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Advisory Opinions is presented by Burford Capital, the leading finance firm focused on law. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. We've got a lot to talk about at the Supreme Court of late. A new interim order, a assert petition. But we also have a new poll from the Associated Press showing that trust in the Supreme Court has actually been ticking up. We're going to break down the numbers. Do Americans think the Supreme Court has too much power? What about Congress? What about the President? Are judges too young and are they human? All this and more on Advisory Opinion. I want to talk to my fellow attorneys for a moment. Do you really want to spend time on the technical side of briefing blue booking tables, appendix assembly bait stamping, or would you rather focus on your argument type? Law can take your draft and exhibits and transform them into a court ready rule compliant E brief and appendix. Overnight they've helped prepare over 10,000 filings in courts across the country, even SCOTUS. Learn more@typelaw.com and use referral code advisory to save 10% on your first order. That's TypeLaw.com Olivia loves a challenge.
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It's why she lifts heavy weights and likes complicated recipes. But for booking her trip to Paris, Olivia chose the easy way with Expedia. She bundled her flight with a hotel to save more. Of course, she still climbed all 674 steps to the top of the Eiffel Tower. You were made to take the easy route. We were made to easily package your trip. Expedia made to travel flight inclusive packages are atoll protected. This episode is brought to you by Progressive Insurance. Fiscally responsible financial geniuses, monetary magicians. These are things people say about drivers who switch their car insurance to progressive and save hundreds. Visit progressive.com to see if you could save Progressive Casualty Insurance Company and affiliates. Potential savings will vary. Not available in all states or situations.
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A
Opinions David maybe we need to start with the news of the day because I have been on ABC Sunday show now all month and all month we have been talking about the same news story. Jeffrey Epstein, a guy who died now six years ago.
- [02:45]
C
Yep.
- [02:46]
A
And of which there is no actual new information except that Ghislaine Maxwell, his co conspirator who was sentenced to 20 years in prison for her role in sex trafficking, filed cert at the Supreme Court, which is clearly what everyone wants to talk about. And so I thought we could spend just a moment on this. She's actually made an interesting claim. She has found a circuit split now. David we Talked about that being really the number one way that you get your case heard by the Supreme Court. Right. The lower courts have divided, and sometimes, like in Linky v. Freed, that was that social media for state and local officials case, the circuit split can happen, like, at the exact same time. Both circuits can acknowledge that there's a circuit split, which is called a square split, but oftentimes they're sort of a reach for the split, if you will. And the split can happen over decades. Even this is a little closer to that. So here's what she's claiming. When Jeffrey Epstein made a deal back in 2006 with the U.S. attorney in Florida, that deal, which included 18 months of prison time, also said that four named co conspirators. It just said, like, included co conspirators, including these four people. You know what I mean? Like one of those long lists and like whatever. And then at multiple points it said the U.S. attorney, the U.S. attorney's office, et cetera. But at one point it does say the United States. So the question is, does that deal preclude a different U.S. attorney's office, in this case the Southern District of New York, from prosecuting Ghislaine Maxwell, co conspirator, was she included either because the deal for Epstein was made on behalf of, quote, the United States, or was she included because it included co conspirators? The United States filed a brief in opposition, which is not always the case, by the way.
- [04:55]
C
Right.
- [04:55]
A
In which they say, look, it's very clear if you read the whole deal, it applied only to the US Attorney's office. It says the US Attorney's office as well. And we have a DOJ policy that is on the website that says a deal by one U.S. attorney's office does not bind other U.S. attorney's offices. And second, it was clearly referring to co conspirators or potential co conspirators who were victims, as in, he was making a deal to protect victims, of which Ghislaine Maxwell, though she may try to be one, is not one. They do make a third argument also about the circuit split itself, which is that basically you have one bucket of circuits which has said that it needs to be an opt out, as in, it needs to be really clear that it's a deal for all of the U.S. attorney's offices. And then the other bucket of circuits has said, no, it's an opt in, because, meaning we will presume that it is on behalf of all the U.S. attorney's offices. And it needs to be really explicit that it's not. And they're like, neither of those apply here because we think this was explicit. So in either way you look at it, we're there. So, David, that is the exciting, the only real update to the cases involving Jeffrey Epstein.
- [06:13]
C
So one thing, one question. So here you have a situation. She's identified a circuit split. It's not a circuit split that has necessarily been freshly created of central urgency. Does the principal bad woman stays in jail mean that the Supreme Court might look at it, raise an eyebrow, say, we might want to address this at some point, but she doesn't get to be the beneficiary of this? Is that a possibility?
- [06:39]
A
I think that is the strongest possibility. I also think that it works against her that this has been so much in the news. Yeah, it's a corollary to that doctrine. Bad woman stays in jail. And famous bad woman even more likely to stay in jail versus getting off on what we would all agree is a technicality in this case. So, yeah, I think actually the number three point from the Department of Justice is the most valuable for the Supreme Court, denying cert at least, which is, sure, there's a circuit split, the opt in, the opt out, all of that. This isn't the case for that. Because what you want is a very clear deal. And then challenge that this one is at best ambiguous. It says United States one time. It says U.S. attorney's Office 1 time. That's a fact dispute. And it's not a particularly good way to resolve the circuit split.
- [07:30]
C
Yeah.
- [07:31]
A
Though of course, they could. They could just take the QP and say, you know, remand it back to say, like, well, you can decide whether it applies to this deal or not. But to your point, David, famous case, really bad person. And if you have missed all of the conversation about this case for the last month, good on you. But a lot of the victims have been going on TV or media to talk about how horrific their experience was.
- [07:56]
C
Right.
- [07:57]
A
How young they were and how important she was to the operation. This is an incredibly, you know, it's getting a lot of attention and all that. I think what upsets me about it, David, is that this is a very mundane. And I mean that in the most evil sense, a very mundane sex trafficking operation. It looks like most sex trafficking operations.
- [08:20]
C
Right.
