Voices of Freedom - Interview wth Paul Clement

Episode Date: November 26, 2024

An Interview with Paul Clement, Appellate Lawyer and Distinguished Lecturer in Law The US Constitution has long been revered by its citizens, yet also robustly challenged. Knowing that it would be tested, the founders created the judiciary to serve as an independent bulwark that would protect Americans’ rights.  Yet the judiciary’s independence has often been called into question lately, in part due to the country’s ideological divide. Further, until recently, some of its authority had been ceded to the executive branch, creating an explosion of government regulation and intrusion into citizens’ daily lives.  Few understand the state of the judiciary and the US Constitution better than Paul Clement, our guest on this episode of Voices of Freedom. Clement has argued more cases before the Supreme Court than anyone in recent history, giving him distinct insights into future of the Court and the most impactful rulings of our time.  Topics Discussed on this Episode: ·         How Clement’s midwestern roots have influenced his approach with the Court ·         The significance of the rule of law in America and how it’s distinctive from other countries ·         The danger in straying from the US Constitution’s intent ·         State of the US Supreme Court ·         Court packing  - its impact on the rule of law and the Court’s make up ·         How the reversal of Chevron will impact government regulation ·         What universities should do to protect free speech and counter anti-Semitism ·         The legal profession distancing itself from controversial cases ·         How Americans can understand and uphold the rule of law Paul Clement served as the 43rd Solicitor General of the United States between 2005 and 2008. Prior to that, he served as Acting Solicitor General and as Principal Deputy Solicitor General. He is a partner at Clement & Murphy and a Bradley Foundation director. Clement is a 2013 Bradley Prize recipient.

Hello and welcome to Voices of Freedom, a Bradley Foundation podcast. I'm Rick Graber, president and CEO of the Bradley Foundation. On the podcast, we'll explore issues that affect our freedoms with a focus on free enterprise, free speech, and educational freedom. So let's get started. America was founded on the rule of law to protect individual rights and keep power in check. And to that end the founders believed that an independent judiciary was just an absolute necessity. For instance, Alexander Hamilton writing in the Federalist Papers argued that without

courts, there would be no defense against, in his words, the encroachments and depressions of the representative body and no protection against unjust and partial laws. We all know the government has vastly expanded in ways that the founders could never have imagined. As the government has grown, so too have the challenges before the courts. Do you have greater insights into the role of the judiciary or the state of our courts

than our guest on this episode of Voices of Freedom. Paul Clement has argued over 100 cases before the Supreme Court, more than any lawyer in or out of government since 2000. Paul served as the 43rd Solicitor General of the United States between 2005 and 2008. Prior to that, he served as Acting Solicitor General and as Principal Deputy Solicitor General. He's a partner in Clement and Murphy, as well as a 2013 Bradley Prize winner. Paul also serves on the Bradley Foundation's Board of Directors. Paul, welcome. It is great to have you. It's great to be with

you, Rick. Jump in, Paul. I grew up right here in Wisconsin, town called Cedarburg, a little bit north, a little bit west of Milwaukee. So tell us, growing up, did you ever imagine that you would be arguing some of the country's most significant cases in front of the Supreme Court, or was that always the plan? No, I didn't imagine that in a million years. But one of the absolutely great things about this country is that you can be a public school kid from Cedarburg, Wisconsin, and end up in one of the high government posts. And, you know, our current Solicitor General

for President Biden is a public school graduate from Boise, Idaho. And, you know, that doesn't happen in other countries. In other countries, if, you know, that doesn't happen in other countries. In other countries, if you're not born in the capital city to an established legal family, you're not going to end up as the executive branch's chief lawyer in the Supreme Court of the United States. Honestly, I'm tickled that I made my way from Cedarburg High School to the Supreme Court of the United States, but I'm not the only one. And the fact that this happens in this country is part of what makes it such a wonderful

place. Indeed. Oh, it's that very first time when you were before the Supreme Court. Had to be a little intimidating, right? More than a little intimidating. It helped that I clerked on the court for Justice Scalia. And I'd watched a lot of arguments as a law clerk, and I saw some very good ones and I saw some very bad ones.

