Strict Scrutiny - Tired of These Fools

Episode Date: June 28, 2021

On June 23rd, we joined the Ninth Judicial Circuit Historical Society, together with the Western District of Washington Federal Bar Association, for a “SCOTUS in FOCUS” event moderated by Cynthia Jones, the program chair of the Society. Follow us on Instagram, Twitter, Threads, and Bluesky

Strict scrutiny listeners, with the court not releasing opinions today, seriously, what is their deal? We wanted to still bring you a regular episode, so please enjoy this recording of an event that we did last Wednesday for the 9th Judicial Circuit Historical Society in partnership with the Western District of Washington Federal Bar Association. The event was moderated by Cynthia Jones, the program chair of the 9th Judicial Circuit Historical Society and Principal of the Jones Legal Group. We hope you enjoy. Well, welcome, everyone. My name is Cynthia Jones. I'm here in my capacity as both the Ninth Circuit Lawyer Representative from the Western District of Washington, and also the Program Chair for the Ninth Judicial Circuit Historical Society. I'd just like to share a little bit about the Ninth Judicial Circuit Historical Society and its mission. And it is preserving the vibrant legal history of the West and education about the importance of the

independent judiciary. And it is this last part that brings us here today. Since we have just a short hour with the three of you, let's just dive right in. We're going to kind of look at a broad theme first, and then maybe dial into some of the cases, even the two that we had talked about that were released today. So starting with some of the big themes that you see from this term, and I'll let the three of you answer that, and then maybe you can segue into the cheerleading case that we heard today and the Lang v. California. movement of law in predictably conservative directions. So I think that's what we saw in Fulton versus City of Philadelphia. I think that's also what we saw in the major takings case, Cedar Point Nursery versus Hasid today. And I think that is also what we are likely to see in the voting rights case. I think a theme has emerged, or at least a brand of commentary has emerged that runs along the following lines. The Roberts court is

moderate, or at least moderate in the sense that they are less aggressively conservative than people may have warned. Sometimes the evidence for this is, well, they didn't overrule Employment Division versus Smith in the LGBTQ equality case, Fulton versus City of Philadelphia, sometimes the evidence for this is to point to decisions where the justices will find agreement across ideological lines. So Fulton is another example of that, or the Affordable Care Act case where you had a 7-2 majority dismissing the challenge to the ACA. But I think if you take any of those cases, as well as the lower profile, but equally significant cases like Cedar Point Nursery, you still see a steady movement of the law in

conservative directions. So in Fulton, the LGBTQ equality case, you know, we see a narrowing of the applicability of the employment division versus Smith safe harbor rule that said generally applicable laws that burden religion are presumptively constitutional. You know, now you have, well, if the law contains a formalized exemption, even if that exemption is never granted, even if there's no reason to think it will be granted on a discriminatory basis to favor non-religious entities, well, that's still a free exercise problem. And then in the lesser profile, but still practically quite significant cases like Cedar Point Nursery versus Sid,

there you see the law moving, I think, even more quickly than it did in cases like Fulton, which are higher profile, but still significant. I agree with that. Maybe I'll add a point or two and then just flag one other potential theme. I think that the law is moving sort of slowly and gradually, exactly as Leah describes, in some instances without any explicit acknowledgement that the law is moving or changing at all. So I think that's true in Fulton, in which the court purports to just find Smith inapplicable because, as Leah mentioned, you know, the existence of this exemption kind of possibility in the law. And yet it seems as though something pretty significant in terms of a change has happened,

in particular when you read Fulton alongside some of the COVID cases, including one out of California and also one out of New York, in which the court on the shadow docket essentially seems to find Smith inapplicable, right? These are challenges to typically gubernatorial or mayoral directives, right? Limiting capacity and things like that in the face of the COVID pandemic.

And the Supreme Court in a couple of instances strikes down those restrictions under an application of Smith. It would seem to be, or at least as Smith, you know, used to be understood, these are neutral laws of general applicability. They burden religion, but they burden everyone. Everyone is subject to all kinds of burdens because of COVID and because of governmental attempts to stem the tide. And yet the court finds in particular in the Tandon case out of California that because other kinds of gatherings under the law are permitted, the gubernatorial directive that purports to limit capacity, right, even in private homes must fall in a similar, although less reasoned opinion. The court basically said the same thing in a New York case.

So, you know, you sort of read those together, and it does feel as though there's been a real change in the law regarding how, you know, generally applicable laws that might incidentally burden religion are going to fare if they are challenged in the Supreme Court. But there's nothing explicit to that effect in the majority opinion. Indeed, the majority opinion doesn't even cite the Tandon case in Fulton, which I think is significant. And maybe I'll flag one other theme, which I think we could talk more about, which is, you know, the kind of ascent of something

calling itself or the further ascent of something calling itself textualism on this court, right? So this method of interpretation that says the inquiry begins and ends with text, although, you know, maybe also allowing for the use of dictionaries and canons of interpretation. And I think superficially textualism seems really dominant in a lot of the court's statutory cases. They are unanimous or close. They purport to adhere very closely to the language of the statutes. But I think if you press a little bit, what is going on in a lot of these cases is that the justices are being driven by other kinds of considerations, broad purposes they impute to Congress, worry about the consequences of alternative readings, but without, again, forthrightly acknowledging that other kinds of considerations can and maybe should kind of