- [08:20]
A
There's a person, often a woman, who is grooming these young girls and bringing them into the organization and then on the back end threatening them, et cetera. You know, it's carrot and stick. And in that sense, it's really uninteresting and I wish more people would see it for that of like, oh, this goes on in the United States way too often. Instead of thinking that this is the crazy thing we all need to focus on for a month, I mean, we should focus on it, but we should focus on all the cases that are still outstanding.
- [08:55]
C
Well, you know, one thing, I'm glad you brought this up, Sarah, because there is something that I've been wanting to say for a bit about this from the legal standpoint, which is when you're talking about in say 2022, 2023, 2024, and you had all these MAGA figures like Bongino and Patel and others, bance others saying transparency, we're going to release everything. We're going to release everything. And then they come in and they, you know, they do the, the Epstein files release photo op that was fake, all stuff that had already been released. Then Pam Bondi says the list, you know, in response to a question about the list, says it's on my desk. And then they do this unsigned memorandum that says there's no list, there's no blackmail operation, he died by suicide, sort of blowing up all the big elements of the big grand Epstein conspiracy. But one thing that I want to emphasize here from a legal standpoint is this idea that you could walk into office and dump into the public square the complete Epstein file so that everybody could see the whole thing was never a reality. It was never a reality as a matter of law. Okay? And a lot of the people saying that they were going to do this knew better. So they were fooling their own population, they were fooling their own people. You have grand jury secrecy in the.
- [10:21]
A
Rule of criminal procedure, by the way, with set exceptions of when you can release grand jury material that all I won't shock you relate to official needs for that grand jury material, like a different investigation, a different prosecution, et cetera, et cetera, but none relate to it would be really politically convenient for me and my voters.
- [10:40]
C
Exactly. So you have grand jury secrecy. You have information under seal while cases are pending. You have some of this stuff as child sexual abuse material that should never, ever, ever, ever see the light of day. So you have so many. That's one of the reasons why when I've talked about this, I say that we should be releasing everything that is reasonable and lawful to release. Reasonable and lawful to release. Because some 1. There's also the long standing practice of the DOJ not to name individuals who are not, who've not been indicted. Because if you name individuals who've not been indicted. There's no opportunity that they have. There's no legal process that they have to clear themselves.
- [11:24]
A
This is the declination memo problem. This is why doj, except in those rarest of cases, don't do declination memos and why Jim Comey's declination press conference for Hillary Clinton was such a norm violation and really dramatically hurt the department for years to come, including, I would argue, up until this day, because people now think that the department does declination memos. Yeah, Public ones. Sorry. Privately, there are declination memos. I hope that's clear. Like you tell your boss why you decided not to move forward with that.
- [11:56]
C
Case and define a declination memo for.
- [11:58]
A
Everybody declining to bring charges. Where you say, like, we investigated this person, we found X, Y and Z, but we did not find enough to bring charges because of A, B and C. Therefore, I am recommending that we decline to charge this person with a crime. Think of the her memorandum on Joe Biden. Special counsels actually are required to provide what amounts to a declination memo.
- [12:24]
C
Right.
- [12:25]
A
And that is then up to the Department of Justice to make that public. But Congress asks for it, yada yada. So special counsels are in their own category. But other than Jim Comey, you're going to be hard pressed to find a normal Department of Justice investigation where there is a public memo describing why they didn't bring charges, let alone, again, a press conference. Ah, yeah.
- [12:52]
C
I mean, so this is really worth emphasizing. MAGA was promised things from the word go that could not be delivered. So it wasn't just that they were promising things that did not exist. So like the, the Epstein list, there's been some interesting sort of conversations about why was there this ever this sense that there was a list of clients, that there was sort of a list of pedophiles or whatever. There's been obviously manifests of people who've flown on his plane and things like that, but sort of like this list of who, you know, who abused whom. I, I don't know where that exactly came from. And so, you know, on the one hand, you had some people trumpeting things that apparently did not exist. And then on the other hand, you also had them saying, we're going to release things that they cannot release. And so on every front, they were absolutely deceiving this MAGA base. And I think an insufficient number of people paid attention to this because I think in a lot of media, including, by the way, a lot of conservative media, not Far right, like pure MAGA media. But even conservative media like Fox News on a given day, really had not had discounted what you might call the grand Epstein theory, the big Epstein theory, which is like, he's the key to unlocking the global pedophile cabal that's running everything. So after Epstein had died and Maxwell was convicted, a lot of the interest in the story from mainstream outlets faded, but it was only intensifying in a minority of Americans, but a very influential within the current American power structure. Minority of Americans. And so I think that's one of the reasons why it caught a lot of people off guard that we're still talking about this now. Two weeks, three weeks, maybe even four weeks in.
- [14:37]
A
By the way, one more thing before we leave this on Department of Justice protocols and why you follow the protocol even in unusual or what seemed to be emergency or unique situations. I think I've talked about this before. That that was like, if I have one big guidepost that I've taken away from Deputy Attorney General Rod Rosenstein, who I worked for, it is the rules exist for when it seems like you want to make an exception to the rules. Right? Because, like, it's sort of like the First Amendment. The First Amendment isn't there to protect the popular speech. We wouldn't need it. And the rules aren't there when you would definitely know to follow those rules. The rules, the process is there when you don't want to follow it, when it seems like you shouldn't have to follow it, et cetera. For instance, Jim Comey doing the press conference about Hillary Clinton not following the rules. Big mistake. A deputy attorney General flying down to interview someone who has already been convicted. Big mistake. So let me tell you why. One, nobody I have talked to can think of a time this has ever happened before. So just right off the bat, you have to ask yourself, like, why aren't we following the normal process? Even if you did need to go interview this person, it would not be the deputy Attorney General who would go do it. That's unheard of. Number two, the department, if you remember, had previously charged her with two counts of perjury. Now, it ended up pursuing the sex trafficking charges, didn't bother with the perjury charges. I think that's pretty obvious as to why. But they don't believe she tells the truth. And they have said that publicly. That's what charging someone with perjury means. And by the way, the perjury charges weren't some ancillary thing. They were questions about the sex trafficking ring that she was allegedly lying about. So you go down there to interview her. You've put yourself and the department in an impossible situation. Because now a smart lawyer, and her lawyer is smart, is going to go out and say, we provided a hundred names, which is exactly what he did say, by the way, of people who were involved, et cetera, et cetera. And you know what? We get a reduction in sentence, we'll publicly share those names. Well, you don't believe that she tells the truth, but now the public believes that you're withholding the hundred names. I mean, you've put yourself in a really bad position there. Not to mention, of course, like, why would we think she's telling the truth when there's a sentence reduction or potentially a commutation, maybe, God forbid, a pardon on the line here. Other questions. Were there agents in the room? Because again, if you're ever interviewing someone like this, protocol would say that you bring FBI agents. We're not aware of FBI agents being in the room, though maybe they were that. I don't have the facts on that one. Was the interview recorded? Because I would think if I'm the defense attorney, I probably do want it recorded. I mean, if I'm the dag, I definitely want it recorded. But did they? That's another problem because now people are going to want that recording public and it's not grand jury material. Right. So all sorts of problems there. You've just set yourself up for quasi legal, definitely political problems by going and interviewing her for two days with the deputy Attorney General. I don't, I don't understand, David, why people can't just follow the DOJ process that has been built up over decades for the purpose of preserving and protecting and furthering the integrity of investigations and prosecutions and convictions. How hard is this?
