Opinions Released Today

by Anna Salvatore

The Supreme Court ruled this morning that almost all robocalls are illegal under the Telephone Consumer Protection Act of 1991. Justice Brett Kavanaugh wrote the majority opinion, striking down an exception that allowed the government to robocall people about collecting debts. Below are excerpts of Jamie Ehrlich’s article for CNN Politics, where she explains the contents of Barr v. American Assn. of Political Consultants, Inc. and its consequences for next year’s case on the Affordable Care Act.

“The Supreme Court upheld a federal ban on robocalls to cell phones on Monday, rejecting a bid by political consultants to open the floodgates for campaign ads and other communications.

In a decision that divided the court, Justice Brett Kavanaugh writes that an exception to the ban created by Congress is unconstitutional under the First Amendment — and that the overall ban should remain in place.

A federal appeals court held last year that the government debt exemption violated the First Amendment because it banned some calls based on content, but allowed others. The court said, however, that the provision could be severed and the rest of the law could remain in effect. This ruling was upheld by the Supreme Court.

The legal doctrine used by Kavanaugh in the opinion, known as severability — where Kavanaugh decided against invalidating the entire law while ruling one provision unconstitutional — could have wide implications for future cases heard by the court.

How courts should treat the rest of a statute when one provision is unconstitutional is at the heart of the major Obamacare challenge the Justices are set to hear next fall,’ Vladeck added. ‘Today’s decision suggests that only Justices [Clarence] Thomas and [Neil] Gorsuch are sympathetic to Texas’s argument in that case that the entire ACA should be struck down.'”

In Chiafalo v. Washington, the Supreme Court also held that states can punish their members of the Electoral College if they don’t support the state’s choice for President. Justice Kagan authored the opinion for the unanimous Court, writing that “the Constitution’s text and the nation’s history both support allowing a state to enforce an elector’s pledge to support his party’s nominee — and the state voters’ choice — for President.” State laws that fire or penalize electors reflect “a longstanding tradition in which electors are not free agents; they are to vote for the candidate whom the State’s voters have chosen.” Brenna Olson, a rising sophomore at American University, will soon write an analysis of Justice Kagan’s opinion for High School SCOTUS.

Monday, July 6, 2020

The Little Sisters Case & the Religious Freedom Restoration Act — Part I: Setting the Stage

By Will Foster & Curtis Herbert

Any day now, the Supreme Court will announce its ruling in Little Sisters of the Poor v. Pennsylvania. The case deals with the federal contraceptive mandate, which was created by the Obama administration and which generally requires employers to include contraceptive coverage in their employees’ health insurance plans. 

Little Sisters is the third case about the contraceptive mandate to come before the Supreme Court. From the beginning, the mandate was mired in controversy. In 2010, Congress passed the Affordable Care Act, a law requiring employers who offered insurance to their employees through a “group health plan” to include certain services and products — including “preventive care and screenings” for women — in those insurance plans without “any cost sharing requirements.” Congress left it to federal agencies, including the Department of Health and Human Services (HHS), to implement this provision of the law and to determine what female preventive care would be covered. 

In August 2011, a sub-agency within HHS, the Health Resources and Services Administration (HRSA), issued guidelines. It required employers to cover all FDA-approved female contraceptives, including some that, as the Supreme Court would later put it, “may result in the destruction of an embryo” (although that is disputed).

Later in the same month, the implementing agencies gave the HRSA greater ability “to exempt certain religious employers from the Guidelines where contraceptive services are concerned.” The definition of “religious employer” was limited to “churches,” “their integrated auxiliaries,” “conventions or associations of churches,” and “the exclusively religious activities of any religious order.” Many religious groups slammed the mandate, irate that the religious exemption was so narrow. Seeking to stem massive public pressure, President Obama relented in February 2012, agreeing to extend an “accommodation” to a wider range of religious non-profits. Under the accommodation, as finalized in July 2013, religious non-profits who objected to paying for coverage of some or all contraceptives would not be required to do so. However, unlike fully exempt organizations, the non-profits would have to “comply with” the contraceptive mandate through another method. In essence, the non-profits had to sign a form which authorized (and, in many cases, obligated) their insurance company to pay for the objected-to contraceptive coverage. By creating this accommodation, the Obama administration sought to separate objecting religious non-profit employers from providing the contraceptive coverage. At the same time, the separate payments for contraceptive services would be provided by the same insurance company that the employer used for its health plan, thereby ensuring that employees received “seamless” coverage. 

This was a very clever solution, and one leading religious liberty expert thought it was “utterly inconsistent with the common charge that the Obama Administration is engaged in a ‘war on religion.’” Indeed, some religious institutions, such as Georgetown University, were satisfied with the accommodation. But many others were not. Even with the accommodation, the mandate still required objecting non-profits to take an affirmative step (signing a form) towards a goal the organizations considered morally wrong — with the threat of substantial fines ($100 per employee per day) looming over them if they did not comply. Plus, for-profit entities were still subject to the full brunt of the mandate; they had not been offered the accommodation. 

Challenges to the contraceptive mandate, from both for-profit and non-profit organizations, began snaking through the federal courts. In 2014, the Supreme Court held in Burwell v. Hobby Lobby that the Religious Freedom Restoration Act (RFRA) — a statute passed by Congress in 1993 in response to the Supreme Court’s narrow interpretation of the First Amendment’s Free Exercise Clause — prohibits the federal government from applying the full force of the contraceptive mandate to closely held for-profit corporations with religious objections to covering some or all contraceptives. The court reasoned that because the government could offer Hobby Lobby the accommodation that had been offered to religious non-profits, and because the accommodation still ensured employees’ access to contraception, there was no good reason for the government to insist that Hobby Lobby pay for the drugs and devices itself.  

Even as the Supreme Court was considering Hobby Lobby, appellate courts were dealing with other cases brought by non-profit organizations who felt their accommodation was insufficient. One of the suing entities was the Little Sisters of the Poor, an international Roman Catholic order of nuns who serve the elderly poor. The Little Sisters employ many people at their nursing homes, at least some of whom are likely women who do not share the Little Sisters’ faith and may wish to use birth control. On New Year’s Eve, 2013, hours before the mandate was set to go into effect and subject the Little Sisters to ruinous fines for non-compliance, Justice Sonia Sotomayor granted the Little Sisters temporary emergency relief from the mandate, which was later extended by the full Supreme Court. (There was no recorded dissent to that order, although a similar order several months later in a related case, Wheaton College v. Burwell, did garner a dissenting opinion.)

In 2016, the Supreme Court finally heard the non-profits’ cases (including the Little Sisters’) on the merits in Zubik v. Burwell. As then-Judge Kavanaugh had noted in a 2015 dissenting opinion in Priests for Life v. HHS, the Supreme Court’s orders in the Little Sisters’ case and Wheaton College were “not final merits rulings,” but were “extremely strong signals” that a majority of the Court believed the non-profits’ rights had likely been violated. However, due to Justice Antonin Scalia’s death, by the time the Court heard Zubik it was working with only eight members. Perhaps unable to reach a broader ruling without deadlocking 4-4, the Court unanimously handed the non-profits a small victory yet dodged all the core legal questions, essentially directing the parties to continue working toward a mutually agreeable solution without the government imposing any fines in the meantime. 

Four years later, the Little Sisters are back at the Supreme Court. This time their situation is different. Although the Obama administration couldn’t find a solution it liked after Zubik, the Trump administration promulgated rules in 2017 that gave broad religious and moral exemptions from the contraceptive mandate, fully satisfying the objections of the Little Sisters and many other organizations. Alas, Pennsylvania and New Jersey then sued the federal government, attempting to invalidate the new exemptions on the grounds that they violated the Administrative Procedure Act and were not authorized by the Affordable Care Act or RFRA. The states won in the Third Circuit, and the Little Sisters (who intervened to defend the exemption) and the federal government then successfully petitioned the Supreme Court to hear their case.

Under both the Obama and Trump administrations, HHS has argued that the Affordable Care Act gives the agency broad discretion to grant religious exemptions; recall that HHS fully exempted churches and other houses of worship from the contraceptive mandate from the beginning. Assuming HHS had the authority to grant that church exemption, the Trump administration clearly had the power to expand the exemption to cover more institutions with conscientious objections. There is no plausible reading of “such additional preventive care and screenings … as provided for in comprehensive guidelines” (the relevant language in the Affordable Care Act) that allows a federal agency to grant exemptions to churches but not to groups like the Little Sisters of the Poor.

So how do Pennsylvania and New Jersey, and their defenders, get around this simple logic? They argue that the Obama administration was wrong when it said that the Affordable Care Act allowed discretion to grant the church exemption. The states think the statute instead “delegated HRSA authority to oversee guidelines defining what preventive services for women must be covered, not who must cover them.” That reading is somewhat plausible, and it does have the benefit of narrowing the scope of the delegation of authority from Congress to the Executive Branch (although the federal government’s reading is unlikely to raise any concerns under the current anything-goes non-delegation doctrine). Nevertheless, deference to executive and administrative decisions is still very much the norm. It would be highly anomalous for the Supreme Court to substitute its own interpretation of the statute for an agency’s, especially where there is, in our view, no clearly superior interpretation available. 

Regardless, the Trump administration’s expanded religious exemption is independently required, or at the very least authorized, by RFRA. Or so we will argue in Parts II and III of this post, coming soon, in which we will explain in detail why we think the Little Sisters and the Trump administration should win their case. 

Wednesday, July 1, 2020

I’m pleased to announce that High School SCOTUS has a new contributor!

Noelle McDowell is a rising junior at Rockbridge Academy in Annapolis, Maryland. When Noelle was eleven, she told her parents that she no longer wanted to be the President of the United States. Nope. She wanted to be a Supreme Court Justice. “The President doesn’t even do anything — it’s the Supreme Court that does all the cool stuff!” Noelle loves competing on her school’s mock trial team, leading her school’s Students for Life club, volunteering with her church’s youth group, and belting out High School Musical songs just about whenever. 

