0:02

Mr. Chief Justice, please report.

0:06

It's an old joke, but when a

0:08

man argues against two beautiful ladies like

0:10

this, they're going to have the last word.

0:14

She spoke, not elegantly,

0:16

but with unmistakable clarity.

0:19

She said, I ask

0:22

no favor for my sex. All

0:25

I ask of our brethren is

0:27

that they take their feet off our necks. Welcome

0:45

back to Strict Scrutiny, your podcast about

0:47

the Supreme Court and the legal culture

0:49

that surrounds it. We're your hosts. I'm

0:51

Melissa Murray. I'm Kate Shaw. And I'm Leah

0:53

Littman. And we're sorry to

0:56

start this episode on a somber note, but

0:58

we wanted to acknowledge the passing of Justice

1:00

Sandra Day O'Connor, the first woman to serve

1:02

on the United States Supreme Court. And toward

1:05

the end of this episode, we will have

1:07

a segment with some of her former clerks

1:09

who will help us put her legacy and

1:11

life in context. Before

1:13

that, this episode is going to be heavy

1:15

on the argument recaps. The Supreme Court heard

1:18

an important administrative law case in which the

1:20

Republican justices seem inclined to

1:22

pull the trigger in the latest front of

1:24

their war against the administrative state. So

1:27

we want to spend some time going into

1:29

that and explaining the potential fallout, which will

1:31

take some time only because it's a pretty

1:33

technical area of law. And then

1:35

in our court culture segment, we will talk about the

1:37

latest court of appeals to jump into the competition to

1:39

be America's worst court of appeals, specifically on voting

1:41

rights. But first

1:44

up is recaps. And

1:46

we're going to spend most of the time in this

1:48

episode recapping SEC versus Jarkissi.

1:50

Excuse me. I

1:52

mean, SEC versus Jarkissi. Jarkissi

1:56

is a challenge to the Securities and

1:58

Exchange Commission's ability to to enforce

2:00

federal securities law within the administrative

2:03

agency. So within the SEC, there

2:05

are administrative law judges, ALJs. And

2:07

the SEC prosecutors can basically look

2:09

at what a company is doing,

2:12

determine that a company is violating

2:14

securities law, and then bring their

2:16

enforcement action before these ALJs, who

2:18

are protected by civil service protection

2:21

so the agency head or the

2:23

president can't simply fire them if

2:25

they don't like how the ALJs are

2:28

deciding cases. So the ALJ

2:30

will get this enforcement action and

2:32

will determine whether a company has,

2:34

in fact, violated securities laws. And

2:36

if the ALJ determines that the

2:38

securities laws have been violated, the

2:40

ALJ can impose statutory penalties or

2:43

fines on that company or offender.

2:45

And to be clear, those ALJ decisions

2:48

are not the final word on these penalties

2:50

or fines. They are reviewable first by the

2:52

full SEC and also in

2:54

federal court. And this

2:56

is not an SEC-only scheme. Congress has

2:58

created this sort of scheme in many

3:00

agencies over many years and for many

3:03

good reasons, which Justice Kagan brought

3:05

out with her typical flair in oral argument. So

3:07

we're going to play a bunch of Justice Kagan

3:09

today. Let's start off with one of those clips

3:11

here. And with the Chief Justice

3:13

made the point that it's been 50 years

3:15

and things have changed and that administrative agencies

3:18

are more powerful, well, so too in those

3:20

100 years, I

3:22

mean, our problems have only

3:24

gotten more complicated and difficult.

3:27

And it's usually Congress that decides

3:29

how to solve those problems and

3:31

whether administrative agencies with the kind

3:33

of expertise that they have are

3:36

the appropriate way to solve those

3:38

problems, not this court, which decides,

3:40

oh, well, we really only need

3:42

common lawsuits to deal with securities

3:44

regulation. So we said there

3:47

were three independent constitutional challenges to

3:49

the SEC system in this case.

3:52

And to our surprise, I think,

3:54

basically the only one the court was interested

3:56

in focusing on during this argument was

3:58

whether the system violates the system. Seventh Amendment right

4:00

to a jury trial because, of course, the

4:02

agency's adjudication procedures — that is, decisions

4:04

by an ALJ — don't employ juries.

4:06

And that's true about all agency adjudications,

4:08

not just the ones that happen in

4:11

the ICC. And like,

4:13

look, hindsight's 20-20. I think one

4:15

reason why I at least thought they

4:17

weren't going to go this Seventh Amendment

4:20

route is because there are cases that

4:22

pretty squarely foreclose this challenge, whereas

4:24

some of the other ones in particular, the

4:27

removal, are unsettled if

4:29

only because there wasn't like

4:31

a prior case that definitively

4:33

rejected that challenge. But of

4:35

course, again, I'm an idiot.

4:38

Sorry to size this for suckers. Those prior

4:40

cases were not going to be an obstacle

4:42

to this course. I mean, Leah, when

4:44

a door is affirmatively closed and another

4:47

door is ajar, why wouldn't you just

4:49

take a patch it and hack down

4:51

the closed door? Why wouldn't you do

4:53

that? Naturally. Again, hindsight

4:55

is 20-20. And so,

4:58

you know, to understand why all of

5:00

this hand-wringing about juries and the right

5:02

to a jury trial under the Seventh

5:05

Amendment is ridiculous and foreclosed by precedent,

5:07

which is exactly why this court will

5:09

go for it, we need to rewind

5:12

a little. As we noted in our

5:14

preview, this Seventh Amendment jury trial issue

5:16

is inexorably linked with a separation of

5:18

powers question. So put aside the Seventh

5:21

Amendment, which is the guarantee of a

5:23

jury trial, you know, put that aside

5:25

for a second. And civil, there it is. Right,

5:28

yes, the Seventh Amendment is a civil jury

5:30

trial guarantee. So there is a separate issue

5:32

brought to name the Seventh Amendment, whether Congress

5:34

can assign certain claims to an agency at

5:36

all. There's a question whether that scheme would

5:39

be permissible under Article 3 of the Constitution,

5:41

which provides that the judicial power of the

5:43

United States shall be vested in federal courts.

5:46

And this is sometimes called the Article

5:48

3 or separation of powers question, whether

5:50

these claims can be heard at all

5:52

by an agency. So people have challenged

5:54

agency systems of adjudication on this ground,

5:56

saying they are unconstitutional because they take

5:59

the judicial power. here,

8:00

Mr. Charfie. I'm very,

8:02

very eager to take

8:04

a hatchet to all of them. And the

8:06

government's argument is basically that the

8:08

Seventh Amendment and Article 3 prohibit

8:10

the government from taking all of

8:12

tort laws. So from adjudicating cases

8:14

by one private party against another

8:17

where you slip on your neighbor's

8:19

sidewalk and making an agency adjudicate

8:21

those without a jury. So that's

8:23

off the table very clearly. Those

8:25

involve private rights and they are

8:27

properly adjudicated by a civil jury.

8:29

But in circumstances where Congress writes

8:32

some new law, maybe the Securities

8:35

and Exchange Act, and creates new

8:37

claims, and where it gives the

8:39

government the ability to enforce the

8:41

general public's interest in that law,

8:44

the cases can then go to

8:46

an agency. Those claims implicate,

8:48

quote unquote, public rights. And

8:51

the Republican justices almost seem to be

8:53

using the Seventh Amendment as like a

8:56

stocking horse or a way to claw

8:58

back on the Article 3 separation of

9:00

powers cases that have allowed these systems

9:02

of adjudication. They also seem to be

9:05

quibbling with whether these claims, claims arising

9:07

under federal securities law, are

9:09

truly new claims or are

9:12

basically just common law claims like

9:14

a replacement for fraud or repackaged

9:16

fraud claims, which is silly. You

9:18

know, there are a lot of

9:20

crucial differences between common law fraud

9:22

and the kind of fraud criminalized

9:24

or made unlawful under the securities

9:26

law. Federal securities law requires

9:28

disclosures, among other things, which aren't required by

9:30

common law fraud. And also in common law

9:32

fraud actions, you have to prove things that

9:35

you don't have to prove under federal securities

9:37

law. Like you relied on the false or

9:39

fraudulent statements. I could go on, but

9:41

yeah. And Justice Kagan

9:43

did, right, go on, on these distinctions in

9:46

the oral argument. And even though sort

9:49

of late in the long argument, there

9:51

were some efforts to basically suggest that

9:53

this position, if accepted, wouldn't upend,

9:55

like, all agency practice, honestly,

9:58

it very well could, right? that

10:00

juries are required for these kinds of claims

10:02

could in theory jeopardize a ton of what

10:04

the administrative state, as we know it, does.

10:07

As Brian Fletcher, who's the deputy solicitor general who

10:09

argued the case, noted, lots of

10:11

different agencies hear cases within the

10:14

ALJ system that involve federal

10:16

claims. These agencies include, but

10:18

are not limited to, the EPA, the

10:20

CFTC, the FTC, OSHA, the list goes

10:22

on, and the court is potentially

10:24

calling all of those adjudications into

10:26

question. So let's play Fletcher

10:29

explaining that here. To bring all of those

10:31

cases that are now proceeding administratively into the

10:33

courts would be a huge imposition on the

10:35

courts. Just in terms of the numbers, the

10:37

1992 ACAS report that we cite counted more

10:40

than 200 statutes at that

10:42

point, and we very quickly got to two

10:44

dozen agencies that have the authority to impose

10:46

penalties in administrative proceedings now. So it really

10:48

would be, I don't want you to think

10:50

that it's just about the SEC and it

10:52

can just go to court because you really

10:54

have wide representation. I know FTC and

10:57

others. EPA, agriculture, I mean, it's

10:59

really all over. FERC. FERC,

11:02

Amicus Free. It's a complete non sequitur. But,

11:06

I'm really obsessed with Cavanaugh intoning

11:08

FERC, Amicus Free from FERC, and

11:12

I would like someone to send it to music, so I'm just going to

11:14

put that out there into the universe. You

11:17

know, we can't help what we like, I

11:19

guess. The heart wants what the heart wants.

11:21

Okay. Thank you, guys. It

11:25

seems like at least some of the justices

11:28

wanted to cabin a ruling nuking the SEC

11:30

to not cover all

11:32

those other agencies, maybe because those

11:34

other agencies are too important or

11:37

whatever in Justice Kagan's words from

11:39

the CFPB case. We're

11:42

just going to play that clip again.

11:44

This is her mocking the argument challenging

11:46

the CFPB. Yeah, it's just

11:48

too important and whatever. I mean, the

11:51

FDIC, the OCC, they also fail your

11:53

test. All right. So,

11:55

basically, Mr. Jarkusy has a

11:57

theory for dismantling the SEC.

12:00

But it's not entirely prepared

12:02

to go whole hog and get

12:04

behind this and ask the court

12:06

to dismantle every agency, like, for

12:08

example, the Social Security Administration. And

12:10

it's also not clear that the court wants

12:13

to do that either, or at least five

12:15

members of the court don't seem entirely exercised

12:17

to do this. But it does

12:19

seem like there is a majority here to

12:21

limit the role that agencies can play in

12:24

penalizing rich people who play fast and

12:26

loose with securities laws. I'm glad we

12:29

could all get on board with that.

12:31

So thank you, guys. Good work. It

12:34

also seems like some of the justices

12:36

were suggesting that the Social Security context

12:38

is distinguishable from the securities context because

12:41

it's different if the government is

12:43

revoking a benefit, as is often

12:45

the case in Social Security's cases

12:47

where, you know, licenses or Social

12:49

Security benefits are in play, as

12:51

opposed to doing something like imposing

12:53

fines and penalties, which is what

12:55

typically happens in these securities

12:57

adjudications. Maybe

12:59

in those cases, a jury would not be

13:01

required. But when folks

13:03

are cheating the markets, well, this

13:06

is where you need a jury

13:08

of 12 angry men for...