enter the kind of interpretive process. So I think that's another kind of important theme coming out of a very statutory case heavy term. I will say one of the themes that pundits have been emphasizing over the last couple of days is this idea that the court is not only less conservative than previously thought or feared, but that there is actually a kind of unanimity to their decisions and a deepening consensus among the court. And I think that's a kind of deceptive unanim v. Cuomo, were two COVID cases that came out after Justice Barrett joined the court. And they are markedly different than some of the shadow docket COVID cases that occurred while Justice Ginsburg was a member of the court. So despite this sort of fragile unanimity, which I think is overstated in any event, like the broader the majorities are in some of these decisions, the narrower the grounds for decision actually are. But despite that unanimity, I think Lee is exactly right. The court has moved to the right. It may just be more subtle than perhaps we had anticipated.

So my former boss, Justice Stevens, in his book, The Making of a Justice, referred to the court in these different periods during which he served on the court by the name of not the chief at the time, but the most recent justice to join the court, which is pretty interesting. So this, you know, using that formulation is the Barrett court. And I guess Kavanaugh is still kind of the median justice, not Barrett, although they're pretty close in terms of their voting record so far. Again, in the very short time she's been on the court. But it is interesting.

I think that Melissa is right. You know, this is obviously the replacement of Justice Ruth Bader Ginsburg by Justice Amy Coney Barrett is a hugely consequential one. And even though that's only shown itself in terms of vote tallies in a very small set of cases, I think it's a hugely significant one. But go ahead, Leah. I was going to interject or add a more lighthearted court culturally kind of theme, which is Elena Kagan is getting tired of these fools. I think, you know, we have had some sharpness from her, whether it is in the Borden case on the Armed Career Criminal Act, in which she just jibed and jibed and jibed and kept digging at Justice Kavanaugh. He didn't respond. You know, she was just mocking his dissent, calling it, you know, alternative, but mutually contradictory

theories. You know, today, her opinion in Lange, which I think we'll get to in a second, the Fourth Amendment case, had basically a section of the opinion that coded to me as, I'm talking to you, Neil. Originalism and history doesn't actually supply clear answers about what constitutes a search. In her separate writing in the Collins versus Yellen, in which she actually voted with the conservatives, she refused to join the opinion and concurred in the judgment, saying she would respect the precedent but refused to accept the majority's musings on political theory and whatnot. So I think she's getting a little tired of these boys. a four-person minority to a three-person minority may actually have been liberating for the liberals in certain ways because they are throwing a lot of elbows that I think before when, you know, there was a chance to get one justice and form a majority, they might have restrained themselves.

But, you know, we saw last week Justice Breyer with his clapper clap back to Justice Alito. Justice Sotomayor started off the term in fine fighting form by noting that she respectfully dissented for now, dot, dot, dot, but anything could happen. And then we've had Justice Kagan. So there's a way in which I think the liberals are liberated and they're not going to stand for this anymore, although there's not much they can do with three people. Right. I want to see their burn books more than I want to see Justice Gorsuch's continued burn book on textualism.

But that's just me. And, Leah, for those of us that do listen to your podcast, we get that reference. But do you want to explain that for our listeners? Yes. I'm sorry. Okay. So as Kate was saying, a running theme of the term is the ascendancy of textualism, the idea that statutes must be interpreted according to their language and not the intent or purpose of Congress. This theory is ostensibly embraced by a supermajority of justices on the court, but Justice Neil Gorsuch really views himself and writes like the steward of textualism. And that includes lots of

grand pronouncements about how textualism is the one true philosophy and that, of course, the court would never consider such things like purpose or practical consequences or effects. And so we have a running shtick that when we pick out some of these lines from his opinions that are always like slightly overdramatic, overwrought. I think one of his phrases was, words are how the law constrains power. We say he is taking that line from his burn book on purposivism, the alternative methodology to textualism. Right. And our driving goal for all of this is one day to have Regé-Jean Page of Bridgerton come on the podcast to read all of these statements from Justice Gorsuch and his very deep baritone, which we think is just going to, it's going to zing. I will tune in for that.

But until then, Melissa has been doing actually a pretty excellent job of trying, but yeah, we're holding out hope. But I'm waiting for Reza Jean. That and breaking down Alito dissents, which as you were talking about this conservatism movement, yet from Liptock's article, which we talked about earlier as we were discussing today's program, that he is arguing and using statistics that perhaps Alito is not joining the majority conservative as often as his colleagues. And Leah, you had a great episode, if you would give us just a tidbit of that, talking about Alito's dissent in the ACA case. You want to highlight a little bit of that for us? Yes. So the ACA case is the challenge to the Affordable Care Act, where a majority of the court with Justice Breyer writing the opinion for seven justices dismissed the challenge to the Affordable

Care Act, finding that the plaintiffs lack standing to argue that the mandate that lacks an enforcement mechanism is unconstitutional. Justice Alito penned an extremely lengthy, anguished dissent that was just bubbling over with rage, you know, not only about this case, but also the previous Affordable Care Act challenges that the court had refused to accept. And the Liptack article kind of says, well, look, if you count up the votes, then the votes show that Justice Alito is sometimes peeling off and would prefer that the court go in a more conservative direction, whereas justices Kavanaugh, Barrett, the chief are voting together, you know, sometimes with the, you know, liberal justices. And I think that is one way of asking what is happening at the court, but it's not the only way, and it also can only tell you so much.