Opinion Analysis: June Medical Services, LLC v. Russo

by Noelle McDowell

Since oral arguments were heard on March 4, 2020, the nation has waited in great suspense for the Supreme Court’s decision on June Medical Services, LLC v. Russo, the highest-profile abortion case in years. June Medical Services marks the first abortion-related case to be heard by Justices Neil Gorsuch and Brett Kavanaugh, who are both considered pro-life. Their appoinments gave the court the Court a conservative majority, frightening abortion rights supporters and raising the hopes of pro-life advocates that the Supreme Court might go so far as to overturn Roe v. Wade.

No such radical decision was made on Monday. By a 5-4 decision, the Court ruled that the contested Louisiana law creating stricter abortion clinic requirements created an “undue burden” on abortion access and was therefore unconstitutional. Justices Breyer, Kagan, Sotomayor, and Ginsburg, and Roberts formed the majority that struck down the law. Justices Alito, Gorsuch, Kavanaugh and Thomas dissented in favor of the law.

As the swing vote, Chief Justice Roberts’ vote was the most significant in this case, and his concurring opinion was fairly surprising. Roberts admitted that although he disagreed with the court’s decision, he decided to vote for it anyways. 

Why would he do that?

Chief Justice Roberts is generally considered a conservative on issues of race and executive power, but he sometimes votes against his beliefs in order to uphold the reputation and precedent of the Supreme Court. June Medical was one such case. Specifically, Roberts sided with the majority in order to uphold the Supreme Court’s precedent in Whole Woman’s Health v. Hellerstedt (2016). 

Whole Woman’s Health, a case arising from Texas, is nearly indistinguishable from June Medical. In both cases, abortion providers challenged a state law that imposed strict requirements for their facilities. 

In July of 2014, the Texas House of Representatives passed a law (Texas HB 2) that required abortion providers in the state to have “admitting privileges” at a hospital within a 30-mile radius of their clinic. Admitting privileges are rights that hospitals grant to doctors allowing them to admit patients to the hospital and to continue to care for them there. These privileges are meant to ensure that women receiving abortions have quick access to hospital care in emergency situations. For example, if something goes wrong with a surgical abortion and a woman is severely injured, her doctor can rush her to the hospital and coordinate her care with hospital staff. 

Texas’s HB 2 also required abortion providers to meet a certain set of standards for their building, staffing, and operational procedures. In Louisiana, other types of outpatient surgical facilities and physicians were required to meet certain health and safety standards. The ‘Unsafe Abortion Protection Act’ called abortion facilites and physicians to the same standard of excellence. HB 2 states: “the minimum standards for an abortion facility must be equivalent to the minimum standards adopted… for ambulatory surgical centers.” 

In the end, HB 2 had a much greater effect than just raising abortion facility standards. Obtaining admitting privileges can be a difficult process for many doctors, and some clinics were not within the specified 30-mile radius of a hospital. Before HB 2, there were more than 40 licensced abortion facilities in Texas. Once HB 2 went into effect, the number had been cut in half, leaving only 19 abortion clinics open. If the law had not been contested, it was predicted that only 7 or 8 of these clinics would be able to meet all of the requirements and stay open.

Two of the affected abortion clinics, Whole Woman’s Health in McAllen, and Nova Health Systems in El Paso, contested the law in October of 2014. The Western District Court of Texas sided with the abortion clinics, but when their decision was appealed, the Fifth Circuit sided with Texas, allowing the law to go back into effect. Eventually, oral arguments were heard by the Supreme Court on March 2, 2016. By a 5-3 vote (Justice Antonin Scalia had died on February 13), the court ruled that the contested portions of HB 2 (namely, the admitting priviledges requirement and the surgical facility standards) were unconstitutional because they created an “undue burden” for women seeking abortions. 

The “undue burden” standard was established by the Supreme Court in Planned Parenthood v. Casey (1992). According to Casey, an “undue burden” is any legal restriction that has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” (Casey, 505 U.S. at 877).  Basically, the court ruled that any provision or law that restricts one’s right to abortion without a valid legal purpose is unconstitional. 

With the holding from Whole Womans’ Health v. Hellerstedt in mind, let’s move on to examine June Medical Services, LLC v. Russo. But don’t be surprised if you get a bit of deja vu. 

In 2014, the Louisiana House of Representatives passed Act 620, also known as the ‘Unsafe Abortion Protection Act,’ which was modelled almost word-for-word after Texas HB 2. Act 620 similarly required abortion facility doctors to have admitting priviledges at a hospital within a 30-mile radius and raised abortion clinic standards to meet those of other hospital-grade facilities. Only one of the six abortion doctors in Louisiana were able to gain admitting privileges to a hospital before the law came into effect. The five other abortion doctors challenged Act 620. 

The plaintiffs challenged the ‘Unsafe Abortion Protection Act’ in the Middle District Court of Louisiana, and the court sided with the abortion providers, ordering an injuction to prevent Act 620 from coming into effect. However, when the state appealed the decision, the Fifth Circuit overruled it, allowing Act 620 to become law on February 15, 2016. The clinics then appealed to the Supreme Court, which ordered that the courts wait for its ruling on Whole Woman’s Health and then rehear the June Medical case. 

Once the Supreme Court released its opinion in Whole Woman’s Health, June Medical was  re-heard at the Middle District Court of Louisiana. The judge deemed Act 620 unconstitutional, finding it an “undue burden” for Louisiana women. Then the state appealed to the Fifth Circuit, which again overturned the District’s decision, claiming that the circumstances in Louisiana were sufficiently different from those in Texas to justify ruling differently on Act 620 than the Supreme Court had on HB 2. 

The plaintiffs appealed yet again, and June Medical was back at the The Supreme Court of the United States. Justice Breyer delivered the majority opinion, with the three other liberal-leaning justices joining him. Chief Justice Roberts filed his own concurring opinion. All of the dissenting justices wrote their own opinions, but Justice Alito’s opinion was at least partially joined by the other three. 

Let’s start with Justice Breyer’s majority opinion. Breyer relied heavily on the precedent of Whole Woman’s Health, pointing out that Louisiana Act 620 “is almost word-for-word identical to Texas’ admitting-privileges law.” He observes that Act 620 would “result in a drastic reduction” of operating abortion clinics in Lousiana and would therefore create “substantial obstacles in the path of women seeking an abortion in Louisiana.” As 5 of the 6 previous abortion doctors would stop operating, there would be only one abortion provider left for the 10,000 women who annually seek abortions in Louisiana. However, this New Orleans doctor could only be reasonably expected to perform up to 3,000 abortions in one year, and only for early-stage pregnancies. Breyer found that these restrictions failed to meet Planned Parenthood v. Casey’s  “undue burden” test because they had no legal purpose to justify the significant burdens they placed. 

Chief Justice Roberts agreed that Act 620 should be struck down, but he provided completely different reasoning. Roberts made clear that he disagreed with the Supreme Court’s decision in 2016 to strike down Texas’s HB 2. Afterall, Roberts had dissented in Whole Woman’s Health and stated that he still believes that it “was wrongly decided.” Nevertheless, Roberts voted with the majority because of a legal doctrine called “stare decisis.” Stare decisis is the principle that courts ought to rule according to precedent and should therefore generally avoid overturning its older decisions. Roberts quoted the Federalist Papers for this idea, stating “[a]dherence to precedent is necessary to ‘avoid an arbitrary discretion in the courts.’ ” Roberts also quotes Justice Thurgood Marshall’s majority opinion in Vasquez v. Hillery (1986), saying that the principle of stare decisis is “the means by which this Court ensures that the law will not merely change erratically but will develop in a principled and intelligible fashion.” To abide by this doctrine, Roberts sided with the majority to uphold the court’s precedent in Whole Woman’s Health v. Hellerstedt, despite his enduring disagreement with that decision.

Justice Thomas wrote a dissenting opinion, one where he claimed that because abortion providers lack legal standing (aka, the right to sue) on behalf of their clients, their case should never have come before the Supreme Court. Thomas also argued that “[t]he Constitution does not constrain the States’ ability to regulate or even prohibit abortion.” He says that the “right to abortion” was created “without a shred of support from the Constitution’s text.” He rejects the idea that the court ought to rule according to its previous precedents, declaring that “[o]ur abortion precedents are grievously wrong and should be overruled.”

Justice Alito’s dissenting opinion was joined by Justice Gorsuch and joined in part by Justices Thomas and Kavanaugh. In it, Alito suggests that the case be sent back to the lower courts for reconsideration after a plaintiff who actually has a right to sue files the case. He also seemed to doubt that the plaintiffs had proved that “women’s access to abortions would be substantially impaired” or that abortion doctors had truly tried to gain admitting privileges before filing their complaint.

Justice Gorsuch dissented as well, asserting that Act 620’s admitting privileges requirement “would serve the public interest by protecting women’s health and safety.” He noted that “Louisiana’s abortion clinics historically have done little to ensure provider competence.” In his view, requiring doctors to gain admitting privileges would ensure that women receiving abortions are under the care of a skilled and knowledgeable physician. 

Justice Kavanaugh filed a very brief dissent, in which he expressed that “additional factfinding is necessary to properly evaluate Louisiana’s law.” He agrees with Justice Alito that the plaintiff’s case does not “adequately demonstrate that the three relevant doctors…cannot obtain admitting priviledges or, therefore, that any of the three Louisiana abortion clinics would close as a result of the admitting-priviledges law.”

After almost seven years, five trials, and four separate appeals, June Medical Services, LLC v. Russo has finally come to an end. While the decision may seem like a victory for pro-choice activists, they aren’t completely satisfied. Chief Justice Roberts’ reasoning in this case leaves his future decisions on abortion cases up in the air, thus leaving the future of abortion rights insecure. Gretchen Borchelt, the vice president for reproductive rights and health at the National Women’s Law Center, expresses her concerns in an article entitled “June Medical Services v. Russo: When a ‘win’ is not a win.” She writes, “[Robert’s opinion] argues for a system that left people seeking abortion without access to the care they need. In his concurrence, Roberts plants a flag to mark the battlegrounds for future abortion fights…. We deserved a sweeping Supreme Court decision that recognize and supports both the right to abortion and access to abortion…. This, regrettably, is not that decision.” Pro-choice representatives hope that the Supreme Court will be more decisive in the future. 

