Sunday, December 16, 2018

Auer, Executive Agencies, and the Supreme Court

by Curtis Herbert

The Supreme Court recently accepted a very important cert petition, and it will now decide whether to overrule two administrative law precedents: Auer and Seminole Rock. But what is the significance of these cases?

Auer deference, generally speaking, is the practice of deferring to agencies when they interpret their own ambiguous regulations. Seminole Rock does roughly the same thing. When you hear the word “deference” in a legal context, it is often preceded by “Chevron.” But that is not the case here, and it’s important to distinguish between the two. What Auer does is expand upon Chevron deference, adding to the power of agencies. The central holding of Chevron was that courts ought to defer to agencies’ judgements about Congressional statutes. Auer deference goes one step further, directing courts to defer to agencies’ interpretation of their own regulations. These cases join Chevron and Brand X to form what some consider the dreaded triumvirate of administrative deference.

The argument against Auer deference, as set forth by the petitioner, goes something like this:

1: Auer deference is simply a judicial policy, and a faulty one at that. It has no underlying constitutional reasoning.

2: Auer deference raises serious separation of powers questions

3: It is also incompatible with due process and fair notice.

These are all interesting claims. They also relate to a case I wrote about very recently, Sessions v. Dimaya, which I will revisit in the context of this case.

The first claim is not only a challenge to the constitutional basis of Auer, but to its practical application. It seems relatively clear (at least to me) that nothing in the Constitution mandates judicial deference to administrative agencies, which did not exist at the time of the founding. In fact, as the petitioners will argue, separation of powers concerns may counsel against Auer deference.

After concluding that there is no constitutional basis for this policy, petitioners then proceed to question its wisdom. Their argument is quite simple, and I’ll summarize it by paraphrasing Richard Epstein on a recent First Mondays podcast: “The relative advantage of the judiciary is statutory construction, while the relative advantage of agencies is fact-finding.” What on earth does this mean? It means that, generally speaking, judges are better at interpreting statutes and regulations, and agencies are better at fact-finding and policy-making. Judges have legal training and experience, while agencies have more resources and expertise in the areas they are tasked with overseeing. Why, the argument goes, are we throwing away the intelligence and capabilities of judges who specialize in interpretation? This line of reasoning advocates for deference to agencies when they make factual determinations, but not when they make interpretive ones.

The ensuing portion of the argument focuses on perceived separation of powers issues with Auer. Here is an excerpt from the cert petition: “The court of appeals wholly abdicated its constitutional mandate to exercise independent judgment; it effectively delegated to the VA its authority to interpret legal texts.” (Petition for a writ of certiorari, Kisor v. O’Rourke.) The agency is interpreting its own regulations, and, under this theory, it is the obligation of the judiciary to step in and ensure fairness. But, as the petition explains, this does not happen at all under Auer:

“the sole basis of [the] decision articulated by the court of appeals was that the presence of two competing, reasonable constructions of the regulation obligated the court to declare the regulation “ambiguous.” . . . That is all it takes for Auer to apply: a “regulation is ambiguous on its face” whenever “competing definitions for a disputed term seem reasonable.”

Petitioners noted that because the lower court could find a reasonable reason for its interpretation, the rule was ambiguous, and so Auer deference was in effect. What this does is import a test akin to modern-day rational basis scrutiny into administrative law. So long as the agency can make an argument, regardless of whether it is correct or not, that means there is some ambiguity. And because there is ambiguity, the agency wins under Auer. Therefore, virtually any argument an agency can make will be upheld under Auer. And in the world of Auer, there are no suspect classes. There are no fundamental rights. It’s rational basis scrutiny all the way. The courts are doing precisely the opposite of what they are supposed to do, and as a result are violating separation of powers principles. Agencies are given free reign, which brings us to the third assertion: Auer conflicts with due process.

The specter of agency regulations and the future of the administrative state were fresh on the justices’ minds last year in Sessions v. Dimaya. When Justice Gorsuch wrote his concurrence, he was worried about excessively vague laws in civil as well as criminal contexts. He wanted the Court to treat vague laws the same in both contexts. Perhaps it is now even more evident why the plurality in that case declined to extend that standard of review: it might endanger some of the modern administrative state.

Here’s why this is relevant: what Auer does is incentivise vague and unclear regulations. If you run an agency, why make clear and unambiguous rules when you know that you can interpret vague ones however you want, and the courts will go along with it? What Auer does is make the amount of deference dependent on the amount of ambiguity. As the ambiguity increases, so does the range of interpretations, as well as the likelihood of the interpretation being upheld. When perverse incentives are created, the end result is usually perverse actions. The reason that vague regulations and laws are so dangerous, and teeter on the brink of unconstitutionality, is explained in part in my earlier article, but for a more thorough explanation I suggest Justice Gorsuch’s opinion. Succinctly put, it is essential to the rule of law that citizens be able to know what the law is. That element of the rule of law is not being done any favors by Auer deference.

That’s the short version of the argument against Auer. Feel free to take it or stick your pencil through it. I, for one, am looking forward to a fiesty oral argument and some blistering opinions. We can be pretty certain Gorsuch, Alito, and Thomas will vote to get rid of Auer. What position the Chief Justice and Justice Kavanaugh endorse remains yet to be seen. For now, eager anticipation will have to suffice.


Interview: Robert George

Robert George is the McCormick Professor of Jurisprudence at Princeton University. He also serves as the director of the James Madison Program in American Ideals and Institutions. He writes frequently about constitutional law, the moral philosophy of law, and religious freedom. I interviewed him yesterday in Princeton.

My questions are in bold; his answers are in plain text.

When you were in high school, you were twice elected governor of the West Virginia Democratic Youth Conference. What compelled you to become so involved in politics?
My grandfathers were coal miners and union men. And of course, a lot of West Virginia politics had to do with union advocacy and issues having to do with miners and working conditions. Now, one of my grandfathers saved up enough money to get out of the mines and start a little business of his own and become a grocer. My other grandfather remained in the mines or working on the railroads as a laborer his entire life. So I came from a strong tradition of labor union advocacy and Democratic party politics. The labor unions and the Democratic party were really one and the same thing. My grandfathers were great supporters of Franklin Delano Roosevelt; they saw political action as important to the cause of justice and to the working family. So it was quite natural for me and my brothers to want to be part of that tradition and be active in politics. Our goal — what we thought the goal of politics was — was to make life better, especially for people on the low end. People who were poor, people who were working class.

What were some of your other interests as a teenager?
Bluegrass music, which I still play a lot of. Again, I grew up in West Virginia, where banjos are issued to little boys at birth, so that came very naturally. And fishing. I loved to fish, I still love to fish, and I grew up doing an awful lot of that.

Where are the good fishing spots around here?
There’s good fishing in Lake Carnegie. And the local streams, like the brook that flows near Princeton Day School, have natural fish populations of bass and sunfish and are stocked by the state with trout. Being a West Virginian, I don’t care much for catching stocked trout. I like the native fish that we have back home. But I will catch stocked trout in a pinch.

Do you eat what you catch?
I like fish, but I tend to like fish from the sea rather than freshwater fish. The one exception is I do like walleye, but those are pretty rare around here.

