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A
You ready?
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B
I was born ready. Welcome to Advisory Opinions. I'm David French. Nope,
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that has to stay in.
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B
Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And we're going to go back, we're going to slow things down. We're going to talk stat pack from the term, all the statistics, what it told us and where it might have differed from last term or the last five terms for that matter. We're going to break down again now the dissenting voices in the birthright citizenship case because I think they're getting misconstrued at best, as well as Q and A from all of you guys on everything from the 14th amendment being sex blind to whether we could recreate independent agencies within the legislative branch. All this and more on Advisory Opinions.
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C
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B
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D
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B
well David, let's start with the Stat Pack. By the way, if you want to follow along at home, you can go to scotusblog.com statistics to look at this terms statistical analysis packet brought to you by the lovely people over at Empirical SCOTUS and SCOTUS blog together once again. So the key findings David 1. Roberts and Kavanaugh at the helm. Chief Justice Roberts and Justice Kavanaugh tied for the top frequencies in the majority followed by Justice Barrett. Roberts and Kavanaugh were both in the majority 95% of the time while Barrett was in the majority 92% of the time. This ordering is the same for frequencies in the majority in non unanimous and closely divided cases. And David, again this stat pack is going to look very three, three, three for all of those type statistics. No matter which way you cut it, it's the Three deciders, the Chief, Kavanaugh and Barrett. Then it's our three conservative honey badgers, Gorsuch, Thomas and Alito. And then it's the three lonely liberals, Jackson, Sotomayor, and Kagan. All in terms of the frequency in the majority. Number two ideological splits in closely divided cases. One in five of the court's decisions this term were decided along six, three ideological lines. This far exceeds the 11% average for the 2020 through 2025 terms. Yeah, that was a big jump woof, though. As we saw, not all of the six, three ideological cases were in fact ideological, at least not in, like, a culture war sense, like the alien Tort statutes and that Cuban case. Right. Both six three along ideological lines. There were several others like that that were released earlier in the term as well. We're like, well, yeah, that is six, three, but not for the obvious reasons, which maybe is an important, like, illumination, that ideological lines really, really might mean judicially ideological, like, about the creation of new causes of action. That's just so far from partisan politics. It really is ideological, but not liberal and conservative in any sort of political sense.
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A
Right, right. Well, you know, one thing that really stands out to me, I'm just looking at the statistic frequency in the majority, all cases, and Justice Jackson was in the majority the least. And then if you were going to ask a person, just a random person, reasonably well informed, Justice Jackson would be in the majority the least. I think people would expect that. And how frequently was she in the majority? 67% of the time, which is really interesting to me and I think illustrative of the way in which, you know, we cover the Court and we do the same thing. We cover probably more Supreme Court cases than almost any other podcast as far as just sort of raw numbers of the outcomes. But we don't cover everything. And our own emphasis on sort of the big cases can, you know, what we think of as the big cases can distort a little bit about how frequently everyone is in the majority. So if you're in the Supreme Court, you're going to be on the quote, unquote, winning side of the argument at a minimum 67% of the time, between 95 and 67%. So there is a lot more consensus than people realize. They just constantly discount it. And this is something that, when I talked to Justice Gorsuch about his first book, he really emphasized this point when we talked about, like, collegiality and things like that. He said, we have a professional collegiality. In other words, we were able to work together and get the job done. And one of the pieces of evidence for this was the way in which a majority of the court, there's frequently unanimous cases. A majority of the court is kind of always in the majority.
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B
All right, next up, who voted together the most? We have a tie here. KAGAN and Sotomayor 94% of the time. Kavanaugh and Roberts 94% of the time. Jackson and Sotomayor 94 percent of the time. Thomas and Alito 94% of the time. So those are our besties on the Court, for sure. Wait till we get to prolific writers. This will surprise nobody. If you've been listening to this podcast for at least a year. Justice Thomas authored the most opinions this term with 28 total and the most concurrences with 15. Justice Jackson authored the second most with 26 total, but had the most dissents with 10. Chief Justice Roberts authored the fewest with 6 total, all majority opinions. David, this is the institutional axis. I say that all the time about various things, but like, this is another really good example. Our high institutionalists, we would expect to write the least, and our low institutionalists, we would expect to write the most. Right, because high institutionalists are doing the team sport and low institutionalists are rating for themselves. So Justice Jackson writing the most dissents and Justice Thomas writing the most concurrences. Yup. That's exactly what you would expect from the Court's two lowest institutionalists.
- [07:38]
A
Yeah, I mean, it's very clear at this point that Justice Jackson has kind of taken the role of the chief dissenter of the Court. And it's also very clear that Justice Thomas has taken the role of the frontier originalist. In other words, the one who is going to be pushing various ideas about originalism into the public square via not law review articles, but Supreme Court concurrences. The thought experiments, the random musings, the. This might be a good idea. It's the Justice Thomas concurrence.
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B
Finally, this will now be the, you know, where is the Court headed on that institutionalist axis? It hasn't been headed anywhere pro institutionalist recently. Some very long opinions this term. The longest overall decision was Trump v. Barbara. That was the 194 pages, 60,000 total words. You could have published it as a book. The longest individual opinions were Justice Thomas's dissent in Barbara, and interestingly, Justice Kavanaugh's dissent in the Tariffs case. Chief Justice Roberts averaged the longest opinions this term at approximately 7,100 words. But here's the kicker. David, four of the five longest individual opinions this term were dissents.
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A
Mm.
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B
Right. It's the Trump v. Barbara birthright citizenship problem, where you have a 26 page majority opinion, but the overall thing is 190, 94 pages. Because it's not a team sport. Everyone wanted to get their individual views of the law out there. So you had all of these other opinions. We are just, I mean, the number of separate opinions and concurring opinions and separate dissents are just proliferating and proliferating. I mean, David, I wrote about this in the book, but in 1955, there was a concurring opinion in less than one out of three cases. Now the court is averaging more than one concurring opinion in every case. And I think we're going to be quickly into the like two range here after this term.