  Meanwhile, pro-life advocates were disspirited that the Court did not protect Louisiana women by requiring more rigorous standards for physicians and their facilities. Carol Tobias, president of National Right to Life, said on Monday: “We are extremely disappointed that the U.S. Supreme Court ruled against Louisiana’s 2014 ‘Unsafe Abortion Protection Act.’ The Supreme Court’s decision to strike down Louisiana’s law leaves women vulnerable.” Tobias goes on to say that “[p]ro-abortion groups have made it clear that they care more about their bottom line than the women they claim to serve. If the abortion industry were really concerned about women, they would want an admitting privileges requirement in order to reassure women that they are getting good care.” Pro-life advocates hope that future cases might make better steps toward protecting women and their unborn children. 

Personally, I disagree with the court’s decision in June Medical for a number of reasons. When applying Casey’s “undue burden” standard, it is important to weigh both sides of the law. Yes, as Justice Breyer points out, the ‘Unsafe Abortion Protection Act’ would likely restrict abortion access in Louisiana. But that doesn’t necessarily mean that it imposes an “undue burden.” A burden, perhaps, but not an “undue” one. Where I disagree with him is his claim that “the law offers no significant health-related benefits.” 

It seems only natural that if abortion facilities want to be accepted as a qualified surgical facilities, they ought to be held to the same standards that every other type of ambulatory surgical facility in Lousiana are required to meet. Ease and accessibility are no justification for improper or unsafe care.

The court’s decision also allows women to be cared for by irresponsible physicians. As mentioned previously, Justice Gorsuch noted his concern that “Louisiana’s abortion clinics historically have done little to ensure provider competence.” Sadly, the same is true across the nation. Just three months ago in my home state of Maryland, two women suffered life-threatening, horrific injuries at the hand of abortion doctor LeRoy Carhart. The first woman’s uterus had been ruptured and parts of her fetus were left inside. An anonymous witness described it as “the most horrific thing I have ever seen” (Operation Rescue). Just 9 days later, a second woman was sent by Carhart to the hospital hemorrhaging so severely that a hysterectomy was required, destroying her ability to ever bear a child again. Pro-life group “Live Action” explains that since Carhart didn’t have admitting privileges at the nearest hospital, “the emergency medical staff likely did not know the full extent of the women’s injuries.” If Carhart did have admitting privileges, it would have been his responsibility to explain what had happened and be directly involved in coordinating the woman’s care; as it was, the hospital staff were left on their own to figure out what to do. 

Finally, this ruling leaves abortion doctors unaccountable for their actions. In the incident described above, Carhart’s lack of admitting privileges (and therefore, his total absence from the woman’s emergency care) meant that his name never appeared on medical records, leaving Carhart completely disconnected with the incident he had caused. In the future, other woman seeking abortions maybe never know that they are putting their lives into the hands of such an incompetent man. 

For these reasons, I disagree with the plurality in June Medical Services, LLC v. Russo that Act 620 created an “undue burden.” I concur instead with Justice Gorsuch that the ‘Unsafe Abortion Protection Act’ would have “serve[d] the public interest by protecting women’s health and safety.” 

Tuesday, June 30, 2020

The Supreme Court released three opinions yesterday:

1. June Medical Services L. L. C. v. Russo
   1. Four years ago, the Supreme Court struck down a restrictive abortion law in Texas, one that required doctors who performed abortions to have admitting privileges at a nearby hospital (Whole Women’s Health v. Hellerstedt). The liberal-leaning justices plus Justice Kennedy agreed that Texas imposed an undue burden on the right to abortion.
   2. Yesterday the Court hewed to precedent, overturning an identical law in Louisiana that would have left the state with one licensed abortion doctor. “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided,” wrote Chief Justice Roberts. “The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.” He noted that judges must often abide by past decisions, even if they disagree with them, to maintain faith in the judiciary and prevent the law from changing too quickly.
   3. Check back on the blog soon for an opinion analysis by Noelle McDowell, a rising junior from Annapolis, Maryland.
   4. Here law professor Michael Dorf criticizes the Chief’s reasoning, calling it “rather tepid” but nonetheless a small victory for abortion rights.
2. Seila Law LLC v. Consumer Financial Protection Bureau
   1. The CFPB, or Consumer Financial Protection Bureau, is a federal agency that’s tasked with protecting American consumers. The director of the CFPB is appointed by the President for a five-year term, and by law she can only be removed because of poor work or neglecting her duties. In an opinion by Chief Justice Roberts the Court held yesterday that the director of the CFPB must be removable by the president at any time, since in Article II of the Constitution the president is charged with ensuring that the law is “faithfully executed.” Because independent agencies like the CFPB have substantial power over the economy, and because this power is concentrated in a single individual, the Chief Justice felt that they have “no basis in history and no place in our constitutional structure.”
   2. Justice Kagan dissented, arguing that Congress has had a great deal of flexibility in creating independent agencies. She writes that the Constitution doesn’t mention the president’s removal authority and that there’s ample historical precedent for single-head agencies, including the the Federal Trade Commission and Securities and Exchange Commission. Echoing her accusations of judicial activism in Janus v. ACFSME, she says her colleagues rejected “the result of [the] democratic process” and sent “Congress back to the drawing board.”
   3. Here is a Cato Institute piece praising the majority’s decision, and here’s a Slate article by Professor Leah Litman about what Seila means for the future of the administrative state.
3. Agency for Int’l Development v. Alliance for Open Society
   1. Foreign groups funded by the U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2002 must have an explicit policy against prostitution, writes Justice Kavanaugh for the majority. This requirement is constitutional because foreign organizations don’t have First Amendment rights, unlike American ones.
   2. Justice Breyer penned what lawandcrime.com calls a “withering dissent,” writing that, “Just as compelling a clearly identified domestic affiliate to espouse a government message distorts respondents’ own protected speech, so too does compelling a clearly identified foreign affiliate to espouse the same government message. Either way, federal funding conditioned on that affirmative avowal of belief comes at an unconstitutionally high “price of evident hypocrisy.”

by Anna Salvatore

Monday, June 22, 2020

by Anna Salvatore

Hope you all are staying safe.

If you missed the news last week, the Supreme Court held that the Civil Rights Act of 1964 protects gay, bisexual, and transgender employees from workplace discrimination. Of all the articles I’ve read about the Court’s decision, the best was written by Steven Mazie for The Economist. He supplies useful context for the decision, explaining that “Roughly half of America’s states have laws of their own protecting gay and trans workers; the rest do not… Now some 8.1m LGBT workers across America will enjoy federal protection from discrimination when they clock in.” He explains the reasoning of Justice Gorsuch’s opinion without oversimplifying or assaulting the reader with legalese, which to my mind is competence verging on sorcery.

Maybe you’re an auditory learner. If that’s the case, I urge you to listen to Adam Liptak’s appearance on “The Daily” last week.  With characteristic eloquence, Liptak uses Justice Gorsuch’s majority opinion and Justice Kavanaugh’s dissent to explain the difference between textualism and originalism.

In other news, the Supreme Court also decided last week that President Trump can’t terminate DACA —  the Obama-era program that allows children to stay in the United States who came here illegally as minors — without providing a reasonable justification. The President can still end the program in the future, that much everyone agrees on. He will just have to provide a reasonable explanation for doing so, since rescinding a program of such colossal importance in an “arbitrary and capricious” manner violates the Administrative Procedure Act.

Friday, June 12, 2020

by Anna Salvatore

I’ve just finished Locking Up Our Own: Crime and Punishment in Black America. Written by James Forman Jr., a Yale Law professor and former Sandra Day O’Connor clerk, the book explores why black Americans responded to a crime wave in the late 20th century by pushing for increasingly harsh gun and drug laws.

The intentions of Black politicians and city leaders were commendable. They wanted to cleanse their neighborhoods of open-air drug markets, allow women to walk the streets at night without fearing their safety, and reduce the rampant racism stemming from all-white police forces. Focusing on Washington D.C., a majority-African-American city, Forman argues that their intentions weren’t enough, for “mass incarceration is the result of small, distinct steps, each of whose significance becomes more apparent over time, and only when considered in light of later events.”

Harsh mandatory minimums and maximums seemed like a good way to keep offenders off the streets, but the sentences were too long and the collateral consequences too brutal for prisoners to ever rehabilitate. For even one conviction for possession of marijuana, they might be barred from the job market, applying to college, and voting.

Some black leaders thought that stopping cars for minor traffic violations, and then searching them, was an effective way to collect illegal firearms in the absence of a national gun control policy. The problem was that police only targeted high-crime African-American areas, and though they seldom found the guns they were looking for, they could often arrest Black drivers for baggies of weed in the console. Wonder no more why black people are arrested at higher rates than white people for using drugs, even though black and white people use drugs at the same rate. 

Forman doesn’t ignore how racism has tainted our criminal justice system. He notes that white politicians could have pursued an “all-of-the-above” solution to the crime wave, where in addition to worsening the penalties for armed robberies, they would increase funding to public schools and divert money from law enforcement to drug treatment programs. In this way they could attack the root causes of poverty and addiction, ensuring that future generations could find jobs and safe homes instead of resorting to cocaine. In the racist language of “law and order,” men like Richard Nixon refused and kept pouring, pouring, pouring money into police forces, even after shinier badges and firearms failed to prevent rising murder rates in Washington D.C. and Detroit.

How can we do undo our current tragedy, where we have 5% of the world’s population and 25% of its prisoners? Forman suggests that an “all-of-the-above” solution is the answer, where we redirect funding from police departments to the wider community. The challenge is mustering the political will.

