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- [00:01]
Sarah Isgur
You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And today we are going to set the table before the biggest argument of the term, the tariffs oral argument that will be held Wednesday morning with we're gonna give you all the tools you need to be able to tune into that oral argument live if you want to. Or at least to be able to tune into our live podcast that will follow the oral argument as we break it down with a bunch of friends of the pod. Think of this like espn. We're gonna have our, you know, the former quarterback from one of the teams, sideline reporters, color commentary, really ao no different than any of the great ESPN shows. And then we'll talk about some of the reporting about internal dynamics at the court coming from another friend of the pod, Jodi Kantor from the New York Times, as well as two interim docket cases. That National Guard deployment to Chicago case that is still pending on the interim docket. And passports. Male, female, X. What's a president supposed to do? Finally, angry cheerleader comes back in the form of some more off campus speech in the second Circuit. All that and more on advisory Opinions.
- [01:36]
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- [02:10]
Sarah Isgur
Every single night after the kids go.
- [02:12]
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To sleep, I'm reaching for my bubble.
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Sarah Isgur
Cuddle and husband of the pod and I are cozying up on the couch.
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Plus their sheets, their robes.
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Sarah Isgur
My house is basically a Cozy Earth shopping center.
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- [02:59]
Sarah Isgur
I want to talk to my fellow.
- [03:00]
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Attorneys for a moment. Do you really want to spend time.
- [03:03]
Sarah Isgur
On the technical side of briefing, blue.
- [03:05]
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Booking tables, appendix assembly, bait stamping, or would you rather focus on your argument?
- [03:10]
Sarah Isgur
Type Law can take your draft and exhibits and transform them into a court ready, rule compliant E Brief and appendix overnight. They've helped prepare over 10,000 filings in courts across the country, even SCOTUS. Learn more@typelaw.com and use referral code advisory to save 10% on your first order. That's TypeLaw.com David, first off the bat, we have a little announcement that we will explain further for that live podcast happening Wednesday right after the argument finishes. Remember, we will do the live blog on SCOTUS Blog during the argument if you want to follow along at home. My understanding is C Span will also be showing the live blog during the argument as well. And then after that we will do a live podcast that will of course be put out in your regular podcast feed later that day or the next morning. But if you want to tune in video live, it'll be me, David French, David Latt and Roman Martinez from Latham Watkins breaking it all down with Amy Howe from SCOTUS Blog, of course as our sideline reporter literally from the steps of the Supreme Court. As soon as the argument ends. We anticipate that being around 12:30-12:45 Eastern Time on Wednesday. But again, this is going to be a long argument, so tune in. But David, here's the really fun thing about that live podcast. It's going to be available for CLE credit.
- [04:38]
David French
Really? Okay.
- [04:40]
Sarah Isgur
On Monday you will be able to get CLE credit from that podcast. I will explain all of that like hows you do that on the Wednesday show after the argument. But if you're looking for some CLE before, you know the end of the year, tune in for that reason too. This will be a little bit of an experiment, David, to see whether this is something our audience is actually excited about and would help them. Because we're looking at doing about 12 cles a year, which for most states would be your, you know, most of, if not all of the credits that you need. And don't worry, we'll make sure to include ethics credits as well. Although obviously since this one is the tariff argument, probably no ethics credit this time.
- [05:23]
David French
That's Fantastic. We've been kicking around this for some time that in reality, if you look at a lot of CLE programs and how we cover, particularly the Supreme Court, a lot of our stuff would be CLE worthy. And so we're just taking it to that next level, Sarah. We're making it formally, officially CLE worthy so that there's just so many benefits, aside from the intellectual, emotional and spiritual of listening to advisory opinions. You can now add educational as well. So, yeah, I'm very excited about this.
- [05:57]
Sarah Isgur
Okay. David, I wanted to set the table, if you will, for the tariffs argument, because after the argument, we'll do a tiny bit of table setting, but this is like our, our bigger breakdown, so that you go into that argument feeling really well prepared as a listener to, to listen to what's going on. So, first of all, remember, these are consolidated cases and the Supreme Court has in fact allotted a total of 80 minutes for the oral argument. Remember, normally it would be 60. Now they go longer than that anyway. But the fact that it's allotted more time than the 60 minutes means it will go even longer. So it's 40 minutes for the solicitor general, 20 minutes for an advocate on behalf of the private parties. We'll get to that later. And 20 minutes for one advocate on behalf of the state parties. Now, that's the time, the free for all time allotted. And then you get to the seriatim questions. That's why it's going to last so much longer than 80 minutes. So, David, key questions in this argument. One, does the International Emergency Economic Powers act of 1977 IPA, authorize the president to impose tariffs? Two, if it does, is Congress's delegation of authority to the president constitutional? If it is, did President Trump meet requirements under IPA when establishing his global tariff program? David, of those three questions, I guess a, what do you think we'll spend the most time on? What do you think the justices will spend the most time on? Not us. And to what do you personally think is the most important question for you?
- [07:36]
David French
Yeah, that's a great way to set this up. I mean, I think if you look at this, we're going to be. I'm going to be a broken record based on previous discussions of this case, but they are really, really going to focus on the foreign setting of this. I think that that is going to be a big part of this. Because if you're just looking at this the same way you would look at a domestic political controversy like OSHA vaccine mandate, like student loan debt forgiveness, this looks a lot like Those cases, there is a big grant of power. There is a big grant of power from Congress to the President, no doubt about it. But the grant of an enumerated power to use at the President's sole discretion worldwide. Where are you finding that? I think that is going to be the really big question for Trump, and then the really big question for. For the plaintiffs here is gonna be, well, but wait, doesn't our authority over the President here, when the President is conducting diplomacy in international affairs, isn't that when we, the court, are at our smallest and the President at his biggest? And so I feel like that's going to be the back and forth here, that you've got a statute that's much more reminiscent of osha, much more reminiscent of student loans, but you have the diplomacy aspect.
