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A
Ready?
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B
I was born ready.
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Welcome to Advisory Opinions. I'm Sarah Isger and oh yeah, nope, David French isn't here today. It's just me. But I think you're gonna be pleased. By the way, Quick Plug SCOTUS Blog is doing their live blog for Tuesday's argument on trans participation in sports. So definitely check that out as you're listening to this podcast. And of course, our usual Thursday podcast will cover that oral argument as well. But now for today's podcast, we have gotten listener emails that we don't criticize the court enough and in particular criticize the conservatives on the court enough. Now, I will tell you, I think we've done a pretty good job. We've had professors Sandy Levinson, Dan Epps, Julian Mortenson, all pretty left leaning guys. We've had judges, plenty of judges appointed by Democratic Presidents David Ladd and Amy Howe are hardly right leaning. But I do take the criticism to heart. And this podcast is all about consistency and making all of us, including me, feel uncomfortable about how we think about this court and the history of the Supreme Court and really what it means to be consistent in your legal philosophy. It's a bit of a slow burn, so hang with us if you can while we get to things like standing and legislative history and whether Brown v. Board of Education has anything in common with Citizens United or the SFFA affirmative action case. And to talk about all this with me is Professor Richard Ray from Harvard Law School, because he's going to make the argument that this court should really be called not the Roberts Court, but the conservative Warren Court. This episode of Advisory Opinions is brought to you by our friends at Pacific Legal Foundation. Since they were founded in 1973, PLF has won 18 Supreme Court cases defending the rights of ordinary Americans from government overreach nationwide, including landmark environmental law cases like sacd, vepa. Now PLF is doubling down and launching a new environment and natural resources practice. They're on a mission to litigate cases that make more of America's land and resources available for productive use and to make sure freedom drives our environmental and natural resource policy, not fear. To learn more, visit pacificlegal.org fear flagship. Professor Richard Ray of the Harvard Law School. Welcome to Advisory Opinions.
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B
Thank you so much for having me on.
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A
We have quite a bit I want to dive into today in our conversation, but the primary jumping off point is your foreword to the Harvard Law Review's November issue about the Supreme Court's 2024 term. And you have a provocative thesis. I think you trace the history of the Supreme Court, starting with the Warren Court to today. And the point is, the bottom line up front, if you will, is that today's Supreme Court is the conservative Warren Court. And that's how we should think about it, practically, intellectually, legally, all of those things. But before we dive into that history and what that means, can you just tell me where you would place yourself along? You know, what I've called the X axis, Ideological legal line, not political, like, you know, originalist, textualist. How does one describe Professor Richard Ray.
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B
To be a little bit historical or biographical about that? I think that I started off pretty far on the formalist side of the axis, more in the textualist, originalist E side. And what I've experienced as I've gotten older and maybe or not wiser, is to see some more virtue in the difference between what I think you're calling the left and the right sides of this axis. So while my own views, you might say, are still pretty far on the formalist side, I no longer think that we. I'm not sure I ever fully thought this, but I certainly now don't think that there should be a whole legal system of just formalists. Rather, a whole legal system requires a diversity of approaches, and approaches interact in various ways and makes sense for different people to play different roles. And so that's the kind of second order view I have, a kind of methodological pluralism or something like that. And so I think it's hard for many people to kind of see those two different layers of my theoretical outlook at the same time. It makes it hard to locate me. But that's my best short pitch of where I am.
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A
I think that's helpful because we talk about this, you know, when you call the current Supreme Court, the conservative Warren Court, like them's fighting words, right? Like that could, I think on first blush be seen as a pretty damning indictment of this court, especially if you are a conservative or a formalist, as you say. So I, I think it's really interesting that you come from that school, at least initially, and that as I continue to read it, you don't really mean it as a damning indictment, whether it is or not, which raises all sorts of other second, third and fourth order, you know, layers to this. So let's start from the beginning. Give me your historical description of the Supreme Court, starting with the Warren Court.
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B
Up till now, just to confirm what you said. I definitely don't mean that's a damning indictment, though. It's funny that people on both the left and the right sometimes think that for opposite reasons. So we can come back to that. So if we start the story with the Warren Court, we have a strong majority slash supermajority of quite liberal jurists. And they are enthusiastic about what we might call discretionary legal principles. They don't feel very constrained by precedent. They don't feel very constrained by texts or by history. They have a ideological orientation and they're pursuing it in an openly discretionary way. And when I say openly discretionary, I don't want to make it sound like they didn't care about law at all, or they were completely anti formalist. But on this, on the spectrum, they were more toward the discretionary side, while still in many instances caring about formalism and constraint and so forth. And so that's kind of the first time period. And in reaction to the liberal discretion oriented jurists of that time, conservatives had a very natural incentive to emphasize formalism. They were looking for ways to constrain the ideological majority slash supermajority at the time. And formalism gave them a way to do that. And so that kind of set the terms for the subsequent development of American jurisprudence and judicial politics, where the conservatives are formalists in dissent and the liberals are discretionary in the majority. And then for the decades after that, you have this gradual but unrelenting reversal in who has the power, where the conservatives get more and more power and the liberals are losing control over the Supreme Court and the judiciary in general. And the tipping point then, I think is either 2018 or 2020. It definitely occurred by 2020, when Justice Barrett reaches the court. And now the conservatives clearly have the control over the judiciary. They're much more institutionally positioned the way the Warren Court was. But they've come with this history of being formless critics of the liberal majority of a prior generation. And so now there's a reversal taking place where the same incentives that we can say in hindsight influence the Warren Court, incentives to enable their own discretionary authority, but also their. Their public spirited desire to be adaptive in response to new problems that run foreseen. Both of those incentives push toward discretion. Now those incentives are in the hands of the conservative supermajority of the Supreme Court. And the reverse incentive now operates for the liberal legal culture. Liberal legal culture now really cares about constraint, much like the conservatives of a prior generation did during the Warren Court. So we have a kind of methodological reversal taking place, I argue, and that's being driven by the change institutional power in our court system.
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A
And we're certainly seeing that. Forget the Supreme Court for a second and just look at the two movements alone, if you will. I feel like we're certainly seeing that with the rise, for instance, of common good constitutionalism. And even apart from, you know, Adrian Vermeule's specific common good constitutionalism, which is something to the effect of the law and judges should make decisions at the end of the day, outside of formalism toward the common good, which feels very Warren Court to me. Right. Like if the Warren Court is defined by is it fair? You have this great footnote about that, by the way, that is going to haunt me. Then common good constitutionalism is. Is it good? But even putting aside the specifics of common good constitutionalism, you see this, I think, in many of the sort of legal right commentariat, which is basically stop being so formalist. You know what the right answer is here. Or to quote Josh Hawley's post Bostock paraphrase Josh Hawley's post Bostock Senate floor speech. If this is what we were fighting for with originalism and textualism, we weren't fighting for very much meaning. The problem isn't that we keep putting judges on that aren't originalists and textualist. Maybe the problem is with originalism and textualism because they're too constraining. You know, as Justice Scalia said, if you're a judge who always likes the outcome of their decision, you're not a very good judge when you're the one in power. Maybe you are a good judge if you like the outcomes.
