Loading summary
Transcript108 lines
- [00:00]
A
Welcome to the Advisory Opinions podcast. I'm Sarah Isger and we have a special episode for you today. We are here at the Johns Hopkins Bloomberg center in lovely Washington D.C. where you will be shocked to hear that while yes, it is very humid, the temperature is actually quite civilized. And I want to thank, of course, our presenting partner, the American Civil Liberties Union, the ACLU which has allowed us all to be here today. We are so grateful. And joining me on stage for this OT25 term review, the David French, frequent partner in crime, and Professor Akhil Amar, the one, the only, the shaggy haired. He has enough hair for he and David combined. And finally, David Latt of original jurisdiction. Gentlemen, let's get to it.
- [00:54]
B
You ready? I was born ready.
- [01:12]
A
October term 25 is at its inevitable conclusion now that we are in July and I want to do thematic stuff. We're not, let's not get too far in the weeds on any single case unless Professor Amar insists, in which case I let him control this podcast whatever he wants. But there were so many cases this term that I think we've sort of forgotten. So I'm going to do a quick reminder of the cases that maybe didn't come out at the very end so we can have, you know, the full OT25 vibes theory before we jump into it. Conversion therapy. That was an 8:1 case wellness checks under the 4th amendment campaign finance coordination. Of course, counting ballots after election day, challenging counting ballots after election day was a whole separate case challenging free speech zones, drugs and guns, guns and property, state subpoenas that might chill speech IQ and the death penalty. The case that I argued was probably would have the greatest economic impact on, you know, average American people, was a trucking case. And I just want to read the first paragraph of this unanimous decision which again I think is the most impactful case of the term. The Federal Aviation Administration Authorization act preempts state law related to the prices, routes and services of the trucking industry. But there is an important exception. States retain authority to regulate safety with respect to motor vehicles. This case presents the question whether a claim that one company negligently hired another to transport goods falls within that exception. I know you guys are speechless. I'm having a walk down memory lane. Cause I spent a lot of time on trucking Twitter and trucking YouTube after that decision came out. And let me just tell you, there are worlds out there you've never been in. They are large, you know, several, five, four cases that didn't get attention. The United States retains sovereign immunity for claims arising out of the intentional non delivery of mail. Because both miscarriage and loss of mail under the FTCA's postal exception can occur as a result of the postal service's intentional failure to deliver the mail. That was one of the most contentious cases of the term. When the post office, you know, doesn't deliver your mail, what are your rights? So I now turn to each of you. Should we really cover term by term, or should we be covering this in three terms? Should we be covering it in 10 terms, 25 years? Should we every single time add this to the last 230 years as like one more drop in the bucket of bean counting terms? What is the correct way to cover the Supreme Court in July? David French.
- [04:13]
C
Yes, to all of it. I mean, I think look at it like this. Think about the term review is like the newspaper version of history. Then after two to three years, you can have like the magazine version of history. Then five years is the journal. 10, 15, 20 years is the book. And so this is sort of how we understand the world around us. We do our best to discover and understand it in real time as best as we can. And sometimes we don't know where at the end of a trend or the beginning of a trend, or if there's no trend at all, it's just a blip. But we do our best, and then over time, more things unfold. So I think it's just all part of an unfolding, unrolling process. Especially when you have actually sort of, by historical standards, we have quite a few justices who are relatively new by Supreme Court years. And so we're still learning. We're still learning about Justice Barrett's jurisprudence. We're still learning about Justice Kavanaugh's jurisprudence to some degree. Justice Gorsuch, definitely Justice Jackson. So it's a learning process. But you gotta have the first draft to work from. And this is the first draft.
- [05:15]
A
So what did you learn?
- [05:17]
C
So you know how law review articles often have. I'm just gonna presume you know this. Cause I think I'm probably talking to a mega nerd audience right now.
- [05:26]
A
Roman Martinez is here. It's a mega nerd audience.
- [05:29]
C
Mega nerd audience. So you know how law review articles have a catchy title, Colon, boring subtitle. Right. So I can't think of the catchy title yet, but I have the boring subtitle.
- [05:40]
D
Oh, good.
- [05:41]
A
Let's definitely to run with that.
- [05:42]
C
Then we'll go with the. Let's lean into the boring. So the theme of it is the turning of the culture War and the shaping of the presidency. So I think this is a term where we have turned. The culture war has sort of decisively changed to where a lot of the things that used to generate weeks, months of coverage and commentary are now passing almost unacknowledged. When you brought up conversion therapy case, who is talking about that now? We had the trans sports case. This is something that five years ago would have been extraordinarily explosive. It didn't even make it out of the day as a news item because of birthright citizenship. And so what you're seeing is really the intensity around the court is moving from the classic culture war issues and it's moving into something that I never would have thought like when I was in law school and I'm, I'm vibing with separation of powers. At no point did I think this is provocative. It gets the people going. Nothing about that did. And yet now it is everything. It is the heart, it is the soul of sort of the emotional response to the court is in, is in the separation of powers. And so I think this was a very consequential term on two grounds. One was it really did in many ways signal that the culture war is changing in some pretty interesting ways. And then at the same time, I think it was very important for a point you made in the Times where it looks as if the court is giving the President more power over a diminished branch. So it limits the power of the presidency, but it gives the President more power over the executive branch. And I feel like that's the trend we've been on for a while.
- [07:30]
A
Professor Amar, I've been waiting for you my whole life. And here we finally are. Don't give us the newspaper version. I want you to be the one who adds this bean into the jar of beans of the last 230 years. What did this term tell you as a historian of the court? What America's doing right now, what the constitutional crisis is that we're experiencing, and how it's built on 250 years of history, or knowing, I don't know, let's do a thousand years of history. If you start with 1066, I will not be shocked at all.
