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- [00:00]
A
Advisory Opinions is presented by Burford Capital, the leading finance firm focused on law. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And we are live for what we think is our fifth annual Truth Tradition, a live podcast for the Summer Associates here at Paul Weiss with Cannon Shammagam. We will walk through the Supreme Court, a little explainer on the circuit courts and some pushback on the idea of Justice Jackson as the Resistance Justice. All this and more coming up on Advisory Opinions. I want to talk to my fellow attorneys for a moment. Do you really want to spend time on the technical side of briefing blue booking tables, appendix assembly bait stamping, or would you rather focus on your argument? Type Law can take your draft and exhibits and transform them into a court ready rule compliant E brief and appendix. Overnight they've helped prepare over 10,000 filings in courts across the country, even SCOTUS. Learn more@typelaw.com and use referral code advisory to save 10% on your first order. That's TypeLaw.com bundle and safe with Expedia.
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B
You were made to follow your favorite band and from the front row we were made to quietly save you more Expedia Made to Travel savings vary and subject to availability. Flight inclusive packages are atoll protected.
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A
And we're back. Hello Summer associates of Paul Weiss. We will decide who gets an offer at the end of this podcast based on the clarity and insightfulness of your questions at the end. So do be thinking of them now. Cannon will certainly be judging you as will David and I. What do you think is the average daily billable for a summer associate?
- [02:09]
C
I'm very curious about that answer cause my son in law is a summer associate at Kirkland and well, I don't want to. He's having a wonderful experience. I would just say that for the record he's having a fantastic experience. But I'm very curious to the answer to this question.
- [02:24]
B
That's a good question and I'm embarrassed to say I don't know the answer to it.
- [02:28]
A
That's how much your billable hours matter.
- [02:31]
B
So I do get a report. But weirdly the way that we do the reports here at Paul Weiss is that it is the total number of hours that each summer has billed for the entire summer. I have no idea why we do it that way. But look in defense of the summer associates, they have a lot of other things to do during the day.
- [02:48]
C
Yes.
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B
You know we went to the Beyonce concert the other day.
- [02:50]
C
Yeah.
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B
Shout out for queen bee and that's like a solid six hours, particularly when you factor in the time to get to the stadium here in D.C. so it's. You know, there are a lot of other things.
- [03:02]
C
Yeah, no, I know.
- [03:03]
B
Calling on our summers.
- [03:04]
C
Absolutely. Long lunches, boat cruises, all the things that are exactly like your first year experience as an associate.
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B
We've done all those things. And look, the associates get to go on launches, too.
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C
Yeah.
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B
The boat crew's not so much.
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C
Right, right.
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B
Yeah.
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A
But the associates are still held to a billable hour mark at the end. That's sort of a net wash for them, getting to go to summer things. Right.
- [03:26]
B
Maybe that's true. They still get a free lunch, though. I do the lunches, too. And somebody somewhere looks at my billable.
- [03:34]
A
Is God looking at your pillows?
- [03:37]
B
God, no. Brad Karp probably is.
- [03:42]
A
All right. You know, there has been some drama. For the first time in many years, I think we have what will be a standout summer associate story of the biter. This is a summer associate who has been fired from a law firm this summer, allegedly for biting multiple people. There's one version where it got into the double digits. There is a picture of a bite going around that is on the arm with a full bite, like, bruising and everything. But we don't have the full story. I, for one, am eager to hear the defense of the biter. For those listening who want to send me if you know anything about this, I want the best case in her favor. But it reminds me of Aquagirl. This is by far the most famous summer associate story of all time. And, Cannon, this is more from your era than mine.
- [04:35]
B
It is, but I have to admit, I don't remember all of the details except that Aquagirl, not surprisingly, jumped into water somewhere.
- [04:43]
A
I think it was the Hudson. I believe it was a booze cruise. And she had, you know, sunset, whatever, event, and she'd had a bit too much to drink and decided, you know, I think maybe she had said, like, I can swim to shore. I'm an excellent swimmer or something like that. And people were like, no. And so she jumped in to prove that she could swim the Hudson, and the Coast Guard did come and pick her up.
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B
Wow.
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C
Really?
- [05:08]
B
I didn't remember the Coast Guard part.
- [05:10]
A
Of this or, you know, the harbor people. Like an authority came to somebody in.
- [05:16]
C
A uniform, rescued this person. Yes.
- [05:17]
A
She did not swim the Hudson.
- [05:18]
C
Well, Sarah, I have a whole new perspective on the Aquagirl story, because I feel like she's been done wrong. If there was, like, a double dog dare involved, did she have an option.
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A
Right, Right.
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C
Like socially you have to jump in and swim. If there has been the. If the challenge has been issued, why does she bear the full brunt of the swimming incident?
- [05:39]
A
I actually believe she got an offer.
- [05:41]
C
Really? Well, that's okay. I'm fine then. I'm fine. I'm happy.
- [05:45]
B
It does feel like invited error if somebody at the firm actually said you should do this.
- [05:50]
C
Implicitly, Absolutely.
- [05:52]
B
So I have a lot of sympathy for her.
- [05:54]
C
But is this more.
- [05:54]
B
We're gonna wait for the full facts to come out on the biting episode.
- [05:58]
A
But it just feels like, you know, we had the heyday of summer societ lore pre 2008 financial crisis, and maybe we're just. Maybe this is actually a sign of the ecosystem's health that we're returning to crazy summer associate stories. It means the firms are back.
- [06:17]
B
It has been a while. That's interesting. I wonder if there's some correlation with the state of the economy or something. This sounds like something that above the Law or one of those blogs should write about.
- [06:28]
A
David Latt, we're looking at you, my friend. All right, let's dive into some Supreme Court's news. So we had the Supreme Court unanimously, it appears, no noted dissents reject an appeal from the state of Florida about their law SB4C which criminalized illegal entry into the state knowingly entering or attempting to enter Florida. Four other states have similar laws. Texas, Iowa, Oklahoma and Idaho. Those four were all enjoined. Florida's a little bit interesting here. They had a class, putative class of illegal entrance and they sued the attorney general and all of the sort of district level prosecutors, but they did not sue like the sheriffs who actually enforced this. The judge granted the injunction against again the parties, but also to the non party law enforcement officials who would enforce it. Florida asked the Supreme Court to reverse before we got Trump because for what that's worth, they filed their petition arguing that this was a non party injunction court, like unanimously, just nothing, not even a sentence. Now there's a few things that are interesting to me about this canon. One, why do we think they rejected it? Is it just that it wasn't certworthy? Meaning they wouldn't have taken it as a regular case, so they're not gonna take it on the emergency docket even if they disagree with it. Second, though, do you think now just like moving sort of more bigger picture about statewide injunctions, do you think there is any distinction to be made between the national universal non party injunction versus the statewide universal non party injunction and Third, Trump, because dealt with non party plaintiffs. This deals with non party defendants. Do you think there's any difference between which side of the V you're on when it comes to Trump? Vacasa, go.
- [08:38]
B
Okay, so we're into the three part questions already. Yeah, I guess I would say first that it is interesting that we are already starting to see the putative class action injunctions. And a district judge I know in New Hampshire just entered one of those injunctions in the nationwide in the birthright citizenship litigation. And so, at least on the plaintiff side, I think what we're seeing is courts achieving largely similar results just through the alternative means that the court suggested in Trump v. Casa.
- [09:14]
A
And to be clear, in the birthright one, it's literally the identical result. They certified a class. It was the plaintiffs include a Taiwanese woman with a student visa who has lived here for 12 years and is applying for a green card. Judge Joseph LaPlante, a George W. Bush appointee, said wrote, quote, petitioners have satisfied the requirements for provisional class certification. They share common questions of law or fact for those who are not classy class action people. I don't know though, in that case, by the way, that they do share common questions of law. In fact, if we're getting to like how long you've been here, does that matter? If you got here a week ago, nine months pregnant, is that different? If you're a diplomat, you know, yada yada. But anyway, separate issue perhaps.