You played in a bluegrass band when you were in high school, right?
I did, yeah. And in college, and I’ve done a good deal of performing in the past few years, playing at the Princeton Arts Council or campus venues.

When you were younger, how comfortable did you feel performing?
I was always a bit of a ham, so I was always very comfortable performing. I sang and played guitar and played banjo — a bit of mandolin as well.

Where did you perform?
There were two coffeehouses; this was the heyday of the coffeehouse. And in my hometown, which was a university town, there were two coffeehouses. One was in the basement of the Catholic students’ center, and that was called “The Potter’s Cellar.” And then one was run by one of the Protestant ministries, and it was called, if I recall correctly, “The Last Resort.” My friends and I played in both of those places. Now, I also played a lot at country dances. There were sportsmen’s associations, sometimes called rod and gun clubs, throughout Appalachia, and we certainly had a lot of those in West Virginia. I also played at dances that were in fire halls and school auditoriums and things like that. When I say dances, I mean country dances. Like square dancing and other kinds of country things.

You don’t hear about those kinds of dances in New Jersey.
In Southern New Jersey, there is some of that. In fact, when I’m down in southern New Jersey — and usually when I’m there, it’s in relation to some sort of musical activity — I’m struck by how much it’s like Appalachia. I like southern New Jersey. I like the Pine Barrens. And it does remind me of home in a lot of ways.

After high school you went to Swarthmore. And I read that you were kind of appalled by the decision in Roe v. Wade when that came out.
I wasn’t yet at Swarthmore, but I can tell you exactly where I was. I was working a table for our local pro-life group at the West Virginia University student center, which was called the Mountainlair. I was working a table, handing out leaflets and talking to people for our pro-life group, and someone came by and said, “There was a big decision from the Supreme Court on your issue.” This was January 22nd, 1973. And he didn’t know what the decision was — he just said there was a big decision. So we ran off to find a radio and get the news. We found a radio, and we heard that the decision legalized abortion.

It took a while to get clarity on just how extreme the Roe decision was. The early reports indicated that the Court held abortion was lawful in the first trimester, but when people had time to read the decision and digest it, they knew it meant a lot more than that. Abortion had to be legal not only in the first trimester, but through the entire second trimester. Even in the third trimester, abortion had to be permitted where it was indicated to preserve maternal health. But there was such a broad interpretation of health required by the Court; that is, an interpretation that included not just physical health or even emotional health, but a whole range of factors. This meant that for all intents and purposes, under Roe v. Wade, states are forbidden from actually preventing any abortions. Even in the third trimester, when in theory, according to Roe, abortion can be prohibited, it still has to be permitted for health reasons, with a definition of health so broad that just about any abortion that any abortionist is willing to perform would fall within it.

When you heard about that decision, how much of your reaction was antipathy towards abortion, and how much were you aware of the constitutional arguments?
I was in almost complete ignorance of the Constitution and constitutional interpretation at the time. So I was just upset with the decision, because I thought it was deeply unjust to the victims of abortion; namely, unborn children. It was only later, when I began to appreciate the constitutionalist critique of Roe v. Wade — I would say probably not until my college years — that I began to see that there is, in addition to the morally problematic nature of the policy the decision imposed, the deeply constitutionally dubious status of the decision itself.

Who introduced you to the constitutionalist critique — or how did you stumble upon it yourself?
It was really when I began getting interested in law and the philosophy of law in my sophomore year of college. Maybe about 1975 or ‘76. And just a few years after that I went to law school, where I started reading the writings of critics of Roe — several of whom were sympathetic to the policy Roe put in place, but deeply hostile to the decision on constitutional grounds. A good example of that is John Hart Ely, who was teaching at Harvard Law School while I was there. I didn’t have him, unfortunately. I regret that I didn’t have him as one of my constitutional law teachers. But I did read his article called “The Wages of Crying Wolf,” a now-famous essay on Roe v. Wade, and I found that very persuasive. Ely didn’t share my moral abhorrence of abortion. If he were a member of a legislature, he made clear he would vote for a pretty permissive abortion policy. And yet he argued that Roe was completely constitutionally unjustifiable.

It was the position of the dissent in Roe v. Wade, which I hadn’t paid much attention to — the argument of the two dissenting justices, Rehnquist and White, was not that this decision was wrong because it renders unborn children vulnerable to lethal violence. But rather, there’s just nothing in the constitution that warrants taking the authority to regulate in this area away from states. White’s dissent famously says that Roe is nothing but an exercise of raw judicial power. Those dissents don’t engage the question of the morality of the decision, but they criticize the majority for usurping the authority of the people acting through their elected representatives in the state legislatures.

Who were your favorite teachers in law school?
I started to fall in love with the philosophy of law in college, as I’ve mentioned. And so the teachers that most interested me when I was at Harvard were those who taught philosophy of law. Lewis Sargentich, Henry Steiner, Charles Fried, and Roberto Unger, who’s the famous critical legal theorist. I was able to take some courses outside of the law school in the philosophy department. I studied with Ronald Dworkin, who was at Harvard as a visiting professor. I would later sit in on his seminars in Oxford, the seminars that he offered jointly with Professors Joseph Raz and John Finnis. In those seminars, on many occasions, the great Oxford legal philosopher H.L.A. Hart would sit in. Those were amazing seminars. It was just an unbelievably great place to be. I describe it to my students as the mecca of the philosophy of law.

Justice Gorsuch followed you there a few years later.
He did. A few years later, Neil Gorsuch came. Like me, he was a graduate student of John Finnis. He wrote a thesis on euthanasia, and that thesis became a book which was published in the series that I’m general editor of at Princeton University Press.

What role did you play in editing his book?
Well, he sent me the manuscript, and I liked it very much. John Finnis had told me that it was an excellent manuscript, so I was favorably disposed when it came in. I shared some thoughts with him, and there were some adjustments; nothing major. We worked together through the rest of the editing process, and it was produced as a terrific book. I’m very proud to have it in the series, which is called “New Forum Books,” and would be proud to have it even had he not gone on to become such a distinguished jurist and eventually Supreme Court justice. It’s a fine work of scholarship.

For people who haven’t read the book, what’s the gist of Gorsuch’s argument?
It’s an examination of the legal tradition when it comes to the taking of human life, whether by abortion or euthanasia. And it looks at all the different areas where you have this issue, and tries to sort out what the principles are. What distinguishes euthanasia and abortion from, say, capital punishment and killing in war? Our legal system has always permitted capital punishment. As it happens, I’m opposed to it, but that’s neither here nor there. But our system has permitted capital punishment, and it’s believed that there are wars where killing can be justified. So on what principles does it distinguish those kinds of lawful killing from historically unlawful killing and abortion and euthanasia?

In connection with that, he has to do some very interesting intentionality analysis: an examination of the philosophy of human action. For example, he distinguishes what’s called indirect killing in war from direct killing in abortion and euthanasia — circumstances in which the objective is the death of the person who is killed. That’s true in abortion and euthanasia. If you don’t get the unborn child, or you don’t get the person to be euthanized dead, then you’ve failed. Distinguish that from what many argue is indirect killing, for example in warfare, where while you’re allowed to aim right for the heart, you are not intending the death of your victim. You’re intending to stop his aggression. You know he likely will die — you’re aiming right at the heart in order to stop him. But if you wound him and can capture him, you can’t finish him off. You have to, as a matter of strict moral obligation, take him prisoner and even care for him medically in prison. This seems to indicate that there’s something different about the intentionality of killing in war than there is in abortion or euthanasia. So Neil Gorsuch explored some of those questions in his book.