- [08:06]
B
We have a free weekly podcast, America's Constitution, and we did a five part series on church and state when we went back to Jesus and Peter and Paul. So, you know, I got you by another thousand years. But I agree with my friend David that we need both. And we need the newspaper version and the magazine and book versions. We need to keep looking back since we're in a building that used to be the Newseum, I dedicated a book about my journalistic pieces. I wrote a whole bunch of pieces in the moment and I put them together later in a book. It's dedicated to the great Bob Woodward. He's our greatest journalist, but he's also an historian. And what he does is he goes back to the same issue. After the passage of time. For example, when Gerald Ford hardened Richard Nixon in the moment, he thought that the fix was in, it was all corrupt. He kept going back, interviewed Ford again and again and again. And Ford, like the fifth time says, you keep asking me this question, you know, I'm going to tell you actually what really happened now, you know, after all these years. And. And he changed his mind. He said it wasn't corrupt at all, the fix wasn't in. So, you know, we have publication of Supreme Court papers and every year, yes, they get. They mature and some people rotate on, off. So I would say that the narrow theme of this term and of the emerging Robert's Court is attempted originalism and how the court as a whole ends up outperforming the individual justices. So you mentioned beans. You know, counting beans in a jar. So at the county fair, you know, you're gonna go back to Texas, they have county fairs over there. So if you want to figure out how many beans there are, jelly beans there are in a jar, how much a heifer weighs. Do you know what a heifer is? She does, but, you know, okay, Texans know what heifers are.
- [10:06]
A
Oh, I am surprised he knows what a heifer is.
- [10:08]
B
Okay. You always be surprised. And whoever gets closest wins the grand prize, wins the heifer or whatever. What are you going to do with it? It wins the jelly bean jars. Jar of jelly beans. Here's actually. This is called the Condorcet jury theorem. This is actually. It's called the wisdom of crowds. Bunch of not very impressive individuals add up to a very impressive collective. This is interesting. Here's what you do. You poll everyone at the county fair. You take the middle guess, you're going to be very. You're going to outperform Einstein. Okay, so the individual justices, maybe they actually, each one is trying, but they're not that great. But the median justice often again and again, I think, gets it pretty close to right across the range. And they're trying to do originalism now in a way that they weren't trying to do that, let's say 30 years ago. And then we can get into the details later on.
- [11:06]
A
Is this Kind of a stealth argument for court packing, because, right, like, 15 people are smarter than nine people. 30 people are smarter than 15 people. Like, under that theory, more is better.
- [11:16]
C
But then we get to 435, and then something happens to the collective IQ of the group.
- [11:24]
B
So in Condorcet, just to nerd out, this is a great mathematical insight. It's Condorcet jury theorem, and it's about juries and size and how 12 might be better. And one in the contrast age theme, they don't talk to each other. It's independent assortment. Everyone guesses how many jelly beans there are in the jar. But if you're actually going to talk to each other, that actually changes the dimension, the dynamics quite a lot. And, yeah, 15 people talking to each other may not actually work as well as nine.
- [11:55]
A
Indeed. Okay, David Latt, I thought of you as my magazine type. You've been doing this for. We're on decade two now, Decade three. I was originally introduced to David Latt from the Anonymous Underneath their Robes article three, groupie. And then when I met the David Latt, you guys, like, this was a really big deal. We went bowling at the White House together, and I didn't bring socks. And you can't go bowling at the White House without socks. And he lent me a pair of socks. And then I was like, oh, no, what do I do to repay David Latt for these socks? And I held onto these socks for 10 years thinking, anything day. Now I'm going to run into David Ladd and give him these very old socks. And David, I am sad to say that I threw away the socks a few years ago and I owe you a nice pair of socks.
- [12:46]
D
Well, it's great to be here. I am looking for my socks. So as vavisory opinions listeners know, I'm a frequent guest guest of the show, and I think I am often too agreeable. I think I am often agreeing too often with Sarah and David. And so I have come ready to rumble. I am going to be the disagreeable person on this panel. So I'm gonna disagree with all of you, even though you're all quite brilliant. So I'm gonna start with David's point about the culture wars. I think maybe we have perhaps, like the American public, the legal profession maybe has followed the American public. Perhaps we are less focused on transgender rights and that issue as we used to be. Perhaps we have transcended the transgender rights wars, but I think we're still pretty culture wary. We had hot button cases this term involving issues like immigration and Guns. Looking ahead to OT 2026, we have a case about AR15s, which I am. I want to full disclosure, I've written about this. I'm not a second amendment fan. I want to just repeal the darn thing. But AR15 you will pry from the cold dead hands of millions of Americans. So I think we are still very much involved in cultural wars. And then I guess you were right in calling me the magazine person. With all due respect to my brilliant former professor Akhil Amar, who is steeped in history, I'm gonna argue in favor of taking a very short term approach to studying the court. Let's just focus on this one term because you previously met at this conference my husband Zach, who's the executive editor of SCOTUS blog. And whenever I complain about some terrible, terrible thing that has happened in the news, he'll say, well, you know Andrew Jackson. I was like, no, no, no, no, no, no, no. We are human beings. We are creatures of the here and now. Let's talk about the current moment. So I'm very contentious today.
- [14:48]
A
Well, yeah, someone had their Wheaties. Professor Amara, what is originalism now?
- [15:01]
B
It's a cluster of methods.
- [15:05]
A
I thought we were doing something.
- [15:06]
C
Something else was coming.