So by counting up the votes, you're not actually telling us, well, what question is the court asking? How are they answering it, and how does their answer differ from what the court has said before. You know, just saying that these opinions are 7-2 or 9-0, you know, would count an opinion throwing out the results of an election the same as an opinion that refuses to overrule Marbury versus Madison. You know, those two things aren't the same. And you can really only make an assessment or a judgment about what the court is doing by considering the substance of its rulings. And that's where I think when you analyze, well, what is the court saying? What questions is it asking? How is it answering those questions that you can tell the court is actually moving the law

in a more conservative direction, even if it is not doing so as dramatically or as quickly as Justice Alito dreams of, you know, in his heart of hearts. Interesting. It reminds me of in one of your last episodes, you had a professor who was talking about the court doing the long game. And I think you were talking about the Fulton case. And Melissa, just to come back to you for a moment, in that case, I think you were, and I might be projecting here, but you were trying to ask the professor to think about what if the underlying religion would have been different? Would Fulton have been decided differently? And I wonder if you want to elaborate on that a bit. Sure. So the professor who was our guest that day was the incomparable Catherine Franke of Columbia Law School, who has just done amazing work on law and sexuality and also in law and religion. understanding of free exercise has really sort of moved in a direction of perhaps prioritizing

the interests of certain kinds of religion or certain religious sects as opposed to others. And so one of the comparisons that I tried to draw was with that initial case, Employment Division versus Smith, which is from 1990. And in that case, the plaintiff was a Native American man who had been rendered ineligible for unemployment benefits from the state of Oregon because he had been fired because he had been using a hallucinogenic drug, peyote. And he argued that his use of peyote was linked to his religious practice. As a Native American, one of his religious practices required the use of the hallucinogenic drug. And so in his view, this was a hit on his free exercise of religion. And the court in Smith determined that because

the law that prohibited him from getting unemployment benefits was a neutral law of general applicability with only an incidental burden on religion, it wasn't targeting religion in any way, they didn't need to use strict scrutiny. It could be just subject to rational basis review. And so one of the things I was wondering and have thought about a lot in teaching that case to my class was, would we have regarded that case the same way if it was a different kind of religion, not the sort of Native American religion that might seem more remote from

the more traditional religious sects that traditionally have been favored in free exercise. So for example, the Seventh Day Adventist in Sherbert is a minority sect, but I think more legible to those who understand Christianity to be a kind of dominant religion in the United States than the Native American religion that uses peyote. Likewise, you know, I think in the Santeria case, Lukumi, you know, that was such an extreme example of targeting a particular religion that you obviously had to understand it as a kind of religious gerrymander. And so, you know, one of the things I think we've seen over time, and, you know, Trinity Lutheran, the playground resurfacing case from a couple of

terms ago, would that case have come out differently if it wasn't Trinity Lutheran Church seeking to get access to a state program for resurfacing playgrounds? What if it had been a mosque or some other religion that is really seen as remote from the kind of traditional religious sects that we imagine in our country right now. And so, you know, I think Catherine makes a very good point. Free exercise really doesn't have a kind of ideological tilt, or it wasn't supposed to, but it has come to have a more ideological slant in the last couple of years. Thank you for that. So let's go to some of the decisions from today. And thank you, all three of you for agreeing on such short notice to discuss those.

But I throw out, if you want to start with the cheerleader or if you want to go right to Mr. Lange, I leave that to you. Give me an F. No, we'll do the cheerleader. I guess I would be most interested to hear Melissa's take on this. You know, I think it's an interesting case.

Again, sort of preserving, holding the line, although you might also read this case and the court's insistence that off-campus speech is not necessarily regulable in particular ways, as perhaps a slam against cancel culture, like the idea that you can't get at people for things that they say when they're off the school ground, might have really strong repercussions for bullying that has an LGBTQ slant to it, bullying that occurs against racial minorities. I mean, so, you know, part of me sees this as a sort of revivification of tinker or resuscitation of tinker. But perhaps also of our moment, it's also, I think, a hit against what some sectors

of the public view as a too woke culture that is insistent on canceling people because of things that they say. I think that our boy, Stephen Breyer, the oldest member of the court, actually, when you say sort of updating Tinker for our age, so Tinker is the 1969 case in which the Supreme Court says, you know, students at public schools don't shed their constitutional rights at the schoolhouse gate. They do have constitutional rights at school, but schools also have the authority to discipline in particular if speech is going to have some substantial disruptive effect on the educational environment. And there had been, the third circuit had basically said, schools can't even touch this kind of speech if it happens off campus, that the speech at issue was like a vulgar snap chat that a disgruntled cheerleader who hadn't made the varsity squad posted to a friend

that made its way back to school administrators, and she was suspended from the cheerleading squad for a year as a result. I really liked the opinion, as Leah and I discussed earlier today. It's like a very, it's a fun read, and it's a practical kind of opinion. I think the court was a little bit, seemed a little tortured, Breyer in particular, at the oral argument. Basically didn't want to write a First Amendment treatise but didn't want to just, you know, resolve this tiny little dispute and not provide any guidance to school administrators who are, you know, trying to figure out how the First Amendment applies in this kind of brave new world in particular where students have just spent the last year, you know, largely doing school, many of them online. So the line between what's school speech and what's not is really blurry right now. And he seems to sort of update Tinker, I think, in a really effective way, which is to say, yeah, you know, schools don't have as much authority to discipline or regulate speech outside of school