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B
Yes, I think that's all. That's all very consistent with my my account. I have a foot that you may also seen relating to the common good intellectual movement and legal culture now that engages with some of your work and comments on this very podcast, actually. So it's kind of funny that I'm stepping into the subject matter of my research a little bit. I'm realizing by doing this show, and I think that your critique of common good constitutionalism just now and in the past is very consistent with this kind of generational pivot. Adrian Vermeule's work on common good constitutionalism is explicitly, emphatically Dworkinian. Ronald Dworkin was arguably the certainly a leading intellectual figure in American legal culture on the left in the 1980s, for example, when Scalia was viewed as the polar opposite of Dworkin and they clashed famously and very fruitfully in print. And now we see that a leading avant garde conservative intellectual is saying actually Dworkin actually was basically right, explicitly on the nature of jurisprudence. And so I think that's a great example of this generational pivot. And I think there's maybe some commonality between the two of us, I think, Sarah, in the sense that we were both being kind of shaped in our formative intellectual period in the law at the same time, and maybe had somewhat similar sympathies, at least to some degree. And I'll just speak for myself, there have been times in the last few years when I feel my head spinning who's saying what and why. And part of this project that I'm undertaking here is to try to understand, at least descriptively, why that's happening. And then I obviously have some thoughts prescriptively about what, if anything, to do about it.
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A
Let's spend a little more time on the descriptive side. As you say, like the Warren Court, if you are liberal, has every incentive to sort of take power for itself in a more practical sense. And then your argument is you're seeing some mirroring of that today when the conservatives now control the Court. Let's talk about that in between period, though, what you call the swing justice era, because as you described yourself at the beginning, that you kind of want, you know, a gumbo with a little bit of all the seasoning mixed in. You want some Breyer practicalism mixed in with some of the formalism of a Scalia. And, you know, if we're going to have nine people on the court, let's have them all have slightly different opinions and see who wins out. And you want those swing justices talk about what that bridge looked like, whether that was good for the Court, whether that was good for legal, you know, the two sides, et cetera.
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B
Terrific. And I should say I was a clerk for Justice Kennedy who really epitomized this swing justice era. And I have enormous affection not only for him personally, but also for his jurisprudence. Not that I think it's the one and only good jurisprudence, but it was a good jurisprudence and it had good effects. And so to answer your question more head on, I think that during the swing justice era, what we had were relatively conservative median Justices who were substantially more moderate than the conservatives to their right and also had somewhat idiosyncratic views stemming from the difficulty often of getting them appointed. Justice Kennedy, for example, was third pick for his seat, and that reflected that he wasn't perfectly aligned ideologically with his party's ideological priorities. He was more of a free thinker, which I of course think is very good anyway. So the result of that time period was a degree of unpredictability. In legal culture, where there were norms, rules, principles, a lot was predictable. But in a lot of salient cases, there was still substantial unpredictability. And the way to win votes in those cases, it seemed to people, was not to just appeal to raw politics, but was to appeal to the distinctive jurisprudences of these median justices, such as Justice o', Connor, Justice Kennedy. I think what's good about that or what was good about that period in legal culture is that the Supreme Court was doing something that was not anything like partisan politics. So whether you were on the right or on the left politically, you could look at the Supreme Court and find things to like, and you could look to the Supreme Court and find things not to like. And when you came to the Supreme Court to argue, you argued about things that were not just partisan politics. You argued about Justice Kennedy's view of dignity or Justice o' Connor's view of pragmatism or whatever the case may be at hand, and about their specific opinions. Now, at the time, as you know, and many listeners will remember, there's a lot of fretting about this because it was thought to be embarrassing or awkward that people spent so much time talking about what Justice Kennedy wrote here, what Justice o' Connor wrote there, and what they thought was unpredictable. And people say, well, don't we want predictability in the law? And those are fair criticisms. But there was something good there as well. And Justice Kagan, for example, has spoken about this in hindsight, the benefits of having this unpredictability and relative nonpartisanship. And so we're not in that time anymore. Now we have six quite conservative justices. While each one maybe is independent minded enough to break off with some regularity, it's unusual, very unusual now to have two of them break off in the same case in a way that's distinctively liberal, as opposed to just kind of status quo, maintaining. And so we now have the problem that the Supreme Court era doesn't have. We now have the problem of the Supreme Court looking and acting, and one might worry even coming close to resolving cases in the way that political actors do. And so part of my prescriptive idea is that the Supreme Court now should, and I think to some extent is taking steps to return some of that unpredictability and nonpartisanship to jurisprudence, or maybe not return it is not the right word, but preserve it in a new form.
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A
All right, we're going to tick through where you think both sides have flipped positions, stare decisis.
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B
If you go back A couple generations. The ideological side that was super pro stare decisis was the conservatives and the side that was not interested in stare decisis was the liberals. And the reason for that was the Warren Court was overruling cases left, right and in between. And the conservatives were upset about it. And the real pivot there, of course, occurred in the aftermath of Roe, around the time of Casey, where the perceived need to preserve Roe based on Sarah Decisis kind of flipped the ideological orientation on that and that that's continued to the conservative Warren Court through Dobbs. So that's a big shift.
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A
And interestingly, you know, when there's this vibe sense that this Supreme Court is overturning precedent at an unprecedented rate, pun not intended, but then intended while I was saying it. And you know, Adam Liptak had this great work where he showed that actually the Warren Court, I mean, whoa, it was I think over three precedents a year that they were overturning a term. I mean, and the rate for the Roberts court is the lowest that it's ever been measuring from the Warren Court forward and in fact has gotten lower since the new, let's call it the second phase of the Roberts Court, the post Barrett current iteration of the Supreme Court. So I think it's interesting because the vibes often don't match the reality. But also, as you say, the history of who is in favor of stare decisis. People have short memories. Okay. Number two, originalism.
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B
So I think if you go back to the period after Brown v. Board, you see a lot of, I think in hindsight we might call it nascent originalism, but historicism be a little bit more broad about you see the rise of originalist e historical argument on the right and that continues of course, very strongly after Roe v. Wade. And I think that this shift is not complete at present, but I think it's already in progress. And so common good constitutionalism is an example. This, we already talked about this where Dworkinian, which is thought to be highly anti original and anti conservative in the 80s. Now it's associated with common good constitutionalism. I think liberals are less likely to seize on originalism as their constraining jurisprudence of choice. So they are doing that to some degree. You see that in the birthright citizenship context where there's a lot of originalisty historical argument on the left. But I'm not sure that the left will ever be as originalist in its mode of constraint as conservatives just because liberals tend to want to change some things. So I suggest that other Modes of constraining jurisprudence are more attractive to the left, like textualism and stare decisis.
