frank Act, I don't think that what Congress would have hypothetically wanted at the time of the Dodd-Frank Act. I don't think that what Congress would have wanted was the creation of an agency that was fully subject to the president's control. I don't know that that's going to ultimately be compelling because, A, she wasn't a senator, and, B, what one person says doesn't actually matter.

But it was a nice rhetorical flourish, I will say. Oh, yeah, it's absolutely a nice rhetorical flourish. But like, this is partially what the severability clause is designed to obviate the need for this, you know, parsing all these individual statements in the legislative history and asking, like, what could they possibly have thought, you know, here you have Congress saying, like, here's what we want to have happen enacted in the statutory text. And that could should kind of be the end of the matter. Yeah. Anyway, we should end this discussion of Selah law with with a an exchange that Justice Gorsuch had with Paul Clement. That's gotten some press. But I'm curious for your thoughts on it. So I want to be responsive. But I want to point out

that I don't think right. But just to point out at starters, you don't avoid drawing a line by adopting the Solicitor General's position. I understand that. Okay. Now if you could answer my question. Sure. So I would draw it the same place I think he would draw it. So I don't think he would say that you can eliminate the State Department by creating a multi-member commission on foreign affairs. That's not my question, Mr. Clement.

If you could answer my question, I'd be grateful. My question is, what if Congress tomorrow revived the Tenure in Office Act, all right, and said presidents can't remove without a whole bunch of conditions, not Senate approval, okay, but something else that looks a lot like that. Wouldn't that be a problem with the Constitution? Absolutely. Okay. Then how do we distinguish this case from that one?

So I think there's two. I offer you two limiting principles, which I think is two more than the Solicitor General has offered you. But here's the first. The first is. If we could avoid disparaging our colleagues and just answer my question, I would be grateful. Neil. uh neil um this is by the way the person who wrote an entire book and went on a big press tour about you know the need for civility and decorum in american life and the exchange is just super weird to me because nothing paul said even came remotely close to out of bounds or different from a very typical Supreme Court

advocate exchange, you know, equating the perceived limitations in his position with his opponent's position and saying, like, you basically can't avoid this difficulty by ruling against me. Like, that was what he was saying. And that's just so par for the course in Supreme Court argument. I had no idea why Justice Gorsuch got so snippy with him. It was like, you know, Justice Gorsuch's first choice is no for cause removal restrictions or CFPB. And his second choice is like blood and teeth all over the floor of one first street. And like, he was willing to knock Paul Clement a few, you know, just to get there. Absolutely. I will say I am I have been the last two terms in particular, frequently turned off by Justice Gorsuch and the way he addresses attorneys at argument, I think he seems to have in mind this

specific way, everyone should answer every question that he asks. And if they don't do so, he seems to almost, it feels like he almost takes joy out of humiliating them in front of their colleagues and their friends and their clients. And I am not worried about Paul Clement. He throws elbows during arguments. He can take them.

He's going to be fine. But I've seen Justice Gorsuch do this to the SG of Indiana at his very first argument. I saw him do this to Steve Vladek in his second argument and to a number of other litigants. And I just think it's really disappointing. People put hundreds of hours of preparation. And just if someone's truly filibustering and avoiding your question, then fine, intervene. But try listening just for a little bit and letting someone tell you their thoughts and arguments, because I guarantee that all of these

lawyers are more steeped in all of the law and the facts than the justices are. Yeah. And like here, just reading the transcript and then again, listening to it, it was clear how Paul's answer was responsive, right? Like Justice Gorsuch was asking this hypothetical, could Congress do this? And his response for why they couldn't was like, here's my limiting principle, which is better than my opponents, right? Like that's a totally responsive

and standard thing to say, I think. And I think Paul was a little taken aback by it just because he ended up saying something about it later. So let's play that clip. And I didn't mean to disparage my colleague. I was just saying the same limiting principle ultimately has to be in place for multi-member commissions. All right. So that covers the arguments from February that we wanted to highlight.