as they would if it was literally inside the building. But the general test still applies. And I think he is careful to say if there are serious considerations of things like threats, bullying, harassment, the kinds of concerns that Melissa just identified, it's not outside of school's authority to reach those things. And I think that's a nice way to balance if you believe both that students

do have free speech rights, but also that there may be legitimate and important interest in protecting vulnerable members of a school community and disciplining certain kinds of potentially dangerous or antisocial speech. It seems like it strikes a really decent balance. Alito is clearly really concerned about, you know, cancel culture. And that sort of comes through without using the phrase, as I recall, in his opinion. He sort of makes clear that administrators can't punish students for just unpopular speech. And Breyer, I think probably in response to that, does actually include something to that effect in the majority opinion. But I think sometimes we worry about them writing opinions in sort of

technologically unfamiliar domains for this cohort of justices. Like I doubt they're on Snapchat, but Breyer's been living with his grandkids for the last year, as we've all recently learned. So maybe that helps. But in any event, I think they handled it very well in that case. Can you see Justice Breyer with his grandkids? Like, what's a Snapchat? Oh, I feel like he must have. I think he, you know, once perhaps the court and the clerks got back to the building, which, you know, the court said they were all fully vaccinated earlier this spring, I can imagine Justice Breyer calling his law clerks into his office, pulling out his smartphone and saying, show me a Snapchat, or how do I do a Snapchat?

Like, I think he would want to learn how it works. But I do think that the cross-ideological alliance that we got in this case is reflective of the different concerns that different justices have. You know, the Justice Alito concurrence is obviously very concerned about censoring unpopular ideas, which to him mean, you know, conservative ideas in this day and age. And then, you know, that concern might not have led other justices to join the majority. But I think that's why we got such unanimity, you know, in this 8-1 decision. I really enjoyed this Justice Breyer opinion. It had, you know, both grand pronouncements, helpful guidance to the lower courts, as well as just fun asides. So,

for example, in explaining why the school district lacked an interest in regulating the student speech here, Justice Breyer is explaining, well, the speech happened off campus. It was just not a nexus between the school and its role as a parent over the student. And Justice Breyer says, there is no reason to believe BL's parents had delegated to school officials their own control of BL's behavior at the Cocoa Hut, right? It's just like a little bit sharper than the typical Justice Breyer opinion. And it was a fun read. Well, I have to ask before we pivot to the Fourth Amendment case, any predictions on Breyer that he will be spending more time with his grandchildren anytime soon? Well, we have no inside information. And I think, you know, I think it's anybody's guess. Honestly, I mean, I think as is probably clear from our description of majority opinion

he authored today, he seems to be enjoying himself. He's actually in a position – you know, he had this interesting first decade on the court in which he was the junior justice for something like 11 years. So I think that's a long time to be getting up to answer the door every time somebody knocks at conference, which is, you know, the role of the junior justice. And it also meant he didn't get a lot of big opinion assignments for a long time. And that is changing now. And so I am sure he is enjoying it. And certainly he's given no sign of leaving. But then publicly, neither had Justice Kennedy before he announced his retirement.

So I think it's certainly possible that he will announce like on the last day of the term. But I also think it's quite possible that he'll stick around for another year. Any other thoughts, Melissa or Leah, on that? I just don't have a prediction or an intuition either way. You know, I think he's probably torn in part for the reasons Kate is saying. You know, he obviously loves this job. He would prefer to keep doing it. I'm sure he also can look around at the world around him and see what happened to his former colleague, Justice Ginsburg, who he's very fond

of. You know, he's spoken publicly this year about telling his law clerks like, oh, go see what Ruth thinks about this. And then remembering she's not there. I'm sure, you know, it's not lost on him that her dying wish was, you know, not to be replaced by President Trump in a Republican Senate. But again, like, these are a mix of considerations. I don't think he's given any indication one way or another what he's doing. It wouldn't surprise me either way. So with that, shall we talk about the Lang case today? Leah, do you want to start us off on it?

Sure. So Lang versus California is the Fourth Amendment case about when police officers can make a warrantless entry into someone's home. Generally, the Fourth Amendment requires police officers to get a warrant. There are, however, some exceptions, including most relevant here, an exception for exigent circumstances. So if there's an exigency, police officers can enter into someone's home without a warrant. And exigency was understood to mean something like there's a risk of harm to someone or something or risking the destruction of evidence, you know, so on and so forth. And the California Court of Appeals in this case had said an exigency exists when an officer suspects

someone of having committed a misdemeanor. So Mr. Lang had been driving and honking noisily and listening to music loudly on his way past a police officer who followed him home and then turned on his lights and Mr. Lang walked into his garage. In an opinion by Justice Kagan, joined by, it was basically unanimous, right? I mean, there were some separate writings about what the opinion meant