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A
All right, let's do textualism.
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Textualism is sometimes said now to be the generally accepted mode of statutory interpretation at the Supreme Court. Justice Kagan, I think kind of cemented that idea when she gave the Scalia lect at Harvard over a decade ago. But in the last five years you see a lot of in my view, just clearly anti textual stuff coming out of the conservative court. The Major Questions doctrine is maybe the clearest example of that. And again, I don't want to say that that reversal is 100% yet, but if you look at recent cases, you'll see liberals in dissent like Justice Kagan saying look, the majority, the conservative majority is not being textualist enough. And at least sometimes I think she's persuasive in making that argument. So I think there is a in progress transition on that one too.
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A
She has that great line. And then sometimes you run into a get out of text free card like the Major Questions doctrine. Now I think the Major Questions doctrine, as we've seen, has two different iterations. The Gorsuch iteration I think is more open to the charge from you, Justice Kagan, where his is a canon, if you will, a strong form canon where like all things being equal, even if the most textualist reading would be 4x, you expect more from Congress to speak more clearly. And therefore we force in why reading under the Major Questions doctrine. Justice Barrett's version of Major Questions Doctrine I think is just textualism. She's saying, I would think that Congress would speak clearly. So when it's ambiguous and I'm not really sure I'm going to think that they would do that. And it's a way of reading the text itself, it is a way of doing textualism. And I think those type of in the weeds kind of details of what the Major Questions doctrine is get really interesting when we're talking about the new conservative Warren Court type stuff of who's doing textualism. Right.
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B
That's a great distinction. I have a little discussion on the Barrett approach and a companion piece on legal realignment. I'll just say that I think that what you've distinguished there are two ways of trying to square the circle of conservative formalism with their desire to be more anti deferential to agencies, which again is like a huge reversal from the Chevron era when Scalia and Thomas were super pro deference no longer. But the two different ways there are both interesting. So the Gorsuch way You identified, you're right, is much stronger. But I think that the formalist defense of it, the way they're trying to squeeze it into formalism, is to say that it's channeling some sort of constitutional value. So it's really kind of diluted constitutional formalism, and it's expressed as, in my view, anti textualism or non textualism. The Barrett approach is going the other way, as you said correctly. It's trying to say, no, this is not constitutional. This is actually a mode of understanding the meaning of words. I just have a hard time viewing that effort as successful. I think it mattered. Barrett's desire to square her jurisprudence with her anti agency orientation mattered. It made her approach more constrained, as you, I think, acknowledge or said. But I think that it's not really that persuasive as textualism. Part of Barrett's analysis, as you've discussed in the past, is this babysitter hypothetical that expressly trades on common sense, the idea of trading on common sense that is in fact not that common. It's just very controversial intuitions about how people behave. That's the exact kind of thing that Scalia used to be against or that Professor Dean Manning was against or Judge Easterbrook was against. So there is a dilution of textualism going on there, in my view, even.
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A
Under the Barrett approach, deference. We've talked a lot about deference. I think deference can mean a lot of different things. You have Frankfurter deference during the FDR era because Frankfurter, of course, was like BFFs with FDR. So of course Frankfurter wanted to defer to the executive branch or to those policies, you know, passed by Congress through FDR's, you know, new Deal, because that's where he came from. That was what he agreed with. Deference made a lot of sense in that point. Then go to, like Scalia, Thomas, as you referenced deference to the administrative state, that feels like quite a different type of deference. And I'm just wondering if you can, before you even say how this switched positions, talk about the history of what judicial minimalism, AKA deference to something else outside of the judiciary has meant through the Supreme Court's history.
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B
I'm very happy that you brought up Frankfurter, whose career at least substantially overlaps with kind of the even prior turn of the screw or swing of the pendulum or something like that. So when Frankfurter becomes a justice in the FDR era, as you said, he was quite liberal, a very famous liberal, and was quite pro deference to the political branches Particularly or including the executive in many contexts, as you said, in part because he was a personal friend and great advisor to FDR himself. And so that was the kind of anti Lochner period of American judicial liberalism. And that was a very deferential, very judicial restraint oriented approach. And it took about a generation for that to give way to the more Warren Court liberal activism. And so if you think of track the liberal legal ideology in the United States, it's becoming constraint oriented, I'm arguing now, because it's out of power. It was discretion oriented in the Warren Court because it was in power. If you go back to the Frankfurt era, it was kind of similar in some ways to what the conservative Warren Court is now. It was an ideology that had been out of power in the Lochner era, comes into power and so keeps for a while continuing its constraint oriented approach, even though it's now in power. But then that constraint oriented approach is starting to dwindle. So I think that kind of explains, so to speak, from my account why Frankfurter was so oriented toward what I would consider constraint or deference. Fast forward then to the post Warren court period, you see the tables of turn. So the Warren Court itself is quite liberal. It's skeptical of some administrative action. The D.C. circuit was also quite liberal at that time and was very skeptical of a lot of deregulatory efforts going on under the Reagan administration. And so it made all the sense in the world for the conservative legal ideology to kind of dust off Frankfurtianism. And now they didn't just do Frankfurter redux because by then this conservative, a lot of intellectual water was under the bridge and the conservatives were more formalist. So you get people like Scalia, Easterbrook and others developing a kind of textualism with deference to the political branches, including in the agency context, to allow Reagan deregulation and other things. And that just is not attractive to conservative legal ideology members. Once the conservatives have control of the courts, and once they know that the Obama administration can use the administrative state to do lots of things conservatives don't.
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A
Like, how should I think about deference? At the time of the Warren Court, they did control a lot of the other parts of government, particularly I'm thinking the House of Representatives is going to be wildly controlled by the Democratic Party for an entire generation today. You mentioned, for instance, there's a lot of red states doing things that the court likes. So how do we think of deference in terms of the political actions of different parts of the government and how courts react to that under sort of the veil of judicial minimalism, if you will.