- [09:46]
A
Well, and I don't think it's going to change anytime soon. In fact, I think if we look back, say, 20 years from now, we look back, I think we'll still see an awful lot of concurrences and dissents. And I think one of the reasons is that now we're in a world not just where, I mean, justices as a group have decided to do, or you know, individually, which adding up to the group, have decided to do this a lot more, but also I think the era of the sort of the circuit court concurrence, you know, the era of, okay, I'm sort of staking out some ground here. Even if I, you know, let's say I, I'm ruling one way because this is what precedent says. I'm going to stake out some ground in a concurrence or a, or something else. It feels like it's much more of an expressive judicial era, Sarah, whereas I came up in the restrained judicial era. Because the one thing you did not want to do was stake out definitive ground in public on anything contentious, and now it's all flipped.
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B
Exactly right. So that's most of the stat pack again. You can go check it out@scotusblog.com and we'll be talking more about the overall vibes from this term during our term preview, which will be our next episode, where we will be also joined by David Latt and Professor Akhil Amar. David, I do want to go back, though, and talk about the birthright citizenship case just a little bit more before we get to questions from the audience. Because it was 194 pages and we recorded very quickly after the opinion came out, I wanted to talk about the dissents and this 5, 4 split on the constitutionality question. Yeah, because I think there's been a lot of misreporting on that, or at least unintentionally misleading reporting about it, and maybe some intentionally misleading reporting about it, but wanted to clear some up. Okay, so you have the five justices in the majority who say that the 14th Amendment guarantees and always guaranteed birthright citizenship to anyone born on American soil, with the caveats from that Wong Kim art case, which would include diplomats, kids, foreign enemies who somehow arrive pregnant and have babies here, etc. Okay, that's the five votes you have. Justice Kavanaugh, who says, on the one hand, I actually don't think that that's the end of the 14th Amendment. Those were the restrictions that they had experienced by the end, you know, the beginning of the 20th century. But, like, that's not the end of all of the exceptions that you could have birthright citizenship. So I do think there could be more exceptions in the 14th Amendment as originally conceived, but it doesn't matter because Congress passed a statute in 1950, and they clearly codified birthright citizenship as we have been understanding it and do understand it. So a president can't change this by executive order. That, of course, was my whole vibe for this whole thing. Why even get to the 14th amendment when we have the statute from Congress? I wish we had had every justice way in on that so we could have gotten the 90 on presidents can't do this, but whatever. Okay, then we had the four justices, and this is what I think we gave short shrift to. David, the four justices were not saying that Trump's executive order was, like, good to go, and that illegal aliens who have children in this country do not have citizen children. If they had gotten their way. I mean, they're in the dissent, so, like, whatever. But even if they had been in the majority, that's not what they were saying in their dissent. So I wanted to read some of Justice Gorsuch's separate dissent, because I think he summarizes these points very well. Here I go. Respondents chose to pursue a facial challenge to the executive order at issue in this case and secured below, a preliminary injunction barring every one of the order's potential applications. Under this court's precedence, we can sustain that injunction only if, quote, no set of circumstances exists in which the order may be applied lawfully. That is a demanding standard, and it is not met here. Among other things, the Executive Order holds that children born to temporary visitors in this country, whether here lawfully or unlawfully are not citizens. And at least to that extent the order is consistent with the Citizenship clause. As Justice Thomas and I read it, by definition, temporary visitors to this country do not choose to make a permanent home here and their children thus cannot claim the privilege of citizenship. Because the Executive Order is lawful, at least to this extent, respondents facial challenge must fail. Just because the Executive Order has some lawful applications and can survive a facial challenge and does not mean it is lawful across the board and immune from narrower legal challenges. Besides addressing temporary visitors, the order also denies the benefits of citizenship to children born in this country, to parents who make their permanent home here, but do so in defiance of federal immigration laws. The government insists that aspects of the order can survive any possible legal challenge too, because individuals can secure domicile in this country only if they do so in compliance with federal law. About that, however, I harbor doubts. Perhaps Wong Kim Ark does not squarely foreclose the government's position. After all, that case addressed a child born to parents who lawfully resided in this country. Still, I wonder, is a child born here to parents who have long chosen to make this nation their permanent home not a Citizen under the 14th Amendment solely because his parents presence violates statutory law? If those parents are not domiciled here, then where are they domiciled? And if the answer is nowhere? And how can we reconcile that conclusion with this Court's long standing recognition that every person is domiciled somewhere because the Executive Order is not facially invalid? These questions may not be properly before us, but their answers are undeniably important to a nation committed to a view of citizenship open to all children born here to parents who can call this country their home. So David, I've seen a whole lot of hand wringing over this idea that it's 5:4 on the question of whether illegal aliens children are citizens of this country or everyone's going to need to prove their citizenship in order to show their children citizenship and that birthright citizenship is hanging by a thread.
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A
No.
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B
And if we didn't make this clear before, let me make it clear now. There are five votes for everyone being born here, being a citizen. And there are four votes that probably if Congress passed a law saying that someone here on a temporary tourism visa, for instance, let's say it's two weeks a month and they come here pregnant and they have their child, whether on purpose or unexpectedly, as our producer just had his baby unexpectedly early. Congratulations you guys. We love you. We hope y' all are doing well listening to this because you better be that David that child wouldn't be a citizen because the parent always intended to go back and therefore the child always intended to go back. You know, babies can't have intent, but because they follow the parents intent, that would still be the case. So they're not living here. David, I know you're very into the idea of universal birthright citizenship, but I don't think that even offends your views of birthright citizenship, right?
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A
No, it doesn't really. I, I think that if you're going to, I think if you're going to talk about temporary visitors and tourists, I think that that is a far more debatable proposition constitutionally than, for example, what Justice Gorsuch laid out in his dissent, which is, okay, wait a minute, you've got somebody who's living here, who's obviously made this their home, intends to make this their home, even if they're not here legally. If they're not domiciled here, where are they domiciled? And so I do think that as I was reflecting on this and Sarah, at the very beginning of the podcast last week, we said we're going to mount this sort of pre apology, like we're reading this thing in real time. And the part where we really didn't parse it was unsurprisingly in the more than 100 pages of dissenting opinions that we really hadn't been able to just really marinate in by the time we recorded the podcast.
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B
David, you know when you read a word over and over again and it starts to lose all meaning and language for you, the word domicile after page 120, I was like, what is this? What are these letters?