- [08:56]
Sarah Isgur
Okay, I wanna now, you know, read you guys the different arguments from the different sides. So, first, summary of Trump's argument. The plain text of IPA gives the President unfettered ability to set tariffs for any country at any level for as long as needed, whenever an emergency is declared at the President's discretion. If Trump says persistent trade imbalances and inflows of fentanyl both constitute unusual and extraordinary threats to national security, everything he needs to impose tariffs has been met. Okay, that's a summary. Now I want to read you from the Solicitor General's brief. These consolidated cases address President Trump's lawful imposition of tariffs under ipa, which the President, in his exercise of power over the military and foreign affairs, has determined are necessary to rectify America's country, killing trade deficits and to stem the flood of fentanyl and other lethal drugs across our border. To the President, these cases present a stark choice. With tariffs, we are a rich nation. Without tariffs, we are a poor nation. The President has stated that one year ago, the United States was a dead country. And now, because of the trillions of dollars being paid by countries that have so badly abused us, America is a strong, financially viable and respected country. Again, President Trump's IEFA tariffs are plainly lawful. Congress has long granted the President broad authority to employ tariffs to address emergencies. AIPA continues that tradition by expressly authorizing the President to, quote, regulate importation, end quote, of foreign goods to address declared national emergencies. Since the early days of the Republic, regulating trade has always encompassed the imposition of tariffs. IPA's broader statutory scheme confirms that regulating importation includes the use of tariffs. Okay, that's the Trump argument, both summarized and quoted.
- [10:53]
David French
Fascinating. How many Trump quotes are in there?
- [10:56]
Sarah Isgur
Oh, yes, a lot.
- [10:57]
David French
That was interesting. To me. Yeah, yeah. Because have we raised trillions of dollars from these tariffs? I don't think so. But anyway, fascinating decision.
- [11:08]
Sarah Isgur
Okay, I'm going to consolidate not only the two private parties but also the state argument here into one. So this is the summary of their side. The Constitution gives Congress the sole power to tax and set tariffs. And while IPA allows a president to regulate importation or exportation of good of goods during limited periods of emergency, the word regulate does not include tariffs which are not explicitly mentioned in the law. And trade imbalances are not an emergency. Okay, now quoting from the state's brief defendants hyperbolic rhetoric obscures what this case is about. The question is not whether America is a rich nation or a poor nation, whether tariffs are country saving or whether without them we are declining into a vassal state. The question is not whether control over tariff policy would empower the President to make trade deals or reduce the national deficit. Question, as in other recent cases of executive overreach, is who decides? Quoting by the way, Gorsuch is concurring opinion in the OSHA case, the vaccine mandate case, Congress, not the President, decides whether and how much to tax Americans who import goods from abroad. This court should reject the President's bid to seize that power for himself. And David, I also want to give you a little taste of what the two lower courts decided because I often find those as interesting or more so than the briefs from the parties because those were sort of your advisors, if you will, at this point to the Supreme Court. So from the district Court case, the District Court in D.C. said that IPA does not authorize any tariffs at all because I EAPA does not use the word tariffs and the power to regulate is not the power to tax, that is the power to impose tariffs. So IPA doesn't even apply is basically what the D.C. district court said. Now the Federal Circuit, this was a 74 decision, basically held IPA might authorize some tariffs, just not these tariffs or any other tariffs that might be too enduring, too significant, too widespread. And of course the SG's response to that was neither IIPA nor the major questions doctrine allows courts to fashion such a textual know it when you see it limitations on the President's emergency powers. David, what I find of course we've talked about this interesting is the Federal Circuit only had jurisdiction if I. E but did allow for the imposition of tariffs because they can only hear cases about tariffs basically for our purposes, whereas the D.C. district Court would have jurisdiction regardless. So I do lean more D.C. district court in this case and think that that was the better navigational tool through ipa holding that. In fact, IPA just doesn't authorize tariffs. For what it's worth, if you're wondering, like who are the actual parties here for one of the petitioners, and remember, there's two private parties. This is the learning resources one. It's a family owned business, fourth generation. They have created and sold over 2,000 hands on educational toys and products for children. Now they employ over 500 people with offices in Illinois, California and New York. Petitioners develop their products in the United States and perform some manufacturing and assembly domestically, but outsource most manufacturing to factories in other countries, including but not limited to China, Taiwan, Korea, Vietnam, Thailand and India. Attempting to pay the tariffs in 2025 would cost petitioners $100 million in cash expenditures, compared with just 2.3 million in 2024, a 44 fold increase. Okay, so David, we set the table a little bit, will you steel man the SG side for us? Because I know you don't agree with that side, but what do you think their best argument is heading into Wednesday?
- [15:07]
David French
Oh, I think it's actually a pretty easy argument to make the steel man version of it. Which is, which is that, look, read the statute. That grant of power is broad. It is legitimately broad. If you look at it in many ways, it seems broader than the grants in osha. It might even seem broader than some of the grants in the student loan case. It's a very broad grant of power. And then the other element here is the element of, wait a minute, court. Can you even get into the business of judging second guessing presidential emergencies? I mean, we have a very long history here of Congress delegating to the President the ability to declare emergencies. And here certainly Congress disagrees with, and some elements of Congress, maybe a minority of Congress right now disagrees with his tariff exercise of his tariff authority. But you know what? Who can do something about it? It's Congress. Congress can do something about this and they're not doing anything about it at all. So you combine a very broad grant of authority, very broad grant of authorities to declare emergency diplomacy overseas, which is where the President is at the apex of his power. And really what you're left at with is a policy argument against Trump. That's how I would frame it. That. Look, the real argument here is that these are just bad. These tariffs are bad. Well, again, you're not the court of last result on bad policy choices. You're the court of last resort when it comes to questions about the law. And here the law has granted explicitly in this statute the President abroad authority. And if you back up constitutionally and you sort of back up statutorily around presidential emergencies, you just have a very large no go zone for the court around diplomacy around emergencies. Why? Because both Constitution and the Congress have put it that way. So there you have it. It's a declaration of an emergency which is squarely within the presidential prerogative. It is the use of a broad power which read the statute. It's a very, very broad power. And look, if you disagree with the subjective reason he chose to declare the emergency, well, Congress, you can do something about it. That's how I would do it.