- [09:57]
B
Well, and I think one of the interesting things about what the court said in Trump versus Kassa and what the court has been doing is that the court has suggested that a putative class action is enough. And what does putative mean in this context? I think what it means is that a court is just taking a quick look whether or not the requirements of Rule 23, which is the rule that governs class actions, have been satisfied that a court doesn't have to engage in a particularly detailed or rigorous analysis at the injunction stage. Now, the Florida case is a bit unusual for the reason you said, Sarah, because it's a case where what you're really doing is reaching additional defendants. And so the court might have thought that that was different for any number of reasons. But I really do think that we are going to see that the practical impact of CASA is going to turn out to be relatively modest. And the New Hampshire case, I think, is the best evidence of that so far.
- [10:53]
C
I would agree with that completely. And talking about the Florida case, I do see a difference between non party plaintiffs and non party defendants. Because if you're talking about in a law enforcement context, you have different, a spiderweb of law enforcement officers in different law enforcement offices all across the state. You're going to have sheriffs, you're going to have city police, town police, you're going to have state police, you're going to have all different kinds of state law enforcement agencies. Is the answer that, well, we just got to sue every law enforcement official in Florida. Because unless you do, there's going to be some deputy out there who says, ain't nobody enjoined me and I can read this statute book. And at some point you get to a level of absurdity. I took the CASA case not as you can't enjoin non party defendants, but much more aimed at the sheer geographic breadth and the sheer reach of single district court judges dealing with national in scope, universal in scope injunctions. But then I agree completely with Cannon that if there is just you change lanes from the universal injunction to the class action, yeah, you're going to raise a speed bump on these broad injunctions. But it's only a speed bump. It is not a wall.
- [12:17]
B
I think the other thing that was troubling the court in CASA was states doing this in context where some states may oppose a presidential policy and other states may support it. And that's a circumstance in which it might feel incongruous to enter a nationwide injunction where you know that you have states who actually think that something is a good idea.
- [12:41]
A
Okay. You have Justice Alito certainly in his concurrence in Trump, because flagging this problem of the standard that's used at the injunction stage being too low and trying to kind of goose district judges to be like the standard should be higher, but really only, I mean, Alito and Thomas joining that. Do you think they're going to take another one of these anytime soon to define class action standards at the injunction stage?
- [13:11]
B
They don't seem terribly interested in doing that even in the ordinary context, as evidenced by the LabCorp case this year. I don't know. I think they were going to give lower courts pretty broad discretion in that regard, but the proof will be in the pudding. And there may very well be a circumstance in which class treatment seems suspect and that might be the circumstance in which the court would step in. I'm not sure that that's true in the context of birthright citizenship, but it may be true in other contexts.
- [13:40]
A
But like if the class for the birthright citizenship case up in New Hampshire is all babies born in the United States To a mother here without permanent status. Again, like the law is going to be different potentially. The facts are certainly going to be different in terms of right. I mean, we have this problem where we have the 14th amendment language, the subject to the jurisdiction thereof part. You have some statutes that maybe say something about this and then you've got a presidential executive order purporting to simply redefine how the executive will interpret the 14th Amendment or those statutes. I think it matters quite a bit who the exact person is, because like we've said, I mean, subject to the jurisdiction thereof we know doesn't apply to diplomats. You know, if you're an actual ambassador who's here and have a child, you are not given birthright citizenship. And then we've got everything from that moving to someone who has been here 20 years and has every intention of staying despite the fact that maybe they came unlawfully or on a, they're still on a student visa, let's say they're never gonna leave. Versus Russian oligarch's mistress who comes here at eight and a half months pregnant and knows she's going back in two weeks as soon as they hand her the baby. That's not someone who is subject to the jurisdiction thereof just in their own intentions, but they're all in this class. That seems like a problem.
- [15:08]
C
Yeah.
- [15:08]
B
And one of the complexities on these sorts of issues is some of those distinctions could potentially matter to the legal analysis, others might not. And I think it's a very hard thing for courts to sort out at the threshold stage. And I guess one interesting question, as you say, is whether or not the court is really going to fly spec this closely. I'm a little bit skeptical.
- [15:32]
C
I'm skeptical also, but in the birthright citizenship case, it seems you could have a class that would be everyone who would receive citizenship under existing law is the class. And then the resolution of the case ultimately could maybe peel off some people as that case proceeds up through the court system. But you do have common interests, it seems if you under existing law would receive citizenship. Now those are lots of different kinds of people with lots of different kinds of individual situations. But they do have the common characteristic that they would, their kids would receive citizenship under existing law. And then maybe the court would say, well, this doesn't apply to birthright tourism, but to everyone else wins.
- [16:22]
B
So in other words, all those people might have injuries, but they might not have valid claims.
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C
Right.
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A
Okay. To go back to the Florida case, imagine a world in which it was a non party injunction on the plaintiff's side statewide. Do you think Trump because applies to statewide non party injunctions?
- [16:42]
B
I mean, I don't see why it wouldn't. Which is to say that the principle that the court kept coming back to was is this broader than is necessary to give complete relief to the plaintiffs. Plaintiffs including putative class members. So the court was at pains to avoid using the phrase nationwide injunction, even though we all use that as a shorthand. And I think that's one place in which that distinction makes a difference because.
- [17:08]
A
There'S a lot of bonkers state laws out there and there's no administrative Procedure act either. So class actions could be the only vehicle to get that sort of statewide relief. Whereas I think and thought that the very obvious Trump vi casa next step is to wait until Trump sends until any agency has any sort of memorandum of execution for how to do the birthright citizenship order and then you bring an APA claim against the Secretary of Health and Human Services and you get a set aside. You never even need the class for that. But the statewide level you would still.
- [17:43]
B
Need the class and that would tee up the APA question that was lurking in the background of the CASA case.
- [17:49]
C
Well, can I just interject real quickly on my personal hobby horse, my crusade against text history and traditional Sarah just said there's a bunch of bonkers state laws right now in the United States and there are. This will comfort you greatly. If we adopt text history and tradition as the gold standard of analyzing constitutional rights. The bonkers state laws that exist now for 100 years from now will be evidence of the long tradition in the United States of what bonkers ness that is then going to be reinforced and reaffirmed because it just exists. Anyway, we don't need to get me started on text history and tradition again.