James Forman Jr. on the “Just the Right Book” Podcast: https://www.iheart.com/podcast/263-just-the-right-book-28029987/episode/ep-71-james-forman-jr-on-29118331/

Link to his book on Amazon: https://www.amazon.com/Locking-Up-Our-Own-Punishment/dp/0374537445/ref=sr_1_1?dchild=1&keywords=locking+up+our+own&qid=1591991295&s=books&sr=1-1

Interview: Kannon Shanmugam

Kannon Shanmugam is a partner at Paul, Weiss, where he serves as Chair of the Supreme Court and Appellate Practice Group. He has argued 28 cases at the U.S. Supreme Court, including a challenge against the constitutionality of the Consumer Financial Protection Bureau this term. He also clerked for Judge Michael Luttig and Justice Antonin Scalia. Thanks very much to Sanford Hausler for making the conversation possible!

My questions are in bold; Mr. Shanmugam’s answers are in plain text. 

What were you excited about when you were my age?

I was excited about graduating from high school and going to college [laughs]. Coming out of high school, I thought I wanted to be a journalist. I became editor-in-chief of my college newspaper and I spent two summers working on the sports desk of my hometown newspaper, The Kansas City Star. I just loved writing. It was really only when I was in college that I started to think seriously about law school.

Why did you think law school was a good idea — was it the intellectual challenge or getting to write in a more academic way? 

I was a classics major in college. And classics is a wonderful major because it’s an interdisciplinary subject: you’re studying language and literature and philosophy and politics, all wrapped into one. It’s hard to pinpoint any one thing that caused me to think about law as a profession, but I knew that I really enjoyed writing and the spoken word, and I always thought that was what being a lawyer was all about — arguing your case and putting your case in writing to the best of your ability.

It’s interesting to hear that you were deciding between journalism and the law, because I don’t hear that often. I think journalism is a helpful precursor for the law, actually, because it prepares you to write in plain-English for ordinary people instead of experts. 

Being a college journalist — in particular, being a sportswriter — was great training for being a lawyer. Sportswriting is in many ways the highest, hardest form of journalism, because you’re almost always writing on deadline and things are happening before your eyes. You have to figure out how to describe them and analyze them in an exceptionally short period of time. I think that’s great preparation for being a lawyer, where you have to be able to analyze things clearly and quickly and reduce them to writing. I learned those skills as a journalist. 

It’s hard to make sportswriting original, too. You have to describe the same occurrence every day — a game between two teams — while finding fresh angles with which to approach each story. Maybe one day you delve into a player’s background and the next you analyze the coach’s strategy. 

It is a great way to learn how to write. And the other thing about sportswriting: things happen. You think that one team is going to win, and all of a sudden the other team makes a great comeback and you have to junk your original story idea. The law is a lot like that too. You have an idea about how you’re going to write a brief, and then you read a case and realize that your view of the law was not quite correct. You have to be willing to process information and change course.

While at Harvard, you also wrote a paper about mad cow disease. Your conclusion reads,  “the BSE presents the perfect example of how not to manage a public health crisis. Government agencies were far too complacent in the face of unknown but potentially massive health risks.” The parallels with coronavirus are clear. Why did you choose this topic to write about? 

That was actually a paper I wrote in law school, not in college. I’ve got you, Anna! [laughs] I wrote that paper in law school for a class called Food and Drug Law. It was taught by Peter Hutt, who is now well into his 80s but still practicing at Covington and Burling. Peter was the chief counsel of FDA. He would teach a class every winter on Food and Drug Law, and it was one of the best classes I took in law school. In fact, it was the only class I ever took on administrative law. I learned so much both about administrative law generally and about food and drug law specifically. Because it was a short course, it had a paper requirement, and I wrote my paper on the outbreak of mad cow disease, which took place while I was living in Britain.

Before arguing Maryland v. King at the Supreme Court, how did you delve into the specifics of DNA, cheek swabbing, and law enforcement practices?

That was an area of the law that I had some comfort with, because I had handled a number of Fourth Amendment cases, both in the government and then in private practice. But DNA was the technology I didn’t know a lot about, and I needed to understand the technology in order to argue the case. So I spent a lot of time with my co-counsel, Stephen Mercer, who was at the time in the Maryland Public Defender’s Office and was a national expert in legal issues relating to DNA collection and testing. I also spent time talking with scientific experts to learn both how the technology worked and how it was likely to evolve. One of the things I love about being a Supreme Court litigator, and an appellate litigator more generally, is that it’s a specialty that doesn’t focus on any particular substantive area of the law; it’s a specialty in a type of advocacy. That means I get the opportunity to learn about new subjects all the time.

In an interview with Harvard Law Today, you said that the first oral argument you saw at the Supreme Court was argued by a Hogan and Hartson attorney named John Roberts. Would you mind telling me about that case and what your takeaways were?

When I was clerking for Judge Luttig on the Fourth Circuit, he called the clerks into his office one day and said, “One of my friends is going to be arguing in front of the Supreme Court. You should go watch him argue, because he’s the best Supreme Court advocate there is.” And so we went to the Court for oral arguments. It was a case called NCAA v. Smith, and it was about whether the NCAA was subject to suit under Title IX on the theory that it received dues from federally funded institutions. If I remember it correctly, John Roberts was arguing for the NCAA, and another legendary advocate, Carter Phillips, was arguing the case for Smith. My future colleague, Ed Kneedler, was arguing the case for the government, and that was back when Ed had argued only fifty or sixty cases before the Supreme Court. 

It was just an extraordinary oral argument, and having never seen a Supreme Court argument before, I don’t think I appreciated at what a high level it was argued. I do remember coming out of the oral argument thinking two things: first, “I could never do that,” and second, “I’d sure love to do that at some point in my career.” But I never thought then that I would become a Supreme Court litigator. I thought at most that it would be fun, at some point, to argue one case in the Supreme Court. 

My friend Curtis has a question for you about how you conduct your oral arguments. He writes for the blog as well. He asks, “Do you go into arguments with a joke or two available or rehearsed?” Because we believe you when you said you were nervous about arguing at the Court. But even going back to your performance in the Ames Moot Court finals in law school, you seemed confident and able to banter with the judges. 

I try very hard not to tell jokes at arguments. That’s the justices’ job and not mine. Sometimes in the heat of the moment, you’ll say something that gets a laugh. But I don’t plan it. The last thing you ever want to do is say something that falls flat or that might be perceived as a slight at the justices. If I’ve ever said something that triggers a laugh, nine times out of ten it’s probably unintentional. 

One experienced Supreme Court advocate said to me before my first Supreme Court argument, “You have to be yourself.” I think that that’s great advice. It’s hard when it’s your first or second Supreme Court argument to feel comfortable doing it, but when you’ve done it twenty or thirty times, and when it is in a very real sense your livelihood, it becomes easier. 

People say that Supreme Court arguments are like conversations, but I don’t think that’s quite right. I’m not aware of any conversation I’ve ever had, other than at the Supreme Court, where I’m talking to nine other people at once and they’re all sitting on a bench ten feet above me. That’s not what most people think about when they think of a conversation. But you want to feel as if there is a give and take and that the argument isn’t stilted. That becomes easier the more often you’ve done it. And again, you’re never truly relaxed there, because you’re always keenly aware of the stakes and of your role in the process. It’s the justices who have all the power and decisionmaking authority, and as a lawyer you’re just a role player. But at the same time, if an oral argument goes well, it’s usually because there’s an easy exchange between the justice or judge and the advocate. 

That’s a good point. Sometimes the justices’ questions can be long, winding, and multi-layered too, making that another issue to juggle at the podium. How do you follow these types of long questions and remember all the points you have to make?

The most important thing an advocate can do — at the Supreme Court or any other court — is to listen extremely closely to the question and to give the very best answer that the advocate has to the question. Both of those things are very hard to do. When you’re arguing a case in the Supreme Court, your adrenaline is pumping, and the temptation is to think about a lot of different things — to think about how much time you have left or about the affirmative points you’d like to make. But it’s really important to pick up on not just the gist of the question, but also the nuances that are embedded in the question. The only way to do that is to listen very closely and not to finalize your answer until the justice gets to the end of the question, because sometimes the question will end up in a different place than you’re expecting. 

The most important thing that an advocate can do is give the very best answer the advocate has to the justices’ questions. When a justice is asking a question, it’s typically because he or she wants to know the answer. You can never go wrong if you come out of a Supreme Court argument and think, “I gave the very best answers I had to even the hardest questions.” That’s the key. 

The Supreme Court recently announced that it would livestream its oral arguments because of the coronavirus. Do you expect the Court to continue livestreaming once it’s operating normally? 

I’ve often said I think the Court will eventually go to same-day release and then live-streaming of the audio of its arguments. I’m pleased that the Court is doing it, even if it’s in unusual circumstances. I think that Supreme Court arguments are public proceedings, and the public should have ready access to those proceedings. Although anyone in theory can attend an argument in person, it’s exceptionally burdensome to do that. We live in a huge country — it’s not easy for ordinary citizens to travel to Washington, and when they get to Washington they often have to line up all night or pay for line-sitters in order to have a chance to hear a Supreme Court argument. To me, that’s not access in any meaningful sense.  In my view, there’s no good argument against live-streaming of audio.

A SCOTUSblog series is emphasizing the inaccessibility of arguments to most Americans. Have you seen that?

I’ve seen the series of stories; I haven’t read them all. But my anecdotal sense is that it’s gotten harder and harder for ordinary citizens to attend Supreme Court arguments, and that’s unfortunate. I think back to that first oral argument I attended in person and what a remarkable experience it was. I might not have become a Supreme Court litigator if not for that experience, and more people, especially young people, should have that opportunity.

It’ll be interesting to see how telephonic arguments work. Telephonic arguments can be challenging for advocates. I’ve had two since the coronavirus pandemic began, and I think they’re much harder than in-person arguments. 