and how it would be addressed on remand, but said whatever the outcome is in this case, the reasoning that the California Court of Appeals used is wrong. There is no categorical rule permitting warrantless entry into homes when someone has committed a misdemeanor. So you got, you know, broad agreement, but the Supreme Court decided very little. In particular, the court said, well, you can consider things like whether a suspect is fleeing. And at various points, the court said, practically speaking, our holding isn't going to prevent officers from being able to enter without a warrant in most cases. Justice Kavanaugh estimated it as something like more than nine out of 10 cases. So practically speaking, what this will mean is the courts, when they write these opinions, will just say an exigency existed because this person was fleeing and the officer suspected losing them or evidence being destroyed, and therefore warrantless entry is permitted. So that's kind of the bottom line I saw in Lange. Kate, any thoughts? Leah flagged this before, but it's like there's something sort of masterful, I think, in the way Kagan kind of relegates this sort of founding era history

to this kind of real secondary status in the opinion. She talks mostly about the kind of underlying purposes and principles of the Fourth Amendment and the court's own precedence on the Fourth Amendment. And, you know, she says the home is really kind of sacrosanct. It's at the center of the Fourth Amendment and the court's own precedents on the Fourth Amendment. And, you know, she says the home is really kind of sacrosanct. It's at the center of the Fourth Amendment. And then but then she sort of says in a separate section, and yeah, there's, you know, history that gives us some sense of what the framers of the Fourth Amendment understood it to protect, you know, vis-a-vis warrantless entries into a home. But she's like kind of dismissive of its relevance, or at least makes clear it's not the only or most important thing to consider. And it is, I think, maybe a subtle dig at Gorsuch,

but somehow she gets him to join that in full. He doesn't either, he doesn't realize it, he doesn't seem to mind. So I just, I thought that was an interesting wrinkle in the case. It's another example of, I mean, it is, I think, you think, technically and formally a unanimous opinion, but in which the Roberts concurrence vehemently disagrees with what the majority says. And so it's just, I think, another data point in support of the idea that vote counts only tell you so much with respect to how agreeing the court is on any particular legal question. One of the things that I thought was interesting here was, again, as Kate says, there were a number of separate writings here. But Justice Kavanaugh, as I thought, was quite interesting because he openly adverted to the chief justice. It is really sort of like actually look at the chief justice's concurrence here, which he described as quite thoughtful. And the thing that reminded me of Kate was a couple of episodes ago, you mentioned that Atlantic profile of Justice Kavanaugh, which basically said he was a huge fanboy of the Chief Justice. And that's literally all I could think of as I read this very short opinion,

which basically like, John got it totally right. You should read that. Go there. I thought that was very funny. But again, I think the point remains, the broader the majority, the narrower the grounds for decision. And I think Lange exemplifies that. So let's dive into a little bit of history and juxtaposing some current day events. So one of the questions we talked about, Leah, that you posed had to do with predictions for the coming term, whether it's the two to five year horizon or five to 10, 15 years out. And then followed that up with some of the, as you put it, the recent groundswell of popular interest in a potential Supreme Court reform. So what I'm getting at for our history buffs out

there is if you can talk a little bit about that and then the three of you weave in your thoughts on the Biden commission and juxtaposing that against FDR's time and the stitch in time that saved nine. So a lot there, I guess, both short and medium term predictions, you know, just looking ahead to next term, you know, we are going to see rulings that make restrictions on guns and gun control much harder. We are going to see the court making it easier for states to restrict access to abortion. I think within the next two years, we are likely to see rulings that make it harder for the government to use race conscious remedies like affirmative action to address racial discrimination or provide diverse educational or work environments. I think we will continue to see the First Amendment and the takings clause

used as a deregulatory tool. I think one big persistent issue we are going to see is judicial supremacy vis-a-vis the administrative state. You know, we're likely to see the court continue to assert authority to interpret statutes, restrict agencies' ability to implement statutes and create binding regulations. And, you know, also increasing skepticism and scrutiny of administrative regulations that are passed through, you know, administrative processes. I think those are all the things that I think we are going to see over the next two to five years. I think, you know, the more interesting things that are more difficult to predict are wondering, what are the kinds of cases that the Supreme Court might be asked to hear 15 to 20 years from now, where there aren't ideological divisions or priors that give us some sense about how the justices will rule? So what I mean is like, what's an

issue that might arise 10 to 15 years from now where someone like Justice Barrett will disagree with someone like Justice Gorsuch? You know, I don't think that there are any issues out there right now where, you know, no one has any idea like where these justices kind of lie. before she was a justice, hadn't written academically about executive power or as a judge on the Seventh Circuit, hadn't written a lot about, you know, restrictions on the president's authority to remove officers. Everyone had a pretty good idea about where she saw those issues just based on her academic and ideological pedigree. And, you know, that turned out to be right in today's decision on the Federal Housing Finance Agency, you know, Collins versus Yellen, which invalidated the restrictions on the president's power to remove that agency official. But maybe there are some

other issues that we, again, like just aren't anticipating that will develop later where, you know, these ideological coalitions won't be quite as relevant, you know, on the analogies to the switch in time to what we are seeing now, I think in some ways, like your description of the present day highlights what is different, which is what we are seeing now is a groundswell of support for Supreme Court reform is coming from organizers, people outside the government, like citizens just involved in politics. The administration has no interest in this. The president has said nothing indicating even remote interest in any kind of structural reform about the Supreme Court, creating a commission to study the issue is a way of avoiding having to commit to anything and delay, you know, resolution of this. And so I think that where the interest is coming from right now or where we are