- [18:46]
A
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- [20:22]
A
All right, so canon, let's talk about the term as a whole, the Court as a whole. I I want to start with the Justices because we got some pushback on our Extended Universe episode about Justice Jackson, who we refer to as the Resistance Justice. Since then we have had a solo dissent from her in that DVD injunction case. But we also got this email. This comes from Joshua Windom, senior attorney at the Institute for Justice. You ready for this? Buckle in. Hi friends, I'm emailing to push back on the most recent pod's characterization of Justice Jackson as the Court's resistancejustice. That just feels off to me. As I see it, the most important issue dividing the Court today is judicial philosophy, not partisanship. And to be more specific about it, the key issue is the rise of the text, history and tradition variant of originalism in Dobbs and Bruin, AKA the triumph of Justice Thomas and the way other Justices have pushed back on it. Justice Kavanaugh's text, history and precedent reframing was one modest version of that. Then came Justice Barrett and Vidal v. Elster, the Trump too small case where she wrote a concurrence that disagreed with Justice Thomas majority opinion on whether the existence of a common law tradition and a historical analog is sufficient to resolve this case, and critiqued the majority for failing to explain why hunting for historical forebears on a restriction by restriction basis is the right way to analyze the constitutional question. Justice Kagan and Sotomayor notably joined those parts of Justice Barrett's concurring opinion in full. That is the context in which to understand Justice Jackson in Stanley v. City of Samford, the firefighter ADA case. She wrote a solo dissent with a footnote 12 that critiqued the majority's use of pure textualism as, quote, an unfortunate misunderstanding of the judicial role. She argued that, quote, pure textualism's refusal to try to understand the text of a statute in the larger context of what Congress sought to achieve turns the interpretive task into a potent weapon for advancing judicial policy preferences. In her view, pure textualism, shorn of context, far from being clinical and objective, is incessantly malleable. Justice Jackson continued her project in Trump Vikasa. There she said that her goal was to expose the core conceptual fallacy underlying the majority's reasoning. That fallacy, she argued, was the Court's decision to rest its view of the remedial power solely on the practice of the High Court of Chancery in England. Justice Jackson saw that as a cramped characterization of the judiciary's function and as highly questionable when it comes to suits against the executive. Why? Because, as David has so often stressed on the podcast, no credit to me, by the way. What the President is not the King of England. I also believe that, just to be clear, indeed, the President is fundamentally different, and American court's relationship to the President is therefore fundamentally different than the English courts to the king. In Justice Jackson's view, that has important implications for the Court's remedial power, implications the majority never grapples with because it chooses to rest its decision entirely on the notion that we can learn everything we need to know about the American court's remedial power by squinting at the English High Court of Chancery. The point is, it would be a mistake to frame Justice Jackson as a purely partisan jurist. She, like Justice Kavanaugh and bare it before her to varying degrees, is merely staking out her disagreements with the dominant judicial philosophy of the day, the text, history, and tradition variant of originalism. Whatever one thinks of her approach, she deserves more credit than to reduce her to the hashtag resistancejustice Cannon react.
- [23:58]
B
Well, my initial reaction is I don't see why both of those things can't be true. Which is to say that I think first that Justice Jackson really is the sharpest critic of textualism on the court. That footnote footnote 12 really stood out in that regard as something that I couldn't imagine, say, Justice Kagan saying, given that she said at her confirmation hearing that we're all textualist now. And so I do think that there are some principled methodological disagreements and that Justice Jackson is at one end of the spectrum as to those disagreements at the same time, I think what's been striking about Justice Jackson is that she has been the most strident critic of the majority, particularly on emergency applications. We saw that last week in the case involving federal workforce reductions where she was the sole dissenter from the court's decision allowing the litigation concerning those workforce reductions to move forward without an injunction. And she has been very sharply critical of the majority's motives, going so far as to suggest that the majority is to some extent doing the President's bidding. And that is something that I think Justice Kagan in particular, conspicuously has not been joining. And obviously Justice Sotomayor was not willing to join that dissent last week either.
- [25:29]
C
You know, I think it's both. It can be both. And as well, I look at it kind of like this. We were talking, Cannon and I were talking right before we started. I sort of think of, to be.
- [25:39]
A
Clear, I was talking to the summer associates like one should.
- [25:42]
C
I'm sorry, I'm sorry, you were just.
- [25:44]
B
Trying to find out the scuttlebutt on the biting summer associates.
- [25:47]
C
It wasn't as purely your motives weren't as pure as you were saying, Sarah. But so Cannon and I were talking and, you know, I think one of the issues that we have, and I'm going to get a little bit broader than the law right now, is we're living in a time of very high anxiety and very high amounts of anger, very high amounts of pressure being applied to anyone in a decision making role in this moment in American life. And I think one thing that is inevitable is that people are going to lose their temper sometimes even people who are ordinarily quite even keeled, who are ordinarily people you look to as sort of pillars of civility. And I think there's this phrase my son's basketball coach used to justify making them run a full court press every second of every basketball game until they were, you know, about to expire on the court. He's called it pressure, burst pipes. And that this is a kind of a truism that the pressure of a moment is going to find the cracks, it's going to find the seams. And that's what I feel like with Justice Jackson is I don't look at this as, okay, this is who Justice Jackson is. I look at it as Justice Jackson kind of lost her temper here over this issue in a way that did malign the motives of the majority. But it's going to take, let's look at it in five or 10 years and say, was this an Aberration in the way that, say, Justice Scalia would try to attack ideas and not people, but every now and then, he would slip up. Right. And so is that what this is, or is this heralding something else? I think time's gonna tell. And by the way, that was a great email. That is how you write us an email. You know, you come in and you make an argument and you have your justifying citations, and it was a phenomenal email. So thank you.
- [27:38]
A
You thank.
- [27:38]
C
Thank you for sending in that pushback.
- [27:40]
A
I think every email to us needs to have footnote citations. If you didn't read the footnotes, why should I bother to read your email?
- [27:46]
B
That email is like a law review article in the making. I would just add one thing about Justice Jackson, which is that even before President Trump was inaugurated again, she was, I think, viewing her role somewhat differently, perhaps, from the other justices. I think she has always written for the people in a very real sense. She is not writing for an audience like this. I think when you read her dissents in particular, I think, and she has said as much, including as recently as last week, I think, in a speech in Indianapolis, I think she views the people as the target for her opinions, and that means that she writes in a very different way. And I think if you read her dissenting opinion in the nationwide injunction case in Casa, it feels very different from the Sotomayor opinion for that reason.
- [28:37]
C
Yeah, absolutely.
- [28:38]
A
Okay, so this is what I would like to clarify from what we were talking about, because I don't think we were using Justice Jackson as the hashtag resistancejustice to mean in a partisan way. I think we meant in the sort of colloquial resisting. Whatever group dynamic you're in, in this case, the majority of the court, like, she just wants to be in dissent. That's the hashtag resistance. She was in the dissent the most, no matter how you sort of parse. Except I think in the most closely divided cases, Kagan might have beaten her. So a definitely didn't mean that she's hashtag resistance in the Trump sense or the partisan sense. Right.
- [29:21]
C
Not marching in the Mall.
- [29:23]
A
Right? Yeah, yeah. No pink hats. But I also want to highlight the problem that he highlights with originalism, even though I'm not totally sure it's her problem with originalism. And that's what I've called the horizontal problem with originalism that, you know, we fight this revolution against the British for a reason. So when we're talking about text, history, and tradition, we have a big problem because there are Some things we meant to bring with us from that tradition. And there are other things we fought and died for to not bring with us from that tradition. And the Declaration of Independence has that lovely, very helpful list of grievances that provides us at least some of the areas in which we can imagine we were trying to break with that British tradition. And so before you can say that we're relying on the High Court of Chancery, you have to show that we intended to continue that part of the tradition and not break with it. Now, of course, one of those grievances was, you know, he has made the judges dependent on his will. Or, you know, I'm doing that off the top of my head. But so, like, do I think the High Court of Chancery was like, overly dependent? Is that like, is it an obvious breaking thing? No, but you do kind of have to show your work there for any of this, any of the text, history and tradition stuff to work when you're going back pretty America as its own thing. I just don't think that that's actually Justice Jackson's beef with it, though. I think her beef is far more global than simply, well, gosh, originalism would be great, if only we knew exactly what we were importing from England. I think she wouldn't do it no matter what. She doesn't like it. Interestingly though, I don't think she necessarily adopts Justice Breyer's practicalism as he's referred to it either. I don't have a great name for her jurisprudence yet, or I think a complete understanding of what it is. And that's not to be insulting. By the way, she hasn't been on the court very long. Comment?
- [31:25]
C
I mean, we're talking a bunch about Amy Coney Barrett's evolving jurisprudence, right?
- [31:29]
A
I don't have a name for that either.
- [31:30]
C
Yeah, exactly.
- [31:31]
A
Do you feel like you have your hands around what a Justice Jackson jurisprudential philosophy is?
- [31:37]
B
I think she's probably the closest thing to an old style purposivist, purpose driven justice on the.
- [31:45]
A
Wait, can you say the first pronunciation you had?
- [31:48]
B
I've always thought it's preposivist, but maybe it's purposivist. Or maybe it's purposivist. I don't know.
- [31:53]
A
I think that's a marsupial that lives in North America.