And I thought I'd probably end up somewhere in between. And, you know, as an aside, my parents came out and watched that first argument. And somebody asked me, well, won't it make you a little nervous that your parents are in the audience? And I said, I cannot get any more nervous than I already am. A recent interview, you said that you try to be conversational when you make your arguments, and that seemed to have worked for you. Do you think there's a little Midwest influence in that, in how you approach presentations to the court?

I would certainly like to think so. And I think I knew growing up that being conversational was really the best way to persuade somebody that maybe you had a point. Early in my career, I was privileged to play a small role in the Wisconsin School of Choice cases. And in one of those early hearings in Madison, I watched a lawyer come in and effectively his presentation was, I'm from New York and I'm here to tell you what's what. And that didn't play very well in Madison, Wisconsin. I think a more conversational style plays a lot better in Madison, Wisconsin. And frankly, I think it plays a lot better in the Supreme Court of the United States. Adam Chapnick Just common sensevy Let's jump to a bigger picture question.

America was founded on the rule of law. Why does that matter? Why is that significant? How does it distinguish us from other countries? Dr. John Baxter I think it's absolutely critical. And I think if you ask the question, what makes someone an American. I mean, I think you basically have to go to our constitution and somebody's an American if they've either been born here or they've come here

with the idea that America stands for a set of values that are embodied in the constitution and become enforceable through the court system. And that just makes us a very different country. I think some of the reasons that some of our European allies kind of struggled with issues about everything from immigration to kind of what it means to be a national of that country is because, you know, they were nations or peoples first, and they sort of later adopted some form of democracy or some constitution.

And until the point we had the constitution, we really were essentially peoples from all over the world and were being treated as colonies. And so in a sense, you know, our founding is a founding on the rule of law and what makes you an American is really found in the principles of the Constitution, not in any sense of kind of broader sort of national identity or, you know, we were Gauls before we were French or something. Absolutely. The Constitution now is more than 230 years old. And there's clearly a camp these days that would say that the Constitution should be adaptable to the times since there's no way that the founders could have envisioned the vast changes that this country has experienced. But talk to

us about why the words of the Constitution matter so much and what's the danger in straying from their intent? Well, I mean, one of the many geniuses of the Framers, and I think you can now go pretty far wrong if you underestimate the genius of the Framers. But one of the geniuses of the Framers is they provided a mechanism to update the Constitution. Article 5 of the Constitution provides a mechanism to amend the Constitution. And that is a difficult process, a process that involves the democratic process and the will of the people. They didn't think the way the Constitution should be amended is by having five unelected

judges change the meaning of the Constitution. And I think one of the things that might surprise the founders, if they were around today, is that the Constitution has only been amended 27 times. But I think that's a testament to the enduring principles that are in the document. And I don't think there's any way to overestimate how important it is to be faithful to the words in the document, because the whole idea of the Constitution, it wasn't handed down to Moses, it wasn't the divine right of kings, it was the will of the people that created the Constitution in the first place.

And so what people agreed to in the first place, including the mechanism to amend the Constitution, that's the will of the people. That's what gives the document legitimacy. And if you disregard that, if you stray from the best interpretation of the Constitution, you're really going away from the legitimacy that underlies the whole document, which is ultimately it is an expression of the will of the people.

It's an expression that's designed to endure over time. And as a result, there are provisions in the Constitution that are designedly counter-majoritarian. First Amendment free speech rights are the most obvious example. The framers didn't want those principles to wax and wane. You know, you could, you know, at one point you couldn't criticize the British and at the next point you couldn't criticize the French because of our allies. They wanted it to be an enduring principle that we're better off if we have robust free speech rights. And those principles are enduring and if people lose faith in those principles

or think they become outmoded, then they should direct their attention to Article 5 of the Constitution, but not to criticizing those that are faithfully interpreting what the Constitution provides. It seems to me that you don't really have a constitution anymore if you're free to just interpret it any way you want without having any sense of what the original intent was. I'd also say it should be hard to amend it. That shouldn't be an easy process. Do you agree? I agree on both scores. I mean, the idea that it is just inherent in the concept of a constitution and a written constitution in particular, that those words have meaning and have fixed

meaning, that goes all the meaning and have fixed meaning. That goes all the way back at least to Marbury against Madison. And that was Chief Justice Marshall's justification for judicial review. And I think the framers had it exactly right that the Constitution has to be something that you can amend, but the process to do it has to be difficult. It's not something you do lightly. I think, you know, some states have a process where you can amend the constitution simply by passing a referendum.