13:10

Right. Yeah. And

13:12

the justices, I'll just add to the list, were also at

13:14

pains to single out the immigration system. No

13:16

one seems to be required. Jury is there. But

13:18

I think the board... No, definitely do. Don't get a

13:21

jury of your peers for that. Nope. Nope. That's

13:24

not good. But I think the broader point is this.

13:27

Wherever you might be able to draw lines

13:29

between different kinds of adjudications, the Supreme

13:31

Court has already said that systems like

13:33

this, systems where agencies enforce federal laws

13:35

and create new claims and duties, which

13:37

is what this is, are totally

13:39

fine. And that is true even... Loads

13:42

your... Yeah. Even where the

13:44

federal law that Congress writes might have some

13:46

similarity to a common law claim like fraud.

13:49

Yeah, that doesn't change what the court has said.

13:51

And the most on-point case, which came up again

13:53

and again in the oral argument, is Atlas Roofing

13:55

versus Occupational Safety and Health Administration, or OSHA,

13:57

from 1977, which fled...

14:00

the measure, correctly brought up a lot and which

14:02

the justice seemed really annoyed by, like why do

14:04

you keep referencing Atlas roofing? Obviously from the 1970s,

14:06

every case from the 1970s. You

14:08

know how we feel about that era. Yeah,

14:11

presumptively no longer good law, abandoned to

14:13

the over-ruled. The remnants of an abandoned

14:15

doctrine. Exactly. That

14:17

was definitely the subject. Just because

14:20

the case came up so much, let's briefly

14:22

describe Atlas roofing. So this is the 1977

14:24

case that upheld against a Seventh

14:26

Amendment challenge, OSHA's ability to bring

14:29

cases seeking fines against companies for

14:31

violations of the OSHA or Occupational Safety

14:33

and Health Act. Those claims were

14:35

similar to common law claims for negligence where,

14:37

say, employees are injured because of stuff the

14:39

employer does, and yet that did

14:41

not compel the court to find the Seventh

14:43

Amendment require them to be heard by juries.

14:45

But it was a different court case. It

14:47

wasn't this court. So it just presumptively not

14:51

really a precedent. They decided that case

14:53

on a Tuesday and they heard argument

14:55

in jargosy on a Wednesday, so very

14:57

different. Very different. They were annoyed that Fletcher

14:59

kept bringing up the case. Exactly. Very

15:02

irrelevant. So Atlas

15:04

roofing, don't know her. So for

15:06

those of you who don't know her, we're going

15:08

to read some excerpts from the opinion in Atlas

15:10

roofing, also for the kids who can't read too

15:12

well on the Supreme Court. So

15:14

quote, this is from Atlas roofing.

15:17

Congress has often created new statutory

15:19

obligations provided for civil penalties for

15:21

their violation and committed exclusively to

15:23

an administrative agency the function of

15:26

deciding whether a violation has in

15:28

fact occurred. End quote. Next

15:30

quote, Congress is not required

15:32

by the Seventh Amendment to choke

15:34

the already crowded federal courts with

15:36

new types of litigation or prevent

15:38

it from committing some new types

15:40

of litigation to administrative agencies with

15:43

special competence in the relevant field.

15:45

This is the case, even if the

15:48

Seventh Amendment would have required a jury

15:50

where the adjudication of those rights is

15:52

assigned instead to a federal court of

15:54

law instead of an administrative agency. End

15:57

quote. Mike drop. Why

16:00

are we here? What is the sound of one

16:02

door closing? Atlas

16:06

roofing we hardly knew ye but for

16:09

those of you who are still interested

16:11

in learning about this now Just like

16:13

the precedent Atlas roofing was a unanimous

16:16

case Technically, Justice Blackmon did not participate

16:18

in it But other justices

16:20

did and among those in

16:23

the majority in this unanimous

16:25

case included noted rhinos and

16:27

liberal squishes like William Rehnquist

16:30

Warren Burger, Potter Stewart,

16:32

Pinko Commie, Byron White and

16:36

Woke warrior Louis Powell all in

16:38

the unanimous majority Naturally

16:41

this court seems to think that

16:43

we literally know better than Everyone

16:46

else who has ever walked the face of

16:48

the earth since time immemorial so

16:51

Obviously Atlas roofing doesn't mean anything

16:53

and it's also possible That

16:56

this court will say with a

16:58

straight face that Atlas roofing has

17:00

been abandoned by cases

17:02

which is code for we

17:04

stopped talking about it Therefore it's

17:06

abandoned like we ghosted Atlas roofing

17:09

and now it's no longer a precedent But

17:11

that definitely seems to be the vibe they're

17:13

going they're reaching for it But Justice White

17:15

cast doubts on it later a little bit

17:17

and maybe that's enough. Yeah, there's a Like

17:20

those little cases did not involve

17:22

the government They all involve party

17:25

versus private party and it's just

17:27

my mind hurts with the sheer

17:29

stupidity of this Oh my god,

17:31

you just said what Brian Fletcher was thinking

17:33

during the whole time and couldn't say

17:35

and Lee I'm your anger translator

17:37

Brian. I am your anger translator. You know

17:40

who else I think was also really upset

17:42

here every legal

17:44

writing and research teacher across America

17:46

who trying to teach one else how to

17:48

distinguish between We live in a system like

17:51

we live in a story Facts

17:54

matter like the difference between this case in

17:56

that case is this one involved the government

17:58

this one involved private parties courts like, nah. The

18:01

difference is I wasn't there. Samuel

18:03

A. Alito was not there, therefore

18:05

this has been abandoned. Correct.

18:09

So, Justice Kagan was

18:11

not having any of

18:13

this. She was not going to let

18:15

any of this we know better than

18:17

anyone slide. And she had a very

18:19

memorable line. She had quite a few, but one in particular

18:21

about what the challengers were trying to do. And so

18:23

let's play that clip here. What

18:25

have been thought the hard cases,

18:28

Northern Pipeline, Shore, Grand Financieras, Stern,

18:30

Oil States, these are all private

18:32

people on both sides of the

18:34

V. And nonetheless, we've

18:36

held that public rights might be

18:38

involved because their disputes are embedded

18:41

in federal statutory schemes. So

18:43

those are the hard cases.

18:45

But we've never suggested that

18:48

in a case where Congress has given an agency

18:51

the power to enforce something and

18:53

the agency is bringing

18:56

the charge, if you will, that

18:58

that's just not settled. Well,

19:04

it's settled only to the extent no one's brought

19:06

it up and forced this

19:08

issue since Atlas Roofing. In this

19:11

contact. Nobody has had

19:13

the, you know, kutzpah, to

19:17

quote my people, to

19:20

bring it up since Atlas Roofing. I

19:22

love this. I love this. This

19:25

maybe should be said to music more than This

19:29

is kind of a callback to her confirmation

19:31

hearing when she talked about going to the

19:33

Chinese restaurant. Yes. On Christmas.

19:35

Yeah. Yeah. Okay. Relatable

19:37

content. So we have

19:39

some other Justice Kagan clips that we

19:42

wanted to play. They're long, but I

19:44

think they're worth playing. One is a

19:46

sampling of Justice Kagan literally

19:48

bodying the lawyer for Mr. Jarkosy,

19:51

who I have to say his

19:54

most important contribution to this oral

19:56

argument was correcting the

19:58

record and making clear. that the

20:00

way to pronounce the challenger's name here is

20:02

not jarkasy as we idiots have been doing,

20:04

but instead as jarkasy, to which

20:06

I can only respond, John

20:09

Stewart calls him jarkasy, I'mma call him

20:11

jarkasy. That's his name now. That's his

20:13

name now. Here

20:16

is that clip. By the way,

20:19

it's pronounced jarkasy, not

20:23

a number of other ways that it's

20:25

been pronounced by many. So,

20:27

you know, if he could accurately

20:29

convey his client's name, he could

20:31

not so much grapple with here

20:34

is a theory of the case that explains why

20:36

I win, or right here is

20:38

the way to distinguish all of the cases

20:41

that suggest I should lose. And

20:43

I just like to note that in

20:46

this clip, Justice Kagan is able to

20:48

do something that I actually think is

20:50

like really difficult, which is to mock

20:52

this person who is so clearly not

20:55

up to the task of

20:58

doing this argument, right, making

21:00

a good argument, making his

21:03

case, but she does it

21:05

without sounding mean, right? Or

21:08

like without getting so irritated that she

21:10

comes off as mean. I just think

21:12

that's super impressive. But

21:14

it could not have been clearer that

21:18

what they were saying is that the

21:20

Seventh Amendment was no bar to Congress

21:22

making the decision that certain kinds of

21:24

claims were best adjudicated in

21:26

administrative agencies. Yes,

21:29

Your Honor, and I think we're

21:31

pretty close actually. So maybe the

21:33

dispute is over. We're pretty close

21:35

because I think that just resolves

21:37

the case. That's the

21:39

issue. I mean, that's the issue. That's

21:42

the results. The Seventh Amendment is no

21:44

bar. So she can be tough and

21:46

not mean, but you know who can't? You

21:49

know who can't do that is

21:51

our most fantastical justice being

21:53

extra fantastical. He was so rude.

21:57

Neil Gorsuch, obviously, I'm talking about. maybe

22:00

let's play this clip of him with Fletcher. It

22:02

actually isn't obvious. You actually had a number of

22:04

people from whom you could have chosen. That's fair.

22:06

That's fair. That's fantastic. That's

22:08

true. That's true. That was the tell. If you

22:11

were on Jeopardy. Yeah, the rudeness, I think, could

22:13

obviously describe quite a few. But here we're talking

22:15

about Gorsuch, so let's play him and Fletcher. So

22:18

Mr. Fletcher, with respect to your

22:20

argument that Congress can move something

22:23

from courts into agencies,

22:25

and the Seventh Amendment doesn't speak to

22:27

that because it's

22:29

not a suit. I think

22:31

Noah Webster described a suit as

22:34

any action or process for the recovery

22:37

of a right or a claim before

22:39

any tribunal, which would

22:41

seem to be a problem. That's a pretty

22:43

contemporaneous definition. And then Justice

22:45

Brennan in Grand Finance Sierra, I think

22:48

addressed your argument pretty squarely when

22:50

he said Congress cannot eliminate a party's

22:53

Seventh Amendment right to a

22:55

jury trial merely by relabeling the cause

22:57

of action and placing

22:59

jurisdiction in administrative agency. Thoughts?

23:05

Yeah, so I guess I think that's still

23:07

inconsistent with what the court has said in

23:10

Grand Finance Sierra. I just quoted from Grand

23:12

Finance Sierra. I misspoke. I don't think that's

23:14

what the court held in Grand Finance Sierra.

23:16

I didn't consider what the court said. You

23:18

say I misread it, Mr. Fletcher? No, Justice

23:20

Gorsuch, I'm saying. You said that that's a

23:23

purely taxonomic change and

23:25

that that's not enough to render it no

23:27

longer a suit for purposes of the Seventh

23:29

Amendment. Yes. Right? In context, Grand Finance Sierra

23:31

is talking about a proceeding that was in

23:33

a bankruptcy court in the Article 3 setting.

23:35

I think the court's subsequent cases, including oil

23:38

states, have said if you're permissibly in

23:40

an Article 3 tribunal, then the Seventh Amendment

23:42

doesn't have independent work to do. I apologize

23:44

for misidentifying the case. I was relying. All

23:46

right. And there's

23:48

one more Gorsuch-Fledger exchange

23:51

that I just sort of see

23:53

the endlessly patient and calm Brian

23:55

Fletcher get just the tiniest bit

23:57

exercised and also I think genuinely gets the best.