That kind of intentionality analysis, which was so crucial to his work as a graduate student, appears in his Masterpiece Cakeshop concurrence in a very interesting way. If you have a chance to look at that, you’ll see how he deploys that analysis in his debate with Elena Kagan. They’re on the same side of the outcome of the case, but they had different reasoning. Kagan wanted it to be a very narrow ruling, and Gorsuch would make it a broad one.

I’d like to go back to your time at Oxford. I’m wondering if you had any teachers who were influential to you in terms of their teaching style, or who inspired you to become a teacher yourself.
That all began with my teachers in college; two in particular. One was a teacher of medieval philosophy and religious thought named Linwood Urban. He was not a dynamic teacher, but he was a person who modeled a tremendous amount of care in making sure that his students understood material. He worked with his students to make sure they understood it, and more than merely superficially or notionally, he made sure that his students understood deeply what was happening. So he would tend to work with students in small groups or on an individual basis, even though he wasn’t a dynamic lecturer.

James Kurth, who was even more influential in my own decision to become a teacher, was a very dynamic lecturer. I loved just seeing how his mind worked by listening to his lectures. He, like Gorsuch, was a precise and analytical thinker. He was a big influence on me. I certainly didn’t go into college with any idea that I would become a professor. In fact, I probably would have laughed if someone said, “You ought to become a professor.”

What did you think you wanted to be?
A man of affairs. A lawyer, a politician, someone out there in the world doing things, making things happen. But the big event that changed all that was when I read the dialogue Gorgias in a survey course in political theory. I think it was in my sophomore year of college. What Plato taught me is that the fundamental reason for seeking knowledge, whether it’s in your own research or in reflection or in dialogue with others during debates, is the intrinsic value of truth. I had been brought up with a very different understanding of knowledge — really as an instrumental value rather than something intrinsically valuable or inherently enriching. I always wanted to know what you could do with that knowledge, or how will mastering this subject get you a credential or get you ahead or enable you to accomplish some political goal.

But when I read the Gorgias, that turned me around completely on that issue. I began to see that although knowledge can have wonderful instrumental value, and it can help you to get a better job and accomplish your political goals — and if your political goals are good, advance the cause of justice — but even more fundamentally, we should be seeking truth for the intrinsic and inherent value of truth. Truth is something inherently enriching of the human being as the kind of creature we are. And that was what put me on the road becoming a scholar and teacher.

How often do you witness similar epiphanies in your own students?
Oh, many times. And it’s the most gratifying part of teaching. Cornel West and I share this conviction very deeply; we have exactly the same view of this. In our teaching together, we have seen it with our students in seminars. More often than not, the problem is not that people have considered the questions that we’re raising and just rejected our answer or rejected Plato’s answer. Rather, it’s just that they’ve never considered the question. We’ve grown up in a kind of society in which everything is instrumentalized. It’s a society that doesn’t raise enough questions of intrinsic value. And so people have just never thought about that, and it’s an easy sale once you’ve presented it.

Then the next step is to make it an existential reality in your life. Because we do have all the other concerns of life, and those can distract us away from appreciating knowledge for its intrinsic value. I was meeting with a prospective Princeton student and her parents here in this office yesterday, and they were at first scandalized by a story that I told. But in the course of the conversation, they became persuaded.

The story I told is this. I said to my kids when they were looking at colleges, “Your mom and I are going to pay for education, and we’re going to make sure you have no loans so you will graduate debt-free. But I will pay for your education on the condition that you not study anything practical.” [laughs] Because my wife and I really strongly believe in liberal arts education — we think that’s the foundation for life. I didn’t want my kids to think that they had to study something practical, learn a skill or a trade or anything like that. When I said that, the parents of this girl were initially scandalized. But as I made the case for liberal arts education as something inherently valuable, inherently enriching, reading Shakespeare and Plato and reflecting on the causes of the First World War and studying the periodic table — all the stuff that is interesting about life — they began to see that that’s right.

I said that if your daughter goes to a good college, she’s going to do okay financially. She’s going to get a job. If she happens to be interested in some practical thing, that’s fine if it really engages her intellectually. I wouldn’t have actually carried out my threat of not paying for my kids’ education if they studied something practical. [laughs] I was making a point. But the parents looked at each other and said, we are guilty of pressuring our daughter to study something practical in college. And a lot of parents do that.

A lot of people may have to study something practical, because they have no choice but to make money right after college.
I think if you can afford, as this family certainly could, not to pressure your kids to do that, I think inviting your kids to take advantage of a really broad and deep liberal arts education is a good thing. There’s nobody who’s at Princeton — honestly, there’s no student here — who really has to focus on preparing vocationally for a profession. Because if you graduate with a Princeton degree, it doesn’t matter whether it’s an English literature or Near Eastern Studies or Anthropology or Philosophy degree: you’re not going to starve. You’re just not. And there are going to be plenty of businesses, big companies that are going to offer you great jobs. Because a lot of companies are looking not for people with undergraduate business degrees, but for people who are good, creative, clear, powerful thinkers, and boy, a liberal arts education trains you to be one of those.

You’re a busy person. How do you find time to pursue things that are interesting and intrinsically enriching, even if they aren’t relevant to your lecture schedule?
I love to read. I read on planes and trains. These days it’s hard because you can never get away from your cell phone, and the temptation is always to work on your computer. But I do love to read, and I read pretty widely, so I go well beyond the areas of my academic specialization. I love reading biographies, I love reading history, I love literature — especially 18th and 19th century American and English literature. I’ve got amateur interests in things like psychology. So that’s what I do. There’s no practical reason for my reading the Brontë sisters or Hawthorne, but I love to do it and I find it very enriching.

Of the books that aren’t super practical to your work, which is your favorite?
I do love all of Jane Austen’s novels. I even like “Emma” — even the ones that other people don’t like, I like. I love Waugh, especially “Brideshead Revisited,” but I like some of his comic novels and his dark novels.

And — these are closer to my professional field — I have a lot of interests in thinkers like Edmund Burke and Montesquieu.

What book do you recommend most often to other people?
Probably the Bible. One big problem today is that people don’t know their Bible, and it has tremendous costs in all sorts of areas. You can’t understand Shakespeare if you don’t understand the Bible. You can scarcely understand Hobbes. You certainly can’t understand Lincoln. Now, there are some sections of the Bible you can skim. All the “begatting.” [laughs] But if you don’t know the Bible stories, and if you haven’t read the Prophets, certainly the Gospels, you’re not going to understand a whole lot of stuff about literature, politics, philosophy, and the West.

You won’t be surprised to learn that I do an awful lot of recommending of “The Federalist Papers.” And it’s amazing how few students come into college even knowing what they are. Most students go through college without reading a single one. But you know, you don’t understand our political system — even if you bother to read the Constitution, which most students don’t. Even if you’ve read the Constitution, you don’t really get it unless you’ve read at least the basic Federalist papers: 1 and 10 and 51 and 78. Really, young people should try to read the whole thing during their college years, or at least sometime by age thirty.