And whether that works in some states, I'll leave to those states. But for the federal government, that just wouldn't work. It has to be harder to amend than that. And it has to be amended in a way that reflects not just the current will of the people, but a super majority in a way that reflects the idea that we're really changing something fundamental. Yes. The Supreme Court has experienced some incredible challenges in recent times, and it's become increasingly politicized, sadly, I would say.

Would you say that's a reflection of the current environment we're in, or do you think the court really has become more political in its makeup and its decisions, or a little of both? So, I think there's a couple of threads here. One is, I think it is the general environment. I think you'd be hard pressed to name a single institution that hasn't sort of suffered in its public standing over the past couple of decades.

And I don't know whether that's the internet or just kind of the broader system we exist in. I don't even think this is a distinctly American phenomenon. I think institutions worldwide have had a tough go of it the last couple of decades. Another thing that I think has been a challenge is, and this may seem weird, but I think it's part of it, presidents have gotten very good at picking the kind of justices that they're looking for. And so if people look at the current Supreme Court, they're going to see some justices

appointed by Republican presidents that really focus on the text of the Constitution. They're going to see some justices appointed by Democratic presidents that have a more all-encompassing mode of interpretation. And they're going to see a fair number of decisions, at least the most high-profile decisions, where it looks like all the justices appointed by the Republican president vote one way and all the justices appointed by the Democratic president vote the other way. And I think that can produce some cynicism. And you know, in earlier years, you'd have a Republican president appoint Justice Stevens

or Justice Souter. You'd have a Democratic president appoint Byron White. And you'd look at the court and you'd say, well, it's a lot more complicated. You know, at least one of the conservative justices was a Democratic appointee, at least one or two of the liberal justices were Republican appointees. And I think it facilitated people thinking about the court in a slightly more nuanced way. And then the last thread is, I do think it's fair, and I don't think the justices are entirely to blame, but I do think it's fair that the Supreme Court is deciding more contentious

issues these days than the framers probably envisioned. I think that itself is a multifactor process. I think Congress is probably doing less, and both the courts and the executive branch are doing more than the framers probably envisioned when they first designed the Constitution. And on the topic of today's politics, there's been talk, particularly over the last four years or so, about changing the makeup of the court to ideologically rebalance something better known as court packing. I guess you've got to go back to Roosevelt for prior conversations on that topic. What did that do to the court as an institution? Assume you're not a fan.

I'm not a fan. And as recently as about a decade ago, nobody was a fan. I mean, that was one of those things that you couldn't really say in polite company. I think Roosevelt, you know, it's complicated in the sense that the Constitution may allow Congress to change the composition of the court. It's done it. There's nothing in the Constitution about nine justices at various times. It's had different numbers. At one point, it had 10. For a long time, it had seven or five. So it's not that it's had different numbers. At one point it had 10, for a long time it had seven or five. So it's not that it's a foregone conclusion that as a constitutional matter, Congress can't change the number of members in the court.

But since Roosevelt tried it, and the idea seemingly kind of exploded on all hands, it was one of those things where it was just a third rail. He didn't talk about that. And the fact that it's come back into vogue, I think is a pretty troubling sign. I do think it would be very destructive of the court. I think if you went down that road,

you'd keep going down that road and you wouldn't stop at increasing from nine to 11 or nine to 13. Then the next time the one party got in control of all three branches, you'd go from 13 to 15 and pretty soon you've just destroyed the court. And I think in their heart of hearts, most people know that. And maybe the most recent election where the Republicans now have the White House and both

houses of Congress will remind some of our Democratic friends that court hacking is a bad and dangerous idea, but I think it's exactly that. And I think, again, some of our Democratic friends who have been kind of working and been very critical of the court and really gone beyond fair criticism to attacks on the legitimacy of the court, they're gonna really want the court to be a legitimate institution over the next two or four years. It seems to me that justices of all ideologies agree with your perspective, even Justice Ginsburg did not think this was a good idea.