In an article about Ted Cruz’s clerkship for Judge Luttig, the author writes that Luttig “engendered enormous loyalty from his clerks, who sat behind him as he wrote multiple drafts of an opinion over 20-hour days.” Is it true that as an impressionable young Luttig clerk you would have to pore over opinion drafts for hours? What kinds of discussions would you all have together? 

The common thread of my clerkships is that my two bosses worked extraordinarily hard on their opinions. Judge Luttig would call his three clerks into his office, and he had three computer screens set up around a table. The law clerks sat there while he sat at his desk. He worked on the draft opinion, and we had the screens in front of us so we could watch him editing the opinion. Back in 1998, that was incredibly advanced technology. [laughs] It was a great learning experience, because the judge wanted us to see his actual thought process as he was revising the opinion. He would make the changes, and he would explain why he was making them as he went. That was excellent training for my next clerkship. 

Justice Scalia would operate somewhat differently. He had just one screen in his office, and he barely knew how to use that one!  But he had such an exceptional ability to take a draft opinion and make it sound in his own voice. You would never know that he ever got a draft opinion from a law clerk, because every Scalia opinion sounds as if it was written by Justice Scalia. In a very real sense, that was true. Although he got drafts from his clerks, there was never a draft that he didn’t revise to within an inch of its life. He took language incredibly seriously, and for somebody who was such a brilliant and seemingly effortless writer, he worked hard on his writing. He would spend time on every sentence and every word, because he wanted it to be just so. That year was such a formative experience for me in learning how to write and how to think about the law.

Can you remember any specific lessons about writing that either Judge Luttig or Justice Scalia taught you? 

It’s hard to know where to start. Justice Scalia cared very much about precision in writing. One of the things he did is “book” his opinions, meaning that he would call in the law clerk who worked on the draft opinion and have the Supreme Court library pull every source that was cited in the draft. He would go through every citation and every line of the opinion with the clerk to make sure, among other things, that the draft was punctiliously accurate. That was an exceptional lesson about the importance of precision in legal writing. He wanted to make sure that no one could ever accuse him of shading a citation or not accurately capturing what a source said or misquoting lines from an opinion. I continue that practice to this day with my associates on the briefs that we file. 

Towards the end of the term, if I’m not mistaken, each of Justice Scalia’s clerks was allowed to select one opinion they’d worked on for him to autograph. They can’t talk about anything else from the term, since he notoriously would warn everyone on the first day to keep quiet. Which opinion did you choose?

I think I can share that. It’s been twenty years, so the statute of limitations has expired. I have on my wall, somewhere here in the house, the Court’s opinion in a case called Wal-Mart vs. Samara Brothers, which was a case about trademark protection for product designs.  It was not one of the highest-profile cases I worked on by any means, but it was a fiendishly difficult opinion to write, and Justice Scalia was very proud of the opinion because we persuaded the entire Court to join it and we got it down to ten pages. That really mattered to Justice Scalia, because he liked to be economical in his writing as well as precise. 

It seems like being economical was a theme of Justice Scalia’s. For bench memos he said clerks could write no more than two pages, right?

We often had to shrink the margins, but the two-page rule was a hard-and-fast one. It was because Justice Scalia didn’t want the law clerks to summarize the arguments. He wanted his clerks to give him a recommendation of what to do, and that was the sum total of what those memos contained: a recommendation as to the outcome and why. There was literally no background on the case. You’d write a memo that said, “Reverse, and here are the reasons why.” He used the bench memo not as a cheat sheet, but as the starting point for his discussion with the law clerks after argument about how he should vote. 

If you wanted to get a teenager excited about the law, which of Justice Scalia’s opinions would you recommend and why? 

I’m biased, but I think his dissenting opinion in Maryland v. King is pretty good [laughs]. It is one of his best-written opinions, and of course as an advocate I think he was right on the law. It will stand the test of time. But like so many of his best opinions, it’s incredibly engaging, it’s got such verve and such wonderful turns of phrase. No one could write like Justice Scalia. 

 

—

Other interviews conducted by Anna Salvatore: Michigan Supreme Court Justice Elizabeth Clement, University of Arizona law professor Andrew Coan, UChicago law professor Justin Driver, legal journalist Chris Geidner, 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, Princeton professor Robert George, former Court writer Linda Greenhouse, legal writing expert Ross Guberman, Georgetown professor Shon Hopwood, NPR reporter Carrie Johnson, D.C. Circuit Judge Neomi Rao, Congressman Jamie Raskin, National Constitution Center President Jeffrey Rosen, Fix the Court Director Gabe Roth, IU Maurer Law Professor Ian Samuel, BU Law professor Jay Wexler, and Lawfare editor-in-chief Benjamin Wittes. 

Monday, May 4, 2020

Today is the first day the Supreme Court is live-streaming audio of its oral arguments due to the coronavirus.

For many high school students, it’s financially impossible to see the justices in action. You may have to drive across the country, rent a hotel room, and wait outside the Supreme Court building for hours in hopes of getting a seat. 

But this morning, forced by a pandemic to modernize, the Supreme Court is broadening access to its arguments so that teenagers and adults alike can listen in real time. It’s a step the justices should have taken long ago. Just as every American deserves timely footage of legislative and executive proceedings, we also deserve timely coverage of the judicial branch, if only so we can understand how the court works and why it is legitimate. But better late than never. 

Click the CSPAN link below to listen. If you want to discuss the argument or have questions about how it works, please don’t hesitate to email me or leave a comment. There’s no such thing as a dumb question.

https://www.c-span.org/video/?471417-1/supreme-court-oral-argument-patent-trademark-office-v-bookingcom 

– Anna Salvatore

Monday, April 20, 2020

In a lively set of opinions this morning, the Supreme Court held in Ramos v. Louisiana that split juries can’t convict people of serious crimes. The Sixth Amendment guarantees Americans an “impartial jury,” and common law and precedent alike show that unanimity is essential for juries to be impartial. Because the Sixth Amendment applies to state courts through the Fourteenth Amendment’s Due Process Clause, defendants in Oregon and Louisiana can no longer be convicted by verdicts of 10-2 or 11-1.

Although the justices disavowed fractured juries this morning, their opinion in Ramos v. Louisana was fractured beyond belief. Justice Gorsuch delivered the majority opinion, parts of which were joined by Justices Ginsburg, Breyer, Sotomayor, and Kavanaugh. Justice Sotomayor filed a concurrence to disagree with Gorsuch’s analysis of precedent. Justices Thomas filed his own concurrence, arguing as he did in McDonald v. Chicago that we should incorporate the Bill of Rights through the Privileges or Immunities Clause rather than through the Due Process Clause. And then — I hope you haven’t already abandoned this paragraph — Justice Alito wrote an impassioned dissent about upholding precedent and respecting states’ interests, a surprising position coming from the justice who crusaded against and overturned the 1977 decision underpinning labor unions in Janus v. AFSCME.

For an incisive explanation of Ramos v. Louisiana, read Eugene Volokh’s posts on the Volokh Conspiracy blog. He has been studying the unanimous jury requirement for over a decade, and he will parse Gorsuch’s opinion far better than I can. Also keep an eye on Res Judicata, a blog written by UCLA law professor Richard Re. Professor Re wrote a famous paper called “Beyond the Marks Rule” about the type of fractured precedents at issue at in Ramos, and he may have illuminating thoughts about the justices’ analyses of precedent.

Finally, I want to spotlight a brilliant tweet by journalist Mike Sacks. He has a knack for spotting patterns in the Justices’ opinions, patterns which reveal how the justices will vote in impending decisions of great importance. Today he noticed that Justice Kagan joined part of Justice Alito’s dissent, where they agree that although state jury laws were motivated by racism, “[the] States readopted their laws under different circumstances in later years,” making racism irrelevant to the analysis of whether the laws are constitutional.

Knowing what we know about Justice Kagan, it’s unlikely that she would join Justice Alito’s apoplectic dissent about racism because she agrees with his reasoning.

Writes Sacks, “My galaxy brain explanation for why Kagan joined this part is so she could call Alito and Roberts hypocrites when they join Gorsuch, Kavanaugh, and Thomas this term to strike down state bans on religious school funding inspired by the anti-Catholic Blaine Amendment.” He has additional analysis on Twitter, equally astute, about the implications of Justice Kavanaugh’s concurrence for Roe v. Wade.

— Anna

Interview: Eric Segall

Eric Segall is the Kathy and Lawrence Ashe Professor of Law at Georgia State University College of Law. He has written two books: “Originalism as Faith” and “Supreme Myths: Why the Supreme Court is Not a Court and Its Justices Are Not Judges.” As is evident from his book titles, Professor Segall is a frequent critic of both originalism and the Supreme Court’s immense power.

Below is his interview with Joey Schafer, a high school student from Elkhorn, Nebraska. Joey’s questions are in bold and Professor Segall’s answers are in plain text. 

JS: At the very beginning of your most recent book, Originalism as Faith, you open by defining faith. Why did you choose this definition?

 ES: That’s a good question. The reason I wrote the book is because I think there are a ton of talented and smart — brilliant, really — law professors who are saying things about originalism that I just think are highly unpersuasive, and these are the people who are generally very persuasive. I’ve spent a lot of years trying to come up with a theory as to why these originalists are saying things about originalism that are not persuasive. When we’re talking about the popular media, and we’re talking about politicians and we’re talking about pundits, I think originalism is often just a political label to just get ahead. But when we’re talking about constitutional law professors who I really respect, and people at the other end of the spectrum, people who kind of pay attention, but are not experts — I think they need to believe that the Supreme Court decides cases based on text and history in order to have faith that the Supreme Court is a legal institution, as opposed to a mostly values-driven institution. So, all I can think of is that they’re stretching the definition of originalism very, very, very thinly. They’re doing that because they want to have faith that the court is doing something law-like, in hard constitutional cases, when, I think many of us feel that the court is making all things considered decisions. So, I think it is a question of faith for them, I think Rush Limbaugh acts in bad faith, you know? I think politicians act, but they don’t know what they’re talking about. But these law professors know what they’re talking about, and they’re saying mystifying things about originalism, and I was trying to figure out why they were doing that. And I think it’s an article of faith. 