- [15:10]
B
Here's what it's not conservatism as such. Okay. You can be a conservative and non originalist and you can be a liberal, an originalist. If you focus most of all on precedents, you're one kind of justice. You could be a liberal precedent person or conservative precedent person. If you focus most of all on the text of the Constitution and the history of its enactment and amendments. Because history is everything that's ever happened up to this moment. But history isn't the Ming constitutionally. If you're originally. It's not the Ming dynasty, you know, it's not Henry IV either in Germany or France, it's. Or England for that matter. It's history associated with the adoption and amendment of the Constitution. Text, history, the structure of the Constitution that's part of the text. Often reading the thing as a whole, if you focus on that and there are different ways of doing it, some look at dictionaries, some, you know, focus a little bit more on thing as a whole. Dictionaries tend to focus on clauses and words. That's Scalia. I tend to focus on history more generally. But we are both originalists, Scalia and I. He's conservative, I am not. But we're different from a precedent person. John Roberts instincts actually are more precedent based. But he writes some originalistic opinions Couple just in the last week, two of them, they begin. One of them begins with Gordon Wood. Another one cites Gordon Wood three times. The late, great Gordon Wood. So originalism is to be distinguished. Let me two other possible schools of thought. Doctrinalism, Precedent. I told you that. And that's principled. Just different. Pragmatism, prudentialism. Breyer on the left, a Posner on the right. Or just making stuff up, you know, because your name is Steven Reinhart and you can do it.
- [17:18]
A
It can't catch them all.
- [17:19]
B
Exactly. So the lawless people, you know, call them Steve Reinhart or Bill Douglas or something like that. And they have their counterparts on the right, the pragmatic people, at their best. They're a little bit more constrained than just doing whatever they want. The precedent people and the originalist types who tend to focus most of all on text, history and structure.
- [17:45]
A
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 July flash sale. That's BrooklynBetting.com and promo code ADVISORY for 30% off site wide exclusive with this code. BrooklynBetting.com promo code ADVISORY. I'm actually going back to David Ladd on this one because he's feeling so feisty and I think, I fear I already know your answer. If you ask the political right and the political left about this term, they will say that Trump won. Just like that's the theme of the term. If you ask the sort of court middle, I would say, like court watchers and reporters, they would say Trump lost. And they list all these cases that Trump lost on. David Latt, did Trump win or lose, or is that the wrong question?
- [19:12]
D
I'm not gonna fight the hypothetical or dodge the question. I've never been one for that. I would say that he lost because he lost his really big things. He lost. You could kind of say sort of his big three. He lost in tariffs, he lost in birthright citizenship, and he lost in Terms of trying to remove Lisa Cook from the Fed. Those are three big things. Now sure he did in the Slaughter case get the ability to REM executive officers pretty broadly, but the writing on the wall was kind of there. I think the Chief justice said that the majority gave Humphrey's executor the contrary precedent a respectful burial, but it was already on life support. And I would say Trump lost bigly. And I think if you go on truth social, you will find Trump kind of thinking he lost with respect to the courts and the Supreme Court. He has a perpetual sense of aggrievement to. So you can ask the left, you can ask to the right. If you ask Trump himself, I think he would say he lost and I don't know if he's tired of losing.
- [20:18]
A
Okay, David, when it comes to Slaughter, you've argued that in fact, to the extent Trump won, fine, he won for two years. But the real winner is whoever the next president is who can fire Trump's appointees to for instance, the fcc. Because Trump, you know, followed the rules, so to speak, under Humphreys and so his appointees would have then had this independent tenure who could have only been fired for cause by the next President. That's no longer the case. What about Trump's other successes? They might not have been his, but he was happy about them. So for instance, okay, Mississippi, Mississippi's laws accepting mail in ballots five days later stood loss. But on the other hand, coordination between political parties and candidates, thumbs up, overturning precedent, in fact, and you know, when it comes to immigration. He won. He lost. He lost on alien enemies, he won on asylum. So is it maybe more of a draw?
- [21:20]
C
Yeah, I think of it like this. If you are going to this court with a pre Trump conservative argument, which Slaughter, by the way, I mean, some of us have been hating Slaughter before. Way before it was cool to hate the slaughter. I mean, I'm sorry, Humphreys executor. Some of us have been hating Humphreys executor.
- [21:38]
A
To be clear, I think. I think Mrs. Slaughter is here.
- [21:40]
C
Oh, I'm so sorry. We, we appreciate you, man. That is the worst misspeaking I have ever done.
- [21:51]
A
We in fact very much appreciate. Appreciate Slaughter.
- [21:54]
C
Oh my goodness, you're a fool of a person. I'm so sorry. Some of us have been hating Humphrey's executor.
- [22:01]
A
Screw that.
- [22:02]
C
Not even actually the guy, not actually the executor, just the case. Like I'm sure Humphrey's executor was also a lovely person.
- [22:09]
A
I think the executor might have been. It doesn't sound like Humphrey's was, by the way.
- [22:13]
C
Humphrey might have been bad kind of a D. Yeah. So some of us have been not liking Humphrey's executor for a long time. This is a very, a part of a very old originalist argument about executive power and the separation of powers. And so I do think if you have, if you are making a lot of pre Trump conservative arguments with things that would have coded as conservative slash Republican before Trump, a lot of times with this court, which is, by the way, packed with people who came up in the conservative legal movement before Trump, then you're often pushing on an open door. But the Trump administration, as we know, is this amalgamation of some elements that are very much reminiscent of the before times conservatism and some elements of it that are very much not reminiscent of it. And so I think you have to really ask, okay, what kind of argument is Trump making? Not is Trump making the argument? And, and what I would say is, if you're looking at it, this is a pre Trump conservative court that is becoming a kind of what I think of as a newer kind of originalism that I really don't like that we can get into, which is emphasizing historical inquiry to such an extent that it feels as if it's not text, history and tradition or whatever. It's history, tradition and text is sort of the emphasis. And so which I think needlessly complicates a lot of cases and also introduces massive elements of just the judge's own perception and judgment. I don't want to read another opinion that in some way hinges on the interpretation of a constitutional provision that was engaged in by, say, the Kentucky state legislature in 1872. They're not an interpretive body, they're a legislative body. Why are we using their legislation in any way that matches anything that looks like precedent? It doesn't make much sense to me. And so I do think that you are dealing with an originalist court by and large that came up in the pre Trump world and a lot. And it's really interesting to me how you can take that last term and you can take previous terms and sort of track them onto pre Trump conservative movement priorities, MAGA priorities and pre Trump conservative movement priorities. From Dobbs to Bruin to Humphreys to Slaughter, Humphrey's executor reversal. In those circumstances, the court has been quite conservative. If you're talking about MAGA legal priorities, birthright citizenship and other tariffs, et cetera, the firing of Lisa Cook, the deployment of the National Guard to Illinois. Those are meeting with a lot more resistance. And I think one of the reasons is it's just fundamentally at odds with the legal philosophy of the majority of the court.