- [18:32]
A
Totally, totally. So I mean, I agree with the five. I'm also, I do not think that Gorsuch is dissent. I mean, Gorsuch's dissent is very reasonable and thoughtful. I think the really interesting question, Sarah, is actually of the nine, how many were supportive of the Trump constitutional position? And I don't know, I'm maybe counting to two because it feels to me that Kavanaugh is comfortable with the Trump constitutional position, but not the statutory position. Gorsuch does not seem to be comfortable with the Trump constitutional position. So you've got six right there. Not comfortable with the Trump constitutional position. I think Kavanaugh mainly is. I don't know that the others really fully decided that. So it's a. What are you counting to when it comes to supporting the Trump position?
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B
Okay, we've got a problem. Because on the one hand I consider myself this Podcast Kavanaugh Whisperer. Like you are this podcast Gorsuch whisperer. And to me, because Kavanaugh also, like we were in hive mind in terms of that statutory part.
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A
Yeah.
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B
I admit that I, I am biased to thinking that we are hive mind on the constitutional part as well. But the language doesn't actually support that.
- [19:55]
A
Right.
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B
So let me read you this line for those reasons to reiterate, the Executive Order does not violate the 14th amendment. Period. But the order does contravene 8 USC 1401. Okay.
- [20:11]
A
Yeah.
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Just that that sentence. I can't really argue that Kavanaugh thinks the Executive Order is constitutional.
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D
But.
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But despite that sentence, David, I don't actually think he does. I have no evidence for this, despite
- [20:24]
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what he actually said.
- [20:27]
B
Don't listen to the words coming out of his mouth. Listen to me. No, so I think he actually, because he already found that it falls under the statutory part. I just don't think he's explaining much of the constitutional part. It's like one or two paragraphs max. I think he actually agrees with Justice Gorsuch that what he means is, because this was a facial challenge, the Executive Order does not violate the 14th Amendment in every possible application of the Executive order. But I agree those words aren't there. And so if you want to argue with me about it, like, I, I don't have a lot to fall back on except vibes theory and what I generally think Justice Kavanaugh thinks of the Constitution and sort of, again, vibes of the rest of this opinion, which is really short. So, yeah, he didn't go into great lengths about parsing tourists from. You know, at this point, David, we have people who came to this country illegally, had children who then had children. So like to argue that, that, let's call it the parent versus the grandparent generation came here unlawfully. The parent generation was born here.
- [21:39]
A
Yeah.
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B
Plans to die here, had their children here. Where else are they domiciled? So under any sort of understanding of subject to the jurisdiction thereof. They're not subject to any other jurisdiction.
- [21:53]
A
Right.
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B
I think that's what Justice Kavanaugh meant. So in that case, we're now at seven justices who think that it would apply to again, that parent generation of illegal aliens. And Thomas, I mean, Gorsuch is saying he agrees with Thomas and he's just trying to like further elucidate some points. Maybe that gets you to eight. Justice Alito's is a little harder to square with all of that. And he definitely doesn't mention the facial challenge part. So maybe 8:1 on that. But again, Justice Alito doesn't have to get to it.
- [22:28]
A
Yeah, it is. It is actually difficult to parse how many people supported the Trump eo Correct. Versus disagreed with the five on the extent of the birthright citizenship clause. That's one thing. But how many people went all the way to agree with the Trump eo That is a lot more difficult to parse. So I actually think at the end of the day, we do not have a 54 on the constitutional question that Trump advanced.
- [22:58]
B
Correct. This is the thing I've been so frustrated about. Every time someone says this is a 54 decision. No, it's not. The question was on Trump's EO that was at most 6 3, meaning there were three justices, because Kavanaugh was very clear that the EO couldn't move forward. And again, as we say, because this was a preliminary injunction and because it was a facial challenge, I don't even think you've got the three. Obviously you don't have Gorsuch. So please, if you see things describing this as 5 4, find the nearest pillow and start screaming into it, because that is just 100% not correct.
- [23:37]
A
Yeah, you know, it'd be interesting if you had two separate cases teed up. Case number one. Is birthright tourism just a birthright tourism eo well, let's just make it super clean, Sarah. A birthright citizenship statute that dealt with birthright tourism, and you had a birthright citizenship statute that you. That dealt with illegal aliens. How do they shake out? And I think that you would have still, obviously, because you had the five who are for the, the, the broad, the, the birthright citizenship status quo. So you would still have a majority rejecting a birthright tourism eo but it would be a smaller minor majority than the majority that would reject the illegal alien children of illegal alien statute. So birthright tourism statute, smaller majority, illegal alien statute, larger majority rejecting that and maybe seven, maybe eight rejecting that.
- [24:37]
B
Okay, after this break, David, we've got lots of listener questions. We're going to try to get to as many as we can. And thank you for sending them. The email is advisory opinions@thedispatch.com. all right, after this. A good night's sleep is an essential part of my job. And that's where the Sedona elite from Brooklyn Bedding comes in. I feel supported, comfortable, and fully relaxed, which helps with falling asleep faster and waking up feeling genuinely restored. Brooklyn Bedding makes quality mattresses right in their Arizona factory, combining American craftsmanship with honest pricing and thoughtful design with options for every sleep style, cooling technology for hot sleepers, trusted support for spinal alignment and a 120 night comfort trial. They make it simple to find a mattress that truly fits the way you sleep. So go to BrooklynBedding.com and use promo code Advisory at checkout to get 30% off site wide during the 4th of July sale. That's BrooklynBetting.com promo code Advisory for 30% off site wide exclusive with my code. BrooklynBetting.com promo code ADVISORY the FIFA World
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E
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- [26:38]
B
Hey David, before we get to the questions, I just wanted to read some quotes that people gave to Adam Liptak about the Chief from this term. So first, from Greg Garr from Latham and Watkins, he was SG under George W. Bush. The terrorist removal power and birthright citizenship decisions alone would be significant for any Chief Justice's legacy. To produce all three in one is astounding. Next, from Roman Martinez, friend of the pod, also at Latham and a former law clerk to the Chief. So maybe a little bias. These are the cases President Trump cared about the most and the administration lost across the board. In each case, the Chief justice built cross ideological coalitions consisting of himself, one or more Trump appointees to the Court, and the three more liberal justices. Interesting observation. And then Richard Lazarus, a law professor at Harvard and very longtime friend of the Chief Justice. The Chief had his most challenging term since he joined the court more than 20 years ago. Outside the Court, he faced a president who found obvious pleasure in lacerating any justice, including the chief, who defied the President's wishes. Within the Court, he faced a majority of five Justices Thomas, Alito and Gorsuch on the right, and Sotomayor and Jackson on the left, who regularly made clear how little respect they had for others on the court and who did not share their views. The Chief has earned the summer recess. What's funny, David, is the chief, famously, before he became a justice, said summer breaks are only for school children and Supreme Court justices. But as Justice Brandeis said, he could spend 11 months doing the work of the Supreme Court, but he could not spend 12 months doing the work of the Supreme Court. So that's why they take a break. It's from each other and all of us. And they put their phones on do not disturb.