seeing interest in this subject is quite different today than it was when FDR was making moves and showing interest in changing the size of the Supreme Court. Kate, did you have that? I think it is possible that we will, despite this relatively moderate start for Justices Kavanaugh and Barrett, that we may well see the kind of political branches of government in the Supreme Court on a collision course. Obviously, that depends on what happens in the next presidential election and in upcoming congressional elections. But you could well see both longstanding, potentially, I mean, today's decision in Collins in a footnote sort of calls into question the constitutionality of the structure of the Social Security Administration. So even longstanding,

but certainly any big new legislation Congress could pass could well face a skeptical reception in the Supreme Court. And so, too, could, as Leah just alluded to, the Supreme Court really hobble a what agencies and how exactly the kind of rules get announced. But certainly disempowering the administrative state to a pretty substantial degree seems something that's highly likely in the next five to 10 years if the court's composition doesn't change dramatically. So that matters a great deal. And it could well be that it happens in tension with popular will and the democratically elected branches of government. And then you could well see the kind of conflict that we had in the 1930s between FDR and a Democratic Congress and a very conservative Supreme Court striking down both state and

federal legislation designed to address this unprecedented suffering of the Great Depression through sort of New Deal interventions, again, both state and federal. And the court was striking these things down right on a number of different theories, Commerce Clause for federal legislation, you know, freedom of contract for state legislation. And I think FDR, you know, threatening to pack the courts is a complicated story in which FDR both kind of wins and loses that fight, right? He loses in Congress, doesn't successfully pack the court, right? The court packing plan fails pretty spectacularly, but arguably it also succeeds because the Supreme Court changes directions, maybe in part, probably in part,

because of the threat of structural change. And so I do think actually one big takeaway is that it can be useful, right? Saber rattling in the context of Supreme Court reform actually can yield some dividends, even if it doesn't actually result in those reforms being implemented. And I think that Leah's right. There hasn't been a strong sense, I don't think, from the Biden administration, at least so far, that anyone's heart is really in making structural reform to the Supreme Court. The commission, I think, suggests this is an issue of some interest, but there hasn't been a display of kind of serious commitment to considering really doing this. And so, you know, I'm not sure that this commission, as presently constituted and as I understand its kind of general mandate, is likely to do much. You know, and when I say do much, you know, the idea is that even if it didn't actually result in legislative recommendations and legislation, it might still have some impact. And I'm not sure it's even going to have that. Melissa?

Again, I'll just sort of go back to the history. I mean, I think it's easier to look back to the New Deal and recognize that Roosevelt had a pretty stunning mandate for whatever his domestic agenda was. And with the court standing in the way, that was a pretty damning kind of conclusion. And he had Congress on his side. He had the people behind him in favor of the New Deal. And it really was this recalcitrant court. And the threat of court packing, I think, as Kate says, was a bit of saber rattling. It ultimately did not go through Congress. But I mean, they certainly knew that he had more of the Congress behind him on that point than I think

Joe Biden does today. So I mean, I think just the polarization that exists right now in Congress and on the ground may make this more toothless in terms of the kind of saber rattling threat that you might expect. But on the other hand, I think within the court itself, you can see some of the ways in which the prospect of structural reform, or at least just the talk of structural reform, may be subtly influencing the court in particular ways. So, you know, for example, in the ACA case, that was decided on procedural grounds in part

because I think the whole country really might have lost it if the court had struck down either the individual mandate or Obamacare in full, as we are just coming out of what is the most pronounced global public health crisis that we've ever seen in our lifetimes. And so, you know, maybe that's something you get, like, if you're a legal realist, I think it's hard to disconnect what we saw on that jurisdictional ruling in the ACA case, from the sort of broader realpolitik of what is happening here. So maybe there are ways in which just talking about structural reform can sort of prod the court to move more slowly, but in, you know, at the point at which the saber rattling that Kate and Melissa are referring to happening in the New Deal was happening. That was at a point where the four horsemen were kind of on their way out. So at, you know, a changing of the guard at the Supreme Court that would happen over the next, you know, five,

10 years. You know, at the same time, some of the justices were changing their votes. But now, that's a little bit different, because now it is the new, like recent appointments who are at the beginning of their terms and are likely to stay several decades. And it is, in my mind, impossible to imagine a sustained, credible 30-year campaign of just saber rattling and people talking about, well, the court can't stray too far from public opinion or can't do anything too wild. If that's all you're doing for 30 years, one, I just don't think people have the energy to sustain that. Two, I think at some point it just becomes not credible and it will lose its influence. And so I think, again, the timing of the judicial appointments and who might be affected by the saber rattling

or who it's directed to also differs, you know, in these two periods. So tangentially related to that, we had discussed a little bit about the question of should the public regard dark money and judicial nominations and amicus briefs as problematic. And I just want to add another piece to that, that we would love to hear also what you would have to say about the idea of publicity campaigns for Supreme Court justices at all. Yeah, I think there should be more transparency in sort of how the court does its work. I think during the pandemic, the fact that we shifted to live streamed audio oral arguments was really an important move strategy behind a particular issue would also be really important for the public to know, or at least those sectors of the public who are