- [31:57]
B
I've only seen it written, so forgive me if I'm getting it wrong, but she really cares about legislative purpose. That's where context comes in nowadays. And I think that that's True. With regard to constitutional interpretation as well. And that's obviously a much broader critique than just a critique of the particular Bruin methodology.
- [32:20]
A
David, you want to talk about Kagan's emerging jurisprudence in this new era?
- [32:26]
C
Yeah. I think a couple of things have been very interesting over the last few months, and we have now seen sort of three justices in the spotlight. We've had Amy Coney Barrett, who MAGA really focused on as a villain, and that has quieted down quite a bit after the last round of cases that were announced at the very end of the term. We've had the Justice Jackson discourse, but simultaneously with the Justice Jackson discourse, you've seen something that I've not really seen a lot of, and that is the left rebelling against one of their own justices on kind of grounds of overall squishiness, and that's Kagan. There's been some pretty strong words thrown around about Justice Kagan, particularly on some other legal podcasts, and it's really fascinating to me to see this because it is demonstrating, in my view, again, the extent to which there is an enormous amount of pressure from all quarters being placed on these justices now to get on side, to get on the team. And the justices and the teams are evolving a lot. What are the teams? What do the teams stand for? Are evolving. They are changing. And so if you're somebody who has come up, say, for example, in the originalist philosophy, and then all of a sudden the right becomes more common, good, constitutionalist, well, then you're looking at that and saying, that isn't actually my team. Like, that's not my team. Whereas out in the public, the team says, no, no, no, your team is the right. Get with the right. And I think that that's some of what's happening, maybe with the more liberal justices, particularly Justice Kagan. I haven't seen a real shift or change in Justice Kagan's jurisprudence. I do think that in some ways, she has been maybe more obviously shrewd in the way that she has selectively cast her vote to join with the conservative majority in certain circumstances. But I, coming from a different judicial philosophy, do not see a shift. But I have seen the demand now thundering from both sides. Get onside, join the team, put on the jersey, or keep the jersey on. And it feels like this is one of the first times I've seen that really coming, building from the left towards one of the Democratic nominees.
- [34:51]
B
Yeah. And I would say that there are a couple of things going on with Justice Kagan. The first is that on the traditional merits docket. There were a number of cases. I think there were four cases this year where the ultimate vote was 7 to 2, with Justice Kagan joining the six Republican appointees and breaking from Justices Sotomayor and Jackson. I think the most interesting of those was the Diamond Alternative Energy case on the question of standing and whether fuel producers have standing to challenge an electric vehicle regulation. And that was a case in which both Justice Sotomayor and Justice Jackson wrote what I would describe as pretty strident, but procedural dissenting opinions, really complaining not so much about the substance of the Court's ruling as the fact that the Court took the case and decided to address the standing issue there. With Justice Jackson in particular writing, I think, a really conspicuous dissenting opinion accusing the Court of perpetuating the appearance of promoting moneyed interests. It was really one of the more interesting separate opinions of the year. I think the other thing that's going on is that Justice Kagan is not willing to join Justice Sotomayor and Justice Jackson's dissenting opinions on the emergency docket that cast aspersions in the direction of the majority. And I think it's hard not to see that as anything other than trying to take the temperature down a little bit.
- [36:22]
C
Right.
- [36:24]
B
This episode is brought to you by Progressive Insurance.
- [36:27]
C
Do you ever find yourself playing the budgeting game? Well, with the name your price tool.
- [36:32]
B
From Progressive, you can find options that fit your budget and potentially lower your bills. Try it@progressive.com Progressive Casualty Insurance Company and affiliates. Price and coverage match limited by state.
- [36:45]
C
Law, not available in all states.
- [36:51]
A
All right. There was a piece in the New York Times about paper, and I really enjoyed it. So let's talk for a second about it, because this is what you do for a living canon, is you benefit from all of the regulatory thickets that have been built up around one first street that benefit the, you know, prestigious, elite, sophisticated parties that you represent. So I'm going to read you a piece of this. In addition to requiring electronic submissions, the Supreme Court's rules instruct litigants who are not prisoners or poor to file 40 paper copies of many documents, including petitions, to seek review briefs opposing them, briefs from the parties in the cases the Court agrees to hear, and the accompanying flood of friend of the Court briefs. And that is just the beginning of the Court's elaborate requirements. The paper filings must take the form of handsome little typeset booklets printed on paper, quote, that is opaque, unglazed, and not less than 60 pounds in weight, end quote. The rules specify Permissible fonts and margins, along with how the booklets are to be bound, quote firmly in at least two places along the left margin, saddle stitch or perfect binding preferred, end quote. The booklets are allowing for the subject matter a pleasure to read. They are also redundant, expensive and wasteful. This is thousands of dollars you spend filing a cert petition, right?
- [38:18]
B
It is. And you know, first of all, Sarah, I do take a little bit of an exception at your saying that I somehow profit from this. After all, husband of the POD is also a regular Supreme Court practitioner. So the isgir bank balance is benefited by this to the extent that it benefits anyone at all.
- [38:38]
A
My 18 month old eats lobster every day.
- [38:41]
B
So I'm of two minds about this because on the one hand I get it, it is expensive. And while we have some clients who foot the bill, we do a fair amount of pro bono work and I see the bills and it is thousands of dollars to print a cert petition. And we are.
- [38:58]
A
It's the first step, by the way. I mean, how much do you think you're spending on printing costs for a case that actually goes to the merits in oral argument for the court?
- [39:07]
B
Yeah. And the court requires not only briefs, but joint appendixes to be produced in this format.
- [39:12]
A
And that requires from cert to fully argued. How much do you think is printing cost?
- [39:17]
B
I'm sure for a big case it could run into five figures. And that is an enormous amount of money at a time when more and more people, I think the justices included, are reading these briefs in electronic form. They're reading the PDFs, they're not looking at the neat booklets. That said, is there something aesthetically pleasing about the neat booklets with their funny colored covers? I think there is. And there is a great tradition of this. Right. If you go to the Supreme Court library, you go to the Justice Department library, they have these briefs going back to the beginning of time, and the rules have largely remained the same. And there is something really cool about pulling a book, a bound version of the briefs off the shelf and finding briefs written by Thurgood Marshall and Robert Bork and all of the greats. And I think it would be sad if we brought that tradition to an end. That having been said, I have a whole file room up on the seventh floor which many of you will be aware of, that contains just the extra copies that we've had printed of all of those briefs. It's not great for the trees and it probably is on some level, wasteful. So I don't know what the solution is? Maybe the solution is just for the court to require fewer copies, but can.
- [40:36]
A
I give you my proposal? I want to see if you'd agree to it. So splitting the baby proposal very in line with my overall vibe, you know, 97 to 99% of the cert petitions are getting denied. What if we didn't require printing for those? What if you could just submit an electronic cert petition? If they're all getting denied anyway, you know, the clerks aren't reading the paper copies of the cert petition because they're having to go through so many so quickly that just would be inefficient to do the paper copy anyway. But if you're One of the 60 cases that get granted, then we're doing it old school, right? The Solicitor General can wear a morning suit with the pinstripes, and you can turn in your brief with the neatly pressed binding.
- [41:26]
B
And I think the court, if I remember correctly, I think the court did something similar or talked about something similar around the time of the pandemic. And I think that might be the best compromise, because really, I suspect people aren't looking so much at the printed versions of denied petitions, whereas they are looking at certain petitions of cases that get granted. And so that may be the best solution or simply to require fewer copies. Because I believe right now the court requires 40 copies. And I think the theory there is that they want to have enough copies for law clerks and others, and that's probably unnecessary.
- [42:02]
C
One other ingredient here is that these beautiful briefs aren't just beautiful briefs to read. They're also a flex, because you get multiple of those in your office, and it's just screaming, look at my Supreme Court practice, right? So you have your picture of you shaking hands with the justices. You have your Supreme Court admissions, but David. And then you have all your briefs.