I also recommend Lincoln’s speeches, especially the Gettysburg address — which most students do know — and the second inaugural, which students think they know but don’t, and the Cooper Union Address, which most have never heard of. I think his speeches are great. I also frequently recommend Martin Luther King’s “Letter from Birmingham Jail.” I think that’s an important thing for students to read.

I see several copies of “Democracy in America” on the shelf behind you.
Oh yes! That’s a very important book. That one has become more important to me over the years, I’ve noticed. As I’ve gotten older, I find myself in my speeches and writings referencing Tocqueville more and more. There are not as many references to him in my earlier work.

Why do you think that is?
I’ve gotten a greater appreciation of Tocqueville’s insights into the importance of civil society. To democracy. That of course is what the book is about. It’s about the preconditions of democracy, the moral and social preconditions. And it’s become clearer and clearer to me that there are really important social and moral preconditions to democracy. You can’t just impose a democratic system on any culture; there’s a kind of plowing of the ground that needs to be there if democracy is to take root.

I love reading biographies, and I’ve got David McCullough’s wonderful biography of Adams there. I also love his biography of Teddy Roosevelt called “Mornings on Horseback.” Fabulous. Not only is Roosevelt very interesting, but “Mornings on Horseback” is just a wonderful example of the genre of political biography. And we live in a time where you’ve got a lot of really superb biographies of statesmen, and others, being done by independent scholars. People who are not university professors and who are not writing for professional specialists, but for a broader audience. And so their work is really readable. I think that’s great. It’s a wonderful thing that these independent scholars, who don’t have to write to impress their peers in the academy, can write therefore for a broader audience, but at a very high level. There’s a lot of things I don’t like about our contemporary situation, but we’re living in a kind of golden era of political biographies for ordinary readers.

If you were to write a political biography for ordinary readers, who would you write about?
There would be no need for the one I would write because there are so many good ones, but it would be Lincoln. Yeah, I find Lincoln endlessly fascinating. I think he’s the person about whom the most biographies have been written ever. Maybe Jesus would be ahead of him, but there would be very few others. Another person I would be interested in writing a biography about, if I had that talent, would be Washington. So my choices wouldn’t be very interesting: the two most famous presidents.

How about someone with a less gargantuan profile?
Jane Addams. I have friends I’d love to write biographies of, too. The late Richard John Neuhaus. The late Elizabeth Fox Genovese; I would love to do a biography of her. If I were doing biographies, they would really be fundamentally intellectual biographies. I’m sort of more interested in people’s intellectual lives than other aspects of their lives. But of course I would talk about other aspects, because that’s all connected to their intellectual lives. Now, you know who’s done this brilliantly is Allen Guelzo, who’s written beautifully about Lincoln’s thought. There are biographies that explore the relationship between his experiences from his very earliest ages all the way through his political career, to his intellectual life, to his thought, to his moral life, to his religious beliefs. And I love that kind of thing.

Unfortunately, as far as I can tell, I have no talent for it. [laughs] I don’t expect that I’ll produce any biographies, although I have to admit, you’re the first person who’s ever asked me that question. And I have thought from time to time about doing one.

Why do you think your writing style wouldn’t lend itself to a biography?
Maybe I just haven’t tried it. But when I think about it, I get daunted. [laughs]

Which writers have been influential to you stylistically?
I’m not a great stylist. I wish I could claim to be a great stylist. The writers who impress me style-wise are Austen and Samuel Johnson. To the extent that I have any virtues in my writing — and that’s a very limited extent — it’s from having just read and reread and reread again Austen and Johnson.

What do you admire so much about their writing?
Robust, clear, beautiful command of the language. Choosing the right word — just the right word. Constructing sentences so that they’re beautiful as well as clear and functional. Making it a pleasure to read. That’s what I love about writers like Austen and Johnson.

What are your biggest flaws as a writer?
Parentheses. I’m constantly, much too often, inserting parentheticals. And my sentences are often clunky, and they go on too long. I know there are teachers who insist on students breaking up their sentences that are too long and complicated, and I don’t have a good grip on how to break them up. So I end up with these very long, complicated sentences, and by the time you get to the end you don’t know what I said in the beginning. [laughs] Sometimes I stop myself and say, “I’ve gotta reconstruct this.” Other times I give up. I get tired of trying. “Ah it’s good enough,” and I leave it.

My best editor — I’ve imposed on him way too much — is my student, Sherif Girgis. I run my work past Sherif, and he’s good at cutting out unnecessary words and reconstructing sentences. He is an excellent stylist.

In an interview with Bill Kristol, you said that the quality of students’ writing has decreased over the years. What problems are you seeing?
I don’t think that high schools are putting much emphasis on written expression. I don’t know if that’s because they’re teaching for these standardized tests or not, but I have noticed a deterioration. Students are every bit as intelligent, if not more intelligent than when I began teaching. Certainly admission at Princeton has become more competitive as SAT scores have gone up, and I have no trouble with the intelligence of my students. But it’s surprising how many intellectually gifted young men and women not only don’t write superbly; they don’t write well. So to some extent, colleges and universities are doing remedial work on writing with their students.

How can high school students become better writers?
It’s all a question of what you read. Read great stuff. And the second ingredient is, write a lot. That was my problem in high school. We were not required, and not even encouraged, do very much writing. When I got to college, writing was just a new thing to me.

When you were in high school, did you read a lot?
I didn’t read a lot. I probably read more than most of my fellow students, but not as much as I should have. Again, where I was at that time, I didn’t have as much encouragement as I should have. That’s no excuse, I shouldn’t have needed a teacher to tell me to read — I should’ve had more sense to do reading for myself. But I did a fair amount. When I arrived at college, I was out of the hills of West Virginia. My fellow students knew things I didn’t do, even names like Dostoyevsky. I had never heard of Dostoyevsky. Students would talk about him and “The Brothers Karamazov,” because they assumed that everyone else knew about “The Brothers Karamazov.” It took me almost no time to realize that I couldn’t fake it. [laughs] I couldn’t pretend to know this stuff. I just wasn’t going to get away with it.


Other interviews conducted by Anna Salvatore: UChicago law professor Justin Driver, SCOTUSblog founder Tom Goldstein, former Solicitor General Neal Katyal, court artist Art Lien, New York Times Supreme Court correspondent Adam Liptak, UCI Law Professor Leah Litman, litigant extraordinaire Fane Lozman. former Court writer Linda Greenhouse, legal writing expert Ross Guberman, Georgetown professor Shon Hopwood, NPR reporter Carrie Johnson, Fix the Court Director Gabe Roth, IU Maurer Law Professor Ian Samuel, and Lawfare editor-in-chief Benjamin Wittes. 

Monday, December 10, 2018

by Anna Salvatore

Tonight I’ll explore a high-school-related case called Vernonia School District 47J v. Acton. 

The question in Vernonia is straightforward: Does random drug testing of high school athletes violate the reasonable search and seizure clause of the Fourth Amendment?

In the late 1980s, Vernonia School District noticed an uptick in the number of students using drugs. Disciplinary referrals skyrocketed as kids were being ruder in class, openly swearing, and bragging that there was nothing the school could do about their drug use. Student-athletes were the leaders of this newfound drug culture, which was concerning because drugs increase the likelihood of sports-related injury. Indeed, the school wrestling coach and football coach claimed that his players suffered at least one serious injury, and violated multiple safety procedures, due to their drug use.