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B
Yes. So this is something that I talk about a bit in the paper, but frankly need to work out a bit more. I think you're exactly right to put your finger on it. You might think that to the extent possible, the different ideologies would have an incentive to pick out the institutional actors that they're most aligned with and kind of favor them. And so I talk about a little bit in the piece about that in the way I just was in terms of the administrative state. Is the administrative state something that the left or the right likes or the left or the right doesn't like? And if we think of the administrative state as a relatively stable entity, as it was for most of the post Nixon era, as kind of a left leaning entity, then that we can understand things in that way. But what these entities are and what side they're on can shift. So another institutional entity that was somewhat stable, I guess you could say, are the states, in the sense that for a while the states coded as more conservative than the federal government. And so the Warren Court is more skeptical of states and more supportive of the federal government. But there are a lot of states and state politics change. And these days there's lots of these very blue states and lots of these very red states. And so I think it's harder to be even a little bit categorical about which way legal ideology or which way the Supreme Court today would view states as a group. Sometimes it's kind of pro states as in Dobbs, sometimes it's less pro states as in Mahmoud. Can think of other examples. I think the biggest question that you may have been getting at in part is the presidency itself, because conservatives have been pro executive power when it comes to the President and skeptical of executive power when it comes to administrative agencies. And I think that roughly tracks the last several decades of who's more powerful in those different parts of the government. But there's cross cutting impulses here, including because the current presidential administration is a huge threat to judicial independence and judicial power. And so there's I think, a felt need by at least some Justices and probably the Court as institution, to moderate and check the President, despite the fact that many, really most justices have this long standing jurisprudential commitment and ideological commitment to, in many but not all instances.
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A
Expanding presidential power, substantive due process. Now, David and I have covered the history of the Court on and off on this podcast, but particularly in the last year where we did a deep dive into the Lochner era, how we got to the Lochner era and how we got out of the Lochner era. But what I feel like we don't talk nearly enough about is the Lochner era. You know, this idea that justices can champion economic rights that are unenumerated but nevertheless present in the Constitution is the boogeyman of the legal left and totally abandoned once they start controlling the court in the FDR years. And remember, you have nine justices. Every justice on the Supreme Court at one point is nominated by a Democratic president. Lochner dead. I mean, like, really dead. But then the Warren Court's like, wait, what if we do Lochner? Don't call it Lochner, but apply it to a whole different set of rights, and we're going to call it substantive due process. So substantive due process is basically just Lochner, but not for economic rights and for sort of these more. Well, I'll let you define what types of rights that they're doing. Okay. Then the conservative legal movement as it stands today basically comes into existence to fight the idea of substantive due process. We had this cheer at Northwestern against Purdue. And please remember that I married a Purdue grad. What the hell? What the hell's a boilermaker? And every time I hear substantive due process, I basically do that chant in my head, what the hell? What the hell is substantive process? And so, like, when you talk about how you and I came up through this world, substantive due process is to us what Lochner was to them. But here we are in 2026, and all of a sudden, unenumerated rights back with a vengeance. So talk about the reversal of substantive due process.
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B
Yes, and I'll say to be a little bit autobiographical, I've mellowed a bit on substantive due process. It's one of the examples of my own personal change. I'd recommend a piece by Professor Mulgreen about substance due process to see kind of a more sympathetic approach to it than maybe you or I would be.
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A
Et tu, Professor?
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B
I'm still not a champion of it, but my sympathies have expanded. I think you're exactly right in what you just said that there's this desire for, you might say, atextual rights creation. And because the due process clause does have some minimal, at least, and very ambiguous openness to these kinds of rights, try as people might, they can't quite resist the temptation to find great things for them in this clause. And so in the earlier era, it was these economic rights, and then in the later era, it's social libertarian rights. And now I think we're seeing the beginnings of conservatives discovering maybe social conservative rights in this text. And an example of that is the parents protecting our children case. There's a denial of certiorari that Justice Alito wrote a dissenting opinion in, joined by Justice Thomas. And his opinion seemed very, very pro unenumerated rights of parents to have information and maybe control over what's happening with their children in public school when it comes to gender identification at school. And I think that because the idea of subsidy process still has this negative resonance on the right, I think there are efforts in good faith and intellectually serious efforts to find the unenumerated rights in other places in the Constitution, like maybe in the citizenship clause of the 14th Amendment instead of due process. But push come to shove, a lot of people just, they'll say, actually it's in the due process clause or one of the due process clauses somehow. And so I think that's another thing that hasn't come full circle yet. But the fact that we're seeing conservatives saying anything positive about judicially enforceable substance, due process rights, and no surprise, it's always these conservative friendly topics. I think that's another revealing example of the reversal taking place.
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A
Again, it's almost like the penumbras of the emanations of other parts of the Constitution.
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B
It's funny that the penumbras theory was one of these attempts to not actually say it's substantive due process, because it was. So this is actually, it's an interesting thing I've been reflecting on recently. It was more embarrassing at that time for the court, the liberal court, to say bluntly substantive due process than it was to them to say it was.
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A
Penumbras and emanations, which is pretty embarrassing. Next up. I found this one really interesting because it had never occurred to me. Foreign practice.
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B
Yes. So if you think of the Warren Court in a global historical context in North America and Europe, and I think to some extent even more globally than that. This was an era of liberal ascendance. You have the general strike in France, you have lots of social movements from the 1960s globally. And the Supreme Court was kind of, you know, it wasn't as liberal or progressive in every way as the popular movements, but it was in the direction of those movements at that time. And the conservative Warren Court, I think, not coincidentally, is coming around the current court, in other words, the current Supreme Court at a time where there's a global trend the other way. And we have Brexit happening around the same time as the first Trump administration and so forth. And so in the Warren Court, period. Because the Court was partly a product of and partly contributing to global liberalism. It had an incentive to look around and say, oh, look, there's all these liberal things happening in other parts of the world, and we're a part of that, and they help those global currents sustain us. And so you have a doctrinal embrace associated with liberals of global law, global practice that continued into the Kennedy era, where Justice Kennedy would invoke foreign law in Eighth Amendment cases, much as the Warren Court had done before. And Justice Scalia, for the conservatives, would say, that's completely out of bounds. Well, we have a kind of reversal of that this past term in the Scarmetti case, where you have debate about the availability of medical care for minors who themselves or whose guardians want to have access to puberty blockers, for example, to allow for sex reassignment. And the Supreme Court says, well, it turns out that if we look around to the rest of the world, there's a conservative swing against allowing this form of medical care very consistent with the state law that was being challenged in the case. And so you have the conservatives talking extensively about Sweden and Norway and the Cast Report and British practice. That's an incredible shift, in my view. Now, I will say some people will respond to that argument by saying, well, but it's actually quite different because in Scremetti, the Court was talking about these foreign materials and legal materials to find an empirical fact about medicine. But in my view, that's just another form of slightly tweaking what's happening to try to distinguish it from the past. And if you look back to the Eighth Amendment cases, Justice Kennedy wasn't just talking about foreign law and foreign practice to make purely legalistic points. He was also explicitly invoking those sources to make points about the psychological state of minors and the effect on minors of different kinds of incarceration and the ability of minors to make judgments very parallel to the kinds of questions about minors at issue in Scremetti.
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A
We got this question from a listener, and honestly, it's what spurred me inviting you on the podcast to begin with. So I'm going to read that question now because I think it is related to this. How is the current way judges, advocates, and law professors making originalist arguments any different from legislative history? For example, efforts to apply Bruin seem to be attending Justice Scalia's cocktail party, as everyone is searching for obscure statutes, cases, statements, et cetera, to support upholding or striking down a gun control statute. So could we add in a little bit of legislative history into this List as well.