23:59

Little take. of course it's in this it yeah

24:01

he was he still needs Leah to anger translate

24:04

but but you could see a bit

24:06

of getting there yeah wait wait till

24:08

June he got a long way to

24:10

go okay let's play that one what

24:13

if the government tomorrow decided well

24:15

we don't like those jury trial that

24:18

come with that we're gonna we're gonna

24:20

effectively overrule toll by moving

24:22

those to administrative proceedings then

24:24

the Seventh Amendment would disappear on your account

24:26

wouldn't it yes but that's Atlas

24:28

to and the court recognized and looked at all

24:31

the history and the importance of the Seventh Amendment

24:33

but said it's always been tied to the nature

24:35

of the forum there have always been circumstances where

24:37

important rights get adjudicated without a jury and admiral

24:39

key I understand that I think this is just

24:42

that the key part of the answer is yes

24:44

that that would overrule the pre-existing Seventh Amendment right

24:46

this court recognized in tall I disagree that it

24:48

would overrule that right respectfully justice which I think

24:51

the right in town created no you might dissipate

24:53

it what verb would you prefer the Seventh Amendment

24:55

right that the court recognized in tall is the one

24:57

in the Seventh Amendment which is a right in suits

24:59

at common law it's an administrative proceeding it's not a

25:01

suit of common law okay I

25:05

feel like a little concerned or sad like we should

25:07

offer I don't know like does

25:13

he need like a signal chat or

25:16

like some sort of like post-argument happy

25:18

hour in which he gets to say

25:20

like what he actually wants to say

25:22

the Seventh Amendment the court recognized is not

25:24

the one in your imagination it's the

25:26

one in the Seventh Amendment that I

25:28

thought was pretty epic I think we

25:30

just sent him one of the strict

25:32

scrutiny journals in our merch line and

25:34

like turn it into Brian Fletcher's burn

25:37

book is

25:39

a nasty pants

25:41

just one moment let's

25:44

pour one out for our homie Brian Fletcher

25:46

I mean this had to be like he

25:48

gave a really great argument he did like

25:50

he was terrific like we are not suggest

25:52

heat no he was great right like the

25:54

content was exceptional he had everything to say

25:56

it was clear it was responsive you know

25:59

it was like And then this

26:01

guy walked in off the street and

26:03

it's gonna get a win. Like literally walked in

26:05

off the street and said it's jerk has a

26:08

theory. So he doesn't have a theory, right? And

26:10

couldn't maintain an argument. He like walked in,

26:12

got to the mic and said, the man's

26:14

name is jerk-a-see. Dropped the mic and now

26:16

he's gonna post a W. Like

26:18

that's what happens. And Brian Fletcher

26:21

is like literally spitting out full

26:23

expository paragraphs, right? That read like

26:25

a treatise on the 7th amendment

26:27

and it's just not it. So

26:31

I guess that that's what

26:33

flies these days. We're being super cynical. He maybe

26:35

he will win. We don't know. We

26:37

don't want to put that out there. We don't want to manifest that. True.

26:40

Yeah, sure. But we can count. Yeah.

26:42

Sorry. One

26:46

more long clip, which is of

26:49

our other favorite anchor justice, Justice

26:51

Jackson, using her final

26:53

moments too, as she just does

26:55

so well to press the key

26:58

points and to get her colleagues

27:00

to try and understand what Atlas

27:02

Roofing said. We should also

27:05

know when we call her an anchor justice,

27:07

we mean like the anchor person in a

27:09

relay race who's like the last person who's gonna

27:11

like literally bring it home. That's what we mean.

27:13

So we don't want any confusion. Don't slide into our

27:16

DMs like we know what we're talking about. That's

27:19

fine. But that's, I couldn't find Article 3

27:21

in Atlas Roofing. It's not talking about that

27:23

aspect of the analysis. I saw

27:25

it talking about when Congress at

27:28

the beginning creates a new statutory

27:30

duty, and in this case, it's

27:32

the duty not to what,

27:34

employ any device scheme or autocorice

27:36

to defraud in the context of

27:38

securities transaction. There's a new

27:40

statute. We've got this new duty. Congress

27:43

says, there it is, and we're giving it

27:45

to the government to enforce this for

27:47

the benefit of the public. All right.

27:49

That's the beginning. In that

27:52

situation, does the Seventh Amendment kick

27:54

in? I think Atlas Roofing says

27:56

no, because we're not talking about a

27:58

situation in which Congress has alternatively

28:00

said any common

28:03

law fraud claim out there in

28:05

the world concerning securities has to now be

28:07

brought in this administrative action. If you're relying

28:09

on the common law and you're bringing this

28:12

kind of claim, you don't get a jury

28:14

trial anymore. You have to come before the

28:16

SEC. That's the Seventh Amendment problem

28:18

because we're still, you understand what I'm saying? So

28:22

it's a suited common law because you

28:24

had the common law claim that is

28:26

now implicating the Seventh Amendment right. But

28:29

it's not a suited common law when

28:31

Congress creates a new duty and gives

28:33

it to the SEC or

28:36

some agency to enforce. Through

28:38

administrative proceedings. Through administrative proceedings. Yes. Then

28:41

we're landing exactly at the same place. I think I

28:43

may just be baking in some additional hoops that Congress

28:45

has to jump through, but I'm not disagreeing with your

28:48

bottom line. All right. And I

28:50

think the problem then is that if I'm

28:52

right about this, then I think it solves

28:54

a lot of the concerns that my colleagues

28:56

have about Congress shifting into

29:00

certain things into administrative proceedings because

29:03

really the Seventh Amendment is only

29:05

implicated if they're shifting into

29:07

administrative proceedings, things that were suits

29:09

at common law, meaning claims

29:11

in common law. They're

29:14

stealing from the private person

29:16

who is protected by the

29:18

Constitution that right. Right?

29:21

Yes. Thank you. Justice

29:23

Jackson ended this by thanking Brian Fletcher,

29:26

but she really could have just said

29:28

you're welcome because she really brought it

29:30

all home and like tied it all

29:32

up. She and Brian Fletcher were

29:34

a great tag team on this. Yes.

29:37

Yes. No. I

29:39

mean, the combination of Brian Fletcher, Justice Jackson

29:41

and Justice Kagan, that's a winning team, right?

29:43

Like that team can put together an argument

29:45

and a theory of the case, right? And

29:47

do you know what that team can't put

29:49

together? You know what that team? A

29:52

W? A majority. It can't be a

29:54

majority. Right. Correct. You

29:57

know, one final clip that to me

29:59

brings home. In some ways, just

30:01

how outlandish and ridiculous this entire

30:03

escapade was. It seemed like some

30:05

justices decided during this argument that

30:07

they liked penumbras and emanation after

30:09

all. So here we go. So

30:12

the plurality in Northern Pipeline, which I

30:14

think also recognized exactly this issue, sort

30:16

of acknowledged that concern and said the

30:18

reason is that the Article III question

30:20

is grounded in the separation of powers.

30:22

We're asking, are we concerned about Congress

30:24

taking away the judiciary's power? And

30:26

that's not, that is a bit concerned

30:28

when you have disputes between private parties.

30:30

What about individual liberty? The purpose of

30:32

the separation of powers is to protect

30:34

individual liberty. And your

30:37

individual liberty, it would seem, is even

30:39

more, or at least

30:41

equally, affected when the government is

30:43

coming after you than another private

30:46

party. What Justice

30:48

Kavanaugh is articulating here

30:50

is a completely free-floating,

30:52

untethered, unmoored idea of

30:55

what liberty is, which he is just

30:57

casting as the separation of powers. So

30:59

it's not just liberty or due process,

31:01

but still allows him to say certain

31:03

things are just too unfair for him.

31:05

And it's like, come on. Penumbra

31:07

is a liberty for me, but not

31:09

thee. Well, penumbras and liberties for political

31:11

branches, just not for women. Not people.

31:13

Congress can get birth control, but you

31:16

can. And

31:18

again, just to make the analogy clear, the

31:21

idea that they are just imposing some

31:23

free-floating notion of what is liberty and

31:26

what is fair, that is the same

31:28

complaint. They levied at the concept of

31:30

unenumerated rights, rights that aren't specifically mentioned

31:32

in the Constitution's text, and substantive due

31:35

process. And Justice Gorsuch was really into

31:37

this liberty idea, suggesting that it's just

31:39

unfair. You couldn't get a jury if

31:41

Congress put these claims in an agency.

31:44

But the Seventh Amendment does not inest

31:46

Mr. Neal Gorsuch's theories or conceptions

31:48

of fairness. Congress could have assigned

31:50

these claims to state courts where the Seventh Amendment doesn't

31:52

apply because it's not incorporated against the states. And the

31:55

text of the Seventh Amendment means there will be

31:57

times when you might think it's unfair, Neal, to not

31:59

get a jury. a jury, but a jury

32:01

still wouldn't be required, like suits for

32:03

an injunction or an admiralty or whatever,

32:05

where it just isn't required. It's not

32:07

some free floating conception of fairness. You

32:09

just get to apply. Well,

32:11

so that's fine. Okay, that's a text of the Seventh Amendment.

32:13

But what about the text of separation of powers clause?

32:16

Boom, lawyers. I

32:21

do appreciate you invoking Justice Holmes,

32:23

Leah, just casually, like casual paraphrase.

32:26

Again, I just feel like there is

32:28

a special kind of torture for people,

32:31

particularly women, who have spent their

32:33

lives working so hard and trying

32:35

to be good at law and

32:37

be able to be like recognized

32:39

up along with the boys only

32:42

just to have the stupidity thrown

32:44

out right and left. So

32:47

pausing to take stock for a moment,

32:49

I guess how scared should we be?

32:52

What to make of the fact that the

32:54

court asked literally zero questions about one of

32:56

the issues in the case, one of the

32:59

bases on which the Fifth Circuit had concluded

33:01

that this was unconstitutional, which was the non-delegation

33:03

doctrine. Brett Kavanaugh asked one, but this

33:05

kind of like dutiful one question

33:07

about the removal issue, which was a separate

33:10

basis on which the Fifth Circuit had concluded

33:12

this was all unconstitutional. So is it naive

33:14

of me to believe they

33:16

can't possibly be planning to

33:18

blow up an agency on grounds that

33:20

they couldn't even bestir themselves to ask

33:23

questions about? That does mean we're safe on

33:25

those arguments, or is that naive

33:27

of me? And they could just decide to

33:29

write something incredibly destructive on both of those

33:32

issues as well. Here's one

33:34

option. I mean, maybe they don't

33:36

say anything about the non-delegation doctrine

33:38

or removal, but it

33:41

doesn't rebuke the Fifth Circuit, which leaves

33:43

them free to continue on that

33:45

BS, and they will continue to

33:47

do that. Yeah, they can

33:50

do a lot of damage. Yeah, I mean,

33:52

it really was. Clearly they're interested in the

33:54

Seventh Amendment, and maybe there is enough despite

33:56

like that. Seventh Amendment, curious. A minute ago,

33:58

Melissa, that it's clear. clear enough this

34:00

is going to go down in Seventh Amendment

34:02

grounds, that they could say that judicial restraint

34:04

councils, I'm not saying anything unnecessary about these

34:06

open constitutional questions. And so, yeah,

34:09

I guess that's good because there's nothing that constructive I

34:11

could imagine this court saying, and yet the point about

34:13

the Fifth Circuit is really right. They have a lot

34:15

of cases that if they decide,

34:17

well, we haven't been in any way rebuked on either

34:20

of these theories, we can continue to apply

34:22

them with all kinds of insane consequences for

34:24

agency practice. So, yeah, I guess that's maybe

34:26

where to land on those two. But what

34:28

about on the Seventh Amendment? Is there any real

34:30

hope or this is just a question of how big and

34:32

how bad the decision is, but clearly

34:35

there's going to be some finding there's a Seventh Amendment

34:37

violation? I mean, and on the Seventh

34:39

Amendment thing in particular, I mean, look, of course there's

34:41

a chance that they get cold feet and

34:43

don't actually pull the trigger on the Seventh

34:46

Amendment issue, but I think it's more likely

34:48

that they do based on the argument. I

34:50

think they are going to be lawless and

34:52

overrule Atlas Roofing without saying they are doing

34:54

so, but I don't know how far that

34:57

ruling will go. The court could give different

34:59

reasons why this particular in-house enforcement adjudication system

35:01

is unconstitutional. Some of those reasons might apply

35:03

to a few agencies, some might apply to

35:06

many agencies, and it's just hard

35:08

to know, particularly if they're going to

35:10

say, well, this securities law claim is

35:12

similar enough to common law fraud to

35:14

trigger the Seventh Amendment when there are

35:17

several differences between the two claims. And

35:19

again, you're basically always going to be

35:21

able to identify some common law claims

35:24

that's kind of similar to a federal

35:26

statutory claim. So that's kind of what

35:28

I think. All

35:40

right. Shall we move on to

35:42

the next set of cases? I'm Leah. Contain

35:45

your murmur. Contain your patient. Yeah, I know.