In response to the worsening crisis, Vernonia announced in 1989 that all student-athletes (and their parents) must consent to random urinalysis drug testing. The consenting kids’ names were placed in a pool, and once a week, 10% of them were chosen for random testing. They urinated in an empty locker room or enclosed bathroom stall, where monitors of the same sex listened for any signs of tampering. An independent laboratory then examined their urine for traces of illicit drugs like cocaine or marijuana. Anyone who opted out of this testing wasn’t allowed to participate in athletic programs.

James Acton was one such objector. A seventh grader who wanted to play for his school’s football team, he was barred from participating after he and his parents refused to sign the required consent reforms. The Actons sued Vernonia School District because they felt that James’s Fourth and Fourteenth Amendment rights had been violated.

The Supreme Court decided their case on June 26, 1995, holding that Vernonia’s policy did not violate James’s constitutional rights. Justice Scalia wrote the opinion for the six-justice majority.

After dispatching of the basic facts, Scalia used a balancing test to determine whether the random drug testing was reasonable. He weighed its intrusion on James’s Fourth Amendment rights against Vernonia’s advancement of well-founded government interests. First he looked to the “special needs” of public schools, where teachers are entrusted with semi-parental authority to supervise and discipline students. It’s true, he said, that students don’t lose all of their rights when they stride into the school building. But because teachers are acting (for many purposes) in loco parentis — in the place of a parent — they have greater discretion over searching students than police officers have over, say, adult drivers. That’s why teachers don’t need to comply with the warrant or probable cause requirements listed in the Fourth Amendment.

The fact that public school students are subject to mandatory physical exams — like being called into the nurse’s office, removing their shirts, bending over, and having their backs tested for scoliosis, as is common in elementary schools — supports Scalia’s argument that they “have a lesser expectation of privacy than members of the population generally” (Tinker). Then Scalia went further; he said that student-athletes have an even smaller expectation of privacy because “communal undress” is inseparable from athletic participation. For example, the Vernonia kids changed in an open locker room and showered without any curtains or partitions. They were also expected, among other things, to undergo a pre-season physical exam and to comply with rules of conduct established by their head coach. “School sports are not for the bashful,” Scalia wrote.

He dismissed the idea that drug testing significantly intruded on students’ privacy. Girls were permitted to urinate in a closed stall, and boys could do so at a urinal, where they were observed from behind (if at all). Scalia didn’t think this was much different from normal bathroom conditions.

The other privacy argument was that drug testing revealed personal information about students’ health. On this point, Scalia was a little more ambiguous. He said that if teachers and coaches can see students’ advance disclosures of their medications, rather than just the independent laboratory, this would “[raise] some cause for concern.” Yet the Supreme Court has “never held that requiring advance disclosures of medication is per se unreasonable,” and he left it at that.

In the last section, Scalia explained why the school’s interest in preventing drug use was so compelling. The reasons are familiar to anyone who’s seen a D.A.R.E. presentation: drugs are terrible for your health, you’ll get addicted to them, and then not only will you ruin the school environment, but you may experience lifelong side effects. And the school’s method of stemming drug use was reasonable, said Scalia. It may not have been the least intrusive method available, but the Court has long said that that’s irrelevant.

And so the Supreme Court held that Vernonia’s policy was reasonable and constitutional; student-athletes in public schools can, under certain circumstances, be subject to random urinalysis testing.

I would be remiss not to mention Justice O’Connor’s dissent, in which she was joined by Justices Stevens and Souter. She wrote that “a mass, suspicion less search regime is categorically unreasonable” under the Fourth Amendment, and that it would be much more reasonable to focus on students with disciplinary problems. You can read the full text here. I would write about it at greater length, but I have some calculus homework to work on.

Sunday, December 2, 2018

On Friday, the Supreme Court released the audio from last week’s oral arguments. Here are the links to the three highest-profile cases.

  • Carpenter v. Murphy
    • Whether a huge chunk of eastern Oklahoma is actually a Native American reservation.
      • This argument features a contentious exchange between Justice Kagan and Lisa Blatt, the petitioner’s lawyer.
  • Timbs v. Indiana 
    • Whether the Excessive Fines clause was incorporated against the states under the 14th Amendment.
      • If you want to learn more about Timbs, do a quick google search. Most major news outlets wrote about the case; partly because it presents an important question, and partly because the plaintiff’s name is alliterative.
  • Nieves v. Bartlett
    • Whether probable cause automatically defeats a First Amendment retaliatory-arrest claim.
      • The justices punted on this question last term in Lozman v. City of Riviera Beach because “Lozman’s claim [was] far afield from the typical retaliatory arrest claim.” Now the issue is back on the docket.

This week should also be plenty exciting for Court watchers. The justices release orders tomorrow morning at 9:30 am, which is when I have history class.

They’ll also hear arguments in a bona fide blockbuster called Gamble v. United States. The question in Gamble is whether the Court should overturn the “separate sovereigns” exception to the Double Jeopardy clause. In other words, can someone be prosecuted by both the state and the federal government for the same crime?

The federal government would take issue with my framing of the case. In its view, “the same conduct can violate two different sovereigns’ laws and constitute two different offenses, which each sovereign can then punish and prosecute separately” (SCOTUSblog preview). On the other hand, Gamble argues that the separate sovereigns exception is inconsistent with the text and purpose of the Due Process clause, which protects us from being “twice put in jeopardy… for the same offence.”

Gamble’s argument was originally scheduled for Wednesday, but it was pushed to Thursday because of President George H.W. Bush’s funeral. I look forward to hearing it.

— Anna Salvatore

Tuesday, November 27, 2018

Two cert petitions to watch out for 

by Anna Salvatore

The justices looked they were going to address transgender rights last year when they agreed to hear Gloucester County School Board v. G.G. The case involved a transgender teenager, Gavin Grimm, who wanted to use the boy’s bathroom at his high school. The Fourth Circuit had ruled for Grimm, citing a 2015 directive from the Department of Education that said “a school must generally treat transgender students consistent with their gender identity.” But the Trump administration disavowed this guidance last February, and the justices found themselves in a predicament. Should they hear Grimm’s case, even though the Fourth Circuit hadn’t been privy to the new guidance? Or should they send the case back down to the Fourth Circuit for further review? They chose the latter option. Since then, the Court has heard zero cases on transgender rights.

The Alliance Defending Freedom hopes that will change soon. Devoted to protecting religious freedom by “funding cases, training attorneys, and successfully advocating… in court,” the Christian organization is asking the justices to hear Joel Doe v. Boyertown Area School District. The dispute arose a couple of years ago, when Boyertown began allowing transgender students to use bathrooms and locker rooms that corresponded with their gender identity. The school’s policy was unannounced; petitioner Joel Doe found out one day when he noticed a transgender male in the locker room. “Embarrassed and confused,” according to his cert petition, Doe approached school officials about his privacy interests. He didn’t feel that biological males should have to change in the presence of those assigned female at birth. Yet officials told him to act “natural,” and he was later marked down for repeatedly failing to change in the locker room.