- [34:30]
B
Great. So I think from one standpoint, there's always been this conceptual tension between conservatives liking legislative history, so to speak, in the originalist context, but not in the statutory context for textualism. And, and I remember one of my law school classmates writing a paper about that back in the day. So there's an intellectual dissonance there that you might explain if you want to be a bit cynical, as I sometimes am in this conversation, in terms of who's writing the legislative history. So in the statutory context you might worry it's going to be a liberal senator writing the legislative history, whereas in the originalism context it's going to be people from long, long ago who maybe it's kind of a somewhat closed universe, especially if you don't look too hard, it's going to be Alexander Hamilton or something like that. So there's one kind of cynical account there that could be going on. But I think that the even bigger reaction I have to that comment is that Bruin turned out to be even as deludedly originalist as it was, as the question indicates, two originals for this court. And so then right after Bruin, you get Rahimi, where the author Bruen, just as Thomas, who's a relatively staunch originalist, is in dissent and the majority is invoking ideas like principles and common sense, again is back. And so these are kind of moves away from stringent originalism in this court quite promptly, again indicating a kind of counter swing, I think, in favor of discretion and away from constraint.
- [35:45]
A
Okay. Standing. This is one of my favorite topics because it's so meta. Right. Because in part it's the idea of whether the court's going to decide the issue at all. And that can be, I think, very colored by whether you think you're going to be on the winning side of the final decision about the issue. If you might not be on the winning side, you don't want them to decide the issue at all. And there's all these ways in which the court defers or, you know, delays or denies deciding the issue at all, the most prominent of which and the least understood or defined of which I think is standing. So tell us a little bit about that because you have Justice Alito, whenever he can, waiving the the court is inconsistent on standing flag.
- [36:30]
B
Yes. So as you say, when you're in power for both good reasons and self interested reasons, so there's both public interested reasons and self serving reasons, it's nice to have the ability to reach the merits because you know you're going to do on the merits what you want to do. And so at the peak of the Warren Court, when it was most liberal, you have a sharp move in favor of taxpayer standing being available for potentially all constitutional rights claims. Now, we remember that's the Flas case. We remember that case as being only about the establishment clause. But the case was written. The decision was written in a way and received at the time as a first step toward broader taxpayer standing being available, which would have even more super empowered the Warren Court and was anathema to conservative critics. And that, as usual, set the terms of debate for the subsequent decades. Conservatives are standing hawks, liberals are standing doves. But that's now reversing. And I have another paper that is coming out with Yoav Paz Priel that looks at this somewhat more rigorously, empirically tries to look at all the standing votes of the justices in the 10 terms before 2020 and the subsequent terms. And we show that nowadays it's much more common to see most common in the past to see the conservative justices championing broader standing and the liberal justices expressing concern about that. And we actually have a couple cases this term that may further illustrate that trend. The same descent from denial shirt I mentioned before, the parents protecting our children opinion by Justice Alito, joined by Justice Thomas, is another example of this where Justice Alito expressly expressed concern. It's kind of repetitive. He expressed concern that lower courts were interpreting one of Justice Alito's past opinions clapper too stringently. And Alito says the lower courts should not shy away from deciding certain types of cases in the same way in the future. And that's another example of standing. Now, again, it hasn't completely reversed. We're still in progress. But it's an example of more conservative people being more pro standing and more liberal people being more anti standing.
- [38:29]
A
What has been interesting to me on the flip side of that is that if this court were really 6:3 as this conservative juggernaut, I mean, I pointed out before, right. You'd expect more closely divided, all the closely divided cases, right. To be along those lines. And instead it's actually equal for 5, 4 and 63 cases. 15% have only liberals in dissent and 15% have only conservatives in dissent from last term, you'd expect them to take a lot more cases because you don't know how long this 6:3 court's going to last. Like you should be increasing the number of cert grants all over the place if you think you're going to win all the cases. But instead the number of cert grants has been ticking downwards still post2020. But then standing, which as you say, is a lot harder to do empirically in my view, because whether you even address standing is itself hard to pin down. But I haven't seen some huge uptick where we have, for instance, something like taxpayers standing, which would be such an aggrandizement of the court that again, if you think that you run the court the way that the Warren court clearly did, of course they're like taxpayers standing. Yeah. Because we need to get all these cases in and start making these decisions for the American people. I haven't really seen that expansion of standing in this court, meaning that they themselves do not either don't like the project that you're talking about, don't believe they're in that project, or don't think they have the votes for that project, which is even more interesting to me as well.
- [40:02]
B
Yeah, all that's well taken and interesting. I do want to repeat that because the conservative legal ideology is so in the past steeped with these ideas. It takes a while for them to slough off, much as it did in the Lochner era, to the Warren Corps. It took a while for the liberals to slough off their old ideas. But I'll just give you one more little example of how I think this transition is in progress is Biden v. Nebraska, which I think is a very hard standing case. I remember looking at that case when it was pending, and there's strong arguments both ways. There's not a lot of authority. And what do you get in the final breakdown of the case? You get all the liberals saying that there's no standing and all the conservatives saying that there is standing. And that is not a vote breakdown that you would have seen in the prior era. I'm not sure it was ever seen in the prior era, but is every case like that now? No. And maybe it's not for the reasons that you, I think, very plausibly suggest. Maybe there's an ideological commitment to judicial restraint still. Maybe there's a worry about not having control of the courts in the future, or maybe there's a reassurance they will have control of the courts in the future. So there's no rush. You can also spin it that way. But I think no matter how you look at it, I do think that the relative position of the two ideological groups is definitely not what it once was and probably in the process of reversing.
- [41:12]
A
Okay. You have this representation reinforcement idea and that the Warren courts more I don't know, I'm sort of in my head, I'm picturing an amoeba where they're sort of moving around the law, grabbing things nearby and joining them within their Warren Court amoeba body. That all this could be brought under this idea of representation reinforcement. And this is, to me, the most interesting part of your paper is when you make the argument that the conservative Warren Court is also doing representation reinforcement. Whether the left wants to acknowledge that at all and that if you really want to. You didn't say this part. But if one really wants to avoid hypocrisy, which we all do, we all like to be consistent. We all like to think of ourselves as consistent. That you need to love the Warren Court representation reinforcement, as you love this Warren Court's representation reinforcement, which will be a really hard sell, I think, to make. And I want you to try to make that sell that they're the same thing.
- [42:15]
B
Yes. So related points I want to say have been made by other commentators like David Strauss, Leah Littman, Melissa Murray. They're saying, well, the current court is changing representation reinforcement or misunderstanding representation reinforcement or it's mutating or something along those lines.