35:48

She's so excited. I just sometimes ... She's

35:51

literally vibrating. Amazing. So

35:54

the next two cases are Brown versus

35:56

United States and Jackson versus United States,

35:59

which were consolidated. for oral argument

36:01

and they involve the Armed Career Criminal

36:03

Act which is a

36:05

statute that Leah just loves,

36:08

loves it. Well, I hate

36:10

it, but I am like, you love talking about it is

36:12

what I mean. You're fixated on

36:14

it. Yes, it provides lots

36:16

of grist for your mill. And in

36:18

particular in this case, the

36:20

concern regarding ACA is about

36:22

mandatory minimum sentences under ACA.

36:24

So ACA prohibits certain individuals

36:27

from possessing firearms and it

36:29

imposes a mandatory minimum on

36:31

those individuals who have three or

36:33

more prior convictions for violent felonies

36:35

or for controlled substances. The question

36:38

in these cases is how do

36:40

you determine whether something is a

36:42

controlled substance offense or really at

36:45

what point do you determine whether a

36:47

prior state conviction counts as a

36:49

controlled substance offense for purposes of

36:51

ACA. So as we briefly covered

36:53

last week, federal law classifies drugs

36:55

as controlled substances by labeling them

36:57

under drug schedules, but the attorney

36:59

general regularly changes the drug schedules.

37:02

So the question in this case is do you

37:04

look to see whether a state conviction involved a

37:06

drug that was classified as a controlled substance, one,

37:09

at the time of the prior state conviction or

37:12

two, at the time of the

37:14

federal firearm conviction or three, at

37:17

the time not of the conviction but of the

37:19

sentencing for the federal firearm offense. The

37:21

government is arguing for a time of prior

37:23

state offense rule. The two

37:25

defendants, Brown and Jackson, whose attorneys argued

37:27

separately in the case, are arguing respectively

37:30

for either a time of federal sentencing

37:32

or time of federal offense rule. This

37:35

argument was a Monday after Thanksgiving

37:37

and it felt like some people

37:39

not naming names were cryptophoning it

37:41

in with a little turkey hangover.

37:44

Three people showed up for these arguments as to

37:46

the others. It felt like they had not necessarily

37:48

done the reading or thought about this case much

37:50

at all. Some of them

37:52

threw out super basic questions like, well,

37:55

wouldn't there be administrability problems with consulting

37:57

prior drug schedules? Or I don't know.

38:00

how hard can it be? Look up the prior

38:02

drug schedules online. Like just pretty basic moot court

38:04

style questions along the lines of the other side

38:06

said this is can you respond? You know, the

38:09

chief justice was the one who said, I don't

38:11

know, can't you just have a probation officer look

38:13

up a prior drug schedule doesn't seem that hard

38:15

to me. Justice

38:17

Sotomayor came back with a

38:20

rejoinder later in the argument that we

38:22

wanted to play. And this

38:24

really sort of again, goes to a running theme

38:27

that we've seen from her multiple times this term.

38:29

So let's play that clip. Assuming

38:31

I accept that there's a burden. I

38:34

know you're saying there's not and the chief suggested

38:36

there might not be. I accept

38:39

it because I think every prosecution,

38:41

probation officer and defense counsel in

38:43

these various amicus tell us there's a problem.

38:46

Who bears the burden? The

38:49

point of all of this is that here we are

38:51

with a criminal case and

38:53

it falls upon a former district judge

38:55

or rather one of the two former

38:57

district judges on the bench to explain

38:59

to everyone else how these

39:01

things actually work in practice. Yeah.

39:04

And the other former district judge had

39:07

to do the same thing because other

39:09

justices ask questions that betrayed an utter

39:11

lack of knowledge about how federal sentencing

39:14

works. So at one point Justice Barrett

39:16

used, but if we apply the rules

39:18

in place at sentencing, that would mean

39:20

people's sentences vary depending on when their

39:22

sentence. It's like, whoa,

39:24

right. At this point, Justice Jackson

39:26

jumps in and says, isn't that

39:28

how all of the sentencing guidelines

39:30

work? You apply the guidelines in

39:32

place at the time of sentencing

39:35

and the lawyer was like, yeah, this

39:37

is awkward, but yeah, that is how

39:39

it works. So, you know, accurate documentary

39:41

that that was a summary. So

39:43

as we mentioned, three justices showed up.

39:45

We already played the clip of Justice

39:47

Stodomior, another person who did the reading.

39:49

No surprise with the former dean of

39:52

Harvard Law School, Justice Kagan, who had

39:54

some not too kind words for the

39:56

federal government's take on this case, which

39:58

called to mind something I had flagged. in the preview,

40:00

namely that ACA explicitly incorporates

40:03

the drug schedules rather than

40:05

listing particular controlled substances, thereby

40:07

permitting those schedules to change

40:09

over time. So let's play

40:12

that clip here. So your

40:14

whole argument rests on treating

40:18

differently a list of five

40:20

substances or any other attribute

40:22

of ACA, treating

40:24

it differently from a controlled substance as

40:27

defined in Section 102. And

40:29

that seems a little bit mysterious to me.

40:32

I mean, if you ask why it is

40:34

that Congress put in this language

40:36

of controlled substance as defined in

40:38

Section 102, it's, well, number

40:40

one, there are lots of controlled substances, and

40:42

you don't want to have to list all

40:45

however many there are. And number

40:47

two, we expect them to change. So what's

40:50

going to be a controlled substance next year

40:52

is not necessarily the same as this year.

40:55

And so on both of those theories

40:57

of why Congress used this language,

40:59

it seems perplexing as to why

41:01

you would have a different rule

41:03

than you would if Congress had

41:06

just listed the substances. And

41:08

in terms of who else showed up

41:11

for the argument, obviously, former speech and

41:13

debate, national forensic champion, and also, and

41:15

significantly, former public defender, Justice Gaffin.

41:17

And member of the Sentencing Commission. Yes.

41:19

Correct. Who knows a few things about the

41:22

guidelines. A little bit. She

41:24

showed up ready for this gunfight, pressing

41:26

the federal government on why it would

41:28

make sense to treat someone as having

41:30

a serious drug offense when the federal

41:32

government made clear it no longer regarded

41:34

that offense as serious. All right. So

41:36

then my question, I guess, is why

41:39

would Congress want to incapacitate defendants who

41:41

have committed crimes that federal law

41:43

no longer regards as serious? I

41:46

mean, I thought the point of this was

41:48

we're doing ACA because we

41:51

think, as Congress says, that certain

41:53

people need to be taken off

41:55

the streets for long periods of

41:57

time in order to identify

41:59

those. people, we look at their

42:01

histories and determine whether they have committed

42:04

certain kinds of crimes. If

42:06

we today, as we

42:08

undertake sentencing, have an understanding

42:10

that these certain kinds of

42:12

prior crimes are no longer

42:15

considered serious because the schedules

42:17

have changed, I guess I'm

42:19

trying to understand why the government's position is that

42:21

they should still be aca-predicants. Right.

42:23

The reason, Justice Jackson, is because we

42:26

think in terms of assessing the seriousness

42:28

of the prior offense, it makes sense

42:30

to look at the legal landscape at

42:32

the time the offense occurs. Why? We're

42:34

doing sentencing today and we're trying to

42:37

determine whether this person today needs to

42:39

be put in jail for 15 more

42:41

years. So why does the seriousness or

42:43

the label or the perception of the

42:45

past as to what he did matter?

42:48

Why wouldn't the criteria for determining

42:50

that be what we think about

42:53

his prior crimes today? As

42:55

to how this case will come out, because it

42:57

wasn't clear the justices showed up to work that

42:59

day, it was a little hard to get a

43:01

read on where they stood. I at one

43:04

point was like, can someone do a wellness check on Neil Gorsuch? Like,

43:06

where is he? Like, what is happening? It

43:08

really was odd. Yeah. I

43:10

want to remind him that it's a

43:12

republic if you can keep it. It did seem

43:18

to me like Justice

43:20

Gorsuch, Justice Sotomayor, and Justice Jackson

43:22

were not fans of the federal

43:24

government's theory. If I had to

43:26

guess, Justice Kagan wasn't either, although

43:28

she did press the defendant on

43:30

why ACA would incorporate drug schedules

43:32

for state crimes, but not federal

43:34

ones, although the defendants had answers

43:36

to this. But it's unclear

43:38

whether there's a fifth vote against the federal government.

43:40

It didn't seem like Alito, Kavanaugh, Thomas, or the

43:42

chief were leaning toward the defendant. But again, not

43:45

super clear. They did the reading and Justice Barrett

43:47

also hard to like get a read on. So

43:49

I just don't know. Super

43:51

sleepy. It was giving Linda Vangelista, I don't

43:53

get out of bed for less than 10,000 a

43:56

day to which Harlan Crow said we can handle

43:58

that. Exactly.

44:01

So we're going to go relatively short on

44:04

two arguments that the court heard last week,

44:06

Miguel Rath versus Georgia, which was the

44:09

double jeopardy case and Wilkinson versus Garland,

44:11

which concerned whether federal courts can review

44:13

mixed questions of law and fact from

44:16

immigration proceedings. The court kept

44:18

these arguments on the shorter side. So

44:20

that was a merciful blessing because they've been

44:22

going long on lots of things.

44:24

But in Miguel Rath,

44:26

it did feel a little bit like

44:29

the chief was basically bullying the justices

44:31

out of using their seriatim time in

44:33

order to keep the trains running on

44:36

schedule. So let me play this clip

44:38

so you can hear him

44:40

enforcing things. Thank you,

44:42

counsel. Rebuttal, Mr. Simpson. Oh,

44:46

I'm sorry. I'm sorry. We've skipped the I'm

44:50

glad you jumped in. No. Excuse me.

44:54

Anything further to leave? This is ...

45:00

I do have some further. Sorry.

45:04

Wow. Kevin, I

45:07

was like, please sir, may I? I

45:09

like that. He couldn't read

45:11

the room. No, he could not. Everyone

45:14

shut up. And Kevin, I was like, I have a question.

45:17

The guy in the last minute of class

45:19

when the professor was like, does anyone have

45:21

any questions? And the answer should be no,

45:23

we do not. And Kevin, I was like,

45:25

actually, I want to know about

45:28

the theory of judicial review and neutral

45:30

principles. So true. Anyway,

45:34

it was a little hard to get a read

45:37

on where the court was leaning, though it did

45:39

seem like in the offing might

45:41

be narrow wins for the petitioners in

45:43

both cases. So yeah, I

45:45

think Georgia loses here, but I think there are

45:47

just open questions about how much the defendants actually

45:50

benefit depending on what the Georgia courts do, if

45:52

it goes back down, if the

45:54

acquittal gets wiped out. Anyway, I think there's open

45:56

questions about what happens next, but I do think

45:58

Georgia loses. The

46:00

second incentive issue in McElrath is whether

46:02

the Double Jeopardy Clause allows the state

46:04

to retry a defendant after a jury

46:07

acquitted the defendant on some charges and

46:09

convicted on others and the state courts

46:11

conclude those verdicts of acquittal and conviction

46:13

were repugnant because they're irreconcilable. The

46:16

three Democratic nominees and Gorsuch seem pretty

46:18

clearly to favor as a petitioner or

46:20

defendant. Here is Justice Jackson. The

46:23

second one I would say is it's McElrath's

46:25

burden to identify why a state

46:27

can't do this. It

46:29

is the strong presumption that a state

46:31

does have authority over its own criminal

46:33

laws and procedures. And unless there's something

46:35

in the kind of fundamental right to

46:37

a jury trial or something like this.