Doe sued in the district court and lost. Then he appealed to the Third Circuit, which held that Boyertown’s policy satisfied strict scrutiny because it “served a compelling interest – preventing discrimination against transgender students – and was narrowly tailored to that interest.”

Judge Theodore McKee explained that transgender people endure intense social and physiological stress, which is why 40% have attempted suicide. It follows that Boyertown had a strong and legitimate interest in shielding its transgender students from discrimination.

In order to satisfy strict scrutiny, though, a policy must also be narrowly tailored to the compelling interest, and Doe disagreed that Boyertown’s policy was the narrowest way to avoid anti-trans discrimination. Instead, he suggested, the school could have allowed transgender students to use single-user restrooms. But Judge McKee wrote that this proposal would undermine the school’s goal of preventing discrimination, as it would “very publicly brand transgender students with a scarlet ‘T.'”

Perhaps most importantly, Doe argued that people should be categorized based on their sex assigned at birth – not the sex they identify with. So he thought that the Third Circuit had erred by holding that transgender females are “actually female” and transgender males are “actually male.” 

This dispute is at the heart of the case. If the Supreme Court agrees to hear Doe v. Boyertown, it will probably have to announce whether transgender teenagers – most of whom haven’t legally changed their gender – are, for legal purposes, members of the sex they were born into or members of the sex they identify with.

Quite a different issue is a stake in R.G. & G.R. Harris Funeral Homes, Inc. vs. Equal Employment Opportunity Commission. Here, a transgender woman named Aimee Stephens was fired after coming out to her coworkers at a Michigan funeral home. She won in the Sixth Circuit, which ruled that Title VII protects people from discrimination that’s based on their transgender status. “Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex,” wrote Judge Moore.

The Alliance Defending Freedom appealed the Sixth Circuit’s decision, and now its cert petition is pending at the Supreme Court. The petition presents two main questions. One of them is whether the phrase “because of sex” in Title VII indeed includes gender identity and transgender status.

The other involves a landmark case called Price Waterhouse v. Hopkins, which held (among other things) that gender stereotyping is illegal sex discrimination. In previous courts, Stephens basically asked, ‘can my employers force me to wear their male employee uniform even if I identify as a woman? Isn’t this sex stereotyping, which would be unconstitutional under Price Waterhouse?’ To these questions, she answered “no and yes,” while the Alliance Defending freedom answered “yes and no.”

You may be wondering why the case is called Harris Funeral Homes vs. EEOC instead of Harris Funeral Homes v. Stephens. It turns out that Stephens had “concerns… about whether EEOC would be able to continue fully representing her interests” after she lost in the district court. That’s why she moved to intervene on appeal. Then, after the circuit court granted this motion, she was still able to file briefs and participate in argument, where she eventually won over the three-judge panel.

The Supreme Court will consider both Boyertown and Harris on November 30th. If they agree to hear either one, we’ll find out next week.

Interview: Josh Blackman

Josh Blackman is a professor of law at South Texas College of Law Houston. He writes frequently about the Supreme Court, constitutional law, and any other legal topics that come his way. You may have seen his commentary in the Wall Street Journal or on his eponymous blog. Below is his conversation with Curtis Herbert.

Curtis’s questions are in bold; Professor Blackman’s answers are in plain text.

What was high school like for you? Did you know you wanted to do law stuff and teach?

Oh no, no, no. No, not at all. I went to Staten Island Technical High School, which has now become somewhat famous, but it wasn’t very famous when I went. We mostly had engineering stuff. I did okay in AP political science, and I liked all those sorts of classes, but I was really more interested in science. I didn’t decide that I wanted to go to law school until my junior or senior year of college, and I actually wanted to do IP work because I have a tech background. I didn’t take a single con law class until my second year in law school. But once I started law school, I realized that I loved con law.

So, you’re a busy man. You have teaching, writing, an insane speaking tour, you founded the Harlan Institute, Fantasy SCOTUS, and you work with LexPredict. How do you balance it all?

I have a lot of structure in that I know how much time something will take, and I work very quickly to achieve it in that time. So as long as I have a general idea of my schedule, I don’t fall too far behind, and I try to always get things done when they are due. But I have a wide range of interests, and I’m very fortunate that the job I have allows me to do so many fun things. I love what I do, and it’s very fun. I’m always very fortunate to do what I do for a living.

You certainly seem to have a lot of fun on your blog. How do you find such interesting and unique things to talk about?

Well, the beauty of my job is that current events largely dictate what I write about. Every day, there is some new issue that hasn’t been considered before that implicates federal or state constitutional law. And I’m often asked to decide, on a fairly expedited basis, how to think about those cases. So it’s a very fast-moving career. I’m grateful that I have this opportunity, but I never know in a given week what will happen. And indeed, since President Trump’s election, that process has sped up rapidly. The first month, January 2017, right after the inauguration, I did over 100 media interviews because things were moving so quickly. I think it’s slowed down a little bit now – not so much because there’s not new stuff, but because people have become sort of numb to it, and they don’t overreact the same way they did over a year and a half ago. But I think a lot of the challenge is trying to keep sane, and keep a sober and neutral approach, and not simply fly off the handle whenever something new happens. People want cerebral analysis as best they can.

I suppose the hot takes can’t reign supreme forever.

Yeah, I’ve made a conscious effort to not do hot takes anymore. I used to. They’re time-consuming, they’re often wrong when you look at things so quickly, so I’m trying to take some reflection time before I go off the rails and drop a hot take. I try really hard not to. It’s not always possible, because generally, the way our press works is the first person to write something gets to define the narrative. So when you don’t come out first, you let someone else define the narrative, and they could be deadly wrong about it. Once people get their initial perception, they don’t change it.

Then you also have to engage on their terms rather then setting the agenda for yourself, which is another issue.

Yeah, I try very hard not to feel compelled to respond to other people. It takes a lot of self control, especially on Twitter, to just let something sit and not respond, but trying to dissuade people on social media is a waste of time; you’re not going to win. And if you’re trying to tell someone they’re wrong, you’re not going to prevail either. So I don’t go down that road. I don’t think it’s productive, but there are a lot of things you can do to try and educate people short of arguing back and forth.

Shifting a little bit to the current Supreme Court term, I think the million dollar question is: do we get Chief Justice Roberts in Shelby County, or do we get the Chief in NFIB? Do you think we get a restrained Chief, a squishy minimalist, as Ilya Shapiro might say, or will Roberts shift towards Justice Alito or Thomas?

One thing to know about Chief Justice Roberts: he always disappoints me. At every juncture, he always finds a way to disappoint me, and I think he will continue to do so. In the olden days, about six months ago, lawyers would try to write briefs to appeal to Justice Kennedy;  they could basically write ‘Kennedy’ on the cover of the brief. And I think now, everyone is going to try to appeal to Chief Justice Roberts at every juncture, hoping that his concerns for the institution and for minimalism will persuade him to resist his conservative instincts.

I think it’s very silly and transparent; Roberts is going to do what he wants to do. He will probably moderate a little bit more than before. I think Roberts will try and follow precedent unless it’s an issue he cares a lot about, like affirmative action or voting rights – so the question is if it’s an issue he really cares about. With the Obamacare case, I don’t think it’s an issue he really cares about, unlike, say, affirmative action or voting rights, which are areas where he could probably push the court to the right. I don’t know about other topics, but he will disappoint me like he usually does every June.