- [42:32]
A
But that's just a way to avoid. If you love Griswold, you have to love Citizens United. I want that argument that like Griswold and Citizens United are the same thing.
- [42:43]
B
So Griswold is an odd example for you to choose, actually, because I don't think Griswold was thought to be a representation reinforcing decision at the time.
- [42:49]
A
Good point. Yeah, I was just picking sort of the most famous. No, that's like the worst example. Okay.
- [42:55]
B
Pick a better one like Miranda or something like that, maybe. Yeah. Or Brown v. Board or something like that to be even more. Even more. Yeah. So I think the idea here is that part of the John Hart Ely theory of representation reinforcement essential part of it is that in the democratic political process, you can have groups that are discrete insular minorities. This goes back, of course, even further, back to the caroling products case that Ely and others were theorizing. So the idea is that the discrete insular minority is democratically imperiled, and therefore it makes sense for there to be some special form of judicial vindication of those groups interests. And that's one piece of it. And a related piece of it is that you need to have certain rights to the democratic process to be functional and effective, maybe like speech rights. All right, so on the speech rights part, the second part, I said you can look to the Warren Court decisions that created strong rights of free speech, such as New York Times versus Sullivan, which is thought to be an anti originalist, very problematic, anti formalist decision. But it had this quality of fostering free discussion. Citizens United States can be viewed as very consistent with that. In fact, a number of people who like the Warren Court free speech jurisprudence and a bunch of groups like the ACLU also like Citizens United, it was a pro free speech, pro democratic process decision. Now that's a debatable judgment, but the fact that it's debatable and that many people in good faith can arrive at that conclusion, I think tells you there's a theoretical constancy here. Back to the discrete insular minorities part. Well, there are lots of groups in society that are capable of being victimized in the political process and that are relatively discreet and insular and identifiable, viable. And religious groups are examples of that. I mean, Caroline Products itself recognized that religious groups are an example of that from the very beginning of this theoretical process. And so what the conservative Warren Court is doing in part is saying, well, there are times like in Mahmud, a case involving religiously based opt outs to public school education for very young children. The religious groups in question there are losing out the democratic process. They can't protect their interests. They have a free exercise right and the Supreme Court's going to come in and protect that interest. And you see the response to that is very parallel to similar arguments that were made, for example, on behalf of race minorities in the Warren Court era. The response to that is no, local democracy works. We have to keep the courts out of local politics. Let the public schools be run by the school boards. That's the similarity. There is an immediate problem with this which I talk about in the piece and just want to make sure I say very clearly because there's so many ways of carving up society and finding discrete and insular groups. There's an enormous opportunity for discretion and for ideological favoritism among groups. And I think that is a concern that's present today. And I think that's a very plausible form of critique that can be lodged against the current court. But I think that that critique is a critique of the caroling products representation reinforcement framework as such. The framework has always invited that kind of critique to, and it's just different people now or different ideological groups who are in a position to make the critique today.
- [45:59]
A
And maybe as you've said this, maybe the better example is if you like Brown and Miranda, you have to like SFFA versus Harvard, you have to like the affirmative action case because it was about discrete and insular minority, in this case, Asian students. And again, as you say, it's a close case of whether you agree that they were discriminating against Asian students. But if you accept that premise, you have to sort of see that in the similar light.
- [46:27]
B
I like the way you ended that better in the beginning in the sense that I do want to say you have to see them in a similar light. I think there are a lot of steps that would have to be made to just say if Brown, then sffa. What I think is the case, though, is merely being a devotee of caroling products or John Hart Ely's representation reinforcement theory does not tell us which one, if only one, to like or not like. The theory itself makes it very open and probably even, in my view, tends to support both results.
- [46:53]
A
And I want to be very clear. I guess I also really don't mean if you like Brown, you must like SFFA so much as I mean if you like sffa, you must like Miranda and Brown and a bunch of Warren Court decisions, because at least for our like cohort, the problem tends to be the other way. They love sffa. They're still thinking of the Warren Court as the norm breakers.
- [47:17]
B
Yes. So I like that point. I worry a little bit about embracing it too much because I think that many of the people who like SFFA and our legal culture right now like it for reasons that don't sound in representation reinforcement theory. And so I think that the Supreme Court, at least some of the members, are engaging this representation reinforcement logic, like the Chief justice, for example, and who wrote sffa. But because there could be people who have a different justification for sffa. I can't merely say that because they like sffa. They must backwards in time, like the Warren Court doctrines.
- [47:50]
A
Oh, fine. If you want to be a professor about it and caveat everything. Okay. When we get back, I want to take on several other people's thoughts on this court, criticisms of this Court, and have you sort of tick through them. I'm looking at Andy Smarek, Judge James Ho of the Fifth Circuit, and the New York Times. We'll be right back.
- [48:13]
C
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- [48:45]
A
Okay, let's start with this SCOTUS blog headline from a piece by Andy Smarrick. Did Justice Kagan debilitate the administrative state? And he's talking about in the oral argument for Trump v. Slaughter on the Federal Trade Commission and these independent agencies. At one point she says that executive branch agencies, quote, do a lot of legislating their legislative functions. That's what rulemaking is. And Smerk's overall point is great. If anything, that could cut towards getting rid of all independent agencies. Because if any of it is legislating, then if you really believe in separation of powers, you've got to strip all of that out of the executive branch. Although at some point one wonders, I mean, every part of executing a law involves some discretion. Unless everything is going to be a speed limit, that is you are either driving 35 miles an hour or not everything else, like for instance, don't drive dangerously is going to involve someone having to say what is dangerous. And to have any consistency, we would probably want them to have rules for that. Meaning here's what is dangerous, here's what isn't dangerous. It's not just up to each random bureaucrat to make that decision. And I'm curious if you would see Justice Kagan's point at the oral argument along the lines of what you're saying of this, like switching of roles suddenly. Justice Kagan, you know what, if it's all legislative?
- [50:11]
B
Yeah, it's a really interesting post. I think that it is at least plausible that this is an example of the repositioning I'm talking about. And so one way to kind of recharacterize it or restate it would be this. Justice Kagan's first, best view of how the law would work out is the view that she and many on the left have been advocating for a long time, where there's a lot of administrative independence and power together in the administrative state. And that bargain, as she put it at one point, is being disrupted now by the Court's jurisprudence. There's much less independence, for example. And so you now have a situation where rather than having a independent and powerful administrative state, it's controlled by the president, powerful administrative agency, state. And so Justice Kagan's saying well, if I can't have my first best, I definitely don't want what we're looking at right now. That would be my least best. So the compromise is to kind of take the bitter with the sweet and break both ends of the bargain and say the administrative state, if it can't be independent, also can't be powerful. And I view that as potentially a means of accommodating liberal ideological goals within a new jurisprudential environment. So I do think there's a kind of repositioning there. I don't think that Justice Kagan has quite taken that step yet. I'll give you one other example, though, of a time when Justice Kagan also kind of put up a signal flare in a similar spirit, which is when the major question doctrine was getting going. Justice Kagan suggested at an oral argument that maybe there should be no substantive canons of statutory interpretation at all. 0. Which was a view that was a very hard line, textualist, conservative view discussion not that long before espoused or at least considered, I should say, by then, Professor Barrett. And so that was an example, I think, of Justice Kagan kind of saying, well, if the conservatives are going to do their conservative thing, we should go the whole nine yards. Then that would be a better thing for liberal ideology than a half measure that just purely favors the right. And I think a similar test flare may be being offered here.