- [28:33]
A
Yeah, I can absolutely understand that. And it is interesting to me that this term saw so many instances where one branch had to absolutely assert itself against another branch of government. A lot of the previous disputes that we've seen have been ones where the judicial branch has a view of the law, but it's not so much a direct confrontation with another branch of government. So, for example, if you're talking about one of the most controversial cases before the current age, obviously Roe v. Wade, but that was striking down a Texas law. If you're talking about Obergefell, for example, that's not directly confronting the President's exercise of his powers. And so you've had a lot of culture war cases around which presidents have opinions and presidents have ideas. So, you know, Citizens United is something where, you know, obviously you're dealing with a federal regulatory environment, but it's not so much a direct confrontation with a person who's wanting to exert specific personal power. And that's what we have seen here, really, to an extent that I've not seen in my entire legal career at all. And so it requires a. I'm not going to say, you know, maybe courage is a strong word, gumption. Like it. This is something that requires a, you know, one of the branches of government to really assert itself, to sort of circle the wagons in a. In a sense, Congress obviously hasn't done it. And I don't think that enough attention is paid to that fact that what you're dealing with here was a very direct pressure campaign from the President of the United States directed against the Supreme Court for the President's own, not just policy initiatives, but for the President's view of power itself, how the President views the office. And this is the first time I've seen that directed confrontation. Now, it's been building. Obviously, it's been building. We had DACA cases before with Barack Obama. We had Student loan with Biden. But in those cases were more what you might call kind of standard evaluations of administrative regulations. What we were dealing with here was just a view of the assumption of presidential power, an order of magnitude beyond what we've seen before, and something that is absolutely at the heart of the entire Trumpist experiment in government. And so, yeah, I could see why this would have been a stressful term.
- [31:17]
B
David, I have a dangerous prediction I want to make.
- [31:19]
A
Make it.
- [31:21]
B
I think this past term will prove to be the high watermark of the threats from the court, from the Trump presidency. Slash wing, despite the fact that we're seeing enormous complaints about Justice Barrett and blah, blah, blah, and impeach various justices, whatever, whatever from the right. I mean, but the executive order threat, where so many of these things came from, tariffs, federalizing the National Guard, the Alien Enemies act, birthright citizenship, all of those were executive orders that came within the first few weeks of the president's term. And it really dominated last summer. We aren't seeing any of that recently. And I mean, like, for months, we haven't seen it. So the justices I know were feeling overworked based on all of the emergencies in the interim docket that they were seeing, that it just, like, expanded beyond all possible belief. I think we've seen the high watermark of the interim docket, at least for this presidency. Now, who knows who the next president will be and whether this flurry of executive orders, and therefore the flurry on the interim docket spikes at the beginning of every presidential term from now on, Though, perhaps the fact that President Trump lost nearly all of these. I mean, Slaughter actually wasn't an executive order. So he did, in fact, lose every executive order that I'm thinking of, all the way down to renaming the Kennedy Center. And Biden, of course, lost so many of his executive orders. Vaccine mandate, eviction, moratorium, clean power plan, that was actually an agency action. And then student loan debt forgiveness, which was from the Department of Education. But again, again, like, if you're coming in as a president, you'd kind of be an idiot to want to wind up on that interim docket.
- [33:14]
A
You know, it's interesting, Sarah, and I'm glad you brought that up, because I was just saw. I can't remember where I saw this, but it was a piece basically saying the left is preparing a bunch of executive orders to implement its ambitious agenda. Now that Trump has showed the way, get ready. The left is going to come in and it's going to implement, like, green New Deal, health care reform, all of this through executive order. And I'm like, which court have you been watching? Because you can walk in and fire Brendan Carr, immediately. If you're a Democratic president, you can fire, you can clear every senior MAGA official out of the executive branch instantaneously. Thank to, thank you. Thanks to the Supreme Court, including every commissioner, agency head put in place by Trump, including people who would have previously had, for cause, firing, protection. So now guess what? Next Democratic president, you can clean out the executive agencies of Trump officials and policymaking positions. And what else? Less than any president. Like, less than modern presidents before Trump because. And less than modern presidents before Biden, because the jurisprudence of Trump and Biden in the Trump and Biden eras has substantially narrowed the ability of presidents to execute lawmaking or to, you know, to engineer lawmaking through the executive branch. They've narrowed it substantially. And this is what makes me tear the rest of my hair out, Sarah. The tiny last few shards, like, bravely surviving, they're gone now because everyone just says, well, slaughter means more executive power. More executive power in a very narrow area. Hiring and firing of senior executive branch officials.
- [35:11]
E
That's it.
- [35:12]
A
But if you're going to talk about executive power to actually move the real world, it's less and less and less and less. And I don't know why people roll their eyes at this formulation, Sarah, that you wrote about in the Times not long ago of more power over a diminished branch. So actually, the presidency now has less power at the end of this term than it had at the start of this term. It's got less. I don't know how to convince people of this. It has more power over itself. It has less power over everything else. And so if you're thinking green New Deal can be implemented through executive authority. Now, I don't know where you've been, but it is amazing to watch a zeitgeist filter down into very educated people who just sort of know things, like, it's just in the air. Well, the Supreme Court's given the president more power. They just know this. Well, how do they know this? Well, there's the Slaughter case. Well, what about National Guard? Anyway, and so it just settles down into the zeitgeist, and then it turns into, well, watch what we're going to do to you. Well, now it, well, honestly, it's going to be fire a bunch of MAGA people and I'm okay, you know, like, oh, no, don't threaten me with a good time. So it's, it's a little, it's a very interesting, the way this is shaking out.