- [17:25]
Sarah Isgur
Sarah, you know, you brought up a few things here that I think are interesting. One is the congressional acquiescence aspect. If Congress didn't like the way the President was interpreting that grant of power, they could at any point step in and stop this. And they haven't. So rather than the court sort of refereeing these two powers, they are capable of doing it themselves. The fact that Congress hasn't chosen to isn't really our problem, so to speak, because they could, they just haven't. Which means maybe they did intend to give the President this broad amount of power. Now there's a second part to that though, which is is Congress allowed to give away its power to the President if it is a core constitutional power of Congress? This is, you know, we've talked about non delegation doctrine versus major questions doctrine and I've always shorthanded them as major questions doctrine is did Congress give the President that power? Non delegation is can Congress give the President that power? I think both of these are at issue in this case. Non delegation has basically been a quasi dead letter. The court has been very, very hesitant to say that Congress can't do certain things. But boy, it feels like we're, we're heading up into that area of the canyon, so to speak. So did IIPA in the quote, regulate importation, end quote. Did they give the President the power to set these tariffs? Is obviously question one for the argument. But question two is, okay, let's say they did. Let's say David's argument wins the day. David Steelman argument, you know, it is broad. This is foreign policy. The President's at the zenith of his power. He's acting both with his inherent powers and congressional powers as well. Can Congress delegate away such massive amounts of its taxing authority to the discretion of the President when it is explicitly a power given to Congress in the Constitution? And so will you see the court finally or at long last, sort of rev up the non delegation motor, or will they use major questions as a way to almost like avoid that? Because the reason that the Court has not done a lot of non delegation is this, I'm waving my hands in the air air of constitutional avoidance. This idea that you don't want to have to tell Congress they can't do something, and so you avoid the constitutional separation of powers problems by simply requiring that clear statement. This is more the Gorsuch version of major questions doctrine, where you decided on major questions so you don't have to decide it on non delegation.
- [20:11]
David French
You know, if I'm looking at the flip side of the argument that I just made, you know, that non delegation, major questions, those kind. These questions are going to kind of, in some ways, I could imagine how they could merge together in a bit. Like, if you're talking about major questions, which is, you know, no elephants and mouse holes, and you're going to be the Trump administration, you're going to essentially say that what happened here was they delegated an enumerated power, but the delegation doesn't exactly. Doesn't contain the exact language of the enumerated power. So it does say regulate imports, but it does not say impose duties, for example. So if you have a Article 2 power, I mean, I'm sorry, an Article 1 power that is explicit and you're arguing it's been delegated and the delegation doesn't include the exact language of the power, I think you. That's one of your weak points. That's one of your weak points because they are saying regulate, but they are not saying impose duties, for example. And so that when you don't have that specific language, I think it gets tougher to argue that there's been a specific delegation.
- [21:22]
Sarah Isgur
All right, when we get back, I'm going to run you through what it looks like in the hours and days before an oral argument.
- [21:32]
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Sarah Isgur
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Sarah Isgur
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- [22:59]
Sarah Isgur
In the hours and days before an oral argument, one of the things you want to do, especially with what is at this point the biggest case of the term, is get your side of the story out there publicly. These justices do not live in hermetically sealed caves. They read the newspaper. And so you want to kind of like get the vibes headed your way because it's one of the only things you can do in the days before the oral argument. The briefs are done, you know, all of that. So I wanted to read you a quote from Michael McConnell, who's the council of record for the businesses. Right. Quote, it is practically what the American Revolution was fought over. The principle that taxation is not legitimate unless it is adopted by the representatives of the people. That, quote, appeared in Axios in the morning. Read. Here's another one from a senior director at the Brennan center, always looking to get, you know, their version of the story in the so these outside groups who file amicus briefs, they're also going to be working the reporters this week. Quote, the stakes of this case reach far beyond trade policy. The decision could shape whether the use of emergency powers to bypass Congress becomes a tool of routine governance. I really agree with that. So, again, sort of that consequentialism is something you want out there in the water. And the vibes. Now this is interesting, Treasury Secretary Scott Besant doing the Sunday shows, right. On behalf of the administration to talk about this. His vibe check, if you will. Imagine if someone had held their hand up in 2006, 2007, and said, we're on the verge of a housing crisis. Well, President Trump raised his hand and Said we're on the verge of a trade crisis and I'm going to use ipa. That is what emergency powers are for. Again, very consequentialist. So that's our vibe check. That's something that you really want your amici, your friends to be doing for you, whether it's the Treasury Secretary for the government or Brennan center, et cetera, for the other side. So, David, remember we said there's the two private party cases. One went through the Federal Circuit, one went through the D.C. district Court. They both have lawyers, but the Supreme Court only gave them one 20 minute period of time. So who gets to argue it? You know, we talked about the decision within the Vos case between Michael McConnell and Neal Katyal because it was a Washington Post piece that criticized the choice to have Neal Katyal argue for them. But that, of course, didn't decide the whole question. There was still going to be okay, but now there's Neil Katyal for VOS and Pratik Shah for Learning Resources. He's the head of Aiken Gump Supreme Court Practice. This is very common, David. The two parties meet, they have some arguments about why their guy would be better, why their guy would be better. It's very, very cordial, like awkwardly cordial. And then inevitably there's a coin flip. So Neil Katyal won the coin flip. He will be arguing for both learning resources and VOs at the court. What do you do then for those days you have moots, you are just drilled like you are in basic training. So the moots are gonna have. So first of all, the Solicitor General's office holds their own moots internal to the building, so to speak, with their own lawyers.
- [26:19]
David French
So including like 20, 20 pushups if you get a bad answer or plank position.
- [26:25]
Sarah Isgur
Um, but Neil Katyal will sit in on moots organized by different groups. You know, his law firm, other law firms, Georgetown Law center, is known for holding these moots as well. And this is going to surprise people, I think. It's not that you bring in nine lawyers who each play one of the justices. It's more likely around five lawyers in a given case. And while, of course, they try to channel different justices, they don't play anyone. They're just asking the hardest questions, trying to make it harder than it will be in the actual argument, where you're not going to have sort of, you know, friendly questions in the mood. They're all going to be poking at your weakest positions, which is why they are not public almost always.