- [52:02]
A
Okay. Judge Jim ho of the 5th Circuit wrote a piece published in the Harvard Journal of Law and Public Policy. Not enough respect for the judiciary or too much arrogance and the myth of judicial supremacy. It's actually not very long, only 10 pages. We're gonna put in the show notes so that people can read it all. I'll read one piece of this so you can get a flavor, if you will. Arrogance is such a long standing and pervasive problem in the judiciary that a number of terms have been coined over the years to capture the phenomenon. I spent more time as a litigator than as a judge. For those of us who have been litigators, I'm sure we all have our own stories and experience, experiences dealing with judicial pomposity. Too many judges think they're better than other people. Too many judges have an overinflated view of their intelligence and their abilities. Too many judges think they know politics when they don't. Too many judges think they know national security when they don't. In short, too many judges have forgotten the virtue and value of humility. And I think a big part of the blame goes to the notion of Judicial supremacy. Law students are taught implicitly, if not explicitly, to venerate, if not worship, judges, when the truth is that we should really regard judges more like bureaucrats. Judges and bureaucrats have at least one thing in common. Under our current system, if you don't like your senator or your representative, if you disagree with the President or his cabinet, you can vote them out of office. The jobs are subject to the will of the people. But if you have life tenure, there's a big opportunity and thus a great temptation to become arrogant, whether it's constitutional life tenure in the federal judiciary or de facto life tenure in the bowels of the administrative state. It's why I've written about federal civil service laws and as an affront to the President's executive power under Article 2 of the Constitution. And it's why I've written about judicial supremacy as a distortion of the judicial power under Article 3. I'm not saying Frankfurter ever wrote this, but he could have.
- [53:48]
B
Yeah, it's interesting. I think that the. The argument there, if I understand it, is really about the separation of powers. I think that's what judicial supremacy is being used to mean. In other words, it's not about the courts being weak in general, it's about the courts being, as you, I think you're suggesting, deferential or accommodating of elected political actors. And so I do think that is the kind of thing that is more consistent with Frankfurt or conservative ideology in the 80s. And it's not gone, obviously. And I think this is an example of that. I do have two other thoughts about it, though, if I could say. And these are 10 other thoughts, because the piece is evocative and brief and punchy. And I don't want to exactly say I know what the author is saying with precision, but I think one possible way of reacting to that is that the piece is suggesting judicial strength with respect to the world at large, but not with respect to the executive. In other words, it's kind of suggesting potential openness to bowing to the President at this moment. And the piece also goes on to talk explicitly about the selection of judges by the political branches. As commentaries, of course, have already pointed out, the author, Judge Ho, is himself considered openly as a possible contender for judicial promotion. And what the judge has to say on that point, I think is interesting. It's about the importance of picking people who are not Johnny Come lately, picking people who have been there the whole time. And he's quotes some scriptural passages to support this idea. And it's an Interesting idea to me, in part because it relates to another part of my paper that we've been talking about where I talk about the worry of judicial hackery and the danger in partisan, polarized times of judges who will just do whatever it is that their political counterparts want at the moment. And I think the idea of not picking Johnny Come lately is a related idea. It's about privileging a kind of consistency. The push on it that I would want to make that I think is ambiguous in the piece itself is what does it mean to have been there the whole time for Judge Ho? Or what do we think it ought to mean? Does it mean you've always been there, whatever your party wants, you're there to say your party's right? Or does it mean the whole time you've been advocating for principles, not with complete stubbornness, but by and large, you have principles. You have a philosophy. You take your past seriously. You stick to your guns, even when it cuts sometimes against your political party or your ideological allies. That's the kind of longtime practice, not being a Johnny Come lately, that I would really, really put a premium on. And I'd be curious if the judge views his point in that way or in a different way.
- [56:17]
A
Okay, next up, this is a broader, a broader one. And I'm curious how it fits into your thesis. And that is the conversations around the legitimacy of the court. And I want to distinguish that from criticisms of individual decisions or even of individual justices and their judicial philosophies. All of that I put into one bucket. And I put legitimacy criticisms into a different bucket. And, you know, there, for instance, is Trump superstar. Appellate Judges have voted 133 to 12 in his favor. They have formed a nearly united phalanx to defend his agenda from legal challenges. That to me, is a legitimacy point, that these judges are not engaged in a legitimate exercise because they're ruling in favor of Trump. Now, interestingly, the piece does not compare past presidents win records. And, you know, at the end, it makes some of the points that I would make, which is, first of all, you would expect from any smart administration for their win record to increase as you go up the appellate system because you're not forced to appeal. You should lose the most at the district court. You should then not appeal the ones that you're definitely going to lose at the appellate court. You should only appeal your winners to the circuit court. And then of those that you lose at the circuit court, you should only appeal the ones that you think you could win at the Supreme Court. So like, unless you're a moron, your win record should increase as you go up. And of course, appointees matter. Like, yep, Donald Trump appointed these people not randomly out of a hat. He appointed people who he thought agreed with his judicial, you know, theories, particularly on the unitary executive. For instance, a piece criticizing unitary executive to me would be a criticism. A piece criticizing, you know, appellate judges voted 133 to 12 without mentioning what those cases are about, that the denominator isn't the same from the district courts, et cetera. That's a legitimacy point. There was another piece called Supreme Court Increasingly Favors the Rich A new study found that the Court's Republican appointees voted for the wealthier side in cases 70% of the time in 2022, up from 45% in 1953. Again, I think that this is a legitimacy argument, not just a criticism of outcomes or legal theory, because the legal theories aren't mentioned at any point in this. But here's what the study actually did we measure whether a Justice's vote moves money from poor to rich, and not on the words they use to justify that decision. Our approach provides a practical alternative to predicting judicial behavior, and one that is based on empirical methodology. Our framing is particularly helpful to the predication exercise when the case is not about a hot button cultural issue like abortion, but instead on a topic like tax or regulation. Making the rich richer may not be an ideology that is easily justifiable to ordinary citizens, but does a better job at explaining decisions than theories of statutory or constitutional interpretation, for example originalism. We categorize the parties in these cases as rich or poor according to their likelihood of being wealthy. A Justice's vote is pro rich if its outcome would directly shift resources to the party that is more likely to to be wealthy. So, for instance, any type of government constraint on a business prevents it from doing what it would otherwise do, which is most typically maximizing its profits. Thus, economic regulation is generally costly to business, but can nonetheless be enacted into law in a democracy because of its benefits to citizens. For example, a company must bear the cost of abating pollution, but after it does so, citizens are no longer harmed by dirty air and dirty water. Governments create many rules that constrain corporations actions, including financial regulations, labor regulation, safety regulation, environmental regulation, et cetera, which are designed for the broader benefit of society. We categorize votes on the court that support businesses over a government rule that the business is challenging as pro rich. As Jonathan Adler pointed out, this analysis this is now him talking. This analysis conflates the social desirability of government intervention, perhaps to serve some public interest, with the potential distributional consequences of such a policy, as if they are one and the same? And do the authors really mean to embrace the proposition that government policy is never manipulated to serve the interests of the wealthy? Should regulations constricting housing supply be categorized as pro poor and anti rich? Focusing on environmental regulations, it has been long understood environmental regulation in particular is often a reflection of elite policy preferences, and such regulation often has regressive economic effects. Protecting environmental resources and values often means adopting policies that increase the costs of goods and services, good or bad. It's not clear why either side should be characterized as pro rich or pro poor. And have these authors never heard of rent seeking? Are they really unaware that regulations, including environmental regulation, often advances the interest of privileged interests or incumbent firms at the expense of consumers, et cetera, et cetera? I'm curious what you think of the legitimacy arguments against the current court and how that fits into your historical analysis.