JS: Do you ever think that there has ever been a true originalist, or could be a true originalist? 

ES: That’s a very difficult question. I don’t want to use the words “true originalist.” Do I think that there’s ever been a Supreme Court Justice that decides hard legal cases based primarily on text and history rather than all things considered decisions? Certainly not in modern times and the Supreme Court as an institution has never done that. So, whether there were isolated justices here and there, Justice Black or maybe, you know, maybe I think Justice Frankfurter, wasn’t originalist, but I think he was someone that deferred to political institutions. But I don’t think there’s ever been a truly originalist court or a truly originalist justice.

I think there are scholars out there who absolutely fairly could be labeled originalist, but all of them believe in strong deference as well. My thesis has always been that, and this has always made some people very upset, originalism without very strong deference doesn’t make any sense. We’re not going to go back and resurrect the values of slaveholders and segregationists and people who didn’t think women had equal rights and so on. We’re just not going to do that. Modern culture is not going to do that. What we could say is we’re not going to overturn laws. Judges are not going to overturn laws unless the plaintiff comes into court with clear and convincing evidence that the law is at an irreconcilable variance with the constitution. That’s Alexander Hamilton’s phrase in Federalist No. 78, and if you hold that view like I do, my fantasy world, then I think originalism makes sense because all we’re saying is that if the plaintiffs don’t prove it, they lose and they have to prove it clearly and it’s a very deferential mode. But if we’re saying like Professor Michael Rappaport does at the University of San Diego, where the originalism center is, that if a judge is 51-49 percent sure that a law should be struck down, there is no way for judges and lawyers and law clerks to do that in a historical way that I think is sensible. So, the basic theory there is: if you believe in originalism and deference, I think there are people who believe in that. If you believe in originalism and not deference, then I think that doesn’t make a whole lot of sense.

JS: In your book, you said that originalism is a theory of law and politics. How do you think this theory of law and politics interact, especially with executive appointments when it comes to the Supreme Court?

ES: It’s a theory of law and politics because the term originalist or originalism has been employed by the right to say: Our judges follow the law; your judges make stuff up. In fact, Justice Gorsuch just wrote that in his book. Justice Gorsuch has already invalidated state laws, 23 in one case, 37 in another, while he was making stuff up — in both Trinity Lutheran and in the Janus case, because in neither case is there an originalist justification for overturning the laws at issue. So, it’s a political theory in the sense that sometimes Supreme Court Justices, I think Scalia and Thomas do this and certainly the Senate Judiciary Committee, and the Republicans on that committee and certainly the media, the right-wing media, says our judges follow the law, your judges make stuff up, our judges are originalist, your judges are not, but the reality is that Republican judges strike down just as many laws as Democrat judges.

I think the next few years will bring a Supreme Court that is more hostile to independent agencies than any court since the New Deal. I think this court will, likely, on both the appointment end and the when can the president fire end, and I think they are going to strike down more laws than previous courts. I don’t really think there’s anything originalist about that, I don’t think there’s anything non-originalist, it’s just that’s not why they’re doing it. They’re doing it because their values tend towards the unitary executive. I think that’s probably anti-originalist, actually, but the point I wanted to make there is it’s not about originalism, it’s about their values today and their view of the government, today. It’s not about what they think happened in 1787.

JS: So, do you think that it’s good or bad that we’ve moved away from the direct text of the Constitution? 

ES: We never were there. We never were there. The Supreme Court has never cared about the direct text of the Constitution, or statutes for that matter. In Marbury v. Madison, John Marshall interpreted, the first case, you know, establishing judicial review. John Marshall interpreted the Judiciary Act of 1789 in a way that had absolutely nothing to do with its text so he could pose the question: What should judges do when there is a law inconsistent with the Constitution? But there wasn’t really a law, not really in that case, that was inconsistent with the Constitution, he just made it up.

The court flip-flopped on a huge constitutional issue in the legal tender cases after the Civil War solely because two judges were added to the court. If we look at the world today, the 1954 court said that there was a Federal Equal Protection Clause when there isn’t — it doesn’t exist in the Constitution. The First Amendment says “Congress” but somehow it applies to the Executive Branch. We can’t get there with text. The 11th amendment has been interpreted by conservatives, and they said, what’s important is not the clear text, and that text is clear, it is the postulates behind the text, which is no different than “penumbras and emanations” from Griswold. There are so many examples, David Strauss wrote a foreword for the Harvard Law Review, a few years ago, where he detailed all the ways the Supreme Court doesn’t care about text. He’s from the University of Chicago and he’s great. 

JS: We’ve seen all the ways in which the judicial branch can expand its own power. Do you think that means they will gain more power or lose more power over time? 

ES: That’s a hard question. I am certain that the Supreme Court today is much more powerful than the Supreme Court was ever supposed to be. Going back to originalism for one minute, there is overwhelming evidence that the Founding Fathers assumed that the Supreme Court would only invalidate laws when there were clear errors or irreconcilable variances, as Hamilton said. The history of that’s pretty clear, and historians like Jack Rakove, Sylvia Snowiss and many others say that it’s just obvious if you read the early cases, and if you read the Federalist papers, they didn’t expect the Supreme Court to be this strong. Having said that, our country has grown and developed, and now we have this very strong Supreme Court. I’ve said before that because they have life tenure, they have very few limits.  The first limit is what they think they can get away with. And I don’t mean that in a nefarious sense, but if they move too far away from the center left or the center right of the American people — you know, as Hamilton also said, the Supreme Court has no purse and no sword, it only has its prestige. If it gets too far away from dominant opinion, it will lose its prestige, and if it loses its prestige, it will lose its power. The other limit on the court is that there is, I think, this kind of internal idea that historically, that they should only hear cases and controversies. That idea, however, is becoming lost in cases like Trinity Lutheran, and the gun case this term might be another example of that. There is a case or controversy limit; someone has to bring a case to them. So that is a limitation on them. They can’t just pass a law like Congress. What constitutes a case, though, is becoming even more ill-defined than it’s ever been because they want to reach out and decide more cases. 

JS: There is, I guess, a popular phrase in right wing circles and beyond that: the phrase “legislating from the bench.” Do you think that most court decisions, or all decisions, are doing this because the Supreme Court hasn’t been traditionally true to the text?

ES: I don’t know that I’d call it legislating from the bench. What I would say is, most constitutional law cases that get litigated implicate imprecise text like “unreasonable search and seizures,” or “free exercise of religion,” or “equal protection,” or “due process.” The text refers to broad commitments I hope that all Americans share: freedom of speech, freedom of religion, equal protection, protections for criminal defendants, the right against self-incrimination, double jeopardy. We all share those; everybody shares those grand ideals. Applying them to hard cases is very difficult because the text is imprecise, the history is contested, or the history doesn’t help.

One example I give is that President Obama assassinated an American citizen who was having lunch in Yemen,without any judicial process whatsoever. That American citizen was a horrible person and was most likely was a terrorist and did dastardly things. But no court had ever found him to do so. Should presidents have the power to unilaterally assassinate an American citizen having lunch in Yemen because that person is a terrible terrorist, but no judge has ever ruled that way? My answer is probably no, and I’m willing to say I could be wrong. But I’ll tell you where the answer isn’t. The answer isn’t in text or history. For us to think that we can go back to 1787 and think about the values back then and translate that to the idea that someone sitting in Washington D.C. can push a button which causes a plane to kill a person having lunch with a drone, because that person can maybe blow up New York in 10 minutes with the right technology — there’s nothing in 1787 that tells us anything about that. By definition, if that case were to be brought, or a thousand cases like it, texts and history just aren’t going to solve it. So, something else has to solve it. Is obscenity free speech? The court says no, I’m not sure. Should hate speech be protected or not? The court says hate speech should be protected, and I’m not sure that’s the right answer. What’s the proper, you know, balance between wanting to avoid corruption in elections and limit corporate wealth domination of those elections versus the corporate right to free speech? Hard questions. You’re not going to find the answer by reading the Constitution or by reading the history of the Constitution.

To resolve those cases, the court is going to have to make up its mind based on its own set of modern values. You might call that legislating from the bench, I prefer to call it all-things-considered decisions, kind of a general veto power because texts and history aren’t going to get you there. The only way to avoid that system is to have judges that are strongly deferential, and that’s the system I want, but it’s not the system we have. 

JS: Back when Justice Kennedy was on the bench, he talked a lot about the calculations on what constitutes gerrymandering and things like that. The tests were all things that he came up with, or other jurists had come up with.

ES: Yeah.

JS: What does that show about the Supreme Court and how they use their power? 

ES: Well, I mean the court punted on gerrymandering and Kennedy ultimately punted on gerrymandering. I think that’s the right answer. I think the problem with gerrymandering is that it’s not unique. It’s close to unique because it does go to the heart of the political process and it’s hard to imagine any remedy other than a legal one for this terrible partisan gerrymandering.

But I think the remedy would be worse than the evil, because there is no principle in the Constitution’s text or history that could possibly guide us. I am a progressive, as you know, and this drives progressives crazy when I say this, but the reality is that any mathematical formula could be evaded and any mathematical formula would be arbitrary anyway. I think gerrymandering is one of our biggest public policy problems. The court almost never saves us from ourselves in that sense. When I say things like that, people say things like: What about Brown v. Board of Education? And I say the South was 98% segregated 10 years later. It was Congress that pretty much ended formal segregation. I’m a pro-choice person. People say: What about Roe and Casey? That helped a little bit with women seeking abortions, but it was true in 1972 that rich women could get them, easily, middle class women could kind of get them, and poor women could not. And if you live anywhere outside of New York and California today, that’s still pretty much true. And, of course, Roe and Casey brought all kinds of evil upon the Left, in nefarious and terrible ways. So, I don’t think the court is very good at solving our biggest problems and gerrymandering is definitely one of our biggest problems.