- [25:10]
A
Professor Amar, just on that.
- [25:12]
B
Just one quick. So I think you may be right. We are living in Steve Calabresi's world and he founded the Federalist Society. He's the national co chair. These aren't Trump appointed judges. They're FedSoc better judges. And I say thank God for that because otherwise we'd have Judge Judy and Justice Matt Gaetz or some other crazy person. And instead we're getting folks who grew up in a conservative movement very much shaped by FedSoc and its images and themes and priorities. I think that's an interesting observation. Yeah.
- [25:58]
A
Although I still can't get over the fact. So last term Justice Kavanaugh and Justice Gorsuch, who you can't find two people who were more raised from birth, really high powered conservative mothers in Washington D.C. before there was a women's restroom in the Senate. These kids are being steeped in a Federalist Society petri dish before the Federalist Society even exists.
- [26:22]
B
And you say they're in the same high school and they have the same teacher. This is in your book, which you all of course have to read.
- [26:29]
A
Obsessed with the psychoanalysis of these two. And last term they only agreed with each other 50% of the time. Justice Kavanaugh was more likely to be with Justice Kagan this term. Gorsuch ekes out Justice Kagan, but is still the least likely conservative Republican appointed justice for Justice Kavanaugh to agree with. So it's like on the one hand we're talking about them being, you know, pre Trump or conservative or Fed soc judges and yet they're not agreeing with each other very much.
- [26:59]
B
And that might be true, especially if you throw in all the cases into the statistical analysis. We'd want to maybe see how they on the big cases that the Steve Calabresis of the world teed up like Humphrey's executor, like other separation patterns, the relationship between the legislature and the executive when it comes to the taxing authority or something like that, whether there's more alignment. I haven't done the math.
- [27:32]
A
Thank you for the segue to my next question. What is a big case? That's for you.
- [27:39]
B
Oh. So if you read Sarah's book, she says when they agree on things, the justices and the press doesn't count it as a big case. And this is implicit, I think in how she began saying, here are all these things you've forgotten about. Because maybe they agreed on it. So we've just decided since that one transgender case was 8:1 or something like that. Oh, that wasn't a big case. Oh, since that one guns and drug case was 9 0, that wasn't a big case, you see, because the liberals like drugs and the conservatives like guns. And you put them together, and either everyone's going to hate guns and drugs or everyone's going to love drugs and guns. Okay, so her thesis in this book, which I've read, or at least I blurbed. So I blurbed very favorably. It's a great book. I want you to read it one day. I'll do that. No, no, no, no, no. I have. And she says, I'm gonna tell you what the book says. She says, you know, there a lot of cases that don't get coded as important. Cause the press wants to cover things when they're at each other's throats or something like that. So one answer would be, the big cases are what the press calls the big cases. And the press wants to sell papers, and they want to sell papers where there's a certain division and they maybe like it the most when there's a partisan division. The classic six three. And you say, actually, yeah, but there's six threes that don't divide that way. They divide in weird ways. And the press sometimes is less interesting. You mentioned the mail in case. The mail in ballot case. That was Barrett joined by Roberts with the three liberals. Right. You know, four weddings, and if, you know, that's like four women and a chief or something. And we saw that lineup. Actually, isn't that pretty similar to the lineup in Birthright Citizenship on the constitutional issue, the three liberals, Democratic appointees, and Justice Barrett and the chief justice. So. So she's asking a very nice question. I said, well, you know, if you throw everything in all the unimportant cases, you get this result. And she says, okay, well, Akhil, well, you tell me what an important case is. So, you know, and. And because she's a little skeptical, she thinks what we count as important cases is itself actually influenced by a certain theory about how they should be dividing.
- [30:13]
A
Well, last year, for instance, CASA was considered a big case. This was the nationwide injunction case, the, you know, the immunity case, the presidential immunity case. On the one hand, I'm, you know, I can take the other side of the argument and tell you why they're important cases. And on the other hand, here we are Several years later, like, we're not citing those casa, you know, not having nationwide injunction hasn't somehow allowed Trump's executive orders to move forward. Casa, in particular, I think is my best example.
- [30:47]
B
We got the Barbara case that came up, you know, even despite casa, it was April to come.
- [30:53]
A
Exactly.
- [30:53]
B
And what he said earlier, what David French said earlier about how, you know, the independent agency cases will benefit maybe the next president who, you know might be a Democrat. So the people on. I hate that immunity case for ex presidents. I really do. I think it was disgraceful. But the people who love it the most today that a president can't go after ex presidents, a sitting president can't. They're named Barack Obama and Joe Biden.
- [31:22]
A
I would actually argue that case is like just a meaningless nothing burger until we get part two of whatever it is, because it doesn't say anything. No one knows what is your thing, David. No one knows what it says. But it gets the people going.
- [31:34]
C
Provocative.
- [31:34]
A
It gets the people going.
- [31:35]
C
If you don't know if bribery is still illegal, we don't know what the
- [31:39]
A
case really means, David.
- [31:42]
D
So again, in my role as a spoiler or skunk at the garden party, I want to go after another advisory.
- [31:49]
A
These are adorable.