listening to or watching closely the court, or even, you know, more remotely are interested in the court. I think that would be good. In terms of, you know, campaigns for the Supreme Court, you know, I think this has largely been something that conservatives have really perfected over time. But now I think, you know, we're seeing progressives do it as well. And, you know, I don't know that there's anything wrong with it. There does seem to be, I think, you know, perhaps a concern that if you are worried about the court being too political or being politicized, this doesn't help. But I think if you start from the premise that the court is already a part of politics, whether it wants to acknowledge that or not, this just sort of takes it to the next level. And so I'm sort of I'm sort of agnostic, like, it is what it is. And, you know,

it might, it's better if both sides perhaps are engaged in it. I guess I kind of come at it from a sense that the celebrity justice, or the phenomenon of the celebrity justice is not itself the problem, it is evidence of the problem. So the idea that a Supreme Court justice, you know, develops this public persona and becomes this kind of like public hero is maybe a sign that Supreme Court justices have a little bit too much power in our system. And like that persona kind of feeds a sense of ego or an invincibility or necessity that, you know, they probably shouldn't have and would be great if, you know, everyone had a little bit more humility. But again, I don't think that is necessarily the cause of a ton of the issues surrounding the court, including, you know, transparency and whatnot.

It is more a symptom of a more deep-seated problem. Kate, any thoughts to add to that? Maybe I'd just say, look, I think probably a world in which you couldn't buy a lot of ads in favor of or opposing a Supreme Court nominee seems like a good, better one to me. But the Supreme Court has so dramatically narrowed the universe of interests that could possibly justify restrictions on speech of that sort, that it's really difficult to imagine a world in which that would fly. I mean, not that I subscribe to that vision of the First Amendment's kind of deregulatory power when it comes to government's ability to limit the damaging impact of speech in the form of campaign contributions or expenditures

in the political process. You know, I'd like a world in which it's okay for Congress to pass laws to equalize the power of candidates for public office and things like that. But it feels like we've crossed many bridges beyond that. And so it's very hard for me to see legislation that could limit that kind of expenditure passing muster on the current conception of the First Amendment. So let's pivot to the legal landscape regarding voting. Recently, this week, the Senate predictably did not pass voting reform. And in the wake of the 2020 election and what's happening state to state and, well, Republican-controlled houses of Congress and whatnot. What do you see happening, coming down the pike? And is there anything that we practitioners

could do, should do to shore up voting rights? The filibuster defeated the For the People Act. I mean, I was just thinking about this earlier today. It's not clear to me why. So, you know, we have a filibuster rule with a couple of kind of, you know, historically contingent carve-outs, right? So you can pass budget reconciliation legislation with a simple majority vote. And just recently, you can confirm federal judges and Supreme Court justices with a simple majority vote. So I'm not sure why a very short-term path forward is not to build a constituency in the Senate, really just need to get one or two more people, to create essentially a carve-out from the ordinary legislative filibuster for voting legislation. I just feel like that, I was just thinking about this today,

I'm not sure why, because, you know, participation enables and is the predicate for everything else. Why federal legislation that, you know, expands access to voting shouldn't be subject to differential treatment. When, again, these other really important legislative functions are subject to different, you know, to a non-supermajority vote requirement. So that's like what I've been puzzling over all day. But at the moment, while we have the filibuster for legislation, I think that, you know, Congress is going to have to try to do something narrower. This was a very big, ambitious piece of legislation. but stripped out some of what was in this large bill. Maybe there is a path forward in the fall. I'm not sure. But it does seem to me that, you know, it's hard to see getting 60 votes, to be honest, in this political environment for anything, any legislation that expands access to voting. And that suggests to me that something has to be done about the filibuster. And if it isn't

to jettison it altogether in the context of ordinary legislation, it seems to me it should be possible to create kind of a carve out. Now, that's not an answer to your question about what lawyers can do, but that's sort of, I think, what's front of mind because this law just failed on the Senate floor yesterday. But yeah, we're seeing a lot of restrictive voting laws in many, many states, you know, to the extent that there was a chastening effect of this federal legislation that would have preempted some of it. You know, that is at the moment not a concern for states that haven't yet, but are considering enacting new restrictive voting laws. And I mean, I, to bring this back to the Supreme Court for a moment, you know, we didn't have the Supreme

Court at the center of any major election related litigation. There were lots of lawsuits, but the court, you know, didn't have a single case arising out of an outcome determinative state. And so the court was actually fairly sidelined in the 2020 election cycle and aftermath. The Supreme Court, it seems to me, if it has any important role in our democracy, it's to facilitate and ensure the functioning of democracy. And I worry deeply about the degree to which the justices or a majority of the justices on this court are committed to that as a kind of core component of their role. And I worry deeply about the degree to which the justices or a majority of the justices on this court are committed to that as a kind of core component of their role. And that's, you know, sort of just a broad observation, not with respect to the legislation that failed yesterday or any

other piece of legislation in the states. But it's something I think and worry about with the Supreme Court a lot. Well, I'll go even further than that. To some degree, the court has been an architect of the landscape that we currently inhabit. I mean, don't forget that in 2013, it was the court that struck down the preclearance provisions of the Voting Rights Act, which made a lot of the legislation that we saw being passed during the pandemic, after the pandemic, now, the sorts of things that would have been subject to vetting by the Department of Justice are now just allowed to stand unless they are challenged through litigation. The case that is continuing to be pending before the court, Brinovich, will determine whether or not Section 2 of the Voting Rights Act

will apply in some of those circumstances and what the standard will be going forward. And so the court will have something to say in that as well. A couple of terms ago in Ruscio versus Common Cause, the court said that federal courts had nothing to say about the prospect of partisan gerrymandering. That's a major issue that, again, I think shapes the landscape that we currently occupy. So to say that the court is supposed to step in and protect the vote, I mean, I think that's exactly right. But I think we also have to acknowledge the ways in which the court has stepped in and actively made it harder for individuals to exercise the right to vote over the last couple of years. So the things I would add to that is, you know, the filibuster reform that Kate mentioned is actually something that Professor Rick Haasen at UCI proposed, essentially creating an exception from the filibuster for voting rights legislation.