46:40

And here is Justice Gorsuch. Why

46:43

does that make a difference? An acquittal is an acquittal

46:45

is an acquittal. Oh, I think it

46:47

makes time immemorial. As you

46:49

suggested in the preview, the court's existing

46:51

case law prevents states from retrying defendants

46:54

who were acquitted on some charges and

46:56

convicted on others, even if those

46:58

verdicts are inconsistent with one another. And

47:00

it seems like here the court is going

47:02

to say you can't characterize

47:04

inconsistent verdicts as irreconcilable or repugnant

47:07

verdicts just to get around those

47:09

decisions. So again, a possible

47:11

win for the petitioners, but a very narrow one.

47:15

And just to clarify, I think, what you were saying where

47:17

it's unclear what will happen on remand, what

47:19

will happen is if this court sends the

47:21

case back down to Georgia, the Georgia Supreme

47:24

Court will basically, I think, have another decision

47:26

about whether to wipe away the verdicts or

47:28

let them stand. And depending

47:32

what they do, that could tee

47:34

up possible acquittal. It

47:36

just seems as though Kavanaugh was sort of suggesting, well, it's

47:38

not necessarily like an ultimate boon to the defendant for this.

47:44

For a win to happen here because of

47:46

proceedings that will happen in Georgia after remand,

47:48

if in fact Georgia loses, at least in

47:51

the Supreme Court. Right, exactly.

47:53

So in future cases, they could allow the verdicts to stand. So

47:57

last case we will talk briefly about in Wilkinson

47:59

versus Garland. That's the case in which the

48:01

court is going to decide whether a federal court can

48:03

review mixed questions of law and fact that arise in

48:06

immigration proceedings. The government says courts

48:08

can review only questions of law. The

48:10

petitioner says, no, courts can also review mixed

48:12

questions of fact and law. The

48:14

relevant statutes preclude review of factual

48:17

determinations related to certain immigration decisions.

48:19

So if that also precludes review of these

48:22

mixed questions, well, no federal court review at

48:24

all. So it matters a lot. And

48:26

it's often hard to figure out how to characterize

48:28

certain kinds of findings. And

48:30

so that's what a lot of the argument was about.

48:32

So for a couple of reasons, it was

48:34

kind of hard to get a read

48:37

on where the justices were leaning. But

48:39

it seems like there will probably be

48:41

a narrow ruling for the petitioner that

48:43

says something like truly mixed questions will

48:45

be reviewable. But it will

48:48

be a narrow ruling, I think, because

48:50

some of the justices could say that

48:52

a petitioner could not challenge any factual

48:54

determinations, i.e. an immigration applicant would have

48:56

to go to court and say, the

48:58

only issue I'm making you review

49:00

is whether there's an undue hardship on

49:02

these undisputed facts that I cannot challenge.

49:04

And here's a clip of Justice Barrett

49:07

articulating that idea. But it

49:09

seems to me, and I've looked some of

49:11

these cases in the Sixth Circuit sides with

49:13

you, but when it reviews these cases, it

49:15

says that a lot of these claims about,

49:17

well, you just didn't understand the strength of

49:19

the emotional bond, or you didn't accurately predict

49:21

what life would be like for my

49:23

child if I were deported or removed

49:25

or my spouse. What

49:27

the court says is those kinds of things

49:29

are factual. And I guess that's where I'm

49:31

stuck, because even if

49:34

I accept your argument as flowing

49:36

from Guerrero-Lespria, it's hard for me

49:38

to see looking at these cases

49:40

very many that aren't essentially

49:42

factual challenges. And here's another

49:44

clip of her again reinforcing

49:46

that point. So would you accept then that

49:48

there would probably be only a very narrow

49:50

slice of cases that are ruling in your

49:52

favor would make

49:55

judicially reviewable and including potentially

49:57

even Wilkinson's own? And

50:00

just to kind of spell out

50:02

in a little bit greater detail how this

50:04

could be a narrow ruling, the federal government

50:06

suggested if the court

50:08

really made all factual determinations

50:10

unreviewable, they would be happy

50:12

with that ruling, depending on

50:14

how the court might define

50:17

factual determinations. And that

50:19

could cover quite a lot. So here is

50:21

the government's lawyer explaining the kind of factual

50:23

determinations that might be unreviewable. But yes, I

50:25

mean, if the court wants to say just

50:27

apply that law, facts, divide and put all

50:31

of the things like predictions, like comparisons on

50:33

the facts side, we'd be very happy. We

50:35

do think that the court needs to give

50:37

that kind of guidance. So I

50:39

guess we'll just wait and see how

50:42

that turns out. But it does seem

50:44

like the petitioner will prevail and the

50:46

petitioner was represented by Jamie Santos making

50:48

her SCOTUS debut and she did a

50:50

terrific job. So congratulations to Jamie. I

50:53

don't want to leave Wilkinson without noting

50:56

this one very interesting and

50:58

maybe even revealing intervention from

51:00

our favorite fanboy, Justice Samuel

51:02

A. Alito. So let me

51:04

just play this clip. But

51:07

if you ask an ordinary person, you

51:09

set out a certain set of

51:12

facts. So let's say I'm

51:14

complaining about my workplace. It's

51:16

cold. It's set at 63

51:18

degrees. There isn't any coffee machine. The

51:20

boss is unfriendly. All my coworkers

51:23

are obnoxious. And you

51:25

say, am I experiencing? No,

51:27

I'm not. Any

51:34

resemblance to any living character is

51:36

purely accidental. Is

51:39

that unusual or am I

51:41

suffering unusual, exceptional hardship? Hmm.

51:44

Hmm. Hmm. What are you

51:47

thinking of, Sam? Where did that hypo come

51:49

from? The

51:53

boss is unfriendly. All my

51:55

coworkers are obnoxious. It's like,

51:57

you're right. knows

52:00

the disclaimer on law and order, mass the

52:02

fact that these are ripped from the headlines.

52:05

So you know, my guess is

52:07

that might be true here as

52:09

well. So this week, the court will

52:11

be hearing some big cases, it will

52:14

be hearing the tax challenge in more

52:16

versus United States, which seeks to prevent

52:18

the federal government from being able to

52:20

tax unrealized income, which could bar Congress

52:22

from imposing a wealth tax, you know,

52:24

down the road. The court will also

52:27

hear the challenge to the Purdue Pharma

52:29

bankruptcy settlement in Harrington versus Purdue Pharma

52:31

that released the individual members of the

52:33

Sackler family from liability. We will discuss

52:35

these cases in depth next episode when

52:37

we recap the arguments. All

52:40

right, so let's transition to court culture. First

52:43

up, we wanted to come back to

52:45

something that we covered in an earlier

52:47

episode, which is the Zorowski case.

52:49

So the Texas Supreme Court heard

52:51

oral argument in that case. And

52:53

again, Zorowski is seeking to clarify

52:56

the medical exemptions to Texas's restrictions

52:58

on abortion. So they

53:00

had oral argument this week. And

53:03

during the argument, the lawyer for

53:05

the Texas Attorney General conceded that

53:07

not all of the plaintiffs could

53:09

get abortions under the law, including

53:11

individuals who would give birth to

53:13

babies who are going to die

53:15

within minutes. And the Texas AG

53:17

also suggested that women should sue

53:20

their doctors after they were denied

53:22

care, which wouldn't be

53:24

especially helpful. And it's also, I

53:26

think, high level gaslighting to suggest

53:28

that what happened to these women

53:31

is the fault of their physicians

53:33

and not attributable

53:35

to the state's efforts to

53:37

limit the accessibility of abortion

53:39

as a medical procedure. But

53:41

again, yeah, whatever. Yeah. And

53:43

I just wanted to flag that,

53:46

like, this legal argument really tracks

53:48

something that Jessica Valenti, who runs

53:50

the abortion everyday sub stack has

53:52

been noting, which is increasing efforts

53:54

to distance cases where abortions are

53:56

denied under tragic circumstances from the

53:58

abortion laws to potentially suggest Again,

54:00

that it's not the fault of the

54:02

laws or the anti-abortion movement that this

54:05

is happening, but some

54:07

other people or some other thing.

54:10

Yeah. And you saw those moves both on

54:12

the part of the Texas attorney and also from the

54:14

bench in a number of questions that said things like,

54:16

well, that sounds like medical malpractice. Why

54:18

didn't she just sue her doctor? And

54:21

just to take a step back and talk

54:23

broadly about the arguments Molly Dwayne, who we

54:25

had on the show last month and who

54:27

tried the case and argued the case before

54:29

the Texas Supreme Court on behalf of Amanda

54:31

Zierowski and the other plaintiffs who are patients,

54:33

some doctors, some who are both, was

54:36

totally incredible in the argument. And

54:38

the attorney representing the state of Texas, this is

54:41

also something that Jessica Valenti has flagged, was

54:43

like embarrassingly out of

54:45

touch with some of the basic facts of

54:47

the case. Like she wasn't even familiar

54:50

with some of the medical conditions that presented with some

54:52

of these pregnancies, which is pretty shocking. And

54:54

then just kind of on the merits of the argument, there

54:56

were just these questions, not only the why didn't

54:58

the women sue their doctors, but things like, can't

55:01

the medical board just clarify this? Or why didn't

55:03

you bring a vagueness challenge or a facial challenge?

55:05

And it was just like all this whack-a-mole that

55:08

we have seen throughout this litigation

55:10

and just in general, like the sort of legal

55:12

history of abortion in recent

55:14

decades in this country. Like, so here

55:16

you have these plaintiffs who bring this narrow and specific as

55:18

applied challenge to seeking clarification. And

55:21

if they had brought a big broad challenge, they

55:23

would have been instructed, well, this is too

55:25

broad, you should bring an as applied challenge. So they

55:27

have brought a narrow as applied challenge. And

55:29

of course, the answer they get is that, well, you should

55:31

have brought something broader and facial. And

55:34

the actual answer is these courts want

55:36

no relief ever to flow from any

55:38

channel or any avenue. But instead of forthrightly

55:40

saying that, they find a way to

55:43

try to blame these plaintiffs and their

55:45

attorneys for somehow doing something wrong. And

55:47

it was infuriating. And also to the point

55:50

of trying to drive a wedge between doctors and

55:52

patients. The answer Molly kept giving was, these

55:54

doctors are not the wrongdoers in the eyes

55:56

of my clients. The doctors actually understood their

55:58

hands to be tied. And so, no,

56:00

my clients should not be forced to sue the people who

56:03

are also being burdened by these laws.

56:05

The doctors don't want to be refused

56:07

the ability to perform medically necessary abortion

56:09

care on their patients. The doctors

56:11

and the patients are on the same side. The state

56:13

is a problem. And the attorneys

56:15

and I think some of the judges seemed

56:18

to completely want to reconfigure that or at least

56:20

try to kind of rewrite that story. And

56:22

the whole thing was just maddening, but I

56:25

thought Molly did a totally incredible job. And

56:27

I honestly don't know how it comes down. The arguments are

56:30

so good and Molly did something that she kind of previewed

56:32

when she was on the show, which was to basically make

56:34

clear that the women who suffered because

56:36

of this state law were sitting in the courtroom

56:38

and the justices, she told the justices that.