- [17:56]
C
That's exactly what somebody wants to maintain. The global pedophile cabal would say, Sarah, I mean, that's where we are. I mean, you know, that's exactly where we are.
- [18:06]
A
I guess so. You're right, you're right, you're right. This is the, like DOJ is like one of the ultimate Chesterton's fence. Like, there's this fence and you walk in and everyone tells you, like, you're like, why can't I, Why can't I build a gate there and walk through the fence there? And they're like, ah, that fence has been there for a long time. Why don't you learn why we didn't put a gate there before you cut a gate opening there? And like I've worked at DOJ three times, I'm pretty convinced that the fence is it perfect. There's things that I would probably change about the fence, but I am definitely convinced that I always need to learn why the fence was built the way that it was built before I just start bulldozing the fence because there's endless examples of cases and moments and history in the department that have built that fence over time anyway. All right, David, onto more Supreme Court news. So we have another interim orders decision. This is in Trump v. Boyle. This was about the Consumer Product Safety Commission and whether despite Congress saying that they only have for cause removal, can the president for our purposes ignore that and remove people for funsies? The lower courts had said no. The Supreme Court in another six three along ideological lines decision says yes for now. In doing so. There's some really interesting language in here.
- [19:29]
C
Yes.
- [19:30]
A
Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in, like cases. So first of all, David, that might be the first we're ever hearing about the precedential value of interim orders from the Supreme Court. And this causes me a little bit of heartburn, I will tell you, because I'm now getting pretty confused on what the difference is between like on the Supreme Court website, for instance, a case that is listed as an opinion of the court and a case that is listed as an opinion relating to an order. Because I sort of thought the opinions of the court which include cases from the interim relief docket, we're precedential, basically, whether it's merits docket or interim orders, docket here are precedential cases. But if it's opinions relating to orders and it didn't make it on to that other page and therefore didn't get an R number, for instance, all technicalities that don't matter. If you're a listener who doesn't know what I'm talking about, then maybe the difference is they're not precedential. But here we are in Trump v. Boyle saying they are precedential as far as they go, like, as far as any precedent goes. But like, lower courts are bound by these decisions even when they're not explained. If you think a case that's coming before you is similar to a case that we issued an order in even without much explanation.
- [20:58]
C
R.A. yeah, yeah. I mean, I'm just, I'm going to sound like a broken record, but there's a couple of things I think we need to be a broken record on. Sarah One of them is of Course, the TikTok ban. So, you know, a couple of listeners rightfully scolded us for not doing the TikTok watch on the TikTok band. So consider this your each podcast reference to TikTok.
- [21:26]
A
It's been 189 days, 189 days of.
- [21:29]
C
Lawlessness on the TikTok ban. So let's just check that box, that very important box. Here's the another box checked. Write opinions, please. Like, please, please, please, please write opinions. I mean, especially when the effect of your rulings are essentially to say this very old President Humphrey's executor is for all practical purposes no longer binding, no longer really exists. But you gotta please write an opinion on this. Please say it. Don't just act like it. Say it and explain it. And I think that's where the dissent has a good point. But I wanted to ask you this question, Sarah, because you and I are both what you would, you know, we're both very keen on maintaining or preserving or restoring in some cases, the structure, the constitutional structure of the government. In other words, Congress is primary, first among equals. The President and Supreme Court can obviously check Congress, but they are not co. Equal branches of government. And the executive certainly isn't supreme. Certainly isn't. Now, let me ask you this. Let's suppose you have a very old precedent that contradicts that structure by creating things like independent agencies that are like the independent agencies.
- [22:56]
A
Offensive to that structure.
- [22:57]
C
Yeah, offensive to that structure. Okay, so here's my question for you, and I'm, I'm thinking this through because one of the questions on precedent and stare decisis is reliance interests, like reliance interests, matter for whether or not you're going to overrule President. How many people have ordered their lives around this system, the structure, whatever. Is there such a thing on a structural issue? And what I mean by it is what if Congress has acted repeatedly on the basis of precedent that has existed for decades, even if that precedent was mistaken, if you have created entire structures and reliance on that, is it too disruptive? Is the answer then actually the way we restore the constitutional balance is to ask Congress to redo it in a systematic, structured way and not to ask the Court to permit a president to do it unilaterally and then reshape the whole thing according in a way that arguably Congress never would have permitted if this was a pure executive branch agency in the first place. I'm just throwing that out there because I think what we're seeing is a change very big, very large, much bigger and larger than I think a lot of even originalists have sort of pondered in times past. And it could have some very real ripple effects around the country. And so that's my question to you. How much should the court ponder reliance interests in a very old precedent that was mistaken but altered the structure of American government?
- [24:37]
A
And you'll get my answer when we get back from these messages.
- [24:43]
D
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- [25:13]
A
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- [26:31]
C
Right. And this is just, I'm, I'm just.