Let’s get a bit more technical. One thing that jumped out at me when I was reading the most recent edition of the Harvard Law review was the piece on Lucia v. SEC, and I recall reading a blog post of yours about whether Mueller could be considered an employee rather than an officer. How is that question changed by Lucia?

So the short answer is: I think there’s an open question here. Under our Constitution, you have the Appointments Clause. And the Appointments Clause allows the President to appoint people to certain types of principal positions with the advice and consent of the Senate. For other types of positions, called inferior officers, Congress can allow that person to be appointed without Senate consent. But there are lots of people who aren’t principal officers, and who aren’t inferior officers, who are something else. The Court has generally called these people ‘employees,’ whatever that means.

With Mueller, one of the aspects of his position is that it is temporary. As soon as he finishes his job, his office dissolves. And the Court, in Lucia, said that one of the aspects of an officer is that it’s a permanent, ongoing position; it doesn’t disappear after a single job is done. So I think you have a credible argument that Mueller isn’t at all an officer, but he is in fact an employee. Then you have a problem, I think, in that Mueller is exercising some real, substantial authority as a special counsel. And I don’t know that a non-officer can exercise that sort of authority. If we’re right that Mueller isn’t an officer, than I don’t think he can exercise that sort of power. That’s a long, complicated analysis, and the Court hasn’t addressed it yet, but I think they will, especially in light of Lucia.

Sort of in line with the Appointments Clause: what’s your take on acting Attorney General Whittaker?

I’m still thinking. It’s a very difficult question, and there are some things we don’t know, like whether he has a new salary, whether he took a new oath of office, whether he has a new commision. So I’m reserving judgement until I see the DOJ’s brief in one of the many cases concerning Whittaker. I think there is good evidence on both sides, and I’m holding judgement.

Will it be like the travel ban case, where it goes to the Supreme Court very quickly?

Well, the urgency here is that there are going to be literally thousands of challenges to Whittaker’s authority. Every immigration appeal in which the AG is trying to be substituted will have this as an issue. And some judge, somewhere, is going to issue a ruling that Whittaker is not the correct AG. At that point, it will just be a race to the Supreme Court, because you can’t have a divided executive branch. If Trump loses, then that means that, whether he likes it or not, Rosenstein is now the acting AG, not just the deputy. Trump will have an AG he doesn’t want. I suppose he could just fire him, but that would leave all sorts of other problems. It’s difficult.

So you think at some point we will have a nationwide injunction?

Well, to be precise, it wouldn’t be an injunction. It would be a declaration to stop the substitution of Whittaker for Sessions. So it’s not really a nationwide injunction, but it would have that effect.

Okay. Just to clarify, though: would that remove Whittaker’s authority as AG?

If the Supreme Court were to rule that Whittaker needed Senate approval, then it would. I suppose the Trump administration could tell the Supreme Court: screw you, who the hell do you think you are, but I think it’s more likely that they would insert Rosenstein. Or he could perhaps substitute someone else that has been Senate-confirmed.

What are the odds we get an ex parte Merryman situation, where the executive branch, like you said, goes: who do you think you are, what are you doing, I’m going to willfully disregard your order.

Well, you know with Merryman… Have you read Seth Barrett Tillman’s article? Lincoln never actually ignored Taney in Merryman. Most law professors don’t even know this. But to your question, I don’t think he would. He hasn’t yet.

You’ve written about model rule 8.4(g.) which you think imposes on the first amendment rights of lawyers. To tie this back to social media, what if a lawyer is disbarred for a tweet that displays some sort of animus?

Right. So 8.4(g) limits speech that relates to the practice of law that a lawyer knows or reasonably should know could be harassing to others, which includes demeaning speech. One of the questions is: does 8.4(g) apply to Twitter? To the extent that using your tweets in conduct related to the practice of law might be considered, but I’ll answer your question more generally. Can a person be disciplined for engaging in tweets that are deemed harassing? And I think at some point, some bar association somewhere will try to lump in that sort of conduct, and I think it raises very significant First Amendment concerns. The courts have allowed the imposition of liability for workplace sexual harassment because it creates a hostile working environment that actually interferes with your work. I don’t think you can extend that to a mere tweet, from someone you don’t even know. We’re going to have this issue at some point, and hopefully the First Amendment prevails.

The answer to this next question might disappoint me. Is there any hope for those of us who want to see the Privileges or Immunities Clause resurrected? Or is it gone for good?

I think I will disappoint you with my answer. The Court had a shot to give the clause some meaning in McDonald, and only Justice Thomas did. He was the only one willing to do so. Now, the case involved guns, so perhaps in the future some of the more liberal Justices will be willing to consider it if it doesn’t involve guns. But I think it’s very unlikely for a couple of reasons. Substantive due process will give the more liberal-minded justices all of the things they want, and the Privileges or Immunities Clause will terrify the right the way substantive due process does. I think it’s very unfortunate, because this is one area where I think there is widespread agreement that Slaughter-House was wrong. Pretty much everyone agrees on that. But for the Court, precedent was too strong.

150 years is pretty difficult. That’s a lot of rocking of the boat there.

Yeah, well, look at the New Deal era cases. We’re about 70 or 80 years from there, and Justice Thomas is really the only one willing to revisit those cases, and he’s the only one willing to revisit Slaughter-House. After a certain point, stare decisis takes over.

With regards to birthright citizenship, what are the odds that the more traditional, present-day interpretation of the 14th Amendment will prevail?

Well, look: to the extent that you have a longstanding practice that people rely on, birthright citizenship is one of them. If you were to suddenly say that, retroactively, people are not citizens if their parents were not citizens, suddenly you would have millions of citizens become non-citizens. And there’s no way to untangle that mess. But I think you don’t even need to rely on stare decisis. I think, as an original matter, the better answer is that the phrase ‘subject to the jurisdiction thereof’ concerns people who are here subject to our laws, and I think that is all you need to know. Once you accept that original meaning, then that’s the end of it. I think there is evidence that goes the other way, but the best answer is to have birthright citizenship.

What do you think about the Commerce Clause? Is that an issue that the Chief Justice doesn’t care enough about?

Well, even in the Obamacare decision, he was willing to limit the expansion of the Court’s Commerce Clause jurisprudence, but then he turned around and saved it with a saving construction. He might be willing to limit it, but I don’t know to what extent.

My understanding of the Commerce Clause is that you never really see Congress’s power reduced. It either plateaus, or it rises.

The way my colleague Randy Barnett describes it is “this far, but no farther.” The Court has gone up to a certain point in Raich, wherever that is, but they won’t go beyond that. I think at this point the Roberts Court will hold the line, even if they won’t pull the line back a little bit.

How do you square Scalia’s more expansive reading of the Necessary and Proper Clause in Raich given his position on Necessary and Proper in Printz?

You know, there are some people who think that Scalia’s opinion in Raich is like the drug exception to the Commerce Clause. I don’t quite go that far. I think what Scalia was saying is that when you have these very intricate, complicated schemes that are long-standing, like interstate regulation of narcotics, that Congress has a certain leeway. Printz was unique; it was unprecedented. There has never been a law where Congress attempted to commandeer, or force, state officials to perform federal tasks of this nature. So I do think you can distinguish Printz and Raich on those grounds, although Scalia’s willingness to find a market for interstate drugs is a tough one to square away with the Lopez decision, with respect to an interstate market for guns, and Morrison as well.