- [31:51]
D
I want to go after another advisory. Opinions. Sacred cow. Next thing you know, I'm going to be telling Congress not to do its job. But I think one, they don't need
- [32:00]
B
any help with that.
- [32:03]
D
So I think one thing, Sarah, that you and David French have been pushing for a long time is, you know, these declarations of big cases, it's all sort of cooked up ex post facto. If the case comes out a certain way, then if it's not as juicy and controversial, we say it wasn't big. And we need to determine the big cases in advance or ex ante. And I'm going to push back on that in this sense. I think there are some cases where it's not big or small before it gets decided. It could be big or it could be small, depending on how it gets decided. So, for example, since this is a super nerd audience, a lot of you will remember Moore v. Harper, the independent state legislature theory case, which would have given state legislatures much broader power over elections. If that case had come out the other way, it would have been huge. Or take Barbara, which Cecilia argued so ably. If Barbara had come out the other way, it would have been even huger than it was and I'd probably be on a boat back to the Philippines. So I am going to push back a Little bit. I think sometimes there were some cases where we need to wait to see if it's big or not.
- [33:13]
B
Here's a reconciliation. He you're saying, and I think you're right, let's try to specify ex ante what the big cases are. You could have that idea and David's idea ex ante. You could say Barbara will be big if they screw the pooch, but otherwise not. You know, Moore versus Harper would be big if they went for this silly independent state legislature theory, but otherwise not. But as like a professor type scientist, I like your idea of trying to identify what's big and not what would count as big and not in advance and not after the fact.
- [33:49]
C
Well, and just a point to that also, some of what becomes big in the media and the public square is it becomes big based on ignorance. And I think the classic example of that is the nationwide injunction case. Because I think the way that was presented was, well, this is the only way to stop, you know, a Trump executive order or whatever is to have a nationwide injunction. And by eliminating nationwide injunctions, that gives Trump a free hand for how, however long, outside of the jurisdiction of that particular court, you're not going to be able to restrain the executive. Meanwhile, all these practicing lawyers out there are going, I got a little class action lawsuit up my sleeve. I've got the Administrative Procedures Act. It has its own provisions. And so you had multiple ways to get to the same result. And a lot of people, and this is not insulting somebody who is say a non lawyer reporter or even a lawyer reporter who's not steeped in litigation tactics that often you hear about a case and you see coverage about a case and there's, it's just not quite right. And the not quite right element of it kind of drives the larger public like up a wall because they think that something bigger or worse is happening when it's really not.
- [35:10]
A
I mean, my hot take is if CASA had come out in the middle of the term, nobody would remember. There's also a last day problem. Whatever gets released on the last day, that's contentious. And five four is going to get a lot of coverage. Okay, this is a question for each of you. You are clerking for the Chief justice in the 20th, 21st year of the Roberts Court and you're going to do a little after action meeting. You know, he's about to go on vacation to wherever Chief Justices go. I've heard Maine is a popular chief justice spot where nobody knows your name. What advice do you have for the Chief Justice Given what has come before and what we feel at least is all looming in the future, which is potentially, for instance, a Democratic takeover. The House, where one of their main focuses is the Supreme Court as an institution where a Democratic president is likely, if we were betting right now to win in 2028. And so one of the first priorities in 2029 may well be eliminating the filibuster to add seats to the Supreme Court. What's your what, what advice do you have for your boss today, Frenchie French?
- [36:26]
C
Well, you said he's in Maine, so my first piece.
- [36:28]
A
So he's about to go to Maine. The last person in his ear.
- [36:31]
C
Okay, so he's about to go to
- [36:33]
A
Maine to eat lobsters.
- [36:35]
C
Have you considered running? I mean, you know, that's kill two birds with one stone. It's not his problem anymore. He can fix a whole nother problem. I mean, like, there's a lot going on there. Yeah, that's a great question, because one of the issues when you're thinking about the court as an institution, and you and I have talked a lot about institutionalists, and one of the ways that I think of institutionalism is to go back to Justice Ruth Bader Ginsburg's famous speech she gave in the 90s where she talked about her critique of Roe and she was talking about, well, Roe was breathtaking in scope. Was the actual was the wording that she used that it was breathtaking in scope. And had the changes been more and I think the word she used was interstitial, would we be in the same position we are with this giant flashpoint sort of every four years? And I think the answer to that was probably an obvious answer that had there been more incremental rulings, you would not have had this giant flashpoint. And I think that one of the questions is how, how much are how far are you going to reach with your judicial philosophy? Because originalism is an approach to looking at the law, but it doesn't necessarily dictate the scope of any given outcome. So a narrow outcome can be consistent with originalism. A big outcome can be consistent with originalism. And let's take, let's take the the birthright citizenship case. One of the things that I think was a little bit surprising to me was how many different opinions there were. And I think the reason why there were so many different opinions is the case, as we've talked about the case, went straight to the underlying constitutionality and didn't just sort of say, okay, there was a whole nother path, arguably, that would Say, well, look, whatever the constitutionality is, there is a statute here and the statute means X and you can't override that by executive order. Is that's a more interstitial kind of ruling. Would that have created a greater degree of consensus, led to sort of less of a furious backlash that we saw? Because I'm concerned. I'm not just concerned when I think about the institutional integrity of the Court. I'm not just thinking. I, you know, as a conservative, you often grow up thinking about progressive critiques of conservative justices. But now I'm also thinking about populist critiques of conservative justices. And how. How can you deliver rulings that are faithful to the law, faithful to the Constitution? And then how much, though, should it impact you to sort of think, if we go big, we. It's like throwing a giant rock in a pond, and if we go small, it's throwing a much smaller rock in the pond and should that matter to the analysis? And I think that that's a very good but difficult question to answer.
- [39:39]
A
Objection. Non. Responsive. David Latt.