- [42:24]
A
That's what briefly is for. Have I already asked you what you do with all your quills? So each time you argue at the Supreme Court or of your co counsel, you get a white. I think they're goose feathers. What have you done with all of yours? How are they displayed?
- [42:37]
B
They're sitting in two Paul Weiss DC Mugs in my office. So there are people who frame them elaborately.
- [42:43]
A
I didn't flex, by the way. You didn't flex, Right. It's like, oh, my God, I have so many of these. Who even cares? They're in a mug.
- [42:50]
B
Sarah, listening to you talk about this, I suspect you're gonna. Your next step is gonna be to ban the quills. And replace them with ballpoint. Though there are, as you probably know, because Husband of the Pod spends a lot of time in the Fifth Circuit. The Fifth Circuit has this great tradition where they give you a pen, only it's a ballpoint pen, but the color changes from sitting to sitting. And so if you are a regular Fifth Circuit practitioner, you've got ballpoint pens in all sorts of different colors. So maybe that's what's next.
- [43:24]
A
Upon leaving my clerkship at the 5th Circuit, I was given a pen and a little seal of the Fifth Circuit. Like a. Yeah, it's not a. What do you call the things that you put on? Oh, my gosh, this is embarrassing, you know, to not get water rings on your table.
- [43:39]
B
Like a coaster.
- [43:39]
A
It's like a coaster, but it's not one. But it kind of would look like that. Like the seal of the Fifth Circuit. But I didn't know that we were handing out pens of different colors from my circuit. That's ridiculous. Okay.
- [43:52]
B
You're not going to be very popular at judicial conferences this year, Sarah.
- [43:56]
A
Well, they don't pay that well. Just kidding, guys. I love judicial conferences. Okay, Anything else on the court this term? How would you define it? What are your feelings?
- [44:07]
B
I know you're going to hate me saying this, but I don't think it was a blockbuster term, and not just because there weren't very many six to three or five to four decisions. I think the reality is that on the merits docket, there just were not the number of truly consequential cases, either in terms of changing the law or in terms of practical consequences that you ordinarily see. I think the two biggest cases, by some order of magnitude, were casa, which was, of course, from the emergency docket.
- [44:37]
A
And Schmetti, which you earlier just said might make no difference at all.
- [44:40]
B
Well, I think as a practical matter, it may end up not making very much of a difference, but I think conceptually it was quite important, and it was extraordinarily high profile as well. But I think you have to start scratching your head a little bit as to what other cases would make that list. And, you know, if you went back 15 or 20 years, it was not at all unusual to have a term like this. But I think we have had a number of terms where there have been a series of really significant decisions. And so it's felt like the first time in a while that we've had a term of this variety.
- [45:15]
C
You know, I've been thinking more and more about this term, and the thing that has started To I think it was two or three podcasts ago, I talked about how at the times we had a list of all of the cases, the big cases, and then actually had polling on all of the case outcomes. And what was so striking to me is we talk endlessly about the court's counter majoritarian function, how majoritarian the court's decisions were. In other words, even on the most controversial cases where the court came down was very solidly with the public. And so Texas, the Paxton, the porn case. Overwhelming percentage of people want to age gate porn sites Mahmoud an overwhelming number.
- [45:58]
A
Of people will tell a pollster that they want to age gate porn sites is I think what he meant.
- [46:03]
C
Yes, I'm going to give my fellow citizens a little more credit. They really do want it age gated Mahmoud A very contentious case about parental opt outs. Overwhelmingly popular to have parental opt outs scarmetti A case that really this is the Tennessee's ban on gender affirming medical interventions for minors. Even three to four years ago, I think that case would have been an atom bomb in the culture wars. The Court, by siding with Tennessee was siding with again a super majority of Americans. And so I think when the court sides with the supermajority, often its cases are not as consequential down. They don't have as consequential a tale because essentially what they're acting is this ratification of the democratic process that was already unfolding. Where you see them have a really long tail and be very, very consequential is when you have your major counter majoritarian cases. And that was where a lot of the decisions in the 60s and the 70s and the Warren court, et cetera, a lot of that stuff was really, really counter majoritarian. And because it was, it was wrenching America in a particular direction that a majority didn't want to take. Now, to say it's counter majoritarian is not the same thing as saying it's wrong. Sometimes the Supreme Court has to be counter majoritarian to uphold the Constitution. A lot of the Bill of Rights is a counter majoritarian document at its core. So counter majoritarian can be absolutely constitutionally necessary. But I'm just floating this out. There is a term less consequential sort of in its downline impact on American life and culture when it's just kind of gone along with the crowd, if that makes sense.
- [47:59]
B
Yeah, I wonder how much of that is due to the makeup of the docket because this was a year where you did not have the court invalidating for instance, state laws in a particular area. If you had, say, a big Second Amendment case, maybe we would feel differently about that. I will say the one thing that really struck me about Scremmetti in particular was the extent to which the majority opinion picking up on the decision of Chief Judge Sutton and the 6th Circuit that the court was reviewing had a really strong flavor of deference to legislative will in their opinion. And that was particularly true with regard to the question of the medical evidence. Judgments about the medical evidence. And the chief's opinion talks about that at some length. And that was really quite striking to me.
- [48:47]
C
Yeah. That leads me to something I want to clarify, because when we talked about Scarmetti and we talked about the state's role in the state's role in regulating access to medications, I was using the term the state interchangeably with Tennessee and the state as the government. And so a lot of people wrote to me very fairly and said, you know, states, as in the 50 states, don't actually have much of a historical role in regulating access to medication. The federal government absolutely does, and through the fda, et cetera, but not states. And so I realized that I was lapsing in and I was using the word state sloppily. I would say state meaning Tennessee, and then I would say state meaning government. So just to clarify, when I'm talking about the state role in regulating access to medicine, the that's the federal. I mean, state capital S government, capital G. I'm not talking about the specific one of the 50 states, but the issue here, there's still a very similar analysis. If you're talking about a governmental role, if it's an elected governmental body, that is, whether at the national level or the state level, much of the analysis is gonna be very similar.
- [50:03]
A
Since we have Cannon with us, I did wanna run through the circuit courts because we've gotten a few emails from listeners asking us to kind of give them a better shorthand or flavor for the different circuits instead of just numbers, because nobody knows where they are, what they are, or anything else. So I thought I'd start with this explanation. 1. Generally speaking, when you're talking about the numbers, you start with main at number one, and then you're gonna go down the coast. Now, here's what you have to remember. The fifth Circuit used to be Texas to Florida. They divided it. So when you go down the coast, you know, the first is like the main states. Second is New York is the big state. Third is Pennsylvania as the big state. Fourth has the, you know, Virginia, North Carolina, South Carolina. Then you get to what used to be the big fifth, now it's the fifth is Texas, Louisiana, and Mississippi. And the 11th is Alabama, Georgia, and Florida. Okay, then head back up. The sixth is right above that. That's your Tennessee, Kentucky, Ohio, Michigan. Then start heading west. Seventh, Illinois, Indiana, Wisconsin's over there. Then the eighth, you're still heading north and west, although somehow Arkansas got involved. We've got Missouri, Nebraska, Iowa, the Dakotas, Minnesota. Now if you're now at the top right, we're in. What is the North Dakota. Now head west again. Now You've hit the 9th Circuit. The 9th Circuit is fricking all of the country. Basically, everything is 9th Circuit. Like, everything evolves into crabs. Every state evolves into the ninth Circuit. So this is everything from Alaska and Hawaii to Montana, Idaho, Oregon, Washington, California, Nevada, Arizona. And then everything else is in the 10th Circuit, like the states we don't care about, basically.
- [51:52]
B
Oh, man. Them's fighting words, Sarah. And you knew that those were fighting words.
- [51:56]
C
Wait, is Kansas in the 10th?
- [51:57]
A
Kansas is in the 10th Circuit.