Just to play devil’s advocate, I think the ‘drug exception to the Commerce Clause’ position is supported by Scalia’s opinion in Employment Division v. Smith. That’s not the sort of ruling that you might expect from Scalia.

Well, you’re asking a very good question, and I think Scalia’s opinion in Smith is more reflective of his opposition to the decision in Sherbert v. Verner, and the notion that courts can carve out exceptions for generally applicable laws. And even if you read Church of Lukumi Babalu Aye v. City of Hialeah, Scalia wrote a concurring opinion in which he sort of groused, and was like: I don’t really like this, but I think you have to do it. I do think later in life that Scalia had second thoughts about Smith, and I wouldn’t be surprised if the Court revisits Smith in the near future now that he’s gone.

Would a revisiting of Smith cast any doubt on Trump v. Hawaii?

I don’t think so. I’ve made this point several times: I don’t think the Establishment Clause applies in the same fashion to domestic law as it does to foreign policy or immigration. I think that’s the principle of Trump v. Hawaii. The Court says: We’re not applying the case law for the Ten Commandments displays to foreign policy and immigration. I don’t know if it affects that. There is a case this term on this Maryland cross, and one of the questions is what test should we apply? Do we apply Lemon? Do we apply Town of Greece? So I think we might actually get some clarity from the Court about this exact issue.

My understanding is that Lemon isn’t well-regarded in conservative circles, but that’s just what I’ve heard.

The problem with Lemon isn’t whether I like it or not – the problem is that it’s not consistently applied. If the test was actually consistently applied I wouldn’t mind it so much, but the Court seems to apply Lemon every couple years and then never again. So I think there’s a good chance the Court just kills Lemon all together. The Court just hasn’t consistently applied it. In McCreary County they kind of applied it, but not really, in Van Orden they didn’t, in Town of Greece v. Galloway, (that was the prayer case,) they didn’t apply it – so I think it’s not a very good test to apply.

You have a knack for making legal issues comprehensible and easy to follow. Where did you get that from?

I don’t know where I got it from. I think about how to say things in a clear fashion, where there is no ambiguity, all my words are chosen in a specific fashion, so that my reader knows exactly what it is I am trying to convey. I do this in my writing, but also in my teaching. When I teach students, I teach students from all across the country at different schools. These students have different backgrounds and different approaches. I don’t presume anything. When I walk into a class, or when I go give a lecture on the road, I assume my audience knows nothing. I assume they’ve never heard of me, and I start from scratch. My hope is that if I write clearly, and assume people know nothing, that it will be understandable. And I work very hard. I can spend minutes on a sentence, just rearranging the words, seeing which one reads better. I always want my audience to know exactly what I’m saying so there’s no ambiguity, no misplaced modifier, no long clauses where in the middle of the sentence, you forget what the hell the subject is. It sometimes has a more staccato, a more short, pointed approach, but I prefer clarity over flowery language.

It’s a good approach when you’re writing tests.

Yeah. When you’re writing exams, you have to anticipate every single issue that may arise – students might run into a problem, but you can’t answer their questions during the exam. So I try to eliminate as many problems as I can, and make the exams as stripped down and narrow as possible.

Before I leave you, I have a bit of trivia for you. Are you prepared?

Yeah, sure.

Okay. This justice’s father was a renowned poet whose most famous poem was about the U.S.S. Constitution.


Yeah. It was Holmes. His father is actually in my American literature textbook. There are several pages of his poetry.

I knew his father was a poet, though I’ve never read any of the Oliver Wendell Holmes Sr. poetry. Was it good? Do you like it?

It’s very good. It’s written in this very direct fashion, where every other syllable is emphasized; it’s iambic. He has 8 syllables in a line, and then 6, and then 8, and then 6. It’s very short and to the point. It has a nice rhythm to it.


And that’s the end of the interview. Thanks for reading!

Thanksgiving Special

by Curtis Herbert

As you, the wonderful reader, awake from your food-induced slumber, I have prepared a slightly less serious blog post for today. It concerns the entirely fictional and (somewhat) salient legal topic of whether President Trump can pardon a turkey, as set forth in Turkey Food Corp. v. Trump. Jokes made here do not in any way reflect actual legal views or advice; their purpose is to evoke laughter, not lawsuits. Nothing is meant to demean or ridicule the justices.

We begin with the facts. Turkey Food Corp. is seeking damages for what it considers the improper pardoning of its turkeys, Peas and Carrots. Right before Turkey Food Corp. was going to slaughter the turkeys, it was directed to keep the turkeys alive; these very turkeys had been pardoned by President Trump! Because of the lost sales opportunity, Turkey Food Corp. sued.

I will start with the majority opinion by the Chief Justice, joined by Justices Alito and Kavanaugh, which holds that although the President may have exhibited animus towards some turkeys in his November 2018 tweet, saying “Peas and Carrots are the BEST! ALL other turkeys are just that: TURKEYS!” the case is about the President rather than this President. Turkey Food Corp. is not vindicated by the fact that the President had his sights on their turkeys specifically. Regardless of what it might see as prejudice, the role of the Court is not to examine deeper motives, especially in the sensitive area of turkey pardoning. So President Trump’s pardons were perfectly legal.

Justice Kagan’s concurrence examines the historical practice of turkey pardoning. Given that, as she notes, what we are dealing with is a longstanding presidential tradition, stare decisis concerns mandate that the Court upholds the practice. The reliance interests at stake are high: if the Court inserts itself into this contentious issue by finding for Turkey Food Corp., then millions of Americans will be deprived of essential entertainment.

Justice Thomas, in a solo dissent, explains the originalist rationale that compelled him to find for Turkey Food Corp. In his mind, there is not even a remote possibility that the President was granted such broad pardoning powers. Relying on a great deal of historical sources, he asserts that the pardoning power only extends to cases where there has been an actual criminal conviction, rather than merely an intent to butcher turkeys. He also argues that the pardoning power only applies to humans. In an unorthodox move, he would also hold that Turkey Food Corp. must be paid in gold if they so desire; Knox v. Lee was wrongly decided, and the narrow interpretation of the Necessary and Proper Clause that Chief Justice Chase adopted in Hepburn v. Griswold was correct.

A concurrence by Justice Gorsuch counters several of Justice Thomas’s originalist arguments. Wielding his own arsenal of historical sources, Justice Gorsuch says that the pardoning power does indeed extend to cases where a conviction has not occurred, and that it can be used to pardon animals – and perhaps even plants.

In a dissenting opinion joined by Justices Breyer and Sotomayor, Justice Ginsburg writes that the Court’s obligation to dispense justice stops for no man, woman, or turkey. The President’s unique animus against turkeys not named Peas or Carrots prevented him from legally exercising his pardoning powers. While there’s no doubt that, as Justice Kagan says, turkey pardoning must not be overturned wholesale, it’s the Court’s obligation to evaluate improper pardoning where there is concrete evidence of animus. She also explains that nobody actually likes peas or carrots.