56:40

She reminded them that they were there and

56:43

she kind of wanted the justices to sort of have to say

56:45

to the faces of these women, like, the

56:47

state didn't cause this. And I thought it

56:49

was a powerful moment. I don't know how it's going to come out, but

56:51

I don't think this is going to be an easy case for the justices

56:54

to just write an opinion in basically saying

56:56

that the state law is clear, but nothing

56:58

in the argument I thought was

57:01

going to be conducive to them writing an opinion with

57:03

ease that said something like that. Yeah.

57:05

And to the point, the idea

57:07

that the state medical board could clarify this, of

57:10

course the state could clarify this. The point is

57:12

they haven't, right? Even though they have been asked

57:14

to do so. And that is why the plaintiffs

57:17

are in court now. So it

57:19

was just like a frustrating argument in several

57:21

respects. There were also false equivalencies coming from

57:23

the bench, like the justices suggesting like, well,

57:25

aren't all laws unclear? Police officers have to

57:27

do their jobs in the face of unclear

57:29

law. It's like, well, when police officers have

57:31

qualified immunity if they're sued and also the

57:33

risk of prosecution there, it's quite low. And

57:35

also there's no testimonies that they aren't doing

57:37

their jobs now because of a lack of

57:39

clarity. So like there are lots of differences

57:41

here, but it was just very frustrating to

57:43

hear. So also, as we

57:45

previewed the competition for America's worst court of

57:47

appeals is continuing to heat up as the

57:49

year heads to a close. Last

57:51

week, we covered the a circuit efforts to

57:53

one up the fifth circuit by coming up

57:56

with a new extreme textualism approach to kneecapping.

57:58

The voting rights act this week. new

58:00

contender. Straight out of Dixie, the

58:02

11th Circuit is taking a run

58:04

at the title, ladies and gentlemen.

58:06

The 11th Circuit issued a decision on

58:08

the Voting Rights Act, concluding the

58:10

Georgia system for selecting members of the

58:13

Public Service Commission based on statewide

58:15

elections complied with the Voting Rights Act.

58:17

The reasoning in the decision is

58:19

a little messy and hard to follow,

58:21

but it suggests that the plaintiff's

58:23

challenge was suspect or bad because the

58:26

challenge was aimed at a statewide

58:28

election. Even though at the same

58:30

time the court said statewide practices can be

58:32

challenged under the Voting Rights Act, I

58:35

guess just not this one. The

58:37

opinion was by one Trump appointee,

58:39

Judge Branch, joined by another Trump

58:41

appointee, Judge Grant, and a

58:43

district judge sitting by designation who was nominated

58:45

by H. W. Bush. The

58:48

11th Circuit's decision is concerning because it suggests

58:50

that any novel or unique

58:52

claims under the Voting Rights Act would

58:54

be treated with this kind of judicial

58:57

suspicion. But of course, states sometimes use

58:59

novel, unique, different methods

59:01

of voter discrimination, giving

59:03

rise to novel or

59:06

unique claims. Well,

59:08

it's not just that the

59:10

states continually innovate in trying

59:12

to limit the franchise.

59:15

It's also that when you close

59:18

down various provisions of the Voting

59:20

Rights Act that could be avenues

59:22

for vindicating voting

59:24

rights, litigants have to dream

59:27

up new and novel ways to harness

59:29

the statute. So I mean, it's

59:31

kind of a displacement effect. Of course, they're going

59:33

to innovate in the same way that the state

59:35

is innovating what it means to discriminate. So

59:38

again, absolute worst,

59:41

but here we are. Yeah.

59:43

I mean, the bar is dropping every week, so who

59:45

knows what the absolute worst is going to look like

59:47

a couple weeks from now. Okay,

59:49

so this is something that Melissa,

59:52

you kind of predicted a couple

59:54

months ago that we were going to see materialized and

59:56

now we have which is that Supreme Court. I

59:58

believe that called it the law. week

1:02:00

at the age of 93. And so we wanted

1:02:02

to take a little bit of time to talk about the justice

1:02:04

and her legacy with two people who had the good fortune

1:02:06

to work with her as law clerks. We

1:02:08

are grateful to be joined for this

1:02:10

conversation by Sam Sankar, a strict scrutiny

1:02:12

superguest, and Ona Hathaway, who is making

1:02:14

her strict scrutiny debut. Thank you so

1:02:16

much for joining us today. Thanks

1:02:18

for having us. So Sam is Earth Justice

1:02:21

Senior Vice President for programs and a former

1:02:23

law clerk to Justice O'Connor during the 2003

1:02:26

term. And Ona Hathaway is a professor of

1:02:28

law and political science at Yale. She served

1:02:30

as a law clerk to Justice O'Connor during

1:02:32

the 1998 term. So

1:02:34

we want to talk about the justice and her jurisprudence and

1:02:37

her legacy, but maybe we could start with a little bit of

1:02:39

a conversation about the experience of working for Justice O'Connor. So maybe

1:02:41

Ona, do you want to kick us off and just tell us

1:02:43

a little bit about the experience of serving as her law clerk?

1:02:46

Yeah, she was extremely warm, though

1:02:48

formal. I know that sounds like

1:02:51

a contradiction, but it's true. So

1:02:53

she would do little things like,

1:02:55

you know, she would bring in

1:02:58

lunch every now and again, which

1:03:00

was really sweet. And I actually

1:03:03

house sat for her before I clerked for

1:03:06

her. So got to know her well, even before

1:03:08

I clerked for her. So that was

1:03:11

really interesting. She was

1:03:13

a real human being, a real person. And

1:03:15

she was very down to earth. She didn't

1:03:17

take herself too seriously, despite the fact that

1:03:19

she was, you know, this kind

1:03:22

of revered historical figure, you know, she

1:03:24

she kind of came across as sort

1:03:27

of a very warm woman

1:03:29

who just happened to be in

1:03:31

this amazing historical role. Sam,

1:03:33

you want to weigh in on that? Just sort of top lines

1:03:35

about the experience of working for her. Yeah, I

1:03:37

mean, she was a an amazing

1:03:40

character. If you spent

1:03:42

one day with her, you could spend

1:03:44

five days telling stories about that day,

1:03:46

because there was just always something you'd

1:03:50

walk away from a conversation. And you'd say, did that

1:03:52

really happen? Did she just really

1:03:54

go to dinner at the Italian Embassy and

1:03:57

come back trying to set me up with

1:03:59

somebody you can see me. And that literally

1:04:01

happened. And

1:04:04

my co-clorks called her out for her. We're sitting there

1:04:06

at lunch, and she said, oh, I met this most

1:04:08

amazing person. Ah, nah, nah. And one of my co-clorks

1:04:10

says, was she Indian? And the justice says,

1:04:12

what does that have to do with anything? Like,

1:04:17

that was all of my memories

1:04:19

about her are less about the

1:04:21

law than more about this incredibly

1:04:24

powerful human being who wanted

1:04:26

to influence not just, I

1:04:29

wouldn't say she wanted to influence the law in the

1:04:31

country as much as she wanted to influence making sure

1:04:33

that you had grandkids. But

1:04:36

she referred to as her grand

1:04:39

clerks. She took that very seriously.

1:04:41

She totally was very much into

1:04:43

making sure that we were all in

1:04:46

happy relationships. That was very important to her,

1:04:48

absolutely. And I was already married when I

1:04:50

was working for her. But if you were

1:04:52

already married, she was definitely looking to pair

1:04:54

you up. That is entirely true. I

1:04:57

did not know this. OK, so I promise

1:04:59

we'll turn to substance momentarily. But before

1:05:01

we do, can I ask, so

1:05:03

she's worried about the romantic prospects of her

1:05:05

law clerk. She also seemed really worried about

1:05:07

the fitness level of people around her. So

1:05:10

can I ask for the uninitiated, Ona, will

1:05:12

you talk a little bit about the

1:05:14

justice's famous aerobics class? Yes, the justice

1:05:16

had an aerobics class every morning up

1:05:18

in the, quote unquote, highest court in

1:05:21

the land. That's this basketball court up

1:05:23

above the Supreme Court. Up

1:05:25

in the attic of the Supreme Court, there's

1:05:27

a basketball court where you're not allowed to

1:05:29

play basketball while the court's in session, because

1:05:31

you can, in fact, hear it in the

1:05:33

courtroom. And she used to have

1:05:35

her exercise class every morning at, what is it, like 7, 30,

1:05:37

or 8. It felt ungodly early

1:05:40

at the time. Oh, that's a lot. That's

1:05:42

aggressive. It's aggressive, especially if you

1:05:45

had to be up

1:05:47

past midnight working the night before.

1:05:49

But as her clerk, you were

1:05:51

expected to be there every

1:05:53

day. Ready to go for

1:05:55

aerobics with a bunch of her friends from the neighborhood.

1:05:58

So it was a class. full

1:06:00

of her friends from the neighborhood and a

1:06:02

few clerks. And yeah,

1:06:04

it was quite memorable. We

1:06:08

did stepperobics, we did a bunch of

1:06:10

different things, lots of aerobics that I

1:06:12

had never tried before. And that was

1:06:14

quite interesting. She seemed

1:06:16

very, very sort of sporty. Like I gave

1:06:18

her a tour at UVA once and she

1:06:21

was like, she wanted to walk everywhere. And

1:06:23

then she did another tour at Monticello after

1:06:25

that. And then she told me that she was

1:06:27

taking her clerks to hike Crab Apple Falls. And

1:06:29

she must have been like 68 at

1:06:32

this point in time. I was like, that's a

1:06:34

lot of walking. Oh, yeah, she was totally 40.

1:06:36

I mean, like she had us walk from the

1:06:38

court all the way down to see the cherry

1:06:41

blossoms because that was another thing. She was important

1:06:43

to her that we go see. So

1:06:46

we walked all the way from the court down to the,

1:06:48

which is not a small walk. And then she

1:06:50

organized a clerk's outing where we went

1:06:55

boating. We were, yeah, we were like rowing

1:06:58

and like a whole day

1:07:00

of like, you know, yeah, rafting and rowing.

1:07:02

And she was right in there with all

1:07:05

of us, you know, jumping right into the

1:07:07

boat, you know, to do her part. Yeah.

1:07:09

No, she was she's incredibly sporty. And

1:07:11

I think part of this comes from her, you know,

1:07:14

growing up on a ranch and like being

1:07:16

very physically active as a kid. And I

1:07:18

think she was really that for her, that

1:07:20

was something that was really important. And she

1:07:22

wanted all of us to make sure that

1:07:25

we kept that as part of our lives

1:07:27

too. I need to jump

1:07:29

in on this aerobics thing because it illustrates the grand

1:07:32

contradictions that were that Justice O'Connor

1:07:34

embodied. Yes, she was sporty. Yes,

1:07:37

she was the first woman

1:07:39

justice of the Supreme Court. And

1:07:43

she didn't let men come to the aerobics class.

1:07:46

So well,

1:07:49

I wouldn't say she didn't let none of

1:07:52

us were eager. Because as own a point

1:07:54

out, your blind spot. Well, yeah, at that

1:07:56

time of the morning, I was happy to

1:07:58

be blind, asleep because So what

1:08:00

it functionally meant was that all of

1:08:02

the female law clerks had

1:08:05

to come to work earlier than the That's

1:08:07

fundamentally what it meant. And meanwhile, we,

1:08:11

the my male co clerk and I were

1:08:13

playing basketball at, at a sort of regular

1:08:15

afternoon time at the court in the court

1:08:17

bouncing the ball around when we when you

1:08:19

know when we were allowed to do so.

1:08:22

And she was quite protective of that time too.