- [61:29]
B
So one thing I'll say about both of the pieces you just talked about is that they are in different ways trying to be, you might say, descriptive or externalist about judicial behavior. And in that broad sense I also am interested in being at least sometimes descriptive and externalist. And there's a kind of cynicism inherent in that a person approach. Because if it turns out that judges are voting based on, in my view, for example, to some degree consistent with their group's ideological incentives, that could be viewed as a kind of cynical anti legal view and therefore as a potential, at least challenge, at least potentially a challenge to the legitimacy of the courts. Now, I don't take my own descriptive externality in that direction. As you know, I think that the proper approach for someone who cares about judicial legitimacy is to at least attempt or in good faith explore the possibility of integrating descriptive reality with more internal legalistic practice and the psychology of being a judge and a decider and of trying to be principled and so forth. So I don't view external descriptive approaches and more internal legalistic approaches as at odds with each other. They're different. But I think that they can and in my view, ought to be reconciled with one another. Now, these other pieces, I think, don't go the opposite extreme. They don't say, at least explicitly, well, because of our descriptive external account, therefore, the court is illegitimate. Get rid of the courts. Though some commentators may want them to have done that extra step or will add that final line on their behalf, I do think that some of the Forceful criticisms you mentioned may indicate a desire or an incentive, you may say, to be cynical about the authors themselves, an interest in making their work kind of click or resonate with certain audiences in our country. Pitching, especially the second piece you talked about in terms, in terms of whether the court is pro rich or pro poor, I think Jonathan Adler's critique there is pretty forceful. Framing it that way does seem to be leaning in a certain normative, prescriptive direction that I don't think is fully justified by the study. On the other hand, I'm mindful that some people could look at me and say, oh, well, professor, you're biased yourself. You have the stake in supporting law, and so you're going to spin everything in favor of pro legalism. And maybe, certainly in some sense, that's right, it's a possibility. And so there's this risk that if we keep trying to be cynical about what everyone's saying and why they're saying it, we're just going to have this, like, you know, endless series of cynical accusations, and we can kind of try to get back down to the merits and figure out what's actually taking place. And I think that if we all try to do that and try to talk about the merits, we will learn things and figure things out about the court. Some of those things are going to be complicated and are not consistent with what you might think of as a naive legalistic take. There are going to be regularities in what courts do. Courts are constructed partly, substantially, through a political process, and yet one might think, and I do think they are also, by and large, legitimate and grounded in law. Those two things, I think, can be reconciled. It's challenging, but I think doable for us to learn descriptive, external truths without automatically or unreflectively embracing a delegitimization critique.
- [64:29]
A
Last piece that I want to talk about. Has the Supreme Court Helped Save Democracy? By this guy named Richard M. Ray. It was published in the Democracy Project. Has the Supreme Court helped save democracy?
- [64:42]
B
I say yes in the piece. And the framework for the piece is to look at the first years basically, of the current Trump administration. And my thought is that there are rule of law challenges taking place in a very serious way right now. I think the push last March by the president and others to again, what I would view as partisan impeachments of federal judges would be a profound threat to the rule of law. And other profound threats to the rule of law, in my view, would be overt executive branch defiance of court orders. On the other hand, the courts have to work within a democratic structure. And the courts sometimes properly are checked by that structure. And I think in that fraught context, in my view, the Supreme Court has done a pretty good job. I think I characterize it as a net positive, a significant net positive in the piece. And part of the way it's done that is through a mechanism that you alluded to before, it's encouraged the executive to bring relatively strong cases on an expedited basis through the interim or emergency or shadow docket or whatever you want to call it, the irregular docket, you might say. And they often grant relief on that basis, but it's not indiscriminately granted relief. In most of those cases, you can see the basis for the courts ruling and its prior decisions. That's why the executive chose those to go up first. And when the executive pushes harder cases, it has loss sometimes. The AARP injunction is a major example of that, which produced, by the way, a lot of criticism from the judge we were talking about a minute ago. Judge Ho was quite unhappy with the Supreme Court super majoritarian ruling against the Trump administration in aarp, in part because he viewed it as a criticism also of the district judge in the case. So I think that the Supreme Court basically has done a good job of offering both carrots and sticks to this presidency. It offers carrots in the sense that because it's a conservative institution for legalistic, internal, sincere good faith reasons, it is inclined to validate a lot of what this administration wants to do. But at the same time, it has a self interest and public spirited interest in protecting judicial independence and protecting the rule of law. And it's doing that as well by sometimes checking the executive. Another example I talk about that's more recent is the National Guard case, another super majority decision. Checking this president. And I think that in time we're going to see continuation of this pattern of carrots and sticks, of wins and losses. And that's not a new technology. That's something that I argue in my piece on the Warren Court that the Warren Court. Did you go Back to Marbury vs Madison. Will Bode has a piece that explores that comparison in more detail that recently came out called Marbury. Now this is what Bickle, Professor Bickle, perhaps most famously called the passive virtues of judicial action. And so this is yet another example, I think, of how the current court is very much acting in step with the Warren court and prior historically transformative courts.
- [67:30]
A
Professor Richard Ray, thank you for joining Advisory Opinions.
- [67:34]
B
Well, I'm so excited to be on. I can't wait to download this episode and listen to it on my morning commute.
- [67:38]
A
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