No, I think that's right. I think Justice Breyer has recently expressed what a terrible idea this is. recently expressed what a terrible idea this is. And I think it's no accident that the justices themselves or people like myself who appear in front of the justices quite frequently, they understand that you really would destroy the court if you tried to pack the court. And I thought that's a lesson we all learned

from the Roosevelt experiment. And if people needed to be reminded of that, or if the recent election results helped concentrate some people's minds, that's all for the good. Let's take a look at the court's last term, which issued some really important decisions, including one that you argued. And that case resulted in overturning what's called Chevron, which was a 40-year-old doctrine in which courts allowed government agencies to essentially interpret ambiguous statutes under their jurisdiction. What do you think will be the impact of that ruling? And do you think it'll help to reign in government regulation? Maybe not overnight, but over time.

Yeah, I think the Loper decision is a very important decision. I do think it is going to help sort of dial back on the extent of executive branch lawmaking, which really should be a contradiction in terms. We should have the legislature do the lawmaking. And I think in the long run, it is probably going to incentivize Congress to legislate a little more clearly, maybe make some compromises in their legislation. One of the things that really struck me about the Chevron doctrine, especially as it endured over time, is it really ended up having a very detrimental effect on Congress.

Because at any point in time, roughly half the members in Congress had friends, former staffers that they worked with were now in the executive branch. And so at any point, about half of Congress has a pretty strong incentive under the Chevron Doctrine not to actually legislate and reach a compromise with the people across the aisle, but to just call up their friends in the executive branch and do this, as President Obama said, with a phone and a pen, and just enter an executive branch and do this, as President Obama said, with a phone and a pen and just enter an executive order to do something. And all of a sudden, you don't have to compromise.

You don't have to worry about a primary challenge or anything like that. And that effect over time of Chevron that I don't think was apparent in the first instance, I think has really had a negative effect on the separation of powers and on Congress in particular. So it'll take time to kind of rediscover some legislative muscle that is atrophied. But I do think it's an important decision. And I do think, again, I don't want to harp on the recent election results, but I do think over the next couple of years, some of our liberal friends may really grow to like the Loper to say, because frankly, it gives less power to the executive

branch to just kind of change the rules by reinterpreting the statute. And so I think we're going to start to see a little liberal love for Loper. Adam Chapnick Those of those in our audience who don't pay close attention to this all the time, just spend a couple of minutes on who your clients were in that case. It's really interesting. Well, my clients in that case were awesome. And if you think about this doctrine, which is really about kind of empowering executive branch agencies, most of the people who really understood that Chevron were a problem were the big companies that

dealt with the regulatory state on an ongoing basis. There are two things about those big companies. One is, they weren't the most sympathetic plaintiff in the world to try to challenge Chevron, but also, in a sense, they have the resources to kind of deal with the regulatory state. They have their own lobbyists, and that's why we even talk about the idea of regulatory capture sometimes. But my clients in the Loper case were fishermen, ordinary small business people trying to eke

out a living in an industry that's always had pretty tight margins. And they faced a mandate from the federal government that came from Congress that was bad enough, which is sometimes when they went out on their ships, they had to have a federal monitor on board that would displace somebody that otherwise could be actively fishing. And that federal monitor's only role was to make sure that they were abiding by the various federal regulations that tell you what you can catch, how big the catch can be, when you can fish, when you can not fish, where you can fish and that was a huge imposition but it came from

Congress so there's only so much you do. But then a funny thing happened. The agency responsible for all those regulations ran out of appropriated money to pay for those monitors. So what did they do? They passed a rule that basically made the fishermen pay for their own monitors. Now that struck me as crazy overreach, but it also struck me immediately

when I was first contacted about this case that these are the clients that could really make clear to the public and to the court the costs of regulatory overreach and the cost of the Chevron doctrine. And those costs are not visited just on the Chevrons of the world. They are imposed on small business people. They're also frankly imposed on immigrant, social security, recipients, veterans, which is why, you know, properly understood,

whether you have Chevron or the post Chevron-Loper-Bright rule, that's not a left right issue. Um, it's really sort of out what, what kind of government do we want to have? And where do we want government impositions coming from? What kind of government do we want to have? And where do we want government impositions coming from? Do we want it coming from Congress that is just, whatever its flaws is still representative of the people or do we want it coming from an administrative agency?