- [39:41]
D
Okay, I will be responsive. I will give the Chief advice. And before I do that, I wanna offer a caveat because I know that some justices are rumored to listen to advisory opinions. I'm a huge admirer of the Chief. I kind of think in the spirit of the three. I kind of think in the spirit of the three.
- [39:58]
A
He's so handsome.
- [40:00]
D
Yes, he was a super hottie of the federal judiciary back in the days of underneath their robes, which is thankfully offline now. But in the spirit of the 3, 3, 3 court. I like to think of the justices in threes. And just to explain my affection and admiration for the Chief, he's in my top three for writers, he's in my top three for thinkers or deciders. In terms of how often do I like the result they reach. He's not in my top three for questioners, but two out of three ain't bad. But here's my advice to the Chief. Get a personality transplant or change that
- [40:33]
C
is inconsistent with your previously expressed admiration.
- [40:35]
D
Well, let me explain this. I think the Chief is in some ways one of the best justices on the Court as a justice, as a jurist, as a writer. But he's also the Chief. And for this polarized age, the Chief is very sphinx. Like when I told it, when I mentioned that maybe he should adjust his meds. He must be on a high dose of lithium. He, he, he has a, he's, he has a very stable mood. But for this day and age, I Think we need more of a bruiser. We need somebody to go into these offices and yell at them and be like, clarence, will you like effing. Stop it with all the separate opinions. Or like, amy, do you really need to write this one page concurrence? Cause you disagree with part 3B? Just join it, for Christ's sake. Like, we need like a bigger personality at the helm right now. Because in this polarized time, like, he was great for a long stretch of time, but I think in his chiefy role, not as his job. I love him as a justice, but in his chiefy role, we need somebody who's gonna really bang that gavel.
- [41:40]
A
Zach, what did you put in? I have no idea, David.
- [41:46]
C
I just wanna say, never compliment me in that fashion. I won't take it as well as I'm sure Chief Justice Roberts will.
- [41:57]
D
And we're live on Matchday as Doug reaches for a buffalo wing. He's got it. Oh, and he's gone for a can of Pepsi, too. What a finish. There's no doubt about it. It just tastes better. Match days deserve Pepsi.
- [42:13]
A
Professor Amar, you are clerking for the Chief Justice. What advice do you have for him? Before you, of course, as his clerk would finish up in like a week as the Chief heads out.
- [42:25]
B
So if you're serious, either you're serious about originalism or you're not. And if you're not, you shouldn't call yourself an originalist. You should say, we just do what we want because we're pragmatists. Or I'm a justice and you're not, so it's what I ate for breakfast, or it's the precedents and we try to follow them. And if it's the precedents, they actually have a certain expertise over them because they wrote some of those precedents and they can write them for the future. But if it's originalism, and that's what you're saying, and by the way, I think it should, because you took an oath to the Constitution, you didn't take an oath to the precedents, you didn't take an oath to your gut, okay? So if that's what you took your damn oath to. And there is a text, and the text actually can't be understood without understanding the history and how it fits into if that's actually what we're supposed to do, whether we're liberal or conservative.
- [43:21]
D
Wow.
- [43:21]
B
I'm paying you for 12 months as a taxpayer. I'll give you one month off. Okay? But on those extra two months, you got to Hit the books. By hit the books, I don't mean writing books about your wonderful life. Okay, I don't.
- [43:35]
D
Okay.
- [43:35]
B
And if justices, if it's about their personalities, then, oh, it's all about them. No. Damn it. So this is very self serving. Here's what you need to do. Every summer, not this summer, you gotta read, gotta read history. You gotta read Amar's books. And then you gotta reread Amar's books, this time with the footnotes and buy a different copy.
- [43:58]
A
Of course.
- [43:58]
B
And not just Amar's books, Gordon Wood's books and Randy Barnett's books, because historians do disagree. So do expert economists and antitrust cases and all the rest. But if you're going to be serious, and by the way, you're too old truthfully to do this, it's hard to learn new tricks. So I'm glad you hired me as a clerk, you, Honor. But going forward, you're going to have to hire actually clerks. They're not going to be producers of original scholarship, but they're going to be consumers of it. And if they actually learn some of this in law school. So take Amar's students as your clerks next year because actually he trains them up. And I'm seeing some of my past students here, several of them. And this is self serving, but it's also, and not just from one academic, but from many academics who are trying. Because what we're trying to do is to be friends of the court by telling them here's what Abraham Lincoln was really up to when he put together a party that gave you the 13th, 14th and 15th amendments.
- [45:12]
A
What are the Akhil Lamar best originalist opinions, regardless of whether they're conservative or liberal.
- [45:21]
B
So if we go all the way back to Jesus and Peter and Paul. So the great originalists in history have included John Marshall. Wow. And McCulloch versus Maryland is an impressive tour de force. And no one bats a thousand. You know, myself included, I don't write opinions, but in writing books and articles, Joseph Story writes three volumes about of commentaries about the Constitution in an originalist tradition. And Martin vs. Henders lessee is a very great non martial written martial court opinion.
- [46:00]
A
Okay, let's skip a little more recent.
- [46:02]
B
Okay. And they don't. Because it's really hard to do.
- [46:07]
A
You gave me cases this morning. You called me and you told me cases.