- [27:10]
David French
So, Sarah, I have a question for you, before we move too far down the road, there's been a lot of talk about how lopsided the amicus briefs are, that if you look at the list, you're going to see a list of really very few amicus briefs on the side of the tariffs, just very few. And many of them are sort of from like right wing policy institutes. They're not really rooted in economic entities or economic organizations. And you just have a bunch, just 3x4x of of amicus briefs on the other side against the tariffs. And so there's been a lot of questions about does that matter? Does it matter that it is so lopsided on amicus briefs? And I wanted to get your thoughts on that because my first instinct is no. My first instinct is that it doesn't necessarily really matter, but I don't feel confident in that position.
- [28:08]
Sarah Isgur
Yeah, David. So I count about six amici for the government in this case and just under 40amici against the tariffs. It's a big gap to your point of whether it matters? Yes and no. I don't think it matters in terms of its influencing the court. But it probably matters if you're handicapping the outcome that it's that lopsided, as in it tells you which side has the better argument if there's just not a whole lot of groups coming in on one side or another. But, you know, that can also be gamed. And in these really big cases, you do see that happen more often where, you know, there's more, let's say there's more money to interest on one side or the other. Well, guess what? Amicus briefs cost money. And so maybe they paid a lot of different law firms to write amici for them, things like that. So it's a very weak predictor, I would say. But it ain't nothing. And in this case, I think it's quite interesting just how lopsided it is, because I don't think there's a huge discrepancy in, you know, resources, potential friends, et cetera, between the two sides, as in this is the United States government and they were only able to find six friends, if you will.
- [29:25]
David French
You know, that's an interesting way of putting it. Is it a sign of a disparity in the merits? And therefore it's the disparity in the merits that's going to tell the outcome, not the disparity in the Mikas briefs. But how much does a disparity in the amicus briefs communicate to the court that there is a disparity in the merits, I think they would go sort of out of their way to not be influenced by a large majority of amicus briefs.
- [29:46]
Sarah Isgur
It can also backfire a little if you've got some really strong amicus briefs. You know, for instance, going to the history of the understanding of tariff policy at the founding, let's say they get watered down by having 35 other sort of like, you know, hollaback girl amicus briefs. So, you know, having too many can also kind of, you know, the clerks are sitting there, yes, they're reading every single one of these. But at some point when they're all saying the same thing, it's like, flip, flip, flip, flip. Let's go, let's go, let's go. So, you know, you can also end up distracting your own side. Other interesting things to think about as you tune into the argument on Wednesday morning. Let's pretend we're Neil caught y'. All. So first of all, he almost certainly has an outline of his argument. I will just say, like, husband of the pod color codes his. I don't know that Neil caught y' all color codes his. But it is a. A relatively common thing to do with your outline. I think that a lot of it's learned from your law school habits. However you would prepare for those law school exams is like, kind of similar to how you end up preparing for these big oral arguments. He'll arrive in the morning well before the argument, but, no, he doesn't have to sit, sit with kind of everyone else. In the Supreme Court, there is a specific room for the Solicitor General where they can, like, chill and prepare on their own. There is also a lawyer's lounge where they can chill on their own. It's not fancy, but it's not not fancy. You know, very nice tables and chairs and, you know, lots of former Supreme Court justice portraits looking down on you. Judgingly, even the advocates need to put their electronics in a locker. The lockers are free these days. They used to cost a quarter, or then it went up to 50 cents, I think, and nobody could ever remember to bring a quarter. So the lockers are free. That's true. For if you're going to listen, if you're the lawyer. Electronics not allowed in. When you walk up to the podium, the thing to do is to crank the podium. There's a crank on the side that raises and lowers it. And it's both a sign that you know you've been here before, right? You're not some newbie. And it's important to have at the right height Also, it like, provides you just like this physical thing to do for a second before you're about to launch into your argument. That's like a little bit comforting, if you will. And then the first words out of Neil Katyal's mouth or anyone else presenting an oral argument to the court is always, Mr. Chief justice, and may it please the court. So that's what to expect for Wednesday's argument. And from there, of course, we'll see you on the flip side after the argument if you want to join advisory opinions or I'll be part of the live blog during the argument, you know, giving my color commentary on what's going on. DAVID one more thing before we leave this Joan Biskubic had this piece in CNN about a very old case from 1981 called Dames and Moore, Moore v. Reagan. It was an 8:1 decision. The court held that AIPA authorized the president to take action involving Iranian assets as leverage to solve a problem based on Iran's holding of American hostages. The Supreme Court blessed the measure as a, quote, bargaining chip to be used by the president when dealing with a hostile country. This case will be relevant, no doubt, in the argument. But what's interesting is that Chief Justice Roberts helped draft that opinion for his boss, then Associate Justice William Rehnquist, who wrote the majority opinion in that 8:1 decision, and then immediately afterwards had to get back to studying from the bar exam with his fellow clerk from the Brennan Chambers of that term. And do you want to guess who that fellow law clerk was, who had also worked on Dames and Moore v. Reagan from the Brennan Chambers? That would be one Michael McConnell, the counsel of record in this case.
- [33:45]
David French
So anyway, now this case, very different. It's a very different case. It's about recovering $3 million of frozen Iranian assets as part of the Iranian hostage crisis. Yes, it is a case for the proposition that IPA grants the president some authority over imports assets of hostile countries. But it's factually so very different from this one, just night and day different from it. I realized that the administration would rely on it in part, but it doesn't get them nearly all the way there. It gets them out the garage, maybe. I would say out the garage.