- [52:00]
B
And there's a great story behind this, which Sarah is unaware of as a member of the bicoastal elite.
- [52:07]
C
The acts of aggression against cannon in this podcast have been unbelievable.
- [52:12]
A
The 10th Circuit, this is the nice thing I'll say, is basically your vacation circuit, right? It's Colorado, it's Utah, it's Wyoming, New Mexico, and then it's Oklahoma and Kansas. I mean, that's.
- [52:22]
B
The Circuit has plenty of places to hold its judicial conference. They've never held it in Lawrence, my hometown, for some reason, but they usually hold it at the Broadmoor in Colorado Springs. So it's quite a desirable circuit conference to attend. So there's actually a great story. And again, you're undoubtedly not familiar with this, Sarah. The 10th Circuit broke off from the 8th Circuit. That's why the 10th Circuit is not west of the 9th Circuit. It. There were many people, believe it or not, in the early 20th century, who thought that the 8th Circuit was too big. And so there was an incredibly fractious debate, including in Congress, about what to do about this. And it culminated in the creation of the 10th Circuit. I think that that restored the natural order by putting Kansas and Missouri in different circuits. But. So there is a grand tradition of this. But it explains why the 10th Circuit is one of the younger circuits, because then I think it was 50 years before we created the last one, the 11th.
- [53:25]
A
I'm just very pleased that, as Texans, Oklahoma and Arkansas aren't in our circuit. Like, that feels so right that we figured out how to make sure that, like, no, not allowed here. Like, we love Louisiana and Mississippi. We're fine with them. But, like, we have a whole ad, one of those don't mess with Texas ads. People don't realize. It's not like some state motto. It's an anti littering campaign phrase, don't mess with Texas, meaning, don't litter in our state, you jerks. And so there was one about 20 years ago or so with Matthew McConaughey. And it just like, opens with Matthew McConaughey blow darting people who litter and throwing their lifeless bodies in the back of his truck. And there's like a pile of these bodies in the back of the truck, and they're sort of coming to. And they, like, the one dude kind of wakes up in the bed of the truck right as he sees the sign that says, welcome to Arkansas. And Matthew McConaughey dumps them in Arkansas. And it just says, don't mess with Texas. So, like, that's thrilled that they're having their own circuit. That's great for you.
- [54:28]
B
Well, I'm glad to hear that this serves Texas's purposes as well. But we were gonna talk about the actual circuit.
- [54:35]
A
Yes.
- [54:35]
B
Okay.
- [54:36]
A
So. So one thing I thought would be interesting is to run through the circuits by their percentage of judges on the circuit that were appointed by which party. And I think the easiest way to do this is to just do it by percentage of judges. Circuit judges appointed by Democratic presidents. Okay. So by the way, we didn't talk about the Federal circuit and the D.C. circuit, because I hope that's pretty obvious where the D.C. circuit is. That's it. Right? It's just in D.C. there's no. It gets nothing. And the Federal Circuit is the patent copyright. The really smart lawyers go there and the rest of us don't know what they do so much. Okay, so First Circuit, 100% Democratic appointees. This is as of November 2024, though I don't think we've had. We haven't had any circuit nominees confirmed since then. So this is correct as of now until, like, Whitney Hermandorfer, I think, would be the next.
- [55:32]
B
Yeah, I think she's gonna be confirmed today, in fact.
- [55:34]
A
Well, so this podcast will be out of date by the time you're listening to it. My bad. Okay, but whatever. First Circuit, 100% circuit judges appointed by Democratic presidents. Federal Circuit, 67%. D.C. circuit, 64%. Fourth Circuit, 60%. Tenth Circuit, 58%. Ninth Circuit, 55%. Sitting right there in the middle. Second Circuit, 54% Seventh Circuit 45%. So that's the First Circuit, where we're gonna now have a minority of circuits, judges appointed by Democratic presidents. So seventh was 45, sixth is 44, third is 43, 11th is 42, fifth is 29, and the 8th Circuit 9%. Okay, so that's one way of looking at the circuits. Do you have little like, you know, thoughts about which circuits you want to go in for certain types of cases or what the friendliest circuit is, where the judges all get along and hold hands, singing Kumbaya as they listen to panel arguments?
- [56:36]
B
We do think about it. In the vast majority of the cases we do, we don't really have any choice in the matter. It's a case where we're representing, for instance, the defendant. You're going to be where the case has been brought unless there's some problem within you. Where we think about it is when we are thinking about bringing affirmative litigation. And that historically has been particularly true with regard to APA litigation, challenges to government regulations, and certainly particularly in the last administration, there was a lot of thought about whether the fifth Circuit or, say, the sixth or the Eighth Circuit would be the most favorable forum in which to do that. And there are some nuances. The fact that a judge has been nominated by a Democratic or Republican president is not always the whole story. The Republican appointees in one circuit may be very different from Republican appointees in another, but in broad terms, I think there is a lot of truth to the fact that, rightly or wrongly, the identity of the presidents who have made the nominations tells you something about the jurisprudence of the circuit. And you see that borne out in the way in which the Supreme Court approaches the decisions of particular circuits. The ninth Circuit historically was by far the most progressive circuit in terms of its outcomes, dominated by Democratic appointees. And it was for many years the most reversed circuit in the country. That has changed because President Trump in his first term appointed 10 judges to that court. As you say, Sarah, it's now in the middle of the road in terms of the makeup of the circuit. And this year, for the first time that I can recall in recent memory, it was not the 9th Circuit that had the most cases before the court. It was actually the fifth Circuit.
- [58:22]
A
Indeed. Sigh. Okay, but I think what the eighth Circuit used to be known for all hating each other. But now they get along really well, right? Aren't there like some.
- [58:33]
C
Oh, the times covered years ago, the.
- [58:36]
A
Sixth Circuit, it was the sixth Circuit.
- [58:39]
B
Sixth Circuit was famously fractious.
- [58:40]
C
Oh, brutally, brutally fractious.
- [58:43]
A
And now we're all going to Gettysburg.
- [58:45]
C
Yeah, exactly. No, it was, I was practicing in the 6th Circuit at that time, and it was a very interesting issue for litigators at the time because it wasn't just that, you know, when you have an appellate oral argument, one of the first things you're looking at is who is my panel going to be? Because how you prep for this thing, who's going to be, you know, who's going to be hearing the case. All of these things depend a lot on the identity of the judge's hearing. And often you wouldn't know until sometimes right up on it. I had a 4th Circuit argument I learned day of, I just walked in and oh, I'm going to win. But I think people don't realize how much variability you can have even within the same circuit, depending on who the three judge panel is. But then also at the 6th Circuit, you would sometimes brace yourself because you would know that you were going to be witness to a fight, not a fist fight, but a witness to some very sharp words going back and forth between some of the judges. And it would, it's an interesting thing to be a litigant when you see that kind of sharp disagreement. What do you do? How do you respond to that? But yeah, the 6th Circuit was famously fractious. And again, it's one of these things you want to look back on because we have such a presentism bias. It has been not long in the past when we had a lot of polarization in this country. It's been not long in the past when we've had places where the health of the judiciary writ large was more questionable as far as just the collegiality, the rigor. And then I feel like the judiciary now, the health of the judiciary overall in my view, is as good or better than it's been in my professional life. So I think we have a declinism narrative about almost all American institutions. And it's not always correct, it's not always right. So I've been doing this. I graduated in 94. And I would put the health of the judiciary overall as good or better than at any point. And you know, we have some other, we have some folks in here who maybe have been practicing this as long or longer than me. It'd be interesting to get their perspective. But that's, I feel like the health overall given, especially given the maladies afflicting the rest of the government, the health overall is something I'm, I'm very happy about.