JS: Do think that the Court could, I guess, move the social needle? I feel like that’s what we say after the Obergefell decision.

ES: Alright, this is going to get hard — are you ready? (laughing) 

JS: Yep. (laughing)

ES: I’m going to make a baseball analogy, ok? I live in Atlanta. I moved back here in 1991. And I think the Atlanta Braves won 14 division championships in a row. 14. They only won one World Series. They lost a second World Series in 7 games, in the bottom of the 10th inning, in the closest World Series in history. The seventh game decided by one run. The Braves legacy was kind of mixed. They were very consistent, they were very good, and they only won one World Series in those 14 years. If that closest World Series goes another way—I’m getting to a point here—if that World Series goes another way, if instead of a one-nothing loss, it’s a one-nothing win, the Braves themselves didn’t change. Right? It’s the same team.

JS: Yeah. 

ES: History would absolutely look at them differently if they had two championships instead of one. I really believe that. Now, the only reason we have Obergefell, there’s one reason, and one reason only. The one reason we have Obergefell, and not just Obergefell but Windsor and Lawrence v. Texas, and Romer, the four gay rights opinions in history that ruled for gays and lesbians, all written by Justice Kennedy, the only reason we have any of them, is because Justice Kennedy grew up in Sacramento and he had a very close mentor who was a gay man, in the closet back then, of course, and Justice Kennedy personally saw the indignities this man had to suffer, which is why he talked about dignity, I think, in Obergefell. So, it is true, I think that the Supreme Court led the way a bit on same-sex marriage, but that’s only because of Justice Kennedy’s mentor. And only because Judge Bork didn’t get that seat, and only because then, Judge Ginsberg, the second guy to get that nomination, didn’t get that seat. It took a perfect storm of luck for Obergefell to happen.

One more point about that: When the Prop 8 Case from California came up in the same term as the Windsor DOMA [Defense of Marriage Act] case, the Court ended up dismissing the Prop 8 case for lack of jurisdiction, therefore validating the federal DOMA but saying it was a state issue for lower courts. The only reason they did that, as Justice Ginsburg knew, is that if they decided Obergefell two years earlier or whatever it was, the same time as Windsor, there would have been a horrific Roe v. Wade-like backlash. It’s no coincidence that Justice Ginsburg ran around the country in the months preceding the Prop 8 case, saying of course that she’s pro-Roe v. Wade and pro-choice, but that we did too much in one swoop and we shouldn’t have done it that quickly. She then voted against standing in the Prop 8 case, in a way that was very anti-her-general-philosophy because she did not want that case decided then. So, the court decided Windsor, it goes back, the state issues go back to lower courts, and then virtually all of them strike state same-sex marriage bans down. By the time it gets back to the Supreme Court, the American people are ready for it. Again, that was fantastic strategy by Justice Ginsburg, it worked, and I think those two combinations of things might make same-sex marriage not a lesson that should be generalized from. I think Brown and Roe are more lessons we can generalize from, and Brown and Roe at the end of the day, neither did very much for segregation or abortion. 

JS: Do you think that with the current composition of the court, with justices saying they’re originalist, but their jurisprudence not really reflecting that, do you think that right now people should have faith in the court?

 ES: I mean my first book, Supreme Myths: Why the Supreme Court is Not a Court and Its Justices are Not Judges was written in 2010 and 2011 and published in 2012. I had lost faith in the court back then. And plus, when Justice Scalia passed away and everyone thought Hillary Clinton was going to win, and everybody, my friends, my good friends, who I could not respect more, were writing op-eds talking about all the great things liberal judges were going to do after we have a liberal Supreme Court, I was saying no, no, no, freeze the Court at 8 justices, 4 Republicans, 4 Democrats for the rest of time and that would make the Court less powerful. I lost my faith in the court long before the current personnel.

I will say that I think that Thomas and Gorsuch and Kavanaugh’s commitments to Originalism are politically inspired, not reflected by their votes. With Kavanaugh and Gorsuch, I think it was part of how they were raised, but they don’t vote that way. But that’s when I say that’s not surprising for politicians. I think most people have a sense that politicians speak out of both sides of their mouth. They just do. Even when they don’t have to get reelected. Second term governors, second term presidents, when they know that there is a not another time they’re running, they still talk out of both sides of their mouth. People won’t accept me criticizing Supreme Court justices for doing the same thing. I’m not just blaming the originalists. I think they are politicians with a lot of power and they’re going to do what politicians are going to do. My point here is: if one is skeptical of politicians, as most Americans are today, one should also be skeptical of Supreme Court justices. 

JS: You mentioned freezing the court at eight justices…

ES: Or any even number.

JS: Or any even number? 

ES: Or any even number. Back then it would’ve been easy, because there would’ve been four Democrats and four Republicans.

JS: We’ve seen presidential candidate Pete Buttigieg advocate for adding more justices to the Supreme Court, especially liberal justices, liberal justices that could help promote liberal initiatives. Does this concern you in expanding the power of the court? 

ES: So, I wrote a piece for Salon, sometime in the last year, where I said that the Left is coming around to reforming the court for all the wrong reasons. All of the court restructuring plans, including ones about tenure, and everything else, the idea is to weaken the court. Not just balance it, but weaken it, I think, and you know, I’ve been arguing that for a very long time. I think a lot of the Left is doing that now because they know they’re going to get a conservative court for the next 20-30 years. That’s the wrong reason. It’s a flawed institution. No other country in the world has our tradition of strong judicial review which then you add to that, life tenure, and you get an incredibly powerful political institution, by far and away the most powerful court in the world, and I think we should weaken it. Even though I’m a progressive, we shouldn’t weaken it so it will do more progressive things. We should weaken it so it will do less things on both sides.

JS: So, would your dream court look like, you know, however many justices deciding to overturn Marbury v. Madison?

ES: (laughing) I would not overturn Marbury v. Madison. I think that judicial review was contemplated by the Founding Fathers. I think in a system of checks and balances, and separation of powers, some very limited, deferential, clear error-rule judicial review is not a bad thing. And I think it has some advantages to it.

When you think about Court of Appeals judges in the federal system, they only reverse factual findings by the district court if they are clearly erroneous. They don’t do it very often. That’s the kind of deference we should have. I’m in favor of that kind of Supreme Court. I don’t think we’ll ever get there so I haven’t decided whether this Supreme Court or no Supreme Court would be better. I’m pretty sure no Supreme Court would be better, but I’m not positive about that.

My dream Supreme Court would be, in realistic, non-fantasy standards, nine moderate justices who thought that their job was very limited and should only step in when things really go awry. I think this would be very, very rare. Now nothing I’m saying has anything to do with the 4th, 5th, 6th, and 8th amendments. I want to make that clear. When we’re talking about what is double jeopardy, what is self-incrimination, what confessions get into court, what searches are unreasonable, I’m not talking about deference there because judges are the experts on evidence and criminal procedure. It’s their courtrooms, they get to run them how they see fit according to broad parameters. That’s a whole world away from abortion, guns, affirmative action, campaign finance reform, separation of powers and things like that. 

JS: Do you think that, this type of Supreme Court can happen when you have the President making judicial appointments to the Supreme Court?

ES: I think it’s theoretically possible. It’s not going to happen in my lifetime, my children’s lifetime, or their children’s lifetime, unless, unless, there’s a court crisis. So now Barry Friedman, a professor at NYU, is probably the expert, or at least the most well-known professor, who has said that traditionally the court usually follows dominant public opinion. It wavers a bit, here and there, but he wrote a whole long book about it and I think he’s right. He has said recently that he is concerned that this court is going to go several standard deviations to the right of the median right-wing voter and is going to fall out of step with public opinion. I think that happened maybe in Dred Scott; it may have happened in the Lochner era. When this happens, there is usually a correction of some kind. I think that, I’ll put it this way, if the House and Senate both go Democrat, and the President is Democrat, they will restructure the court. I have no doubt about that. And they’ll end the filibuster to do it. I have no doubt about that. How that restructuring goes, I hope, would be, not to make the court more progressive but to make the court weaker. Whether that will happen or not, who knows. I think the Garland thing was a bridge too far. And I think the Democrats are not going to forget that. And they shouldn’t.

JS: I’m going to turn away a bit from this topic to talk about the field of law in general.

ES: Sure.

JS: I think a lot of the people who read our blog are high school students who are interested in law. How do you recommend they get into the field? 

ES: Well, I think the rule of law is under threat in this country, I don’t think that’s a controversial thing for people on the Left to say. Right now, I think the rule of law is as threatened as it’s ever been. Part of that shouldn’t be surprising to anybody. This is the first president in American history, I’m pretty sure, with zero government experience, and/or zero military experience. I think every president has had one of those two things. He didn’t; he was a businessman. That’s probably the best thing, if I can say anything about him. He is running his presidency as if it is a corporation and not a government. So, the rule of law is really important, and I think lawyers, you know, all the litigation in the lower courts, even when they get to the Supreme Court and lose, slows the attack on the rule of law and mediates it. The Travel Ban went from a terrible thing to a slightly less terrible thing, it was modified a little bit, thanks to the hard work of lawyers.

I think one of the benefits of being any kind of lawyer, even if you’re a big expensive corporate lawyer, is that you can take a pro bono case and find someone out there who needs your services. Helping one person — one person’s life gets better because of you — can be an incredibly rewarding thing. I hope that that idea of going to law school, becoming a lawyer, and picking, you know, you can be a government lawyer, you can be a state or federal or local lawyer, a big corporate lawyer, defense lawyer, public defenders, whatever you do you affect people’s lives. If you do so in a positive way that is an admirable thing, and of course if you want it to be, and if you’re good at it, it can be a very lucrative profession, So, I think there are a lot of good things about being a lawyer.