- [34:26]
Sarah Isgur
All right, David, speaking of news pieces, there was this piece in the New York Times by Jodi Cantor. It's really about the division in the ranks between Justices Kagan, Sotomayor and Jackson, and in particular, sort of the Kagan view of the proper role on the court and the Jackson view of the proper role. I'll just read a piece of it here. Justice Kagan's approach goes like this. Even on a 6 to 3 court, the Democratic appointees can sometimes strategize their way into narrower rulings, smaller losses or even outright victory. To do so, the liberals must generally sway the chief justice and Justice Barrett. Admirers of Justice Kagan say she is prudent to show restraint, displaying her frustration only in flashes. Justice Jackson's outspokenness could risk those votes or further erode faith in a court that may yet stand up to Mr. Trump, they say. Justice Jackson, on the other hand, is aiming for an audience beyond the court, speaking to the public in history. Her proponents argue that Justice Kagan is the one taking risks of missing the moment and lending cover to a court that is weakening democratic norms. As the three justices wrestle with their choices, the debate in liberal legal circles over their strategy is intensifying. Friend of the POD Dan Epps, law professor at Washington University and co host of the Divided Argument podcast, quote, you can try to hold the center together and assume that people on the other side are acting in good faith and try to maintain common ground in the name of preserving the rule of law, or you can raise the fire alarm. It's sort of like war. If you're outgunned, do you try diplomacy or even appeasement, or do you make a noble charge and possibly get blown away? DAVID this, at least, you know, I would say so far for this calendar year, is the most interesting piece if you want to understand the inner thoughts of this Supreme Court. The title was the Debate Dividing the Supreme Court's Liberal Justices Again in the New York Times on Halloween. What did you make of it?
- [36:25]
David French
David I thought it was super, super interesting and it really echoed a lot of the debates I'm hearing from the Democratic side of the aisle politically. So politically, how much do you just go full on full bore high volume resistance to Trump versus how much do you try to negotiate, get best possible deals that you can, et cetera? And how much are you going in full bore opposition versus hey, we're rethinking and reworking sort of our own platform. How are we going to reach voters in a way that's more compelling to them because we didn't in 2024. So there's this really interesting political dividend which is sort of how much we going to go down like the all full bore Tea Party resistance versus we're really moving in this very different direction which is going back to the American people with a whole different vision or moderated vision or whatever it is I was echoing that, but in a very, very different context in the court context. And it struck me that the Kagan approach is plainly correct if you're dealing with John Roberts and Amy Coney Barrett. The Jackson approach strikes me as something that's defensible if you're dealing with Donald Trump, like, where there's no if you think that there's no capacity to reach a deal, that there's no way that all this person is going to do is just steamroll and steamroll and steamroll, then at that point, about all you can do is just make a public case as loudly as you can. But I don't that's not what the majority of this Court is. The majority of this Court is not a steamroll, steamroll, steamroll court. And that's been proven time and time again. And I really do think, as we've said before, people are getting a bit of a misimpression about the Court this term because so many of these emergency docket cases that have come up have been where the conservative majority of the Court has traditionally granted presidents a lot of authority, and that's over the executive branch. So in this circumstance, I mean, even what Justice Jackson is decrying isn't some big departure from conservative jurisprudence. It's in line with sort of a lot bigger readings of unitary executive. And so it's very interesting to me that there is such that it's like the political divide, but in a very, very, very different place. And it seems to me that Justice Kagan has the better argument just logically, and also has the she can point to the scoreboard and to say that there are concrete moments when things have been better from her perspective, when she's engaged.
- [39:00]
Sarah Isgur
One of the things that will really delicately, but nevertheless, I think, jump out at you after reading this piece is how frustrated, I think a lot of the justices are with Justice Jackson that they sort of see her attitude as the piece says, her audience isn't her fellow justices. She's not really interested in building consensus speaking as an institution. In fact, she seems uninterested in the institution of being one of nine. She sees her role as being one of nine. You know, she is taking up far more speaking time than her colleagues, the piece notes, despite them putting timers into the justices like little like where they sit. And it's it's like a metaphor, like the speaking time at oral argument. She's like way speaking more than everyone else. But also she's writing more separate dissents, even when, for instance, Justice Sotomayor who, if it's a 63 case, is going to get to assign the dissent and oftentimes assign it to herself. You then have Justice Jackson saying, forgive me, but I'm also going to write a dissent. And you see Justices Sotomayor and Kagan getting very frustrated that she's diluting their message. She's not a team player. And Justice Jackson herself has said that it's one of the hardest things she's had to adjust to, that she was used to being a district court judge and kind of, you know, being her own boss, if you will. And that being only one of nine has been a really difficult transition for her. I mean, David, you know, you said Justice Kagan's method, if you will, or strategy is obviously correct. I think that's true. If you intend to keep the Supreme Court around, so to speak, like if you intend to tear down the institution because it is too far gone, for example, then no, Justice Kagan is actually lending credibility to the institution. You know, it mentions her attitude as let's make this opinion 30% better. That's if you're like planning for a long term institution building exercise when you're nevertheless in the minority. Justice Jackson seems far more inclined to undermine the institution qua institution. And that's why she's speaking, you know, to audiences outside the court. I just think that itself a. I think it's ahistorical. You know, there were nine appointees from Democratic presidents for a long time on the court, and we didn't end the institution over that. There were eight appointees from Republican presidents in the early 90s, and we didn't end the institution over that. The court has actually only been 5, 4 for just a few years, most recently when Justices Sotomayor and Kagan joined the court, up until Justice Barrett joined the court. So I don't agree with this, like, we must burn down the institution thing at all. I also think, of course, you can't have it both ways. You shouldn't listen to this institution. But also this institution needs to hold Trump accountable. Well, the institution can't hold Trump accountable. It won't do any good if it rules against Trump, if you've already undermined any credibility and legitimacy the institution has. So which is it? Do you want to end the institution or do you want to try to persuade it to, you know, create real separation of powers between the executive and Congress?