- [61:22]
B
Yeah. And I would agree I think there's relatively less rancor now than there was 20 or 25 years ago, particularly at the court of appeals level. There are some very sharp substantive divisions in some of these circuits. And it is interesting to see the court in particular taking so many cases from the fifth Circuit. I think that is a somewhat more nuanced story than some suggestions. The fifth Circuit is, I think it is fair to say, the most conservative, quote unquote, of the circuits. And I think that in some respects it goes noticeably further than the Supreme Court is willing to go. At the same time, the fifth Circuit has had a lot of high profile cases because litigants have flocked there for particular types of cases. It is a sneakily large circuit because Texas is obviously one of our largest states. It has a lot of very important entities within it.
- [62:17]
A
Do you know that used to be in our state song and we had to change it when stupid Alaska joined.
- [62:22]
C
In the state song, you bragged about the size of the state.
- [62:25]
A
Yeah, we did.
- [62:25]
C
You know, guys, can we just pause for a second? Let's just realize that Texas is Tennessee's first and only colony.
- [62:33]
A
And I will sing like, I will sing the Texas song.
- [62:38]
C
This state pride is so cute. It's so cute. But guys, it's been a long time. You don't have to be so openly insecure now.
- [62:46]
A
It's boldest in Brandis.
- [62:47]
B
I can't wait to read the episode description for this episode. But I will say, just to close the loop on the 5th Circuit, that I do think that the 5th Circuit has invalidated a lot of laws. That is an automatic ticket for Supreme Court review. So I think there are a lot of things that go into the number of cases that the court is taking from the fifth Circuit. And then if you look at this year, the reversal rate was 77%. And you might think, boy, that's a sign that the 5th Circuit is out of line. But that is basically almost exactly the mean for lower courts before the Supreme Court.
- [63:20]
A
All right, let's take some questions from you guys. Summer associates should get precedents, but, you know, if we've got some partners who want to tell Cannon their thoughts in question form, we're not going to stand in the way of that either. Okay. The question is, do we have feelings on splitting the 9th Circuit? The 9th Circuit is the only circuit that cannot sit en banc because there are too many judges to fit around a table, basically. So they have these like mini en bancs, which is a larger panel. I think it's 11 judges sit en banc in the 9th Circuit with the chief judge being the only for sure person. There's been talks of splitting up the ninth, but it always becomes a problem because basically the only way you could do it population wise is to have California as its own circuit and then like everyone else as a circuit, which would be annoying. Cannon, what do we do?
- [64:11]
B
Yeah, I think it's a tough question. A lot of the impetus for splitting the 9th Circuit came at a time when the 9th Circuit felt like it was out of kilter. I think that is much less true now as a matter of judicial administration. As Sarah says, it's by far the largest circuit. It can't sit en bank. That certainly is a valid consideration. I'm less troubled by the fact that California would potentially have to be its own circuit. And we're troubled with the fact that there's not an elegant way to divide the circuit that leads to states being contiguous with each other. And so it does feel you don't.
- [64:44]
A
Want to gerrymander the circuit courts.
- [64:47]
B
It feels like that might be a little bit problematic. And look, I recognize that Alaska and Hawaii are not contiguous with anyone else. So before anyone emails, I am aware of the fact that we've gone from 48 to 50 states. But it's just there's no easy stuff solution. I will say parenthetically, we had an argument in Honolulu earlier this year, highly recommend it. That's the best thing that can happen to an appellate lawyer. But it does feel as if there's no longer really an impetus behind that. I will also say that one of the problems the 9th Circuit historically had was that it was just way behind in resolving cases. It would often take more than a year to get to oral argument. But they've really fixed that time their credit and I think now they operate largely the same way as any other circuit.
- [65:30]
C
I don't have strong feelings on it at all. But I would say this. I think that one of the things that is in decline in our highly polarized environment are congressional reforms that are simply good government efficiency kinds of reforms because it's always going to be viewed through the lens of say gerrymandering which team red or Blue is going to do better in this good government reform. So therefore I'm going to be and in taking the most short sighted possible perspective of who's going to benefit. And so this is one of the areas where the Congress has broken. It's an under appreciated area in which the quote Congress has broken discourse should extend. It's just to how can we be more efficient? Can we do things that just make the system work better? No, no, no. Because we have to decide who's winning and losing on Team Red and Team Blue.
- [66:19]
A
You won't be shocked to hear that I have very strong feelings about this. Split California in half and split the circuit, and that's the way life works.
- [66:28]
C
Wow.
- [66:28]
A
Yeah.
- [66:29]
B
Split it in half, as in create two states or just.
- [66:32]
A
I'm fine with that, too. Or put some of it in the Pacific Ocean. I don't care that much, actually.
- [66:35]
B
But the most important thing is splitting it for purposes of the Ninth Circuit.
- [66:38]
A
Okay, next question. How does the court's own discretion on what cases to take affect your opinion of this not being a blockbuster term? Like they picked a not blockbuster term. And did you plant that question among your star summer associates? Because I know you wanted to talk about that, and I didn't get to it. And it's just so funny that he asked that, isn't it?
- [67:02]
B
Everyone got the emails this morning. To the contrary, that's actually a question that could potentially wind me up, because like most Supreme Court advocates, I have views on the docket. The size of the docket has now seemingly bottomed out. I mean, the court is now deciding somewhere between 55 and 60 cases on the merits docket. Of course, we've had the rise of the emergency docket, and I would say that this was the first term in which, in some ways, the emergency docket seemed almost more consequential than the merits docket. But what I think is interesting is the makeup of the merits docket. And I don't think it is that the court is somehow ducking really big cases. It's hard to identify really big cases that the court isn't taking. It's more that the court is taking more of certain types of cases. Cases, and perhaps fewer of others. And in particular, the business docket feels like it has really disappeared. And the few cases that the court is taking from the business docket end up often fizzling. The LabCorp case that I mentioned in.
- [68:03]
A
The example, very into LabCorp. I'm glad you share my passion for the LabCorp dig.
- [68:08]
B
Well, that's an issue that has been around almost since I started. Well, by definition, it's been around since I started practicing. It's been around Since. Since Rule 23 was promulgated. But it has been a big, open issue for the last 20 years, and yet the court ends up not resolving it and leaving the uncertainty out there. And I think when we look at what business cases the Court is taking. It's a lot of standing venue, procedural type issues and not a lot of substantive issues about securities, patent, antitrust. And that has.
- [68:41]
A
They gave you transunion. What else do you want?
- [68:43]
B
Well, there's always. And we got the diamond case this year, so we're getting a standing case a year, but we're not getting cases in these really big areas. The other place where we're not getting a lot of big decisions is in the area of criminal procedure. The Fourth Amendment. The Fourth Amendment cases have really disappeared. Very few cases coming from state courts more generally. This is something that Erwin Chemerinsky has talked about, that there was a time when the court was taking 10, 15, 20 cases from the state courts. Now it's like three or four a year.
- [69:18]
A
Well, but this gets to. So I have this theory that I need to, like, work out more fully that basically when the Supreme Court, when something external changes for the Supreme Court, they are still lagging in how they deal with that. So up until 1988, they were required to take any state supreme court case that invalidated a federal law of any kind, just on the civil side. And so in 1988, like, well, the nine justices all signed this letter in what, 1984 or so. That was like, please stop making us do this. Xoxo, you know, Chief Justice Berger at that point. And so by 1988, the Congress gets around to it. And that's where you start to see the really steep drop off of the entire docket. But what's funny is it's not all from those cases. They continue to take more of those cases, clearly, than they really needed to take according to them. Because we can test this, right? That should have only affected state civil cases like that, but instead it also affected state criminal cases. And the docket continued to go down, obviously, for decades later. It wasn't just like, from 1988 to 1990, we saw some drop. It just keeps going down. So I wonder if they're now just bottoming out on those people pre1988 feeling like we should take them.