On the other hand, there are major problems with the profession that I think we shouldn’t close our eyes to. I think big-time corporate lawyers work much too hard; it’s very hard to have a family and so on. But overall, I have faith that it’s a noble profession by and large.  If you quote me on that, which you can, it will surprise people that I’ve said this. I’ll give you another example. I have not once in my life, not for a second, wanted to be a defense attorney. Because, to me, I’m glad guilty people have representation, they should. I don’t want to do that job. That’s not how I want to go to bed at night. I don’t want to be a prosecutor either; putting someone in jail is not like, YAY, I put someone in jail, that’s not what floats my boat. But thank God there are people who want to do both jobs. And both of those jobs are noble, if done correctly. Both of those jobs are incredibly noble and make our system of justice better.

JS: If we were to take teens, young people, from across the country, and we were to put them on the Supreme Court and make them the nine justices, do you think that would be more effective or less effective? 

ES: Are you asking me if we should put high schoolers on the Supreme Court?

 JS: As opposed, to legal professionals, random people, yeah.

 ES: Justice Scalia famously said, in the Cruzan case, involving end of life issues, that there is nothing about the question in the Constitution and that nine people could be picked from the Kansas City phonebook, at random, because the Constitution doesn’t talk about end of life issues. I don’t think he’s right about that, in a very important sense. If we’re going to have a Supreme Court that is going to second-guess legislation, which we do, and if we have a Supreme Court that’s going to strike down laws without being based on clear texts and history, which we do, then what we really want on the Supreme Court are very smart people whose judgement we trust. Unfortunately, the nomination process doesn’t really get us that, because to get to the Supreme Court, you have to run the gauntlet of political left and right. I love the idea of having really, really smart people; many countries that have judicial review have a constitutional court.  I wish we had a specialized constitutional court, where we just put our smartest people who we trust the most.

The Supreme Court is incredibly important, and how it rules on abortion, affirmative action, death penalty, etc. matters. So, I don’t like the idea of putting high school students on it, solely because it is a job that requires judgement, experience, maturity, and humility. I think one has to be out in the world for a little while before they fully develop those skills, which is not in any way meant to demean high school kids. But I really think humility and modesty, character and judgement are what matters the most. For example, one of my favorite justices is Justice Souter. I didn’t agree with everything he did, but I think he had a lot of humility, I really do. I think he was a humble man. I think in some ways, Justice White was a humble man. I mean he was a great football player, but I think in some ways he was humble. It’s almost all we can ask for these days. By the way, I do not read Gorsuch, Kavanaugh, Thomas, or Alito as humble. Roberts I’m not sure. Nor, do I think Kagan, Sotomayor or Ginsburg are humble, or Breyer then. I don’t think we have any humble Supreme Court justices right now. 

JS: You said you wanted to have the Supreme Court be the smartest, best qualified people for that job. How would you pick those people, just in theory?

ES: Right, so that’s why I came up with what many people thought to be a crazy idea of having four Republicans and four Democrats. Let’s say that there are four Republicans and four Democrats on the court. An even number of both, and a Republican dies or retires. Whoever is the president has to put a Republican on the court. If the president is a Democrat, the president is going to have to put a Republican on the court, and he’s going to look for a moderate Republican. And the same is true for a Republican looking to put a Democrat on the court. Some kind of structural change like that is necessary. Without that, what we’re going to get is justices who the president thinks will strongly support whatever agenda the president has. In Trump’s case it’s deregulation. In Bush’s, the second Bush’s, it’s executive power. In Obama’s case, I think it was also executive power, to some degree. In Nixon’s case it was law and order judges who would be tough on crime. Unless we change the system that’s what we’re going to get, assuming they can get them through the Senate. The post-Garland world of the president with a Senate of the other party is like a dystopia. I don’t know what’s going to happen with that. This would surprise me, but we could live in a world where presidents only get a nomination if his party controls the Senate. And that’ll make everything worse. The other side of that is, there are smart law professors out there, Jonathan Adler of Case Western who I’ve debated on Twitter now for a decade. He would say no, it’s been both sides tit-for-tat, for a very long time, going back to Bork and maybe before that, and the Garland thing was just one more move in that chess game. And I disagree, I think holding the spot open on the Supreme Court was different in kind, not degree. It paid off. I think it’s going to change all the rules.

JS: I’ve noticed that in this conversation, you’ve referred to them as four Republican justices and four Democratic justices, while most people use the term liberal or conservative. Is that because you think most justices ascribe more to the beliefs of the party that appointed them rather than to jurisprudential principle?

ES: Well, I think that obviously, famously, there have been justices that have veered leftward, Blackmun, Souter. There have been justices that have veered rightward; famously Justice White, who was appointed by John F. Kennedy and ended up being pretty conservative. But I think those days are over, and that the Republican Party had a rallying cry for a very long time, no more Souters, no more Kennedys. And Kennedy was very conservative, but on some issues he went left. No more Souters, no more Kennedys. So, I think the Republicans have learned their lesson on that, and Republican presidents are going to appoint justices who tow the Republican party line. If Democrats ever get the presidency again, and the Senate, they’ll confirm their justices, and they’ll do the same thing. I don’t think we’re going to get very many more moderates, and I think that’s going to make things much worse, and that makes me pessimistic about the future of the Supreme Court, absent structural change. 

JS: Do you think there will be any presidential candidate in the near or far future who would campaign and advocate for that type of structural change, and do you think that would be a popular thing to say on a campaign?

ES: You would think someone could stand up and say I’m tired of the confirmation wars, I’m tired of the Supreme Court, on both the left and right, having such a big role in our country. Let’s either vow to only appoint very moderate justices or change the system so they count less. Gosh, I think the American people would like that. But I don’t know. (laughing) I think right now it’s our judges versus your judges.

 JS: Do you want to run in 2020 on that message?

ES: (laughing) I was born in Canada. I’m disqualified. I was about to say I’m too old, but based on the ages of many of the candidates, I may be too young, I’m 61. I think that message would resonate, but maybe I’m just being naive. I do a lot of radio, and I speak to non-lawyers a lot. When I was given time — and it was really generous to be given time from several radio shows, to really explain my proposal — and I gave a ton of speeches about it, to smart, engaged non-lawyers, they really understood and agreed with my proposal, because first of all, it would take the randomness out of the political nomination process. You know, if God forbid two of the Republican or two of the Democratic justices got killed in a car accident the next month, the whole structure of the court would change out of randomness. Or politically timed retirements. That’s just a dumb system of nominating judges, and life tenure is really dumb. My system is designed so that every result they would reach, one Democrat would have to agree with one Republican, and vice versa. And, I think, whether that proposal is doable or not, and I had a whole legislative way of doing it, the idea is to weaken this institution which is very badly distorting the political process. 20-25% of people said that the Supreme Court was the most important issue for them to vote, for the last election; of those, 56% of them voted for Trump. That is my understanding of those numbers. That’s a distortion. We shouldn’t be voting for presidents because of the kind of Supreme Court we want. We should be voting for presidents for economic reasons, for leadership reasons, foreign policy reasons, not for what judges you’re going to appoint. 

JS: Yeah, I think that’s right.  Just going back to originalism, because I have one final question on that.

 ES: Yeah, sure.

JS: Let’s say that we have an originalist court that was interpreting the Constitution directly on what it says, and we haven’t done that until now and I don’t think we could. But, in theory, do you think that would be good or bad? Because I think that it would make the court a kind of high-stakes debate club over the meaning of words.  Are the moral judgments that we include now good? 

ES: So, the answer is not originalism, the answer is deference, and those aren’t the same thing. I do not think we should have a court that addresses issues today by the values of our country in 1787 or 1868. I think that that’s insane. I do. And by the way, going back to the very first question you asked me, I’ve just written a few pieces, quoting some of the most famous originalists like Larry Solum at Georgetown and Ilya Somin at Antonin Scalia School of Law, who claim that women are protected by the Fourteenth Amendment in terms of gender discrimination, when we know that this wasn’t the original public meaning of the Fourteenth Amendment. We know this. It’s not debatable.

In 1872, the Supreme Court upheld an Illinois law that prohibited women from being lawyers. Everybody, all originalists say that law would be unconstitutional today. And yet they say they’re originalist. So I’m trying to figure out why these smart people are saying that. It makes no sense, and what they say is, what Larry Solum and Ilya Somin say, is of course we’re not bound by erroneous factual assumptions that people living then made, even if we are bound by the text of the Constitution. People in 1868 didn’t think women had the skills to become lawyers. We know that was wrong, so now we can overturn that, even though it’s inconsistent with the original public meaning, and say we’re Originalists. Well, no we’re not. That’s just living constitutionalism. When facts change, the application of the texts changes. It has to.

No one thinks, except for maybe Justice Thomas (laughing), that we should have 1868, 1787 society again. It doesn’t make any sense. So, the key to reforming the court, or thinking about reforming the court is not originalism, it’s deference. I think we could live in a world where we interpret our Constitution extremely narrowly, and say that voters are going to decide most issues, and only when something is flagrantly and obviously unconstitutional will judges step in. That’s rational, I think. People could disagree with it, but its rational, its coherent. That’s the key. There’s no one that believes that we are going to run our country based on the values of segregationists and misogynists and the world that’s technologically completely different from the one that we have today. No one believes that. They may say they do but they don’t.

In Trinity Lutheran Justice Gorsuch wrote a very broad opinion to invalidate 37 state laws that say no public money can go to a religious institution. Most of those laws were passed in the 19th century. And most originalists, if not all originalists, say they don’t violate the original meaning of the Free Exercise clause. Either in 1787 or 1868. Because all of these laws were passed in 1870, 1880, 1890. I think that a state law that says no money can ever go to a religious institution raises very hard issues. I’m not even sure how I feel about that kind of law. What I do know is that we can’t analyze that based on the 1870s, we have to analyze that based on 2020. And they know that too, which is why Gorsuch voted to strike them all down, even though there’s no originalist method of doing so.

JS: Alright, thank you so much for your time! 

ES: Thank you. Very smart questions, very impressed.