There have been a variety of other kind of modified filibuster proposals. So maybe for voting rights legislation or legislation in represent, you know, 60 percent of the population or something like that. You know, there are a variety of reforms you could make to the filibuster, delimited or so on. For what lawyers should do, there are lots of wonderful opportunities. So in the last election, a lot of lawyers got involved volunteering, helping curing ballots, for example. And there are already a bunch of campaigns that are underway in a variety of states with competitive midterms so that if you are interested in having a Congress that will protect voting rights, like there are ways, you know, you can get involved.

And then the last thing I would say is just hearing some of the debate about the For the People Act called to mind something Melissa talked about, although slightly more forward-looking. So Melissa mentioned, you know, the things the court has done to get us to this point. I am concerned about what the court might do afterwards. So on the Senate floor, we had Susan Collins saying any federal control of elections was unconstitutional. Of course, this overlooks the 15th Amendment. You know, we had Mitch McConnell saying, you know, of course, we have a way of federal supervision of elections. It's just litigation through the federal courts. And obviously, he's fine with that, given the composition of the federal courts, you know,

in the Supreme Court right now. But what that unified Republican opposition, as well as the constitutionally infused talking points called to mind was, of course, opposition to the 1965 Voting Rights Act, which eventually became successful after sustained opposition to it when the court struck down the preclearance regime in 2013. So I am very concerned, again, given that the opposition to the For the People Act and federal voting rights protections have been couched in constitutional terms, given the appointments to the Supreme Court, that there would possibly be a serious constitutional showdown created were Congress to actually overcome the filibuster and enact comprehensive or less than comprehensive voting rights protections. Thank you. So I'd like to spend in the 60 seconds we have left, we are at time, but I want to ask the three of you to talk about, and Leah, you came up with this sort of, like, how do you see your podcast audience? Who do you envision when you're talking to each other about who's listening? I assume some of that has to be your students,

but you have quite the following now. And Kate, would you like to kick us off and do a round robin about that? Sure. So of course we are law professors, so we do think about students as potential listeners, but in practicing lawyers, including law clerks and folks

who work in and around the federal courts. But we actually love it that we have learned that many people who are not trained in or working in the law also listen, who are just interested and curious. We hear from like emergency medicine doctors and college students and landscape architects who enjoy listening to the show. So, you know, it's a constant struggle. I'm sure we fail all the time to try to hit the levels that will be, you know, clear and right and still kind of stimulating and interesting to people with varying degrees of background knowledge about the law. So it's an ongoing endeavor. But I would say that's, you know, we have a pretty broad universe despite the kind of, you know, specificity of some of what we talk about. So we're delighted, I think, to have listeners in all of those categories. Melissa, any thoughts on that? So one of the things we said when we started the podcast is that we wanted to democratize the commentary around the Supreme Court, which is to say that we didn't want it to be sort of inside baseball. And more importantly, we wanted to democratize who gets to talk about the Supreme

Court. I think it goes without saying that a group of women is not usually what you think about when you think about people who are commenting about the Supreme Court. We just placed a piece in a law review, the Michigan Journal of Gender and the Law, which talked about this. Most of the reporters for the major newspapers who write about the Supreme Court or are on that beat are men and are white men. There are very few women, there are very few people of color who have that kind of broad range. And it translates into the people who are called for commentary. We've joked about this. We often don't get called by the major newspapers about the court unless it's about abortion or lady parts. But we wanted to make clear that there are a lot of

people who have expertise. We just have to think about expertise, perhaps in a broader way. And it's not just the sort of fixed remote neutrality, but you can actually care about what the court does and still be an expert in what it does. I just echo that we are constantly trying to do a better job of straddling multiple different kinds of audience. So trying to democratize the court to a general audience who I definitely want to be included in the podcast, while also staying true to our law professor roots and desire to perfectly explain and very concretely, thoroughly explain things is, I think, a constant struggle that, you know, at least I feel like I am always having in mind. And then the

other thing I would add to what Kate and Melissa have said is just, we want to provide substantive commentary about what the court is doing, but we also don't want it to be dry or stilted or stuffy. So in addition to changing, like who is talking about the court, we also wanted to change a little bit about how people talk about the court, not by removing the substance, but just kind of having a little bit more fun with it. Thank you so much for spending this time with us in this hour. It's been delightful for me to sit here and just listen to you. Special thanks to our strict scrutiny podcast professors. Thank you so much to the Ninth Judicial Circuit Historical Society, particularly Cynthia and Robin Lipsky, the executive director, and Western District of

Washington Federal Bar Association, as well as Katya Kiston for administrative and logistical support. And thank you to our producer, Melody Rowell, for editing this event into a show.