- [70:39]
B
I think it's a really interesting question because if you look at the court's rules, state courts of last resort, state supreme courts, stand on the same footing as federal courts of appeals. And one would think that you would therefore see a pretty steady volume of those cases. State courts decide issues of federal law all the time. And yet it feels as if those cases are somehow disfavored. And I don't know if that's just because we have A court that largely consists of people who are kind of creatures of the federal system or whether there's something else going on.
- [71:13]
C
You know, one thing that is interesting about the court's doc is and I'm glad that Cannon brought up the business side and the criminal procedure side. On the culture war side, it seems as if the court has decided a lot of the most hot button issues. And so if you went back in the year 2006, I remember being in meetings with conservative, conservative attorneys and the conservative movement and we are talking about here are the key issues. And we had list, and it was a long list of first Amendment free speech and interplay between free speech and anti discrimination, access to public funding by religious institutions. Roe, the fate of Roe, you know, and you just go down the guns. Guns. Oh yeah, guns, of course, yeah. So you just went down the list. And I could, if I could pull up that list now, if I could find it, it would say settled, decided, settled, decided, settled, decided. Now, there are lots of ancillary issues that kind of roll off whenever you decide something. It will raise new things. But a lot of the classic culture war issues have been in many ways largely resolved at the Supreme Court. And this would be a good question. What are the big culture war issues that are just still hanging out there?
- [72:34]
B
And I would say, David, the but c to that. Once a blue book editor, always a blue book editor is religion, right? Because we are seeing a steady stream of religion cases, mostly these free exercise cases on the court's docket this term alone we had the Mahmoud case, the Wisconsin case, the Oklahoma charter schools case. And I think that that's probably a combination of interest on the part of certain justices on the court and the fact that those cases are being very skillfully litigated.
- [73:06]
C
Yeah, that's true.
- [73:07]
B
By The Becketts and ADFs of the world. They are teeing up cases very expertly for the court. They're choosing cases that are very good vehicles for the court court's review. But that's the one area in which even after a lot of these big ticket issues have been resolved, we're still seeing quite a few cases.
- [73:23]
C
I would totally agree with that. I think religion is maybe an exception, sort of the free exercise side. And the relationship between free exercise and establishment clause, I think that is in the process of being rethought. And the Oklahoma charter school case was going to be very interesting until it wasn't.
- [73:39]
A
Do you know how popcorn pops? And like they're sort of slow. Pop, pop, pop, pop, pop, pop, pop, pop, Pop, pop, pop, pop, pop. Like the Warren court, to me looks like that. If you look at sort of where the big cases are in the, you know, time that he is chief justice, he kind of gets to all the stuff he wants to get to there in the. Let's call it the beginning, middle of being chief justice that, like, early 60s, like, pop, pop, pop, pop, pop. Do you think we've passed peak pop of the sort of originalist movement on the Supreme Court?
- [74:15]
B
Well, I guess. One way to think about it.
- [74:16]
A
Are we about to burn the popcorn?
- [74:18]
B
One way to think about it is what are the biggest open issues that are still outstanding? And I think that's not an easy question to answer.
- [74:25]
A
Third Amendment just lingering out there with.
- [74:28]
B
Nobody'S love or affection, waiting for its day.
- [74:33]
A
All right, how about one more quick one, and then we'll let y' all go back to not billing. Emma has a question about parental rights. Why do they take it in Mahmood and not Scremetti? Cannon, answer the question once and for all. It's on all of our minds. It's all we think about. It keeps us up at night.
- [74:50]
B
I don't know why the court didn't take it in Scremetti. It didn't surprise me that the court took Mahmoud. That's an issue right in the sweet spot of the religion cases that we've been talking about. I think that the court in Scremetti seemed to want to go narrow for whatever reason. It was interesting at the time that the court took only the government's petition and didn't take the petition of the private plaintiffs, who were actually the original challengers, even though they also had a question on the equal protection issue. And the court could have just granted that question in the private plaintiff's case. So I'm a little bit at a loss as the court's handling of that case more generally. And one of the more interesting wrinkles of that case is that you had the argument and then the inauguration, and you had the new administration coming in and saying, we no longer adhere to that position, even though we are the actual petitioners in the case. And the court swept all of that procedural complication under the rug, in its opinion. That was very interesting.
- [76:00]
A
We also have the next case. Like, they're gonna have to do more on parental rights.
- [76:04]
C
Yeah, this is the case.
- [76:05]
A
We know that. And we have what I'm lovingly dubbing the pray away the gay case, but that one also. Cannon's looking at me like, either he doesn't know what I'm Talking about, which I don't believe, or he can't believe. I said that on a publicly distributed podcast. Either way, here we are.
- [76:23]
C
Cat's out of the bag.
- [76:24]
A
That's where we are. So this is a law in Oregon or Washington? Because I get those states confused. I think it's Oregon. No, I'm second guessing myself. Definitely one of the two.
- [76:35]
C
Pacific Northwest, for sure.
- [76:38]
A
That says you cannot offer psychiatric services that would try to tell someone that they are not. The sexual orientation or gender identity, I believe is included. But it's definitely sexual orientation that they think It's a free speech case. But there's parental rights all in that. Especially when we're talking about parents who want their child to go talk to someone who will explore that question with them.
- [77:05]
B
Yeah. And I think that one of the hard questions that is sort of an omnipresent hard question is the extent to which parents have substantive constitutional rights. This is the age old Society of Sisters question. It came up indirectly in a case the year that I clerked called Troxell v. Granville, which was their parents rights.
- [77:30]
A
Yes, David, And I like that case.
- [77:33]
B
It's a super fascinating case. But I think that the court is a little bit reluctant to go there because I think the. There are members of the court who think that there is such a right, but are very uncertain about its contours.
- [77:47]
C
I would think, given this court's views about unenumerated rights more broadly, this is not the time to go charging in the court to expand unenumerated rights. If you have an unenumerated right and you have an enumerated right, and you can decide the case on the enumerated right. They're gonna do that would be sort of my view on it. In which right.
- [78:05]
A
So they have the equal protection option. They don't need to deal with parental rights. You have the free speech option, you're not gonna deal with parental rights.
- [78:11]
C
Free exercise option, not gonna deal with parental rights.
- [78:14]
B
And where we're talking about Pierce versus Society of Sisters, you're talking about substantive due process.
- [78:19]
A
Remind everyone the quick facts of Peirce.
- [78:23]
B
Gosh, you're gonna totally stump me. As to the actual facts of the case. Parents directing children's education, Right?
- [78:31]
C
Yeah.
- [78:31]
A
Yeah. The state had banned private schools. You had to attend a public school. And so the school sued. Interestingly, they had two QPs. One was that it affected their economic rights for their business. And the other one was that it was. Yeah. The parental rate to send your kid to a school.
- [78:50]
B
Okay, so we're now gonna have to redo this, so you're gonna have to explain it.
- [78:55]
A
I was remembering as I was talking. That's how we do it on a podcast. All right, thank you, summer associates Paul Weiss, for having us. And thank you, Cannon Shammagam, always, for hosting and for being an awesome interlocutor for our pod, for explaining so many things so well. You're right. We didn't get to barbecue. It's because I don't want your bad takes anymore, man. If you need Cannon's terrible Kansas barbecue takes, you have four other podcasts roughly this date each year to go back and listen to.
- [79:30]
B
I'm gonna post my Barbecue take for 2025 on my social media pages. So if anyone wants to get my.
- [79:35]
C
Take candy, I just want to know. I want you to know. For the record, I wanted to hear it. And even though I'm not the barbecue guy in this group, Sarah's just worried.
- [79:45]
B
That this is going to affect the Texas barbecue industry if I tout Kansas City barbecue as I do at this time every year.
- [79:52]
A
We've been suffering so much.
- [79:54]
B
I had a really good take, too, but, oh, well, I'll save it for next year. Or an alternative.
- [80:00]
C
Poor candy. Can I just suggest the title of this podcast has to be Acts of Aggression Against Canon One after the other.
- [80:09]
B
That's. That's okay.