- [46:11]
B
Yes, but they weren't all purely originalist cases. It turns out that John Roberts's, you know, the 10 biggest cases of the Roberts court. I actually think I agree with John Roberts. And nine of Them and five are on the left and five are on the right. They're not all originalists, narrowly understood, but on the left. Okay, three this term, Cook and tariffs and birthright citizenship. And before that, oh, I'm for Obergefell and Sibelius and the chief was in all of those except Obergefell. On the conservative side, I actually as an originalist think that Roe was problematic. So Dobbs, I can, you know, is, is actually sound and, and it overruled precedents and city of Chicago versus McDonald actually, which is a gun case. I don't own a gun, I'm not a gun guy. But that and that overrules case from 100 years before Cruikshank. Okay. And Slaughter is an originalist decision going back to the, the decision of 1789. Let's take citizens United. That's a conservative decision, but I think speech is speech is speech. So when the Court is on the right or Roberts, I think has been in every one of those majorities except Obergefell and no one else. So here's what's really interesting. Back to the Condorcet jury theorem and being and counting them over beans. Jelly beans in a jar. Even if a lot of the Justices are off a lot of the time, if the left and the right kind of balance out and the person in the middle is generally getting it right. But if you're trying to do an originalist job as opposed to just looking at the precedents, wow, then you got to hit the books over the summer.
- [48:22]
A
David Latt, next term we've got a lot of cases teed up. What again, thematically, not necessarily any one case thematically. What's the Court's job next term? What is not its job? Where are the danger zones?
- [48:40]
D
Well, in a self serving spirit, I think the Justices should give all of us commentators a break and maybe have a somewhat sleepier term. And it's shaping up kind of that way. So far there are some big cases, but I don't think it's going to be the kind of blockbuster term that October term 2025 was. I have this theory that I think the terms sort of alternate between blockbuster and sleepy, or I should say relatively sleepy, because in the past couple of years I feel every term has kind of been big. So I think it's going to be a quieter term and maybe, I guess on a more serious note, maybe they should try to calm all of us down. Maybe they should try and take the temperature in the room a bit down. But again, I think that's easier said. Than done. And when I sort of half jokingly suggested that the chief take a harder line, I don't know that anyone could really be a good Chief justice in 2026. Things are just really difficult right now. Everything is extremely polarized. If you're not with me, you're against me, and you're a bad person. It's. It's a very, very difficult job right now to be the chief or to be an Associate justice of the Supreme Court. So, yeah, good luck.
- [49:58]
A
David, what is the thing that people are getting wrong about the Roberts court after OT 25 that is clawing at your skin?
- [50:08]
C
I mean, it just goes back to what you were saying at the very beginning. It's sort of reading everything through the lens of Trump and then getting this sort of fixed view that people have that this court is for Trump. And then what happens is when you have actual opinions that are dramatically different from being for Trump, like the tariffs, I mean, this is his signature policy, birthright citizenship. This is a core philosophical issue. You know, Trump v. Illinois. This is a much more important decision than people talked about at the time. This was troops in the streets, something that he's kind of had fond ideas about for a long time. And when you say, okay, no, it's rejecting signature Trump policies, you begin to realize you're in an unfalsifiable thesis, because then someone will say, well, that's just corporate interests intruding. So it becomes an unfalsifiable thesis that the court is bad because it's either ruling for Trump or for some other illegitimate thing. And there's sort of no real sense of independence. It's just an apparatchic of. It's just part of a larger political enterprise, period. And, and I think that this is very reflective of a larger problem we have in this country, which is, you know, we talk, we've talked about horseshoe theory in the political context and the political approach to the Supreme Court. That horseshoe theory is coming very clear. The far left and the far right are hating this court. They hate this court, and they're hating this court for a very similar reason, that they're not getting everything they want from this court. And one of the problems with extremism in this country right now is extremists are not only extreme, they also. Part of the extremism means that they can't even acknowledge good faith disagreement, that if there is actual good, if there's disagreement, it must be evidence of your evil or your corruption. You're bought off or you're just Bad. That's the only people who disagree with me. And that is just an absolutely untenable worldview to take into a courtroom dealing with. And Justice Gorsuch says this all the time when he talks about the court's caseload. These are the hardest cases in the country. The easy ones don't come up to them. It's the hardest cases in the country. And the idea that people of good faith and goodwill could not disagree on those things and that there's one, obviously the correct answer, and it's either the far left answer or the far right answer. And on the far right, it's not so much corruption. They say, you're just a coward. I'm so obviously correct that if you don't do what I tell you to do, you're a coward. That, that, that is corroding the entire public conversation about the court, just corroding it.
- [52:55]
A
Okay, last question to all three of you. What is the big case of this term? And you only get two choices. It's slaughter or tariffs. And then 10 years from now, will the birthright citizenship decision have mattered? David French, I will start with you. Tariffs or slaughter?
- [53:19]
C
Tariffs, I believe, is the far more important case. And that is no disrespect for the most wonderful person I know who's in this audience, whom I cannot wait to meet and get to know better. I think that tariffs was, I wrote this. I think it was the most important case of the new century. And I include that even in with Dobbs, in the calculus, because I think it was that important to establishing the extent of congressional power and congressional responsibility and the limits on presidential power and presidential authority. So tariffs. Absolutely. And what was the other 10 years
- [54:00]
A
from now, will the birthright citizenship decision, will we have said like, oh, never mind that because of the way it turned out or because the issue was idiosyncratic or whatever, or it will turn out to be very important because it now becomes the Roe v. Wade of the right.
- [54:14]
C
I'm worried that it will become the Roe v. Wade of. The Roe v. Wade of the New right. In other words, that the, the perception that it was 5, 4, that they only have to flip one justice and they get sort of their vid, which I don't think is actually accurate. If you actually carefully read the dissents, I don't. It's pretty clear to me that Gorsuch is not with the Trump eo. It's not clear to me how many of the justices are with the Trump EO truly constitutionally, but the perception is out there that it's five, four. Stephen Miller has said it very plainly. And so I do think that there will be an element on the right that will look at this as this is our long term project. This is the long term project. What I don't know and I hope, and I hope that that part of the right that looks at birthright citizenship and hates it with the heat of a thousand burning suns the way they so obviously do what my hope is that that part of the right recedes in power, recedes in influence, so that even if they are fundamentally dedicated to altering the way we view citizenship in this country, which I'm utterly opposed to, but even if they're fundamentally interested in changing how we view citizenship, that they won't be as relevant politically.