- [26:33]
A
Questioning because I think you have to start with Justice Thomas's view of precedent to even understand everyone else's view. Justice Thomas's view is that stare decisis, like the Latin term to let the thing stand comes from common law, because really, judges were in some sense divining what the law was, because there was no written law. It was built up over time. And so precedent was itself, in a sense, that law. And his point is we got rid of Federal common law 130 years ago in a case that I didn't really ever understand, but that Amanda Tyler over at Berkeley tried very hard to explain to us. So we don't do that anymore. We are doing only textual federal law, either based on statute of the Constitution. Therefore, the role of precedent shouldn't be the same at all. If something is wrong based on the text, if something violated the text, it's just wrong. So that's where Justice Thomas is. That's why you see Justice Thomas as this kind of low institutionalist, as I've called it, because for him, if precedent's wrong, it's wrong, and you overturn it and you move on with your life. I assume that he would add maybe a footnote on intellectual humility, like, you know, take a beat, make sure that you're the one who's right and they're the one that was wrong. But, like, if it's wrong, it's wrong. Then you're gonna have maybe on that other end of the spectrum, Justice Kagan, who's like, no, no, stability in the law is what builds institutional credibility and legitimacy. I don't think she's even necessarily disagreeing with Justice Thomas. But her point is there's a whole nother interest here, whether you want to call it the reliance interest. I don't know that she would necessarily even say that. That's the biggest point, although it's certainly one of the factors, but that the institution itself demands precedent if you want it to be respected. Like, I always like using the Yates case, remember the. Whether the fish are too small, whether you can throw them overboard. And it's this really weird case out of Florida where the guy has the federal monitor on the boat. He's pulling up fish that are too small. The federal monitor says something, and so then he chucks the fish overboard, and they bring charges three years later under Sarbanes Oxley, even though by that point the size of the fish has changed under the regulation, so that those fish would no longer have been undersized. But it's always the COVID up. David. Anyway, imagine a world where under Sarbanes Oxley, you have to kind of know the case, because we're not going to spend that much time on this either. Fish are documents or they're not tangible objects. Right?
- [29:08]
C
Right.
- [29:09]
A
This is where Justice Kagan has her famous One fish, Two Fish citation, which is a delight. So imagine a world in which four years later they're like, nope, we flip it. And four years after that, we flip it so that nobody knows when they're throwing their undersized fish overboard, whether they've committed a crime or not. Under Sarbanes Oxley, that's a reliance interest, but it's also just a stability in the law and how to run an ordered society interest, even if we take it a step back from the individual reliance interest. Because maybe fishermen aren't necessarily following all the Sarbanes Oxley litigation. Okay, then you have all the justices in the middle, and that's what matters for our purposes. But, David, this gets to a different answer to your question. You're talking about Humphrey's executor, 1925, whatever it was, which upheld the structure of the Federal Trade Commission in 1925, which in Celia Law, which is now 2018, I think I've got that Celia Law kind of already overturned Humphrey's executor. They just didn't say that's what they were doing because their argument was, we don't need to. And the arguments under Celia Law were basically President's removal power may be constrained by Congress if it looks like the FTC in 1925, which we're now going to define as an advisory commission of sorts. So if it doesn't have any sort of executive power, policymaking power, and second, Congress can constrain inferior officers that don't have policymaking roles. And then, I mean, in Celia Law, they were saying, the cfpb, the Consumer Financial Protection Bureau, is not like the FTC in 1925, and the administrator is not an inferior officer. They do exercise policymaking roles. Therefore Congress can't put limitations on that. That's just up to the President. So one way to look at this, David, is that in Trump v. Wilcox, which is about the National Labor Relations Board, and in Trump v. Boyle, which is about that Consumer Safety Product Safety Commission, they're just applying Celia Law to all the different organizations that come by it. And I think I would have liked the opinion a little better if it had said, remember, Celia Law is binding precedent on the lower courts. Forget these interim orders. You need to be looking at Celia and saying, like, is this Commission more like the FTC in 1925 or more like the Consumer Financial Protection Bureau and go from there. But you do have this interesting concurrence From Justice Kavanaugh. It spoke to me, David. I'm not saying it's, like, beautifully written. I just like the logic spoke to me. I'm not saying it's not beautifully written. I want to be clear about that, too. I'm not. Just never mind. Okay. When an emergency application turns on whether this court will narrow or overrule a precedent. Cough, cough. Humphreys executor. And there is at least a fair prospect. Parentheses. Not certainty, but at least some reasonable prospect that we will do so, the better practice often may be to both grant a stay and grant certiorari before judgment. In those unusual circumstances, if we grant a stay but do not also grant certiorari before judgment, we may leave the lower courts and affected parties with extended uncertainty and confusion about the status quo of the precedent in question. Cough, cough. Humphrey's executor.
- [32:28]
C
Yep.
- [32:28]
A
Moreover, when the question is whether to narrow or overrule one of this court's precedents rather than how to resolve an open or disputed question of federal law, further percolation in the lower courts is not particularly useful because lower courts cannot alter or overrule this Court's precedents. In that situation, the downsides of delay and definitively resolving the status of the precedent sometimes tend to outweigh the benefits of further lower court consideration. David. I feel like there could be other Supreme Court opinions where that sentiment runs 30 pages. And I'm so impressed that it's in one paragraph that I can read on a podcast because there's a lot packed in there. I think it's all absolutely correct. The only thing that I'm mad about is that Justice Kavanaugh has never said the word certiorari out loud and in any court proceeding that I'm aware of because he says grant review. I think for the purpose of not ever being heard, to say the word that nobody knows how to pronounce and yet makes me say it if I want to read his opinion out loud. Outrageous, sir.
- [33:30]
C
But all of that is correct. I think that. I think that's absolutely correct. And this percolation point, when the question is overruling the Supreme Court precedent, I mean, the circuit courts can't do that. And are they just. Otherwise, you're asking for, like, input advisory opinions, if you will.
- [33:50]
A
And we're already providing that they don't need that from lower court judges.