- [42:24]
David French
I guess I'm just stumped as the end game here. You talk about like, destroying the institution. What does that look like? Does that look like, well, I have cry. I have made an outcry great enough that the next Democratic president is going to defy the court. Is that the end game here? I mean, this is so, you know, these are the questions that I have, like, what's the objective? And when you say, and I agree with you, I think there is just sort of a hashtag resistance element to this that feels very 2017 to make, you know, to have a recent historical analogy, it feels very 2017. It feels very much like, oh, this is the moment for more left wing voices to really rise in anger. But that is for the Democrats, has been the dead end of all dead ends. Has been sort of indulging the real anger of their left wing base that has taken them into some bad, bad, bad places electorally. So I'm really stumped by what the ultimate objective is here, Sarah. Unless what we're talking about is just beating the drum so much to such effect, rallying people to such an extent, which I think is a completely mistaken way of thinking that what supreme court opinions can do, but rallying people to such an extent that what the next democratic legislature court packs or the next democratic president defies the court. What is the end game? Because it feels to me if you're trashing the institution and trashing the institution, there's something you want to happen there, there's something you want to happen as a result. And everything that I just said seems pretty grim to me.
- [44:05]
Sarah Isgur
All right, when we get back, we're gonna check in on the interim docket. Two cases worth a mention. Why haven't we gotten that Chicago opinion yet? We'll find out.
- [44:15]
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- [44:47]
Sarah Isgur
Okay, David. We had thought we were going to hear from the supreme court in that emergency application for from the administration to use national guard troops in Chicago. And then we didn't. And then we found out why. In fact, we got an order from the court directing the parties to File supplemental letter briefs addressing the following question. Whether the term regular forces refers to the regular forces of the United States military, and if so, how that interpretation affects the operation of 10 USC 12406. So, David, everyone was like, wait, what? Oh, oh, my gosh. Yes. So Marty Lederman, who was the deputy at the Office of Legal Policy and a professor now at Georgetown Law, he had an amicus brief speaking of amicus briefs that was incredibly influential in this case. So let me read you what he wrote. The merits of this case largely turn on the proper meaning of the phrase, quote, quote, president is unable with the regular forces to execute the laws of the United States, end quote. The statutory precondition the President invoked as the basis for his order calling into federal service members of members and units of the National Guard in such numbers as he considers necessary to execute those laws in Illinois. The parties sharply contest the meaning of the word unable in 12406 and whether the proper test was satisfied on the facts of this case. The principal function of this amicus brief, by contrast, is to explain why it's unnecessary for the court to address those questions because the applicants are not likely to succeed on the merits for an independent reason, namely that both the President and the Solicitor General have mistakenly assumed that the term the regular forces refers to the civilian law enforcement personnel in this case to actors in the Department of Homeland Security, including Immigration and Customs Enforcement officers. That is incorrect. The regular forces to which 12406 refers are the regular or standing military personnel serving in the United States Armed services. Even assuming arguendo that the President has the legal authority to deploy those regular military forces to help execute federal laws in Illinois, an uncertain question that this court need not and should not address. There is no basis for concluding that the President would be unable to enforce such laws with the assistance of those forces if it were legal for him to direct such a deployment. Accordingly, a necessary precondition for the President's orders to deploy the National Guard in Illinois has not been met. David. I think I join everyone who's been following this case with a bit of embarrassment that none of us really thought much about that. The district court mentioned it briefly, the circuit court, not at all. The two parties didn't brief it. And here we are. And now it seems really, really obvious.
- [47:37]
David French
I am so mad at myself, Sarah. I mean, what are we even doing here if we can't read that statute and get to those words regular forces, and it not raise? Because that's not a normal way to describe a civilian police force? Regular forces, especially in connection with a statute about the National Guard, which are the reserve forces. And so I saw that and I'm like, oh, I'm sorry, listeners, we should have flagged that so long ago. We should have flagged that so long ago because it does make a lot of sense. And it also makes sense in the context of what is a National Guard? What is a. The National Guard from a national security standpoint? Yes, for state governors, it is like a first responder type force, like if there's been tornadoes or flooding or whatever. But when it comes to the national, to the federal government, to the president, to the big military, the National Guard is often a break glass. In case of emergency force. It is the reserve force. It is when the regular forces are inadequate, you mobilize the reserves. Duh. Okay, wait a minute. It's right there in the statute. I don't know if that will win the day, but my goodness, Sarah, it's in hindsight, so completely obvious. Just so completely. And I should have spotted it. I should have spotted it. I should have said something about it because this is my wheelhouse. This is military law and regular forces. It's not a normal term for civilian law enforcement.
- [49:07]
Sarah Isgur
Yeah. David, this is your fault.
- [49:09]
David French
I know. I'm sorry.
- [49:11]
Sarah Isgur
Briefing is due in the next couple weeks, so we can maybe expect to hear something from the court, you know, right before Thanksgiving, roughly speaking, at this point. Point. And again, this is why we've been not calling it the emergency docket of late, because how much of an emergency can this be when we've been doing this for months now and then they asked for more briefing that will take more weeks, et cetera. A, not an emergency, B, clearly not in the shadows anymore. And I expect they will write something here.
- [49:43]
David French
And the stay is still in effect. So this is. Yeah, so this is, I would say overall, if you're the Trump administration, that is. This is not a good development.
- [49:52]
Sarah Isgur
Okay. Another interim docket case, David, is about passports and gender identification or sex identification. David, when do you think passports started having a passport holder sex on them? Like, would just give me like a vague. Like, how far back do you think that goes? 1920, 1970s. It's really recent, like in your lifetime. But okay, from the 1970s up until the Biden administration, your choice was male or female. Then the last administration expanded it to M, F or X and defined it as gender identity. Like, you got to pick what you wanted M, F or X as a sex marker. Okay, so President Trump comes back into office, he issues an executive order that defines sex as an individual's immutable biological classification as either male or female and went back to only M or F, and it had to be your, you know, biological sex at birth. So the First Circuit said no to this, that you have to have the M, F or X. And they have now applied to the Supreme Court on this one. David, I actually find the whole thing a little bit bizarre, I guess. A, I think the Trump administration will win this. For what it's worth. They're sort of claiming equal protection. That's a non starter administrative procedure act. But like, if the Biden administration could do it and it wasn't arbitrary and capricious to change it, then why can't the Trump administration do it? Why would that be arbitrary and capricious to change it back? So, like, I think the Trump administration wins this one. But there's something weird about this, David, because if there's a national security purpose and a foreign policy purpose to passports, which I think is the main purpose, then it seems to me that we would just want two different things on here. One, you would want your biological sex at birth, male or female, and two, we might want your gender identity as well, because if you are, you know, post surgical and present, quote unquote as female, that would also be very relevant to someone who is looking for someone, checking someone in to enter their country, checking someone back in to enter ours. And so again, from a legal standpoint, I think this case is going to be relatively easy. But from a policy standpoint, I feel like both administrations are doing this wrong for the sake of culture war.