And I mean, not to bore you with the details, but I think they show this. When there are very few places where Congress actually imposed a requirement that fishermen pay for their monitors. One was in the context of the largest, most commercially viable fleet in the country, which is in the Pacific Northwest. And even then, they put a strict limit on the amount of the fees.

The only place where they put unlimited fees on the fishermen were in the narrow circumstances where we allow foreign fishermen to fish in our territorial waters. And that makes perfect sense, A, because we're allowing them to fish in our waters and B, foreign fishermen don't vote. So Congress has no incentive not to make them sort of pay their own way. But Congress, representative of the people, would never impose unlimited fees on small commercial fishermen like my clients. But that's exactly what the agency did.

And the agency did it because they're not responsible directly to people in the same way as Congress. Really interesting. Another case you took on is a lawsuit on behalf of some Jewish students at UCLA, and they are accusing the university of violating their constitutional rights, their civil rights, by allowing anti-Semitic protests to just get out of control. What do you think the university should have done to protect those students? And going forward, how can universities protect both free speech and religious freedom and

protest erupt, as those we've seen in recent times? No, I appreciate the question because, you know, the suit is ongoing, but we did get a preliminary injunction against UCLA, which is a reflection that I think our lawsuit is a very strong lawsuit. The federal judge overseeing it has said it's likely to succeed on the merits. And I think the reason it's likely to succeed is because what UCLA did. UCLA didn't just sort of allow people to exercise their free speech rights and protest. And I'm a big believer that people, even on campuses, they have a right to protest and they have a right to say things that are offensive and stupid.

The free speech clause of the First Amendment is designed to allow people on both sides of issues to say things that the other side doesn't like. So this isn't a case about speech that somebody found offensive and the remedy we're looking for is, you know, not to protect some snowflakes from hearing things that they don't want to hear. This is the situation where the university allowed, I don't even think protestors is the right word, activists to essentially take over the heart of campus, including access to the library, student union, and other essential facilities.

And then they allowed these activists to create a blockade and to get access to that area and to these essential university facilities. Students basically had to denounce Zionism, denounce Israel, which is not anything that a Jewish student is going to do and certainly not anything any student should be forced to do to get access to basic educational services. And so this case really appealed to me when I understood what was going on at UCLA, because I'm somebody who thinks it is important to balance free speech rights with the rights of students

to make sure that they have access to government facilities, educational facilities, and are not discriminated on the basis of religion. And this case to me seemed like a case where this was not a free speech case. This, other than from my client standpoint, this was a case where this was not a free speech case. This other than from my client standpoint, this was a case where the activists went way beyond ordinary protests that are protected by the First Amendment and the university

facilitated those efforts and essentially helped them maintain the blockade. So those are the issues that the court is sorting through right now. I think the remedy we're looking forward to going forward in this case is consistent with what I just said. We're not interested in preventing people from peaceful protests, but we are very, very interested in ensuring that the university does not allow discrimination on the basis of religion and does not allow something like this blockade of essential educational services ever to happen again on the UCLA campus.

I totally agree. Your career, you've worked for some very large law firms, some of the biggest law firms in the country, now work for a small law firm. It's you, some other folks, not huge. You've taken on provocative cases. I think it's fair to say now in today's world that big law firms are shying away from the more provocative, difficult, but still important cases.

What's that say about the state of the legal profession? And do you think these big firms ought to be taken on some of the more controversial cases? So, I think it says a lot about where we are right now as a legal profession. And I do think that the big law firms should be taking on some of the most controversial cases. And I think the issue here is that in the practice of law, there's always this tension. How much are you a profession and how much are you a business?

And there's no question. You can be a lawyer and make a very good living for yourself and your family. It's pretty much always been true, but I think it's more true today than it's ever been that there are some very well compensated lawyers on both sides of the V. We hear a lot about plaintiff's lawyers who can afford their own planes, but you can make a lot of money at some of the big national firms. But at the end of the day, all those big national firms still want to wrap themselves in the idea that this is a profession and not a business.