- [55:23]
A
Professor Amar Slaughter or tariffs and birthright citizenship? Did any of Cecilia's work and sleepless nights and stress dreams matter whatsoever?
- [55:35]
B
Tariffs is the more important decision because and I'll introduce you to Becca Slaughter. She's spectacular. And Cecilia, and so sorry I called you out because even if we had kept Humphrey's executor, which is this husk, a president would have said I order Becca Slaughter to do this. It's within her zone of discretion. The statute permits it. I order her to do this or to not do that. And if she had said no, he would have said that's cause. And the Supreme Court has never said that's not cause. So I don't think actually independent agencies are nearly as bad different than executive agencies, as many people in the Beltway do. It actually matters much more. And you say, well, the independent agencies, you gotta have two Democrats and two Republicans or something. You can find a Dino who's a Democrat in name only if the Senate will jam it through or reverse. So I and in all these, whether it's independent or executive, Presidents are doing the picking, presidents are doing the firing, whether for cause or for any reason whatsoever. Senates aren't involved in this. Senates have to confirm everyone. So it matters much more whether the Senate is going to lay down four presidents or not when they send up Matt Gaetz's or what have you. So I don't think that that's actually as big a deal as other people do. And I do think saying presidents can't unilaterally tax without clear congressional authorization, that's originalist. No taxation without representation, no executive taxation without clear legislative authorization. That's big and going forward and it helps Congress do its job. Congress doesn't give away this power lightly, Barbara. It's A triumph. Okay. And it should have been 9 0. And the dissenters, I love them personally, but shame on them for not even addressing the statute, which they didn't really. 1952 appears almost nowhere in Justice Thomas's opinion or Alito's or Gorsuch. Just shame on them if they're precedent people for not even talking about Hintopoulos. So I was disappointed in that. But a win is a win is a win, and they affirmed the plain meaning of the Constitution's text in history. And hooray, hooray, hooray. Final point. Those are the three big cases. Barbara and Tariffs and the Slaughter, Slaughter case. Thank you. There are only two justices. This is like the jelly beans in a jar. Who actually won all three. And we've talked a lot about Roberts, and it is the Roberts court and he is the swing. Okay. But let's also talk about the great Amy Coney Barrett. I think this was her most important term. She's really coming into her own out of the shadow of Scalia, for whom she clerked. I particularly like her because she's a law professor nerd. She's also a superwoman. She's a great human being as a, you know, a mother to adopted kids, some of whom aren't even white. And she's growing in power and self confidence. There's an obscure case, I mentioned it to you a while back that no one paid attention to was about waiver of appeal or something like that, and the supervisory power. And none of you probably, or very few of you paid attention to it. But here's why I loved. It's a one page Barrett opinion in which Justice Barrett cites some scholarship by Professor Barrett, you know, which you know, and Scalia, you know, used to do that all the time and Frankfurter did that, and even, you know, Breyer, sometimes she's growing in confidence and power. Keep your eye on her. And if she's the center of the court with Roberts, and sometimes Kavanaugh comes along and sometimes Gorsuch, I think the three liberals tend to vote together most of the time. I think in 24 there were 24, 6, 3, 5, 4 cases and 23 of them, all the Libs voted together and 23 of the 24, and there are two on the right. So four or more in play. This is how you break up the courts is slightly different. But if those are three big cases, Roberts and Barrett, we've talked about Roberts. Do not forget the great Amy Coney
- [60:12]
A
Barrett, David Latt, Slaughter or Tariffs and birthright citizenship.
- [60:17]
D
So I Knew I said I was going to disagree with everything today. I will not disagree with Professor Maher on Justice Barrett. I'm kind of a Justice Barrett fanboy or ACB Stan, so I'm not going to disagree on that. But I will disagree on the most important case. I will actually argue, and not just because she's in the audience, although I don't know if she's fond of it. It didn't go your way. But I will argue for Slaughter, and here's why. Remember Learning Resources, the tariffs case? This was whether aipa, this one particular statute, authorized these tariffs. Now Trump is coming back and trying to reimpose this tariffs under other authorities. He might just be able to do that. We might possibly, who knows, maybe shocking, maybe we'll see some legislation. I wouldn't hold my breath, but this is really, I think, kind of important. As to this particular issue, tariffs, I don't think it has much doctrinal significance because the reason we, it all came out the way we expected is because it's an application of existing law. Yes. It also applies to major questions doctrine, which maybe some people don't like. But ever since West Virginia v. Epa, that was on the books doctrinally, jurisprudentially, I don't think Learning Resources is going to move the ball. Now let's look at Slaughter. This is basically going to lead to massive turnover in agencies pretty much every time we have a change in administration. And as the dissent in Slaughter highlighted, these agencies are pretty much running our lives. We're going to be sort of whiplashed, a back and forth that may or may not be a good thing. There is certainly political accountability involved. But I think, and also remember this, Slaughter also overruled Humphrey's executor, which was a precedent that had been in many ways a bedrock of the administrative state. So I would say that in terms of long term significance as a doctrinal or jurisprudential matter, not just short term. Is the stock market going to go up or not? I'm going to argue for Slaughter.
- [62:06]
A
Thank you all so much for joining us and thank you to our presenting partner, aclu. After this, we will have a lovely cocktail hour where you too can go berate poor Rebecca Slaughter at the drink line. Our most famous attendee. I cannot apologize to her enough.
- [62:23]
B
Oh, we have, we have Cecilia Wang here too. I mean, come on, come on. She's not chopped liver. So she did win the big case.
- [62:30]
A
It's true. It's true. Thank you again for joining us. Thank you. To Scotus blog and to Amy Howe and to Zach Shemtaub and the entire family that made this possible. And we'll see you at Drinks.
- [62:48]
D
It.