- [52:28]
David French
No, I agree with you. Because if you're sitting there and somebody's coming in and as you were saying, they've a fully transitioned person, they're not, it's going to be a hiccup at the customs line. Right? If you have male and say somebody like Laverne Cox shows up or you have female and somebody like a buck angel shows up, there's going to be a bit of cognitive dissonance. It's going to be confusing to a random customs officer. So I'm with you. I think just from the standpoint of clarity and identification so that people are easily identified and correctly identified, there's a very strong policy reason for a practice of identifying gender identity. But legally, I'm with you 100%. I just, I don't think there's, I don't think the Trump administration loses this.
- [53:20]
Sarah Isgur
David, speaking of these interim docket cases and what you talked about this a few pods ago, this idea of unclean hands. You saw that professors Will Bode and Sam Bray, they are like the, you know, Starsky and Hutch of law professors at this point. They're just like this amazing team. They're writing like, the best law review articles that are fast and relevant and all this stuff. So shout out to Bowdoin Bray. Yeah, you guys are crushing it out there. And they talked about the application of the unclean hands doctrine to the executive branch. I'll read you this. So, first of all, for those trying to remember the unclean hands doctrine, quote, those who would come into equity must come with clean hands. So this isn't about damages. This is about if you're asking a court, for instance, to issue an injunction, that's equity, right? Then you can't have been the bad guy, like the bad actor, legally speaking. So here's what Bode wrote and Bray. Sorry. Sorry. Sam Bray. Our conclusion allows courts to distinguish between stronger and weaker cases for application of the clean hands doctrine. Three questions illustrate the spectrum. Should all egregious behavior of the current administration be kept in view when a court is deciding whether to grant the executive equitable relief, like an injunction or a stay? No. Should unclean hands have precluded relief for the government in Department of Homeland Security v. Dvd, where the Solicitor General sought a stay of a district court order restricting deportations, even though government officials had allegedly violated that very order? Maybe. Should unclean hands preclude relief for the government? And United States v. Russell, the suit against all the federal district court Judges in the U.S. district Court for the District of Maryland? Yes. The court has often ruled in favor of the administration, notwithstanding the serious possibility of widespread illegal, unethical or bad faith behavior throughout the executive branch. Should the Supreme Court feel reluctant to give such aid and comfort to an executive branch that may have, in a broad sense, unclean hands? Not so far as the unclean hands doctrine is concerned. As noted above, the doctrine does not consider the inequitable behavior of the claimant writ large. So, David, you had talked about applying the unclean hands doctrine in this, like, National Guard context, for example, and I feel like Bode and Bray agree with me that it doesn't apply. But I feel like you feel like Bode and Bray agree with you that it should apply in the sense that the President's out there saying things that are false about the city of Portland, for instance, or about Illinois, and that you can't then go into court and ask for this equitable relief when you're out there sort of spouting nonsense is your argument. And my argument is that's legally irrelevant. You don't want the courts getting into the business of determining the legal relevance of bluster, basically. And as long as the legal briefs are accurate, then that's fine. You don't look beyond those. So, David, unclean hands. I mean, we just disagree, I think, on even what Bode and Bray were saying here.
- [56:31]
David French
Well, and also, I mean, I think if you're gonna talk about Bowdoin Bray, where I totally agree with them is on the unclean hands doctrine. I don't think you go and you look at everything the administration has done and say, these are bad actors.
- [56:45]
Sarah Isgur
Right. You don't look at immigration to decide whether the National Guard case is unclean hands. Okay, we agree on that.
- [56:52]
David French
Let me take it out of the government context, and let me put it in a context that maybe will be easier for people to understand. Let's suppose that you are a litigant for a corporation and you want an injunction for reason. Let's say you want to compel performance of a contract, or you want an injunction for reasons X or Y that are very reasonable, they're very defensible legally. And that's what's in my pleadings as I file. But then before I go into court, the CEO says, well, if we get this injunction, here's what we're gonna do. And it is not what's in the papers at all. And he says, the CEO says in the newspapers, this is what you know. And the CEO contradicts the arguments made in your own court papers. If I'm on the other side, that's Christmas morning for me. That is Christmas morning because I can walk in and I can say, wait, you're coming asking for equitable relief, you know, in an equitable circumstance. And we don't even know. They can't even keep their story straight and their CEO is contradicting their papers. And I can absolutely, as opposing counsel, introduce that. Like, there's no chance that I would. That if I was on this corporation side, that I could say, you can't consider my CEO's statement about what the company's going to do. You would never get away with that. And so my position is very similar. If you have the CEO, the president, issuing declarations about the conditions on the ground to justify an injunction or justify his action that are completely different from the justifications given in the court papers, you better believe, as opposing counsel, I can bring in the CEO's statements and say, what are we doing here? What are we doing here? This is what's really going on here. This is what they're really seeking, seeking equitable relief for. And there's a disconnect. There is not this. Who's being honest here? These two are not compatible assertions. The public assertion, the private assertion. And I don't think in a million years you could make the court just look at the four corners of the document alone and ignore the president's statements about what he says.
- [59:03]
Sarah Isgur
How about Obama saying that Obamacare wasn't a tax?
- [59:06]
David French
Oh, I mean, I think that's absolutely relevant. I mean, I think that's absolutely relevant, but. And I still disagree with the Obamacare decision, you know, Absolutely. You know, we have seen courts refer to presidential statements and where they say, we don't have the power to do this. We have seen courts do that.
- [59:25]
Sarah Isgur
All right, I don't wanna run out of time for this fun second circuit case that has a little bit of angry cheerleader vibes to it. David, will you introduce us to the facts here?