We have one piece of court culture that I think is kind of fun. It's like the Jersey Shore comes to One First Street. And it has to do with actually something that I was involved with, which is a little weird. Wait, are you telling me there was gym tanning and laundering on One First Street? Well, so maybe it's more Real Housewives and flipping tables. This is my jam. Wait, were people calling each other prostitution whores? I mean, it came close, but no.

Sorry, I'll let you tell the story. Okay, so I'm going to call this Supreme Court Barline Gate. And let me provide a little bit of scene setting background. So there's a public line at the Supreme Court and there's a Supreme Court barline, which those two distinctions might be problematic, but let's put that aside. So you've got a Supreme Court bar line. If you're a member of the Supreme Court bar, in days that aren't that busy, you can just walk into the court at 730, get in line inside. But on days that it's busier, you have to stand outside in the cold first. And so you stand

outside, then you're let in the courthouse, then you go stand in another line, and then you go upstairs and you're let into the courtroom. So on the day of the CFPB argument, I knew it was going to be a busy day. So I went and stood outside at about 530 in the morning, which meant I had to stand outside for more than two hours before getting in. And by 730, there were about three dozen or so people in line, which is pretty much the max number of Supreme Court bar members who will make it into the courtroom. Everyone else is going to be in overflow. So at 7.30, we make it into the building and we start filing into the bar line that's inside the building where we would stand for another 60 to 90 minutes. So once I get to the front, these three men came in and stood in front of me.

And I let them know, I thought they were just confused. So I let them know, oh, you know, this is the Supreme Court bar line. And they said, you know, yeah, I'm a Supreme Court bar member. And I was like, well, this is the line. So you have to go to the end. And they said, no, no, no, we got here at about 715, 730. And we just went in the side door. And the security guy told us that this is we just have to wait for the bar line to open up. And then so now we're here in it. And I was like, yeah, no, that's great. But we've all been standing outside for two hours. And one of the men said, I've done this dozens of times. And I was like, well, you've cut in line dozens of times. You know, there's the back of the line there. And then they were like, well, you've cut in line dozens of times. You know, there's the back of the line there.

And then they were like, well, it probably won't even matter. And I said, it will absolutely matter because there's more than three dozen people in line. There are people who won't get in because you're cutting. And so one of them said, well, it's too late to put the toothpaste back in the tube at this point. And I'm like, no, it's not. You could just, there's the line. So anyway, I was, they were just really not having it. And I decided, all right, I'm kind of annoyed. I don't want to push it right now. So I went and got breakfast and I came back and I was still mad. So then someone from the clerk's office who checks your names to make sure that you remember the Supreme Court bar was there. And I explained the situation. And I was just like, so do you know of some other line that exists that allows people to get in without standing outside? And she was like, let me go get someone else. So she went and got a more senior person in the clerk's office who came in and intervened. And he was basically like, sorry, guys, you weren't in

line. I don't know if someone gave you bad advice, but these people were standing outside. And one of the dudes, his voice was raised and he was like trying to tell me, he was like, be quiet, you know, you should quiet down and let me talk. and and he said uh well now it's not fair because now there's all kinds of people in line so we'll never get in and then someone in line was like that's why we told you at 7 30 so you could have gotten to the end then and it turned into it was just drama um but the the long story slightly shorter is that they did not make it into the courtroom, and I consider it my greatest oral advocacy victory in my life. Blood and teeth at one foot straight.

Don't cut in line. All over. Yes, blood and teeth were on the floor, but it was Jersey Shore or flipping tables at the Supreme Court bar line. So don't cut in line, people. I will be there. Well, so that's about all we have time for today.

Thank you so much for listening. We hope all of our listeners are staying safe in this difficult time. And we appreciate you listening to us as we are hopefully all social distancing and self-isolating. Thank you to our producer, Melody Rowell, who continues to make this show even amidst a pandemic. Thank you to Eddie Cooper for making our intro music.

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produced as well as they are. So thank you all. And we will talk to you soon. See you next time.