1:08:24

Like one time, you know, the police officers showed

1:08:27

up to play basketball and it turns out that

1:08:29

in a basketball game between the police officers of

1:08:31

the Supreme Court and the law clerks of the

1:08:33

Supreme Court, it's very clear who is going to

1:08:35

win. And we came down and kind of like

1:08:38

pouted a little bit. And the next thing we

1:08:40

knew there was a sign up in the

1:08:42

stairwell that said, this time of day is

1:08:44

reserved for law clerks basketball. A

1:08:47

sign that I believe still remains up in the

1:08:49

court. And so

1:08:51

it was highly gendered, you

1:08:54

know, she was she really wanted everybody to be

1:08:56

sporty, but she also wanted her senior

1:08:58

friends to be, you know, gender

1:09:01

segregated with only her female law

1:09:03

clerks. And the aerobics classes continued

1:09:05

after she retired. So they were still going

1:09:07

on at the court, you know, when I

1:09:09

was working there, although they weren't every day.

1:09:12

And if I recall, they had moved to

1:09:14

leader in the day and less frequently. I

1:09:16

was there, they were still early. And the thing is, you weren't

1:09:18

like, as I could, for just Stephen said, we were not required.

1:09:21

But we had heard about them. And my

1:09:24

female coke, there were three of us decided to show

1:09:26

up once, because we thought it would be fun. And

1:09:28

no one had told us that if you come once

1:09:30

you are there, you're thereafter expected to always come. And

1:09:33

this luckily didn't start until probably April in like nine months

1:09:35

into the 12 months, but we were stuck going essentially

1:09:37

wasn't every day at that point, I think it was twice

1:09:39

a week, but we were stuck going twice a week. And

1:09:42

when I say this is pretty low impact laid back

1:09:44

aerobics. And we were like, if we're gonna

1:09:46

spend an hour working out, we would like

1:09:48

to break a sweat. Yeah, that is true.

1:09:51

A little bit. That is true. Almost everyone

1:09:53

who went to this aerobics class then went

1:09:55

for a run to be good. Right. To

1:09:57

get actual exercise. You

1:10:00

did feel like you were touching history. I mean, she's retired at the

1:10:02

point that, you know, when I was there and I'm sure it

1:10:04

felt like that for everyone. Absolutely. Absolutely.

1:10:07

Jazz or sizing was history. Yeah. Yeah,

1:10:09

but I think once or twice would have done it,

1:10:11

right, Kate? You didn't need to be all of a

1:10:13

sudden stuck doing it. I was going

1:10:16

to say, Kate, that's kind of how cults

1:10:18

recruit too. Like you come once and

1:10:20

you can't ever, we never lose you.

1:10:23

Let me pivot to something more

1:10:25

substantive. Justice O'Connor was

1:10:27

really notable in that she's

1:10:29

not just the first woman to join the

1:10:31

court. She joins after

1:10:33

Ronald Reagan has made this campaign pledge

1:10:36

to nominate a woman. He

1:10:38

looks around the federal bench and

1:10:40

regrettably the Republicans have not appointed

1:10:42

a number of women to the

1:10:45

federal appeals courts, although Jimmy

1:10:47

Carter has, but he obviously can appoint one of

1:10:49

those. So he looks a

1:10:51

little further afield into the state court.

1:10:53

He finds Sandra Day O'Connor. She's not

1:10:55

even on the Arizona Supreme Court. She's

1:10:58

on an intermediate appellate court in Arizona,

1:11:00

and she's come to the court relatively

1:11:02

recently from a career in politics. So

1:11:04

she had been a state legislator and

1:11:06

she's one of the few justices who

1:11:08

had that profile in politics. Earl Warren

1:11:10

notably was one. Hugo

1:11:13

Black, for example, was a senator from Alabama,

1:11:15

but it's not a profile that you see

1:11:17

today where she's the last justice

1:11:19

to get voted for. Like

1:11:24

outside of their confirmation vote. Was he

1:11:26

elected AG? I don't think he was elected. He wasn't

1:11:28

elected. No, he was appointed or something. Yeah. So

1:11:30

maybe she's not. So she actually had

1:11:33

to go get votes. How do you

1:11:35

think that time in politics shaped

1:11:37

her jurisprudence as a justice?

1:11:40

I think it played a really important role. I

1:11:42

mean, I do think it is part of the

1:11:45

reason it was part of

1:11:47

what motivated her sense of kind of

1:11:49

humility about the role of the court. So,

1:11:51

I mean, I think

1:11:53

she really felt like the

1:11:56

court should not be overstepping

1:11:58

and playing a highly political

1:12:01

role. She sometimes

1:12:03

criticized for that, for sort of so-called

1:12:05

minimalism. But

1:12:08

I think that that really was motivated by

1:12:10

this sense that she knew how hard politics

1:12:12

were. She sort of felt like

1:12:14

some of these fundamental decisions really should be made

1:12:16

in the political branches. She of course

1:12:18

was also very much a partisan of the

1:12:21

states, you know, and the states being able

1:12:23

to make their decisions as well,

1:12:25

you know, having been involved in Arizona

1:12:27

state politics, not national politics. You know, so

1:12:29

I think that also shaped

1:12:31

her view. And

1:12:33

she was an old school Republican too, in

1:12:36

terms of, you know, she kind of came

1:12:38

at these questions from a very moderate

1:12:40

perspective. And you see that reflected all over

1:12:42

her jurisprudence. It's part of the reason she

1:12:44

was sort of the classic swing justice

1:12:46

is because she was sort of always looking

1:12:49

for kind of the minimal step to kind

1:12:51

of resolve a question. She didn't want

1:12:53

to sort of blow

1:12:55

things up. She really wanted to sort of

1:12:57

find a way through that was respectful of

1:12:59

the political branches and that where possible would

1:13:01

sort of send things back to the political

1:13:04

branches or leave it to the political branches

1:13:06

to resolve the question. So I saw that

1:13:08

all over, you know, working with her and

1:13:10

how she approached these questions. There

1:13:12

was also a way in which she

1:13:15

paid attention to the way the other justices were

1:13:17

thinking and was actively interested

1:13:19

in where they were in things because

1:13:22

she didn't go back to her office. And

1:13:24

I always have the sense that Justice Souter went back and

1:13:26

said, well, great, I'm going to do my thing. And if

1:13:29

you agree, great. And if you don't agree, well, you'll write

1:13:31

separately or maybe I'll edit. Whereas she

1:13:33

was actively considering how everybody else was approaching

1:13:35

it when she was writing and thinking and

1:13:37

when she was deciding whether to sign on.

1:13:39

So, you know, she would say

1:13:42

things like ask you outright. So what do you

1:13:44

think Justice Ginsburg is thinking about this or what

1:13:46

are her clerks saying about where she's coming from?

1:13:49

And I think we thought of that as thoroughly

1:13:51

natural in what our job was there. And

1:13:53

I think other chambers might have said she told you

1:13:56

what she said, huh? You

1:13:58

mean you think we're in the same building with us? to

1:14:00

just do this in your ivory tower. And then we

1:14:02

come from our retire meet in the middle and we

1:14:04

try to make a join line out of it. So

1:14:06

if I could just add, you know,

1:14:08

not as someone who's clerked for Justice

1:14:10

O'Connor, obviously, I think one area where

1:14:13

her previous career in politics really did

1:14:15

influence her was in campaign finance, you

1:14:17

know, she co wrote the opinion that

1:14:19

upheld insignificant part, you know, the bipartisan

1:14:21

campaign, Finance Reform Act,

1:14:23

BICRA in McConnell versus FEC that the

1:14:25

court later, you know, overruled and chipped

1:14:28

away at in Citizens United. And I

1:14:31

think one reason she did that is because

1:14:33

her experience in politics gave her some insight

1:14:35

into how unregulated political spending did

1:14:37

give rise to corruption and an appearance of

1:14:39

corruption. And she was particularly worried about the

1:14:41

consequence of, you know, that for judicial elections

1:14:44

as well, you know, and she pushed later

1:14:46

on in her career for judges to be

1:14:48

appointed rather than elected, you know, in part

1:14:51

for that reason. But you

1:14:53

know, as always, there's people

1:14:55

are multifaceted and things are complicated, because

1:14:57

even though, you know, she was someone

1:14:59

who, in a lot of

1:15:02

respects and different areas wanted to push

1:15:04

things through the political process in other

1:15:06

areas, you know, one very significant example,

1:15:08

Bush versus Gore, she had the court

1:15:11

intervene in the political process, you know,

1:15:13

helping draft the opinion, you know, that

1:15:15

halted the recount in Florida, and,

1:15:18

you know, gave the election to George

1:15:20

Bush, which then put Bush in a

1:15:22

position to select her replacement, you know,

1:15:24

Samuel Alito, you know, the author of

1:15:26

the opinion overruling Roe when Justice O'Connor

1:15:28

had famously helped craft the opinion keeping

1:15:30

Roe in Planned Parenthood versus Casey. And

1:15:32

so, I guess, like,

1:15:34

not to ask about that specifically, but,

1:15:37

you know, what do you make

1:15:39

of this kind of complicated legacy?

1:15:41

Yeah, I mean, I think

1:15:43

that's a case where instincts let her astray is

1:15:45

my own view. I think

1:15:48

she saw kind of political mess

1:15:50

ahead and thought, well, the court

1:15:53

can kind of put an end to this mess,

1:15:55

and this is probably where it's going to end

1:15:57

up anyway. And, but I think, you I

1:16:00

actually, I don't know, but I

1:16:02

think she probably came to regret that decision.

1:16:05

I think that that decision was

1:16:07

just so nakedly political and so

1:16:10

nakedly poorly reasoned.

1:16:12

It was just very hard to defend

1:16:15

and it was so out of line

1:16:17

with how she normally thought about cases

1:16:19

that it kind of, I

1:16:22

think, laid bare kind of political

1:16:24

valence at the court that I

1:16:26

think she had generally in her

1:16:28

work really resisted. So yeah, I

1:16:30

see that as really out of step with how

1:16:33

she generally decided cases and I think it has

1:16:35

to be admitted as something of a stand on

1:16:37

her legacy. That's my own view. I

1:16:40

agree entirely on that. One thing that's notable about

1:16:42

her is she rarely looked back. I

1:16:45

didn't ever spend time. She didn't talk

1:16:47

about the things that had gone before

1:16:49

or why or she

1:16:51

just was very much a, it's

1:16:55

kind of hacking, it's like a cowgirl mentality.

1:16:57

We just got to keep going forward, right?

1:16:59

You know, Justice, what about that thing, you

1:17:01

know, seven years ago? That was seven years

1:17:03

ago. Today's today. Let's just keep going. You

1:17:05

know, he's president after all. I'll put him

1:17:07

there, but let's just keep going. You

1:17:10

know, and I don't want to be too flip about it, but she just wasn't

1:17:12

from a generation that would sit

1:17:14

there noodling about past mistakes

1:17:16

or revisiting them. Yeah,

1:17:19

yeah, I was going to just raise one other kind

1:17:21

of, you know, it's not

1:17:23

a case in which she was on the court to

1:17:25

actually see all the way through

1:17:27

her position, but partisan gerrymandering is another instance in

1:17:29

a place where an instinct to kind of remand

1:17:31

to or leave to the political process, I

1:17:34

think sort of paved the way for the

1:17:36

court's decision in Rucho, which, you know, held

1:17:38

non-justiciable challenges to partisan gerrymanders. And I always

1:17:40

thought in those cases, Davis, and then sort

1:17:42

of the line of cases in which the

1:17:45

court is like wrestling with, you know, whether

1:17:47

there is any kind of manageable set of

1:17:49

standards that courts could devise or deploy to,

1:17:52

you know, rein in partisan gerrymandering. She always took

1:17:54

the position that like, no, there's not really a

1:17:56

defensible line that can be drawn in. So

1:17:58

courts just need to stay out of it in the political process. self-corrects and let's

1:18:01

just sort of let that play out. And I

1:18:03

always thought she had just kind of an

1:18:05

outsized influence. The justices took really seriously her

1:18:07

assessment of the kind of political dynamics at

1:18:09

play in drawing legislative districts and correctly so

1:18:12

because she was the only one of them

1:18:14

who had ever been in the inside of

1:18:16

any of those processes. And

1:18:18

yet I think she was deeply wrong about

1:18:20

the self-correcting nature of the political process and

1:18:22

the kind of, you know, according imperative, of

1:18:24

course, to stay their hands. And so in

1:18:26

some ways, like I think she

1:18:29

is kind of the architect, if not directly, at

1:18:31

least kind of indirectly or at least a significant

1:18:33

force in what leads the court

1:18:35

to Rujo, which is enormously problematic. So I

1:18:37

do think it's places where instincts that

1:18:40

in some context are really well-founded and

1:18:42

correct can lead to really problematic results.