- [36:42]
B
All right, let's get to these questions. I just listened to your most recent Podcast and a question came to mind. If the current understanding of the 14th Amendment is that the Constitution is colorblind, why isn't the understanding that it's also sex blind? In your discussion of Title ix, David argued that the correct application of Title IX is to take into account sex if there is a fundamental difference between the genders, such as in sports or bathrooms. But doesn't Title IX derive its authority from the same section of the 14th amendment? The voting Rights act did the Equal Protection Clause? If so, shouldn't we apply the same standard of blindness to sex as we do to race? It just strikes me as odd that the Constitution allows us to identify situations where there are outcome oriented problems with sex and legislate remedies to try and level the playing field. But we can't use the exact same clause of the Constitution to have similar laws about race. I guess I just don't understand why a correct reading of the Equal Protection clause is for gender we're conscious of it, but for race we're blind to it. If the best way to stop discriminating on the basis of race is to stop discriminating on the basis of race, wouldn't the best way to stop discrimination on the basis of sex also be to stop discriminating on the basis of sex? Well, David, there's a really easy answer to this question, but from there it gets a lot more complicated. The easy answer is the 14th amendment didn't apply to sex, right? That's if the 14th amendment applied to sex, we wouldn't have needed the 19th amendment. Just like by the way, if the 14th amendment had applied to voting, we wouldn't have needed the 15th amendment. That's what I mean by it gets more complicated.
- [38:18]
D
Right?
- [38:18]
B
So if we needed the 19th amendment because women obviously did not vote after 1868 just because the 14th amendment had an equal protection clause, it's pretty clear it either didn't apply to voting or it didn't apply to sex, or it didn't apply to both. And that's where you get the Equal Rights Amendment popping up. But David, here's the problem with the Equal Rights Amendment. I mean, there's all sorts of problems with the Equal Rights Amendment maybe, but here's a chief one. Nobody can really tell me what the Equal Rights Amendment would do now, when in fact we have read at least some protection on the basis of sex into the Equal Protection Clause, albeit after the ratification of the 19th Amendment. Isn't that weird?
- [38:59]
A
It is. It's so interesting you raised that, Sarah, because on its Face, I've always had this question in my mind, like on Its face, the 14th amendment sort of makes the 15th amendment unnecessary. On its face, the 14th amendment makes women's suffrage. It should have happened in 1868. Equal protection of the laws. Are you kidding me? You know, so on its face, the 14th Amendment seems to obviate the need for some other amendments. But there's also another conceptual issue that I think is very important to talk about when we talk about equal protection. And that is at its heart, what equal protection means is similarly situated, people will be treated similarly. It does not mean that all people are treated equally in all respects. So let, let's take this, let's look at it from age. If you said all people are treated equally in all respects, that would mean nine year olds could have driver's licenses, that seven year olds could have driver's licenses if somehow they could reach the pedals and pass the test. Right? And that because what we do is we draw an age classification distinction when it comes to driving. Well, one of the reasons why that survives is that a child and an adult are not similarly situated when it comes to gender, for example, or sex, I'm sorry to be more precise, when it comes to sex, males and females are not similarly situated. When it comes to athleticism, it comes to sex. And so that's the core. When you think about equal protection, think about similarly situated. Don't think all people in all circumstances must be treated exactly the same. And by all laws, that is not the way equal protection works. And, and so that's another way of thinking about it. So if you treated, if you said the best way to stop discrimination on the basis of sex is to stop discrimination on the basis of sex, then you have zero women participating in collegiate sports. You have all unisex bathrooms, you have unisex changing rooms, you have all of this stuff which we know is an absurdity, because similarly situation, they're not similarly situated. Men and women are not similar.
- [41:13]
B
Everyone has to pee outside from now
- [41:15]
A
on, everyone pees standing up. And so it is that. Think of equal protection like that. And I'm so glad that question was asked because I get a version of that, a version of that all the time. And then when you are able to reframe your thinking about similarly situated must be treated similarly, then the equal protection clause starts to make a lot more sense.
- [41:40]
B
This is why we have intermediate scrutiny for sex. And I think it's a misleading. Well, it's a sort of nothing term. But what you are supposed to do for sex under the Equal protection clause is try to determine whether it is something where women are not equally situated or are. If they are, then it is equal protection. Right. Whether you can be a lawyer doesn't have much to do with your menstrual cycle.
- [42:04]
A
Exactly.
- [42:05]
B
Therefore, it actually in some ways gets strict scrutiny once we determine that. Whereas if it is because of an actual sex chromosomal difference, then it gets rational basis scrutiny. So intermediate scrutiny is more like a junction on the train tracks to figure out which other scrutiny you're getting. Is that fair?
- [42:26]
A
Very fair.
- [42:27]
B
I still think it's weird, though, that the Equal protection clause quite obviously did not include voting or sex or both.
- [42:33]
A
Fascinating.
- [42:34]
D
Yeah.
- [42:35]
B
Okay, next question. Sarah made the point that people who don't like the recent court opinion should lobby Congress to do things. Yes, I have made that point. Thank you for noticing. But this is inconsistent with the most consequential recent ruling which stripped Congress of its power to create and oversee executive agencies independently of the President. I'd really like to hear Sarah and David grapple in good faith with this inconsistency between their sympathy for unitary executive doctrine and this argument that people should just lobby Congress to do the things they want. To me, the latter argument comes off as pretense when promulgated by advocates of unitary executive doctrine. People did exactly what Sarah suggested. They lobbied Congress for congressional oversight of the agency overseeing trade. That didn't work. It's very frustrating to then be told in all caps to just lobby Congress. Okay, yes and no. I do think there is inherent tension there. I won't deny it. But generally when we are talking about Congress doing its job, we're talking about vis a vis the President. And the court saying, no, the President cannot find some vague statute to increase his own power or to act on some novel policy problem that has just popped up, be it student loan, debt forgiveness or tariffs. That's what it means. Like, if you like tariffs or student loan debt forgiveness, go lobby Congress for that. It has been and will always be the special province of the courts to say that Congress has violated the Constitution.