- [33:53]
C
Absolutely. Absolutely. So, yeah, this is. But, you know, I don't see why more can't be said now. Like, the dissenters have the time and energy and effort to write out their dissent so that we can plainly and clearly see what they think about the case. And look, I mean, it could very well be that the six are all together on the outcome, but right now, kind of all over the place on the reasoning. Don't know, can't know, but it's possible. So maybe that's a reason why we have not seen the kind of really any meaningful opinions in this latest round. But, you know, it really is creating a severe problem, at least when it comes to the idea of telling the public that cares about this what is going on and why. And that has always been one of the things that I love the most about the judicial branch is that these folks, when they make a call, they put it out there. They put out all the reasoning. They put it all out. You can read it, you can understand it, you can absorb it, you can disagree with it, you can agree with it. I think it's one of the outstanding characteristics of this branch of government. And I. And by not doing that, you're creating a vacuum into which people are pouring their own speculation, they're pouring their own opinions into. And it's just a real problem.
- [35:17]
A
I do want to mention one thing from the dissent written by Justice Kagan, by the way. I want to talk a little bit more about Justice Kagan after this because she gave her annual at best I can tell speech to the night circuit, and there were some delightful nuggets in it again. So here's from her dissent. The majority's sole professed basis for today's stay order is its prior stay order in Wilcox. Remember Wilcox's National Labor Relations Board? It was in June, rough, whatever, it's several weeks ago. But Wilcox itself was minimally and as I have previously shown, poorly explained. It contained one sentence ignored today, hinting at but not deciding the likelihood of success on the merits, plus two more respecting quote, the balance of the equities. So only another under reasoned emergency order undergirds today's. Next time, though, the majority will have two, if still under reasoned opinions to cite. Truly, this is turtles all the way down, citing a 2006 opinion by and if you have followed Justice Kagan closely and her public comments and her writing, you will know the answer to who Justice Kagan is most likely to cite when she's being delightful. Okay, I'm gonna give you a second to play your little games at home. Right. It is Justice Scalia. Of course it is. She's always said that when she's writing her opinions, she tries to think about what Justice Scalia, what holes he would poke in it, et cetera, that he's sort of her writing counterpart, if you will. I don't think inspiration is the right word, but it's like that's who she wants to bounce her writing off of. All right, David, given that, I'm sure we'll see more over this summer. Let's talk about Kagan for a second. So in her comments at the Ninth Circuit, you can imagine she was saying that she's not a big fan of how the court is handling its emergency docket. And David, first off, we definitely have a vocabulary difference. We are now seeing the chief use the term interim orders or interim relief docket, I think, and we're seeing Kagan use emergency docket. I don't know whether they're going to resolve this intra court dispute, but I have to say, for two of the court's most institutionalist judges, I think this is an area where the institution should probably pick one and go with it.
- [37:38]
C
Yes, agree completely. Have an institutional style guide. Pick and run. Yes, yeah, absolutely.
- [37:46]
A
All right, David. Well, next thing that she said was about the emergency docket. And I'll try to use everyone's preferred docket names when we're talking about that justice. So for Justice Kagan, I'll still use emergency docket. Basically. She says it should, it has to be there, etc. But it should be used sparingly. But this raises then you almost have like a, a factor test for the emergency dockets factor test of whether to grant relief. You know, you have the four factors that we've talked about, likelihood of success on the merits and cert worthiness and all of that stuff. But now we're going to have like these other factors. I don't know. This is all getting. Not ideal.
- [38:27]
C
Yeah, yeah. It does feel like we are reaching the point of where you just would call it kind of a little bit of a mess in some, in much the way like going down in the lower courts, how the universal injunction practice had reached the point of kind of sort of a mess. And so we need to introduce if, if the emergency docket, whatever we want to call it, is now a very permanent and very important part of the court's docket. And I just think there's no real way around that then creating normalized procedures under normalized standards is the way to go. And nomenclature is just one aspect of that. The least important aspect of it maybe, but one aspect. And let me just once again make a play for if the court can't agree On a term. I've got the compromise term equity docket. I'm here on equity docket Island. I'm waving my flag. But, yeah, I agree with you. Absolutely.
- [39:27]
A
Something else she talked about, which she has also talked about before, and I would say we're getting closer to the Jonah Goldberg banging spoon on high chair. Place is. I'll just quote her here. It's about concurrences, right? Too many concurrences. Just one or two guys trying to tell you how they would have written it differently dilutes the message of the court. David. I mean, we talked about that Vulo lower court remand from the 2nd Circuit, where, like, the whole thing just cites Justice Jackson's concurrence, which maybe was clarifying, but maybe it wasn't. And, like, imagine if Vulo had gone down without that concurrence. I don't think the 2nd Circuit opinion turns out the way that it does. And I don't know that that's okay when, like, one justice signed on to that and not more. You know, everyone tries to say that Chief Justice Marshall and Marbury versus Madison, you know, created judicial review. And then you have all these academics that are like, well, actually, technically, it existed before, but it, like, you know, one thing that Marshall absolutely did do, he stopped where every justice wrote their own opinion, and it was up to the litigants to figure out who won by, like, reading them and sort of seeing where everyone came out. He started the opinion of the court. It feels like we're moving away from that. I love that Justice Kagan is highlighting that her current colleagues don't care. I know. Here's another quote from her. My view is the court has many members, but it is an institution. It is a court or it is a court. It speaks best when it speaks as a court rather than a place when nine people get together and write individually. So in 1950, David, I think it was, like, fewer than one in three opinions had a concurrence on average. So 0.3 concurring opinions in a given term. We have more than one concurring opinion per opinion on average now.
- [41:25]
C
Really?
- [41:26]
A
Yeah, it's huge.
- [41:28]
C
Now, that does make sense. Yeah.
- [41:30]
A
I mean, think about Rahimi or even, like, what Rahimi had. I think Alita was the only justice who didn't sign on to a concurring opinion or a dissent. If you were Justice Thomas. So it's an 8:1 decision with a gazillion opinions all over it. And in a case like Rahimi where you're trying to sort of explain a new area of the law.