1:18:44

I think Jerry Mander is an enormous problem for our

1:18:46

democracy. So I think that's part of her legacy too.

1:18:49

I think she may have fallen

1:18:51

into the trap of thinking that most people were like her

1:18:54

and that all those people out there who were

1:18:56

these problematic legislators or whatever, yeah, but

1:18:58

they're like me. And at the end

1:19:00

of the day, they'll do something reasonable.

1:19:03

And I think that, you

1:19:06

know, she wouldn't imagine that

1:19:08

someone like Trump could ever been president. She

1:19:10

absolutely would be somebody who said, no, nobody,

1:19:12

none of the Republicans will ever vote for

1:19:14

this person. That was a limitation,

1:19:16

I think, to the way she thought about it.

1:19:19

One thing that was really admirable about

1:19:21

her is she had a

1:19:23

very specific kind of background. As you

1:19:25

say, Ona, she was a daughter of

1:19:27

the West. She grew up dividing her

1:19:30

time between her family's ranch in Arizona

1:19:32

and going to school in El Paso.

1:19:34

And she really didn't have

1:19:36

the same sort of background in terms

1:19:38

of race relations that some

1:19:40

of her other colleagues did. And so

1:19:42

this, I think, was quite evident in

1:19:45

the 1989 case, Richmond versus Croson, where

1:19:47

she wrote for the majority and

1:19:49

applied strict scrutiny to affirmative action,

1:19:51

which prompted a really stinging

1:19:53

dissent from Justice Thurgood Marshall,

1:19:55

who was a son of

1:19:57

Baltimore and had been raised.

1:20:00

in a segregated environment. And we

1:20:02

kind of called her on the

1:20:04

carpet for sort of missing the

1:20:06

perverseness of shutting down Richmond, the

1:20:09

seat of the Confederacy, when it

1:20:11

was actually trying to make amends

1:20:13

for its quite significant

1:20:15

past. She later wrote

1:20:17

on the occasion of Justice Marshall's retirement

1:20:20

a really moving piece in the

1:20:22

Stanford Law Review called The Influence of a Recontour,

1:20:25

which she talked about how her

1:20:27

relationship with Justice Marshall, someone who

1:20:29

came from a completely different world

1:20:32

from her, really helped shape her

1:20:34

thinking about so many things, and

1:20:36

especially their work together on the court and

1:20:38

the work they did about race. And then

1:20:41

fast forward a little over

1:20:43

10 years later, she's writing the

1:20:45

majority opinion in Grutter versus Bollinger

1:20:48

that upholds affirmative action at a

1:20:50

time when everyone thinks that the

1:20:52

court is ready to dismantle it.

1:20:55

And again, to Kate's

1:20:57

point, she may have been the

1:20:59

architect for this sort of sunsetting clause argument

1:21:02

that we saw deployed in Students for Fair

1:21:04

Admissions versus Harvard, but she does save it

1:21:06

and salvage it. And it seems

1:21:09

like she learned a lot from her

1:21:11

experience with her colleagues. And it's not

1:21:13

clear that the same kind of open-minded

1:21:15

learning is happening on the court right

1:21:17

now. My sense is

1:21:19

that that's very true, that she

1:21:21

was open. She came from a

1:21:23

very specific background. I

1:21:25

mean, she didn't see many people when

1:21:28

she was little growing up, much less

1:21:30

people from different backgrounds. On

1:21:32

that ranch, there were just not that many

1:21:34

people she ended up having to

1:21:36

move to the big city, which is not really a very

1:21:38

big city in order to go to school, because

1:21:42

there wasn't really a school that

1:21:44

was adequate where she was at

1:21:46

the ranch. But I

1:21:48

think over time, she was open

1:21:50

to learning from the people that she was

1:21:52

around. I think you see the

1:21:54

same thing when it comes to her evolution

1:21:59

on questions. of

1:22:03

the importance of same-sex marriage. And

1:22:06

I think her, she's, as

1:22:08

she got to know people, she was very

1:22:10

open to learning from them and learning from

1:22:13

people who are different from her. And she

1:22:15

was interested in people and understanding their stories

1:22:17

and their perspective. And

1:22:19

so you do see her changing over

1:22:21

time and learning from those experiences. And

1:22:23

I think that that's actually

1:22:25

one of the things that I appreciate most

1:22:27

about her is, she came from

1:22:30

this kind of historical, she

1:22:33

came from a background where she didn't have that

1:22:36

kind of exposure, but then when she did, she

1:22:38

was open to learning and changing her mind. And

1:22:40

you can see lots of examples of where that

1:22:43

happened. Yeah, and just to explain

1:22:45

the example you mentioned, Oh, no, for

1:22:47

our listeners. So Justice O'Connor initially voted

1:22:49

in Bowers versus Hardwick to uphold a

1:22:52

law that criminalized consensual sexual intimacy,

1:22:54

a sadamie ban, but

1:22:56

then later in Lawrence versus Texas,

1:22:59

she cast a vote to invalidate

1:23:01

a law prohibiting consensual sexual intimacy

1:23:03

between persons of the same sex

1:23:05

and concluded that that law unconstitutionally

1:23:07

discriminated against persons on the basis

1:23:10

of sexual orientation. Exactly.

1:23:13

And I think some of that came from actually learning

1:23:15

from our clerk. So I think that

1:23:17

that was really important that she was open to

1:23:20

that and made a real difference in

1:23:22

the law in ways that

1:23:24

were really transformative for the country. I

1:23:27

had a very personal experience with

1:23:29

that my year, which included

1:23:32

the Bikra case, but

1:23:34

also included the Pledge of Allegiance challenge

1:23:36

where Michael

1:23:38

Newdow challenged the Pledge of Allegiance

1:23:40

as being an unconstitutional violation or

1:23:42

violation based violation clause. And it

1:23:45

fell to me to originally, and I

1:23:48

was nervous about this. I was raised

1:23:50

vaguely Hindu. I'm certainly no monotheist. And

1:23:53

I had talked to her repeatedly about how

1:23:55

I thought, you know, if you

1:23:57

really were serious about it, this was an establishment.

1:24:00

of religion, like, and she said, well, come on, it's

1:24:02

not really, come on, it doesn't really bother you. And

1:24:04

I said, it actually does. It certainly does. Because I

1:24:06

know it used to, it didn't say under God until

1:24:09

a bunch of people voted in for it to say

1:24:11

under God, and they were doing it in response to

1:24:13

communism. And it was, you know, it was an add

1:24:15

on. It was a very specific thing. And I don't,

1:24:17

you know, the add on does make me your whole

1:24:20

idea about establishment clause jurisprudence is whether

1:24:22

it makes you feel like an outsider. And here I

1:24:24

am in your chambers telling you it makes me feel

1:24:26

like an outsider. And I was, I

1:24:28

expected it to be a blow off conversation.

1:24:30

Like I said, my piece, now I will go

1:24:32

put my tail between my legs and run back

1:24:35

and do whatever. But she actually listened. And she,

1:24:37

she listened. And she came back and we ended up

1:24:40

writing a concurrence about it. And she said, I know

1:24:42

this is hard for you. I

1:24:44

know this is hard for you. And I would just want you to know,

1:24:47

I think there's something to what you said. And still, you're going

1:24:49

to write it my way, which of course

1:24:51

was was reasonable. But it was a

1:24:53

real sense. She wasn't just hearing me out for the

1:24:56

purposes. She was, she really actually was listening.

1:25:00

What do you think Justice O'Connor would

1:25:02

make of this court? And

1:25:04

maybe I'll include in that the Dobbs

1:25:06

decision, which of course, overturns Roe and

1:25:08

Casey and Justice O'Connor famously

1:25:10

joined with Justice Kennedy and Justice Souter

1:25:12

to write the opinion upholding the sort

1:25:14

of core principles of Roe and Casey.

1:25:16

You can comment on Dobbs specifically or more

1:25:19

generally on where this court is and what Justice

1:25:21

O'Connor would make of it. And

1:25:23

maybe I can just add in one kind

1:25:25

of like additional thing to that question, which

1:25:27

is, it sounds like she is so good

1:25:29

at learning from her life experience and the

1:25:31

people around her. And yet one thing it

1:25:33

seemed like she didn't anticipate or see was

1:25:35

the changing face of the Republican Party, right?

1:25:37

And the kinds of nominees that the Republican

1:25:39

Party would be putting up to replace her

1:25:41

and what the party would become over the

1:25:43

next few decades, like so unlike her. Well,

1:25:46

you know, I'll just say I think she'd

1:25:48

be pretty dismayed by the

1:25:50

sort of naked political nature of this

1:25:52

court and its willingness to kind of

1:25:54

throw over any kind of limitations. I

1:25:56

mean, her legacy has been really undone

1:25:58

by the end of the day. this court,

1:26:00

all these carefully crafted, modest, minimalist

1:26:03

decisions that she wrote when she

1:26:05

was on the court, when she

1:26:07

was the swing justice, where she

1:26:09

was carefully crafting these compromises, that

1:26:12

were really trying to

1:26:15

keep it a modest

1:26:18

court in line with her views

1:26:20

about the appropriate role of the

1:26:22

court. This court has just

1:26:24

gone for it. And I

1:26:26

don't think that that would have been something that

1:26:29

she would have approved of. I think she would

1:26:31

have been pretty dismayed by it. I think she

1:26:33

would have been really unhappy that

1:26:35

that's the direction it's gone. I think she would

1:26:37

have thought that the court really has acted

1:26:39

in ways that are inappropriate and

1:26:41

not the role that the court

1:26:44

ought to be playing in our

1:26:46

democratic government. You know, when I

1:26:48

worked there, there was a day I went into her office

1:26:50

and we were talking. And I don't know why, but there

1:26:52

was a big protest outside in

1:26:54

the front steps of the court. I

1:26:57

think it was a pro-life protest, but it was

1:26:59

one or the other side. And there was this

1:27:01

whole bunch of people out there. And

1:27:03

she kind of pulled the curtains aside and looked out

1:27:05

the window. And I looked out the window too. And

1:27:07

she said, this is a bad thing. This

1:27:10

isn't a place where people should be protesting. I'm

1:27:14

not sure if those were her exact words, but essentially she

1:27:16

was saying, this is not good. You don't want the Supreme

1:27:18

Court to be a focus of this

1:27:20

kind of advocacy. That's not what we're here for.

1:27:23

And so I agree completely. She would

1:27:26

be shocked and dismayed. She would be

1:27:28

saying what this court is arrogating to

1:27:30

itself a maximalist view of its

1:27:33

role. Anytime

1:27:35

you're revisiting decisions from 30, 40, 50 years ago,

1:27:38

as you all know, the environmental ones are particularly galling

1:27:40

to me. You're way out of bounds.

1:27:42

This isn't what you should be doing. And

1:27:45

I think she was dismayed at the time

1:27:47

and would be even more dismayed

1:27:49

now. We're so sorry for

1:27:52

your loss. And we thank you

1:27:54

for sharing this with us today. Thanks

1:27:56

for inviting us. Thank you. Before

1:27:59

we go, we should remember. mind you, that it's the

1:28:01

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