If somebody wants to sort of go after their communications, they'll be the first to invoke attorney-client privilege or work product privilege, which are privileges lawyers only get because we're a profession and we're not an ordinary business. And I guess my own view is that at the big law firms, they stray a little too far in the direction of having a business and away from some of the things that define lawyers as professionals. I'm hopeful we can get it back to a little more balance.

I think it's really important that we do. I'm perfectly happy to practice in my small firm and in some ways that appellate practice that I have lends itself to a small firm and in some ways that appellate practice that I have lends itself to a small firm. But there are some kinds of practice, and I think trial practice is one of them, where you need a lot of resources to do a sort of big Voting Rights Act case, for example. And if the big law firms are only going to do those cases for Democrats and not for Republicans, or they're only going to do certain kinds of civil rights cases, but not other kinds of

civil rights cases. I think it really skews the law, and I think it starts to reinforce this idea that law is just politics by other means. And I think that's something we really have to fight against. I don't really know any lawyers, no matter how much they're making, that don't think to kill a mockingbird is just a great representation of what lawyers should be

about representing the unpopular person or the unpopular client. I mean, that's something that's foundational, goes all the way back in our country to John Adams representing the people in the Boston massacre, accused of the Boston massacre. So this is fundamental to our profession. And I think we have to get back to that. And if the lawyers at the big firm earn a little less money in the process, I think they'll be okay. I suspect you're right. Last question, Paul. I mean, argued more cases before the Supreme

Court than anyone in recent history. How do we ensure that Americans understand and really believe in the importance of upholding the rule of law? Well, I just think lawyers have a special responsibility to reinforce the idea that the rule of law absolutely matters. And I think that's why it's pernicious to me to see members of the legal profession making attacks on the court that go beyond saying a particular decision is wrong, and that's important and that's protected by the First Amendment, but to kind of undermine the legitimacy of the institution. And I think it would be very helpful if all of us, but especially the lawyers, took a

step back, reminded people that year in, year out, the Supreme Court of the United States decides about half of the merits cases unanimously. And that's particularly remarkable when you understand that the court picks its cases principally by picking cases where the lower courts have already disagreed. Even though they're hearing cases where the lower courts have split and reasonable minds can differ, in about half of those cases, all nine justices see it exactly the same way. And in the cases where they do divide, they're dividing based on good faith legal arguments.

It's not politics by other means. And I think we all have a responsibility, particularly the lawyers, for a lay person to look at a decision and sort of process it, not as a decision about the law, but just about the result and look at, well, who won, who lost? That's natural.

But lawyers have a special responsibility to explain, well, there's a reason that person lost. And maybe that's easier to do in the unanimous cases. And frankly, we shouldn't shy away from doing it in those cases. And we should do our best in some of the other cases. And we should go out of our way to explain that there are plenty of cases. I mean, Justice Scalia, one of my great heroes, for whom I clerked, he voted in favor of people

who were burning the flag. Justice Scalia didn't like flag burning, particularly like flag burners, but he thought the First Amendment absolutely protected what they were doing. His jurisprudence didn't really have a role for limiting punitive damages awards. That's not something Justice Scalia thought was a good idea. He thought they were out of control, like the next person, but he thought the law didn't provide a specific solution. And I think as lawyers, we almost owe it to the courts and to our fellow citizens to kind

of translate for them and explain that what the courts are doing is not politics by other means. And even if you don't like the result, usually if you don't like the result, the thing to do is to go back to one of the other branches and get the law fixed. And then you can get your results only on really a handful of issues every year that the court is definitively interpreting the Constitution. And most of them, they're interpreting statutes where if you don't like the result, you can go get it fixed in Congress.

I think the process of just kind of explaining what the courts do and what the courts don't do is something we all need to do more. I really agree. Paul Clement, thanks so much for spending some time with us today. Congratulations on an amazing career that is far from over. And as always, thanks to all of you for joining us on this episode of Voices of Freedom. Rick Graber Thanks, Rick make sure to subscribe so you don't miss an episode. I'm Rick Graber, and this is a Bradley Foundation podcast. you