- [41:51]
C
Now that is absolutely interesting and the Jackson concurrence and what happened on Vulo that we talked about last podcast. But I'll just give a refresher. The Supreme Court had ruled 90 that the state of New York, acting through its financial regulatory officials, had potentially coerced financial institutions to stop doing business with the National Rifle association because of the National Rifle Association's constitutionally protected advocacy activity. And then on remand, the court really citing a concurrence, not a major the majority opinion, well, that was 9090 grants qualified immunity for all practical purposes. The ability of the NRA to be made whole for the losses that it has suffered has been destroyed. And so even though there was a solid case from the Supreme Court 90 on free speech, on coercion and on that line between coercion and coercing and convincing, at the end of the day, justice is not done in that case. And so this is I think this is highlighting and I actually this is going to sound ridiculous, Sarah. I didn't necessarily see it coming like this, but an upside of providing additional helpful guidance, though not binding because opinions can't answer every question. You know, I think, for example, when you see a member of a majority of a 5 Justice majority, for example, that overruled Roe and one of the five who overruled Roe said, well, you know, if we're talking about like travel restrictions or other kinds of things like that, that becomes helpful because all of a sudden you realize, huh, extending this precedent, I'm not sure there's five for X or five for Y and that's helpful. But we're now seeing the flip side of that in the Boulo case.
- [43:45]
A
Well, and let's make a distinction here between concurrences and concurring in the judgment and writing separately, if for instance, the majority reaches it on the merits, you know, and says that you lose on the merits, but you thought they didn't have standing so you never got to the merits. That's worth saying in a concurring opinion because it turns out, you know, there weren't as many votes for the merits as maybe someone thought or, you know, you wanted to highlight the standing difference. I think that that still could have a pretty important role in knowing how many votes there are for different things. But that's not really what we're seeing anymore. We're just seeing like concurring thoughts all over the place. And by the way, for Anyone who thinks I'm picking on Justice Jackson, it's just because that Vulo case was so reset. But if you actually want to know who the great concur is on the court, it's Justice Gorsuch. And I do wonder if we're going to see more concurrences in a post filibuster era. I know I talked about how I think getting rid of the filibuster has changed judicial behavior on the lower courts. But in short, if before, if you thought you were up for a promotion, potentially you would maybe want to stay away from writing more than you had to and certainly writing more on controversial topics than you had to. Now, of course, without the filibuster, that incentive is flipped on its head. But it also just creates a new culture at the lower courts where everyone's concurring all the time. And, you know, it's a cultural issue because some circuits are doing it more than others. And once those judges then get on the Supreme Court or those district judges become circuit judges or whatever, that culture, I think is going to continue. So I think this problem is actually going to get much worse in the near term. David Despite Justice Kagan's. Please. And I am team Kagan here and presumably team the Chief, since he basically he and Kagan never right. Solo concurrences. The only solo concurrence I could find from Justice Kagan was that one in the, as Justin Kagan calls it, the emergency docket one where she's explaining why she voted the other way on the last case, but now that it's back up on the civil contempt question, she's switching her vote. It was one paragraph. Only solo concurrence I can find from Kagan, like in history. Maybe someone else can point to me one out there, but she's, she's a woman who walks the walk. David when we get back, I have some hot topics. Are judges too young? All right, David, Hot Topics. First Hot Topic. A 91 year old Brooklyn federal judge. Judge block sees a problem on the judiciary these days. Judges are too young, says the 91 year old. And at first it's a laugh line. We're all like, oh, ha ha. I mean, look at, like these judges are all incredibly old on the Supreme Court. You've talked about all the old people in Congress like just nobody's retiring anymore. But David, the more I read what he said, I don't know, he's kind of winning me over. So his quote is, they don't have the background. They don't have the experience that I had when I got onto the bench. He's not talking about staying on the bench forever, although, again, he's 91. He's talking about how old we're putting judges on the bench in the first place. He was 60 when he was appointed by President Clinton. And don't worry, he took senior status 20 years ago in 2005 when he was 71, by my math at least. I absolutely agree that our race to the bottom in terms of appointing judges when they, like, get to third grade is not just like a mistake in sort of an obvious way, but doing a disservice both to the legal practice and to the credibility and legitimacy of the courts. Like, we should have people who've had full careers in whatever section of the law they've chosen, whether they're a public defender or a big law partner. You know, you're not really graduating law school. Let's say you clerk or something. You're like 28 years old. Maybe by the time you're really into any sort of real legal practice. And we are putting people on circuit courts at 35. Nope. That is just not enough time to have a real view of how the law works. Again, in whatever area you choose to practice in, we should be putting people as judges who are experts in their area of the law. And I think 60 is probably about right for that. I mean, we're putting Supreme Court justices on and saying that 55 is too old to even consider someone for the Supreme Court. David, that's the Supreme Court.
- [48:24]
C
That's absurd. Yeah. I'm so glad you raised this, because why are we putting them on so young? Like, I think the argument gets stronger and stronger when you realize, why are we doing it when they're so young? We're doing it when they're so young. So that. Because. Not. Because we've determined at age 35 that this person is one of the rarest jurisprudential minds in America. No, they are very smart. They have the right credentials. We have confidence in their ideology slash philosophy, and we want them there as long as possible. Okay, so it's like bringing in members of a team of an ideological philosophy, philosophical team, when the reality is, yeah, your ideology and philosophy as a judge really does matter. But there's so much more to being a good jurist than do you have the right judicial philosophy or the right ideological leaning? There's so much more to that. Now, I don't necessarily think 60 would be the age, but by the time you're at 50 you know, at least you've been practicing for, typically for 20 plus years. At that point, you've got 20 plus years under your belt. There's, you've had a lot of experience. And then also, you know, if from 50 to 70 isn't long enough for you, like, you know, if it's 20 years isn't long enough for you, then, you know, what is really the objective here? And I think that this is part of the culture war being so imported into the judicial branch. You want your team, you want to lock in your team for as long as possible. And mid-30s. What, what? That is amazing.