- [44:06]
A
Yeah.
- [44:07]
B
And so in the Calais case, for instance, yes, Congress passed the Voting Rights Act. But what the court is saying is, yeah, but this specific, you know, provision as the plaintiffs are trying to use it would violate the Constitution. They did not strike down section two of the Voting Rights act, but they said, you will have to have race blind redistricting or else it would violate the Constitution. Same with the Slaughter case. Right. Congress passes this law that the President can't remove officers that derive their powers from him. Again, principal officers. This is not everyone in the executive branch, but people who are supposed to be executing the laws as passed by Congress can't be then shielded from political accountability from the President. That's a constitutional question. So I would not tell you to go lobby Congress when it comes to these constitutional questions. That's why I say the Supreme Court's never the last word. Either you can lobby Congress for all these statutory questions on asylum law or when Mississippi can accept its ballots or tariffs or, or a clean power plan, any of those things, or you can ratify an amendment to the Constitution. But the Slaughter case, the Calais case to a large extent are all the latter group, not the former.
- [45:23]
A
Yeah, I think, you know, when you say Congress, do your job, which we've said a million times, read into it an asterisk at the very end that says and when you drop down the page and you look at the asterisk, it says constitutionally, Congress, do your job constitutionally. Now where I have major sympathy is what, what is the interplay between reliance and stare decisis when you've had long standing legal regimes that are being chat like Congress has enacted laws under long standing legal regimes like Humphrey's executor that where it leaves its, you know, where, where it sends something to the executive, but where the caveat and this is what it did with legislative veto, this is what it did with independent commissions. And for many years, not forever, but for many years that was all fine. And so when Congress is acting, they're acting under the assumption that it's fine to do a legislative veto, it's fine to do for cause removal, it's fine to put those strings on the executive. And so then the question becomes, okay, is it kind of unfair to Congress to change the rules of the game decades later? It's a very interesting question regarding stare decisis and reliance. That is, I do not think there is a bright line answer to that question, to be completely honest. And so I have a lot of sympathy. But at the same time Congress can also establish legislative agencies. It doesn't have to punt everything over to the executive branch. The Congressional Budget Office, for example, is a legislative agency. And so you can create legislative agencies. And you know, it will be very interesting I think once this kind of miserable, closely divided era ends. We've always had a period of reform after we've had very contentious, closely divided periods of American history. And it'll be very interesting to me to see if we're going to have really any sort of forward thinking members of Congress to say what if, what if some of these Alphabet soup agencies were under our control and not the President's control? Now it would alter what kind of powers they could exercise, for example, but they would also not be. It would also make the Presidency less powerful. So very interesting question for down the road.
- [47:47]
B
All right, next up, I've been following closely your coverage of the Cook and Slaughter cases. All throughout your discussion there's been one question to which I have not been able to find a satisfactory answer. When discussing unitary executive theory, it has been repeatedly mentioned that, that the point is to make the officers of these independent agencies more politically accountable to the President and thus indirectly accountable to the people at large. This has always been presumed on its face to be a good thing. However, I am not entirely convinced. There has been much said about the importance of an independent central bank, but I haven't been able to find anyone discussing the fact that there is an entire branch of the government which is not meant to be directly answerable to the public. The judiciary, with some obvious exceptions in this case, the fact that judges are able to rise above the partisanship of the time is regularly touted as a feature of the system. And so I don't understand why it may be so inconceivable that there may be certain areas of the executive branch that would likewise stand to benefit from this. First of all, this is a great example of if you feel that way, ratify an amendment to the Constitution. But the constitutional structure that we, we all agreed to, you know, 230 years ago was that you'd have the most accountable branch as the legislative branch to set the policy. You'd have the next most accountable branch, the President elected only four years and through electors execute those laws and then the judiciary, which is sort of, you know, ruling on the like, thumbs up, thumbs down, can you move forward? Can you not? Is that constitutional? Did the President actually follow what Congress said, said that that would be. Again, we're using the term independent here a little bit in quotes, but yes, you know, appointed by the President, confirmed by the Senate and then life tenure. And you can't mess with them except for impeachment. But it's a very different job if you're trying to execute the laws, but you're not politically accountable to anyone. That just is a different form of government. I think we call it a monarchy.
- [49:53]
A
Technocracy might be a more like, yeah, fair. Yeah, yeah. So if you want a technocracy and you see advantages to Technocracies.
- [50:02]
B
And there are some, and there are
- [50:04]
A
some make the argument and amend the Constitution. But to create a technocracy within the existing Constitution is a real problem. And I think that, let me put it this way. I do not think that the next Democratic president will say, you know, I'm going to just go ahead and defer to the technocratic expertise of these various Trump appointees and the various independent commissions because, you know, I, I, I supported Humphrey's executor. So I'm going to put my money where my mouth is and leave these MAGA appointees in place. In spite of the fact that I fundamentally, philosophically disagree with them, in spite of the fact that they, they're going to be at odds with my, the program that I was elected to implement. They're going to get rid of these guys immediately and instantaneously as soon as, and they're going to be happy to do it. They're going to be very glad to do it. And it is, Sarah, it's very, it's very hard for me to analyze all of these defenses of the technocracy when most of the people who are defending the technocracy are also very much in favor of the policy of the technocracy. Right, let's change the policy of the technocracy and see how much you defer. Yeah, I'm going to say you're not going to at all.
- [51:26]
B
The Brendan Carr FCC is now forever politically unaccountable. Congrats.
- [51:33]
A
Yeah, like, is that the technocracy rule?
- [51:35]
B
Brendan Carr, he gets to decide who has late night shows, who gets to be what they get to say on tv, who gets to be on TV all as well because he's a technocrat, nothing more.
- [51:48]
A
And that's what's funny is all these people are saying, but what about Brendan Carr? And I'm like, yeah, he's in the current system.
- [51:54]
B
That's right.
- [51:56]
A
He's the problem with the current system. You can't get rid of that guy. And so I want a system where I can get rid of Brendan Carr.