- [59:35]
David French
Love this case, Sarah. Love this case. So this is a student speech case. And you're gonna see why I love it so much here in a minute. This is the facts here are, man, just classic social media crap that gets out of control. So what happens is you have a guy named Case leroy. He's a high school senior in a New York public school. Leroy was disciplined by his school after he took a picture with his friends and posted it on social media while outside of his school campus and after school hours. He thought his post, which showed a picture of his friend kneeling on his neck with the caption cops got another, was a joke. But he quickly realized others viewed it as an insensitive comment on the murder of George Floyd. He removed his post after a few minutes, but not before another student took a screenshot, which she reposted on other social media platforms. And then the photograph took on a life of its own. After public outcry, there was in school discussions a brief student demonstration and a school investigation. The superintendent suspended leroy and barred him from participating in various school activities for the remainder of the school year. And so he files suit and obvious leading precedent here is the angry cheerleader case. And the court walks through the angry cheerleader case and essentially is saying, look, this is off campus. There's going to be greater leeway for free speech because this was off campus. He's not in that in loco parentis region of the, you know, of the law, where the school. While he's on school grounds, the school has an unusual degree of control over him, that there is actually going to be more deference to free speech. And the second Circuit, the trial court upheld the discipline. The second Circuit reverses the discipline. And what's very interesting about that reversal is. And Sarah, this is where I just got so happy reading this opinion. Just got so happy here, I will get to the exact line, okay? Because the way they tried to distinguish this case from angry cheerleaders, to say, unlike an angry cheerleader, where the disruptions at school were very, very, very brief and minimal and just really more hurt feelings than anything else here they actually had a student demonstration. Here they had an actual student assembly that addressed all of this. And so that. How much more evidence of substantial disruption do you get? And then you get to this part, Sarah, this is what I've been saying for years. Tinker suggests that the more relevant question is disorder or disturbance on the part of the petitioners, that is disturbance on the part of the speakers themselves. This is what I've been saying, that courts should be looking at the speech by the speaker and determine whether that speech by the speaker is inherently disruptive. It should not be looking at the response of the audience because the audience has its own responsibilities and its own decisions. And so essentially what the court did here, which I think is absolutely necessary and the right frame to look at it, is to say, if we're going to be looking at that material disruption standard, that substantial disruption standard, we're looking at the speaker at issue if his speech by its nature was disruptive, and if it's not, then the responsibility shifts to the hearers to respond appropriately to the speech. And that's all I've been asking for, Sarah. It's all I've been asking for in the Tinker, in the Tinker world.
- [63:08]
Sarah Isgur
Well, Andy Smarek wrote an interesting piece for SCOTUS blog entitled being a justice doesn't make you a policy expert. And, and in short, and I'm putting words in your mouth, Andy, so feel free to correct me if I've got this wrong, but I think his point is we should return to an era of judicial minimalism, a la kind of frankfurter. You should be deferring as much as possible to elected representatives that the court is not politically accountable, and when at all possible, it should be out of the policy business, except in the most sort of extreme constitutional public rights violations. And he actually discusses the angry cheerleader case. And David, did we name the angry cheerleader case? Is that us?
- [63:51]
David French
I don't know. It's gotta Be us, Sarah. I think it's gotta be us because.
- [63:54]
Sarah Isgur
He calls it the angry cheerleader case. Okay. In the angry cheerleader case, in which the court considered whether a student's profane comments on social media about her school were protected by the First Amendment, the court failed to adequately recognize the historical publicly supported role of educators informing the character of students through condign discipline. Had the court had members with any meaningful experience in state or local K through 12 education office, it likely would not have considered a student's obscenity laced rants at educators and coaches to be protected speech. Recent cases have made a hash of college sports upending amateur athletics and causing enormous problems for university administrators, coaches, supporters and more. If the Court had members with meaningful experience in higher education policy, it would have understood the implications of and perhaps hesitated before unwinding decades of policy and practice. Interesting, David, because I totally agree with Andy that the now very narrow path that you follow to become a Supreme Court justice has cost us something. As you've noted, it has given us much better writing. The current nine justices are probably in the top 20 of writers ever to be on the Supreme Court. And that's not a coincidence because we now pick people who basically trained their whole lives to be great writers and Supreme Court justices. And so what the loss is though is any of that outside experience as an elected official, as a policy expert in something, you know, to have some like Dunning Kruger effect that you know what you don't know and that amount you know you don't know should get bigger basically the more you learn about something before you become an all out expert on it. However, the judicial minimalism solution just defer more. Makes me nervous right now.
- [65:40]
David French
Yeah, it makes me very nervous and I thought it was very, very interesting. But then he gets to angry cheerleader and he just loses me that. You know, again, I understand the character shaping element of school and I appreciate when it's done well. But when you're not at school, guess who the prime character shaper is? It's the parents. It's the parents. And so the jurisdiction of the state is going to be very limited over my kid's speech and my jurisdiction over my kid's speech is the primary jurisdict when they're not in school. And so I thought it was very interesting. But I am completely with you at this moment. Completely with you. And I and I think that the angry cheerleader case really, really was much more about how much authority are we going to grant the state over our children when our children are not in the custody of the estate. And I think that the answer to that should be very little, very little reach into our kids lives when they're not in actual state, not in the actual, you know, at a school event, at the, at the actual school.
- [66:40]
Sarah Isgur
I would read a whole profile of what Angry Cheerleader is doing now, but David, the next episode will be available for CLE credit. We'll give you details of that. We have another announcement that will also come at the beginning of our next episode. And again, that will be live. You can find it on scotusblog.com after the oral arguments conclude on Wednesday. Again, we're expecting that to be around 12:30, 12:45 ish. And the podcast will still appear in your regular podcast feed. So don't worry if you've got lunch plans or whatever for Wednesday and we'll give you details on how to get that CLE credit. Again, we're going to try to make this a regular thing, assuming that there actually is a desire to get CLE credit. So we're basing our future CLE plans on whether this is something that you guys actually want out there.
- [67:32]
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- [67:33]
Sarah Isgur
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