- [50:08]
A
I mean, at least can we require the 10,000 hours thing that Malcolm Gladwell talked about in one of his books? And again, doesn't need, I don't need them to clock their time. But. And I guess a lawyer would tell me, if you want 10,000 billable hours, I got that in three years, missy. So fair enough. All right, next, David, there have now been multiple polls coming out showing that the approval rating for the Supreme Court court has been ticking up this year, which is sort of interesting. Now, you will see in these headlines, sort of this cause and effect thing that I don't quite buy into, that the Supreme Court's approval rating went down because of Dobbs. There's actually not a lot of good evidence for that. The approval rating starts going down in the Barrett confirmation process, which is also surprising because, like, you could see it going down because of the Merrick Garland not getting a hearing or then the Republicans immediately confirming Gorsuch, like, okay, maybe the Kavanaugh hearings, maybe, but it's neither of those. It's actually when Ruth Bader Ginsburg dies and Justice Barrett fills it that you start seeing a downturn. Now, Dobbs happens in June of 2022, and you do see the downturn continue into roughly like, I don't know, July, September of 2022. And then it levels out and has started at least to go back up. Okay. And again, you know, I don't care about polling numbers like the actual numbers, which is why I'm not telling them to you. Trend lines are what matters because as long as you're asking the same question, you can get a vibe. But here, David, is a really interesting question that I hadn't seen before and I'm so pumped about, and there aren't trend lines. So I am going to give you the number. But again, I want you to consider that the actual numbers are not what's important here. It's the overall sort of sense of it. And hopefully we will get this as a trend line moving forward. Which branches have too much power? So overall, 54% think the president has too much power. As you can imagine, 83% of Democrats think the President has too much power. Would love again to see that poll, the second of Democrats in office, which I think explains the entire problem we have with the executive branch. Congress. Only 31% thinks it has too much power. Too little. 25%. And it's not that much of a partisan distinction. Although Republicans, it's definitely Democrats think it has too little. Republicans are the least likely to think that it has too little power. Again, you look at who's in charge and all of that. Fair enough. If you have the presidency, you're maybe less inclined to think Congress needs more power. But overall, Americans seem to understand that the President has a lot of power and Congress doesn't have as much power. Setting aside the exact numbers, that is heartening to me that at least people seem to get the problem a little bit. Okay. And then we look at the Supreme Court. It's right in the middle. So if over half of people think the President has too much power and only under a third of people think Congress has too much power, 38% think the Supreme Court has too much power. As you can imagine, over half of Democrats think the Supreme Court has too much power. Independents actually are at 38% and Republicans at 20%. 67% of Republicans think that the Supreme Court has exactly the right amount of power. So, David, reaction to those polls, but I wanted to get your reaction in the context of something that our dear friend Professor Oren Kerr tweeted. One thing that makes studying Supreme Court cases interesting is that the justices are human. The pieces never fit together perfectly. There are always odds and ends. Academic commentators have a tendency to focus on this a lot with decisions they dislike, but to put it aside and not look under the hood too much with decisions they like. But it seems to me it's pretty much true across the board.
- [54:07]
C
So I loved that tweet so much and because there's something that's frustrating to me when we talk about the Supreme Court a lot is that people look at for inconsistencies and contradictions and every time they might find something that doesn't quite match up, like, you know, that that old school conspiracy gif that people have, that's like all of these strings draw going to all of these pictures and. And I feel like if people are analyzing the court and they can't fit all the strings to all of the pictures together, they think there's a corruption issue or there's an integrity issue, or there's malice here or something like that. When the reality is often what you're dealing with are human beings. I mean, always. Often what you're not robots. Sorry. Always what you're dealing with are human beings. And no matter even the highest integrity, human beings have quirks and foibles and inconsistencies and forget things and don't remember something that they might have written seven years ago or whatever. And this is just inevitable friction that exists in human systems. And what we're doing in this very low trust time is looking at every element of human friction and ascribing malign motives to it. Now, not saying malign motives don't exist. Malign motives obviously exist in people all the time, but not in everyone all the time, and certainly not in all of your opponents all the time. And so a lot of what we attribute to corruption or malice or whatever is often just humanity. That's not to say that there aren't instances where judges will absolutely so flat out contradict themselves that you wonder what's going on. So this is not a blanket defense of every inconsistency, but it's just pointing out, guys, the absence of perfection is not proof of malice. And so we just need to keep that in our minds when we're walking through all of these things. And like you, Sarah, on the. On the polling question, I have one little difference with you, and that is it's so funny. You said it actually dates back to Barrett. And as soon as you said that, I said it makes. That makes sense. And you said that we both had an opposite inclination there. And here's the reason why I thought the Barrett situation made sense. Sense is because we just, four years ago, four years before that, had been through this big fight over Merrick Garland replacing Scalia. And I think the very simple message came through to people. That is, in a election year, you wait until the presidential election to confirm a justice. Now, the actual McConnell rule was, well, if the party in the presidency doesn't also hold the Senate, then you wait. That was like kind of the McConnell rule. But others went way beyond that. And they said, look, if it's right up on an election, you can't do this, including several Republicans said, if it's right up on an election, don't do this. And so then when Barrett's nominated and there seems to be this big flip, that's why I said it made sense.
- [57:11]
A
Okay, but you know, who you should blame for that hint, it's not the Supreme Court whose approval rating should go down.
- [57:17]
C
True, true, true. That's a Congress issue. I mean, like, major theme. Yes, absolutely.