- [52:06]
B
His wife is a good friend. So I just want to be clear, I'm not particularly picking on Brendan, except it's an easy one to pick on right now. Okay, in a little more than two years time, let's say a Democrat is president. He, she decides that it is in the interest of the nation for the once quasi independent agencies to be in the control of Congress. So they cut a deal, sign off on all of my appointments and I will sign legislation near the end of my term that will put the agencies under Article 1 jurisdiction, provided that all future appointments and dismissals to those agencies are done by super majority in the Senate, et cetera, et cetera. So the, so David, here's, here's how it would work. The president would still appoint the heads of the agencies. They would be confirmed by the Senate, but they would be in Congress and removable by a super majority of the Senate. Do we think that's constitutional? I think my first answer is it depends what they're doing.
- [53:02]
A
Totally, totally.
- [53:05]
B
The executive power still has to be in the executive branch. The legislative power still has to be in the legislative branch. So if that agency now is setting the rules by which someone gets a broadcast license, that sounds very legislative. Two thumbs up.
- [53:23]
A
Yeah.
- [53:24]
B
If they are then giving those licenses to people who have applied for them. That sounds very executive.
- [53:32]
A
You know, it's interesting because if you think about an executive agency, executive agencies tend to have two primary functions. And it is the combination of the two functions together that gives them so much potency. They have a rulemaking function and they have an execution function. And so they make the laws that they execute that makes an executive agency ridiculously powerful. And so a legislative agency. If you had a legislative agency, let's say the EPA was a legislative agency, it would be able to be in the rulemaking business. It couldn't execute the laws. It's a weird artifact of history that we created a system in which executive agencies are also rulemakers and the legislature in some circumstances tried to hold on to that with the legislative veto, that got struck down. But if you had a legislative agency, that could absolutely be a rule making agency and Congress could set a lot of rules about how that person who is under its jurisdiction is hired, fired, et cetera. If it's a legislative agency, it's not going to have a lot of ability to execute the law. It's just not. And so this is why if you go back to the beginning of the administrative state from its inception, it was a giant mistake in my view, to hand enormous amounts of rulemaking authority into the executive branch. Because now on any given year, actually more laws that govern your life are usually made by the executive branch of the government than the legislative branch. And you know, I think it's one of those things where, you know, maybe the whole concept of stare decisis and reliance, there's, that's just, we just can't, we can't untangle that mess unless you have major statutory reform. But that's really the original sin here. In my view, Sarah is taking an executive agency and putting rulemaking authority in the executive branch.
- [55:38]
B
All right, David, when we get back, you're going to answer this question. If you suddenly had to trim the Supreme Court down to three people of the nine, taking into account whatever you think should be taken into account, who would the three be?
- [55:52]
A
Oh, my gosh. Why are you doing that to me, Sarah?
- [55:58]
B
So, David, I think this is a really hard question for me because I keep flipping all over the place about what I think are the most important things, right? There's x axis considerations, there's Y axis considerations. By the way, my wonderful professor friend who did all of that math for me, Dean Jens, has also now created a third axis to see what's happening on that axis. More to come on that as we work through the math. So, David, I'm starting with you because I'm all over the place.
- [56:29]
A
I'm so upset that you've asked me this question. All right, That's a great question. Okay. I mean, obviously, if my name is Neil Coney Bersich, then you've got two of them right there.
- [56:42]
B
You're putting both of them in the three court. Okay, interesting.
- [56:45]
A
Well, but. But I'm gonna. Here's what I'm gonna do. I'm gonna go from one each of the three. Three, three. So. So the easiest thing in the world would be to take sort of the three justices. You agree with them, right? But I think that that would be even though Justice Barrett and Justice Gorsuch disagree with each other all the time, add one more of the conservatives, and you've got some group think going there. So I would go. My triumvirate, the. The Roman triumvirate would be Kagan, Barrett, Gorsuch. So you've got one from each three.
- [57:16]
B
Okay? So here, I'll tell you what I'm going back and forth on, okay? I think that Kavanaugh and Barrett have very different views of the law in sort of high institutionalist, interesting ways. Just look at the tariffs decision.
- [57:34]
D
Right.
- [57:35]
B
Or Justice Barrett's concurrences in a lot of these other cases that I think make her uniquely positioned to do that work on, like, Major questions doctrine, for instance, she's far more of a formalist. So one version is Kavanagh, Barrett, Kagan. But as you said, David, I'm missing. There's a spice missing.
- [58:01]
A
There's a spice missing.
- [58:02]
B
There's a new mommy that I don't have. And so then it's like, okay, fine, if I'm adding gorsuch who am I taking away? Okay, so here's my thinking. On the one hand, I want to take away Kavanad. I want to keep that Barrett. You know, again, major questions, doctrine, and their main conflict. I really like that. So it would be Gorsuch, Barrett, Kagan, which is exactly yours, annoyingly. But there's something about the fight between Gorsuch and Kavanaugh that I am simply drawn to. And once again, in the stat pack this term, those are the two justices appointed by Republicans that are least likely to agree, and nobody has come up with a great sort of legal theory of it. Right now, I think we're working under the wedgie theory of high school popularity as our best analysis. So, yeah, I'm. I'm really drawn to that. But I'll admit I'm. I'm missing. I'm missing all sorts of things from the other six. I want the Chief's, you know, heavy is the head that wears the crown vibe. I actually think that really adds something. I like having Justice Alito out there with his, like, not at all. First Amendment absolutist takes Justice Thomas saying, like, I will follow this originalism train off the cliff, like Thelma and Louise. Sort of keeps everyone honest. And then, of course, Justice Sotomayor, you know, the interplay between her and Justice Thomas on the affirmative action case, for instance, where they both go to the same law school within a few years of each other, and both experience discrimination because of affirmative action people presuming that they were not qualified. That is a neat thing to have represented on the Court by two people. And, you know, for as much grief as I give Justice Jackson, because we're so dissimilar in our institutional vibes, it's a flavor, man. She's the little red pepper flakes.