- [57:22]
A
So I want to spend just a moment on your they're humans and not robots point and that we should extend good faith to our opponents as much as we would ourselves or our own side. I also think a corollary to that is that almost everyone with very unique, near exclusively serial killer exceptions thinks that they're the good guy in their own story. So if you think someone is a bad guy and acting with evil intent, it is always helpful for me at least, to ask, what is this person's narrative? Why do they think they're the good guy here? And I'd like to do this specifically and often with Chief Justice Roger Taney. He was one of the most famous politicians of his day. He replaced Chief Justice Marshall. Everyone loved him. He. He emancipated his slaves and gave them lifetime pensions. And he's going to be the author of Dred Scott. Right? So, like, here is someone who 100% thought he was the good guy in the story, and yet we think he's the worst guy in the entire history of the Supreme Court. So, like, why was he so wrong and why did he think he was the good guy? And to make a long story, maybe too short, but he saw the political branches failing to answer this question. He saw the country heading towards civil war. He saw the failures of the Missouri Compromise. He saw violence breaking out in Kansas, the end of a whole political party. You know, the Republican Party had. Sorry, the Whig Party had basically ceased to exist at that point as any sort of political power. So he thought he could fix the problem. He thought instead of having all these compromises, we need a bright line rule, and the political branches aren't doing it. So I can. I think there's a great lesson to be learned there about the proper role of the Court and the danger of thinking that, like, an unelected person is going to, like, swoop in and, like, fix a major cultural issue for a country as diverse and heterogeneous as the United States. But to your human point, David, he wasn't trying to do. He wasn't trying to be evil. He, in fact, thought slavery was an evil. He had said that he's not the guy you think he is because I think we make it too much. Black hat, white hat. I think we make it seem like we always knew the Nazis were evil. The Nazis knew they were evil. They were always doing evil things instead of showing how a group of people, like the word Nazi wasn't bad back in the day. Right. It didn't mean Nazi back in the day.
- [60:01]
C
So let me add an addendum to that. I think when you're talking the beginning of the slide into, like, Nazism, I'm with you.
- [60:09]
A
Yeah, yeah, that's what I mean. Yes. Sorry. At some point, you lose. You lose the thread.
- [60:14]
C
But what we're seeing with a lot of young people, especially young men right now, is they're loving being bad. Like, they're actually enjoying being bad.
- [60:21]
A
But they think they're the good guys. They think by being bad in this culture, they are actually doing something helpful by tearing down these corrupted, feminized institutions. Again, David, I think this is where you need to put on the human hat. And, like, very few people think they're the bad guy in their own story. Why do these guys think they're doing something helpful? Because I think they do. And maybe we're getting way off on a tangent here.
- [60:48]
C
I think that's a bit strong. I think that's a bit strong. I don't necessarily think that they think they're building anything. I think they hate people and they believe that they're justified in hating people, but they know they're hating people. And what they've done is they've demolished the moral standard that says hatred is wrong. But then they've reincorporated a new moral standard that says my hatred is right. There's no question about that. But I would say that many of them would say, yeah, by your bourgeois notion of evil, I'm evil. And they relish in the pain that they cause. And that necessarily isn't so much. Sarah. I don't think that relishing in the pain that they cause is necessarily, I think I'm doing something good. I think they hate so much that they just get a visceral joy out of causing pain in other people.
- [61:40]
A
I want to clarify one thing, though, David, just for listeners slash you, my friend. I want to be clear that while I'm saying that, we should think about why that person thinks they're the good guy in their own story and that most people think they are doing something positive. That is not the same as moral relativism. I don't mean that they are right in any sense of the term, Whether you're Nazis or Roger Tawney or these guys.
- [62:02]
C
Oh, of course. No, no, no. Yeah.
- [62:05]
A
Just because you understand someone or put yourself in their shoes does not mean that in any way you need to say, you really got to hand it to them.
- [62:12]
C
No, you're. I, I know, I don't think anybody would reasonably interpret what you're saying. I'm just saying what I think is that these people cross a threshold to the point where the joy they take in the suffering of others is its own reward.
- [62:25]
A
Yeah. I just don't think we're disagreeing. I think that they think that that still is going to build a better society. That they need to tear down these people who have destroyed the society that they believe existed beforehand, yada yada yada, and that so what they're doing is a good project. Again, no moral relativism here. I think it's bad. I think the, the proto Nazi whatever crap that I'm seeing out there and especially when it comes to the incel culture of hating women and all of that, like you are not doing something good. But what's really dangerous about it I guess is my point about Nazism or Roger Tawnyism or incelism is that they think they are. And if you want to defeat that, just saying like they're evil and wrong ain't gonna get you there. Cause you don't understand what's motivating them and incentivizing them.
- [63:12]
C
No, I would agree with that. I think the only point of disagreement is I think that some people get so far gone that the rationalization I think that I'm doing good is so far removed from their day to day experience that they are, that they're living in a world of hatred so intense and joy and the suffering of others so intense that the original reason for it is almost lost. And that the day to day motivation isn't I'm waking up in this morning to seek justice in my own way. It's I'm waking up in the morning seeking to inflict pain. And I think that, that, and then when you press them on it they'll dig and find a reason. But I think for a lot of people it does get down to, they take, they delight in the suffering of their opponents. And, and that's, that is down a lot. That is, that is down the devolution ladder, the moral devolution ladder. But I do think that people really do get there.
- [64:14]
A
And I also want to be clear. Roger Tawny is a more complicated figure in many respects than I'm painting him to be. I'm trying to give sort of the one argument of Roger Taney not being as one dimensional on the evil side. He's not as one dimensional on the good side either. He was a thorn in Lincoln's side during the war. The whole Merriman case, if anyone wants to go dig into that, about the suspension of the writ of habeas corpus was fascinating. And by the way, the government did eventually charge John Merriman with treason, but he was never tried because Taney wouldn't take up the case of treason against Merryman. And Merryman named one of his sons, Roger B. Tawny Merryman, as a thank you. Anyway, so I don't want anyone to think I don't have a more full picture of Tawny, but he's sort of a good example, I think, of like a one dimensional character that's certainly fully human. And so maybe we can at least get to like a second dimension for him to make it a cautionary tale.
- [65:18]
C
I don't think any reasonable person would listen to the podcast and think you're excusing immorality. You're trying to understand it. Those are two different things.
- [65:26]
A
I want to be clear.
- [65:29]
C
Two different things. Understand versus excuse are two different things. So, you know, everyone just understand that listening. That's what's happening here.
- [65:38]
A
I feel like we're going to get a lot of mail about Roger, Tawny.
- [65:40]
C
That'll be interesting. It'll be interesting.
- [65:42]
A
All right. For the next episode, we have some amazing a triumvirate of cases from the Ninth Circuit on guns, on foster parents and on birthright citizenship. And David, I kind of want to take all of them just in the dissent because they're not all liberal or conservative outcomes, but the dissenting opinions and all of them are really fascinating. So next time on advisory opinions, Sam.