- [60:06]
A
Well, she's also the only justice who's inspired a tattoo, a fake tattoo, and
- [60:10]
B
I have it on my desk right now. Other cases presenting different allegations and different records may lead to different conclusions. So I don't think there's a wrong answer to that, except if you're picking only people who agree with your policy outcomes, that will be the only wrong answer that listeners can give me. David, one more thing before we go. Gabe Roth over at Fix the Court wrote up the financial disclosures this year. Justice Alito got an extension, as he normally does. So we are looking at eight of the justices, and I wanted to focus on the book earnings. So this is, like, how much they've earned from books for their whole, like, 10 years on the Court. Not just in the past year. Okay. Justice Thomas, 1.5 million. Justice Sotomayor, 4 million. Justice Gorsuch, 1.7 million. Justice Kavanaugh, 300,000. Justice Barrett, 1.2 million. Justice Jackson, 4 million. And of course, the Chief justice and Justice Kagan haven't written any books. Here was Gabe's suggestion, and I'm so curious what your initial reaction is. Fix. The court is now calling on the Court to replace their earnings from writing books in accounts they can't access until after they retire from the Court. Two exceptions would be prudent. One for purchasing a primary residence and another in the event of a certified family calamity, a Justice's parents home is destroyed in a tornado or siblings contract a disease requiring expensive treatment. That seems like a loophole you could drive through, but okay. The same rule should apply to the writings of lower court judges. If this policy were in effect today, judges and justices might be more willing to retire sooner than in their fourth decade of service, which is now all too common. David, I want your reaction to this, but I also want us to think about what problem exactly are we solving?
- [62:03]
A
Yeah, that's a really good question. I do not think we have a book corruption problem in the Supreme Court. I found it interesting that some justices seem to make a lot more than others from their.
- [62:15]
B
Liberal justices make a lot more money than conservative justices. No question about that at this point.
- [62:21]
A
Yeah, yeah, absolutely, I did find that interesting. But I don't know what problem we're solving for. And by the way, this goes back to a conversation we had some time ago. I really think we need to pay judges more and Justices more. Look, if you're looking at the Justices salaries versus the median American salary, they still make substantially more than the median American. But you know, we're now in a world in which if they had stayed in, let's just say they had done work in the DOJ for a while and then they go and they land at a big firm. 20 million, 25 million a year.
- [63:01]
B
Oh, that might be a little high. I'd put it at 10 to 15.
- [63:04]
A
10 to 15.
- [63:05]
B
Because we're averaging. Right. We're assuming they're at the top of their peer group. Not literally the top.
- [63:11]
A
Yeah. And so there's a point, you know, 10 million, 15 million. They would be very, very. And you, you might think that, like, these numbers sound absurd. Look at the average profits per partner of the top, top law firms in the United States. And so it's one of the reasons why I just laugh every time like, somebody calls me a grifter, I'm like, guys, y', all, you have no idea of law firm economics now. But that delta is immense. It's just immense. And look, I know that there's a lot of prestige in being a judge. I know that there's a lot of job security in being a judge. You know, all of these things. I, I just don't think that is healthy to continue to have one set of salaries be stagnant and another set of salaries just exploding and expect that they're sort of, there won't be negative consequences of that.
- [64:05]
B
Okay, my focus. So I was like, at first I was like, well, we can, you know, those aren't the exceptions that I would make. I would have it like a 529 and primary residence and all sorts of exceptions for how you want to use the money. Then I was like, wait a second, what problem are we solving for? Because that's why they're writing the books, is to save the money, they're putting it in interest bearing accounts so that they get compound interest so that they have, you know, retirement money and vacation money and all these things because, you know, they now have to disclose every time they are borrowing a Kleenex from someone's house. So, like, they already are. Like, what do you, what is the extravagant lifestyle that we're trying to prevent these justices from living? We don't want them borrowing private plane time. I, I get that. Going to, sure, totally. Friends, second and third homes that are luxury homes. Okay, I feel okay, fine. But now we don't even want them using their own money to like, go to a nice dinner. What's the problem? So as you said, David, I would love for the justices to have some more money. The fact that it comes from books doesn't bother me at all. Unless we think there's something they're writing in the books that is corrupting the court or they're spending this money on something. They're what not. So are we really policing what they're spending the money on? And what do you think they're spending the money on? Nothing. I can see you think Justice Alito's shoes are too fancy.
- [65:36]
A
Let me just put this in perspective. The annual salary for an Associate justice of the Supreme Court is 306,000 doll. Chief justice earns $320,000. And I'm not going to say that's no money. Like, I'm not going to say that's a nice living. Like a person who makes 300,000 a year. They're making a nice living. There are lots of first year associates who will beat that number.
- [65:59]
B
Yeah.
- [65:59]
A
And they can barely draft a complaint.
- [66:03]
B
Well, remember that as soon as a clerk leaves the court, the going bonus right now for a Supreme court clerk is $500,000 in that first year. That's the bonus, not the salary.
- [66:13]
A
That's the bonus. And a lot of these guys. I need to amend my statement. They can barely draft a complaint. No, no, no, they cannot draft a complaint.
- [66:24]
B
Let's just crap on first year associates for a while.
- [66:26]
A
I've been one. I've been one. I remember getting the first assignment to draft a complaint and like, being literally nervous because I had no idea what I was doing. And look, I could go to the brief bank and I could sort of co and all of that, but. But yeah, I had. When I. The first time I drafted a complaint, I knew I did not know what I was doing. And look, I was getting overpaid to do that. But that is so that, that's just to put it in perspective. And I, I know there's a lot of people listening who hear those numbers and they'd say, well, I wish I made that much money. And I get that. I totally, totally get that. But I'm also of the view that over time, when you create massive economic disparities at the highest level of achievement in a profession, it creates tensions and problems. But I agree with you, in the short term, they're trying to solve a problem that doesn't seem to really exist when it comes to book advances.
- [67:30]
B
All right, David. Our next episode will be our term review with David Latt of original jurisdiction and Professor Akhil Amar of Yale Law School. We're gonna do themes, you know, what exactly what is this term? And you guys have heard plenty from us, so we'll try to have plenty from other David and other. Akhil. Sure. And David, after that episode, we need to walk through all the cases that have been granted cert so far for the fall, including the assault weapons ban, climate change preemption, trans kids, and whether parents have standing to challenge some of these laws. I mean, there's a lot we need to go through as well as the dissent from the denial in the Dershowitz actual malice case. What's happening with that, and so much more. I mean, we've got circuit opinions that have just been languishing. It's like, if nobody's talking about the circuit opinion, did it even happen? You know, so we want to give some love to those circuit cases that have been sitting there waiting for us. All this and more on the next few advisory opinions. Sam.